[Federal Register Volume 76, Number 54 (Monday, March 21, 2011)]
[Rules and Regulations]
[Pages 15456-15551]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-4492]



[[Page 15455]]

Vol. 76

Monday,

No. 54

March 21, 2011

Part III





Environmental Protection Agency





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40 CFR Part 241



Identification of Non-Hazardous Secondary Materials That Are Solid 
Waste; Final Rule

Federal Register / Vol. 76 , No. 54 / Monday, March 21, 2011 / Rules 
and Regulations

[[Page 15456]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 241

[EPA-HQ-RCRA-2008-0329; FRL-9273-1]
RIN 2050-AG44


Identification of Non-Hazardous Secondary Materials That Are 
Solid Waste

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA or the Agency) is 
publishing a final rule that identifies which non-hazardous secondary 
materials, when used as fuels or ingredients in combustion units, are 
``solid wastes'' under the Resource Conservation and Recovery Act 
(RCRA). This RCRA solid waste definition will determine whether a 
combustion unit is required to meet the emissions standards for solid 
waste incineration units issued under section 129 of the Clean Air Act 
(CAA) or the emissions standards for commercial, industrial, and 
institutional boilers issued under section 112 of the CAA. In this 
action, EPA is also finalizing a definition of traditional fuels.

DATES: This final rule is effective on May 20, 2011.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-HQ-RCRA-2008-0329. All documents in the docket are listed on 
the http://www.regulations.gov Web site. Although listed in the index, 
some information is not publicly available, e.g., confidential business 
information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, 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 RCRA Docket, EPA/DC, EPA 
West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The 
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Public 
Reading Room is (202) 566-1744, and the telephone number for the RCRA 
Docket is (202) 566-0270.

FOR FURTHER INFORMATION CONTACT: George Faison, Program Implementation 
and Information Division, Office of Resource Conservation and Recovery, 
5303P, Environmental Protection Agency, Ariel Rios Building, 1200 
Pennsylvania Avenue, NW., Washington, DC 20460-0002; telephone number: 
703-305-7652; fax number: 703-308-0509; e-mail address: 
<a href="/cdn-cgi/l/email-protection#8debece4fee2e3a3eae8e2ffeae8cde8fdeca3eae2fb"><span class="__cf_email__" data-cfemail="187e79716b7776367f7d776a7f7d587d6879367f776e">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: 

A. Does this action apply to me?

    Categories and entities potentially affected by this action 
include:

----------------------------------------------------------------------------------------------------------------
                       Generators                                                  Users
----------------------------------------------------------------------------------------------------------------
                                                             Major boiler type and
        Major generator category              NAICS*       primary industry category            NAICS*
----------------------------------------------------------------------------------------------------------------
                                         ...............  Industrial Boilers:
                                                         -------------------------------------------------------
Crop Production........................             111   Food Manufacturing........  311, 312,
Cattle Ranching and Farming............            1121   Pulp and Paper Mills......  3221
Hog and Pig Farming....................            1122   Petroleum Refining........  32411
Poultry and Egg Production.............            1123   Chemical Manufacturing....  325
Sheep and Goat Farming.................            1124   Primary Metal               331
                                                           Manufacturing.
Horses and Other Equine Production.....          112920   Fabricated Metal            332
                                                           Manufacturing.
Logging................................          113310   Other Manufacturing.......  313, 339, 321, 333, 336,
                                                                                       511, 326, 316, 327
Support Activities for Crop Production.           11511
                                                         -------------------------------------------------------
Bituminous Coal and Lignite Surface              212111   Commercial Boilers:
 Mining.
                                                         -------------------------------------------------------
Bituminous Coal Underground Mining.....          212112   Retail....................  442-454
Anthracite Mining......................          212113   Warehouse.................  493
Fossil Fuel Electric Power Generation..          221112   Education.................  611
Sewage Treatment Facilities............          221320   Health Care Facilities....  621
Construction of Buildings..............             236   Social Assistance.........  624
Site Preparation Contractors...........          238910   Lodging, Restaurant.......  721, 722
Beverage and Tobacco Product                        312   Office....................  813, 541, 921
 Manufacturing.
Sawmills and Wood Preservation.........           32111   Other.....................  922140, others
Veneer, Plywood, and Engineered Wood              32121
 Product Manufacturing.
                                                         -------------------------------------------------------
Engineered Wood Member Manufacturing...          321213   Common Non-Manufacturing Boilers:
                                                         -------------------------------------------------------
Pulp, Paper, and Paperboard Mills......            3221   Agriculture (crop &         111, 112, 115
                                                           livestock production).
Solvents Made in Petroleum Refineries..          324110   All Mining................  212
Solvent Dyes Manufacturing.............          325132   Construction..............  236
Plastic Manufacturers..................          325211
                                                         -------------------------------------------------------
All Other Miscellaneous Chemical                 325998   Other Boilers:
 Product and Preparation Manufacturing.
                                                         -------------------------------------------------------
Packaging..............................           32611   Electric Utility Boilers..  2211
Other Rubber Product Manufacturing.....           32629   Non-Hazardous Waste         327310
                                                           Burning Cement Kilns.

[[Page 15457]]

 
Glass and Glass Product Manufacturing..            3272   ..........................  ..........................
Cement Manufacturing...................          327310   ..........................  ..........................
Iron and Steel Mills...................          331111   ..........................  ..........................
Electrometallurgical Ferroalloy Product          331112   ..........................  ..........................
 Manufacturing.
Metal-Casting Industry.................          331522   ..........................  ..........................
Recyclable Material Wholesalers........          423930   ..........................  ..........................
Landscaping Services...................          561730   ..........................  ..........................
Solid Waste Collection and Solid Waste   562111, 562212   ..........................  ..........................
 Landfill.
Automotive Repair and Replacement Shops          811111   ..........................  ..........................
----------------------------------------------------------------------------------------------------------------
* NAICS--North American Industrial Classification System.

    This table is not intended to be exhaustive, but rather provides a 
guide for readers, including lists of examples of the types of entities 
likely to be impacted by this action. Other types of entities not 
listed could also be affected. To determine whether your facility, 
company, business, organization, etc., is affected by this action, you 
should examine the applicability criteria in this rule. If you have any 
questions regarding the applicability of this action to a particular 
entity, consult the person listed in the preceding section: FOR FURTHER 
INFORMATION CONTACT.

B. Why is EPA taking this action?

    Clean Air Act (CAA) section 129 states that the term ``solid 
waste'' shall have the meaning ``established by the Administrator 
pursuant to [RCRA].'' The purpose of this final rule is to provide a 
definition of ``solid waste'' in order to develop emission standards 
under sections 112 and 129 of the CAA. In particular, this rule 
codifies requirements and procedures that identify whether the 
definition of ``solid waste'' applies to non-hazardous secondary 
materials burned as fuels or used as ingredients in combustion units. 
In related actions in this Federal Register, EPA is concurrently 
finalizing air emission requirements under section 112 of the CAA for 
industrial, commercial, and institutional boilers and process heaters, 
as well as air emission requirements under section 129 of the CAA for 
commercial and industrial solid waste incineration units.

Preamble Outline

I. Statutory Authority
II. List of Abbreviations and Acronyms
III. Introduction--Summary of Regulations Being Finalized
    A. Identifying Which Non-Hazardous Secondary Materials Are or 
Are Not Solid Wastes When Used in a Combustion Unit
    1. Within the Control of the Generator: Non-Hazardous Secondary 
Materials That Are Legitimately Used as Fuels Within the Control of 
the Generator Are Not Solid Waste When Used in Combustion Units
    2. Scrap Tires: Scrap Tires That Are Legitimately Used as a Fuel 
That Are Removed From Vehicles and Managed Under the Oversight of 
Established Tire Collection Programs Are Not Solid Waste When Used 
in Combustion Units
    3. Resinated Wood: Resinated Wood That Is Legitimately Used as a 
Fuel Is Not a Solid Waste When Used in Combustion Units
    4. Ingredients: Non-Hazardous Secondary Materials That Are 
Legitimately Used as Ingredients Are Not Solid Waste When Used in 
Combustion Units
    5. Discards: Discarded Non-Hazardous Secondary Materials That 
Have Undergone Processing To Produce Legitimate Fuel or Ingredient 
Products Are Not Solid Waste When Used in Combustion Units
    6. Non-Waste Determination: Non-Hazardous Secondary Materials 
Used as a Fuel for Which a Non-Waste Determination Has Been Granted 
Are Not Solid Waste When Used in Combustion Units
    B. Codification of the Legitimacy Criteria
IV. Background
    A. What is the history of CISWI, CISWI definitions, and boiler 
rulemakings?
    B. Why is the Court's decision affecting the CAA rules relevant 
to RCRA?
    C. What is the history of the definition of solid waste?
    1. Statutory Definition of Solid Waste
    2. Solid Waste Program, RCRA Subtitle D
    3. Hazardous Waste Program, RCRA Subtitle C
    4. Case Law on the Definition of Solid Waste Under RCRA Subtitle 
C
    5. Concept of Legitimacy
    D. Summary of the ANPRM
    E. Summary of the Proposed Rule
    F. Use of Secondary Materials
    1. Introduction
    2. Secondary Materials Use and Benefits
V. Comments on the Proposed Rule
    A. Proposed Approach
    1. Definition of the Term Discard
    2. Processing Requirements
    B. Comments on Specific Materials Used as Fuel
    1. Traditional Fuels
    2. Manure
    3. Other Biomass
    4. Pulp and Paper Sludge
    5. Scrap Tires
    6. Resinated Wood Residuals
    7. Used Oil
    8. Coal Refuse
    9. Coal Combustion Residuals
    10. Sewage Sludge
    11. Processed Fats
    C. Comments on Specific Materials Used as Ingredients
    1. Cement Kiln Dust
    2. Coal Combustion Residuals
    3. Foundry Sand
    4. Blast Furnace Slag/Steel Slag
    D. Comments on Legitimacy Criteria for Fuels
    1. Managed as a Valuable Commodity
    2. Meaningful Heating Value and Use as a Fuel
    3. Have Contaminants at Comparable Levels or Lower Than 
Traditional Fuels
    E. Comments on Legitimacy Criteria for Ingredients
    1. Managed as Valuable Commodities
    2. Useful Contribution
    3. Quantifying an Ingredient's Contribution to Production/
Manufacturing Activity
    4. Contaminants in Ingredients
    5. Comparing Contaminant Levels in Products
    F. Comments on Non-Waste Determination Petitions
    G. Comments on the Other Approaches for Defining Solid Wastes
VI. Summary of Major Differences Between the Proposed Rule and Final 
Rule
VII. Detailed Discussion and Rationale for Today's Final Rule
    A. Traditional Fuels
    B. Non-Hazardous Secondary Materials Used as Fuels That Remain 
Within the Control of the Generator
    1. Scope and Applicability
    2. Restrictions and Requirements
    C. Non-Hazardous Secondary Materials That Have Not Been 
Discarded: Scrap Tires Collected Under Established Tire Collection 
Programs
    1. Scope and Applicability
    2. Restrictions and Requirements

[[Page 15458]]

    D. Non-Hazardous Secondary Materials That Have Not Been 
Discarded: Resinated Wood Residuals
    1. Scope and Applicability
    2. Restrictions and Requirements
    E. Non-Hazardous Secondary Materials Used as Ingredients
    1. Scope and Applicability
    2. Restrictions and Requirements
    F. Discarded Non-Hazardous Secondary Materials That Have 
Undergone Processing To Produce Legitimate Fuel or Ingredient 
Products
    1. Scope and Applicability
    2. Restrictions and Requirements
    G. Non-Waste Determination Petitions
    1. Description of the Petition Criteria for the Non-Waste 
Determination
    2. Non-Waste Determination Petition Process
    3. Petition Decisions Utilizing State Environmental Agency 
Program's Input
    H. Legitimacy Criteria
    1. Legitimacy Criteria for Fuels
    2. Legitimacy Criteria for Ingredients
    I. Determining That Non-Hazardous Secondary Materials Meet the 
Legitimacy Criteria
VIII. Effect of Today's Final Rule on Other Programs
    A. Clean Air Act
    B. Renewable Energy
    C. Subtitle C Hazardous Waste Program
IX. State Authority
    A. Applicability of State Solid Waste Definitions and Beneficial 
Use Determinations
    B. State Adoption of the Rulemaking
    C. Clarifications on the Relationship to State Programs
X. Cost and Benefits of the Final Rule
XI. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution or Usage
    I. National Technology Transfer Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Congressional Review Act

I. Statutory Authority

    The U.S. Environmental Protection Agency (EPA or the Agency) is 
promulgating these regulations under the authority of sections 
2002(a)(1) and 1004(27) of the Resource Conservation and Recovery Act 
(RCRA), as amended, 42 U.S.C. 6912(a)(1) and 6903(27). Section 
129(a)(1)(D) of the Clean Air Act (CAA) directs EPA to establish 
standards for Commercial and Industrial Solid Waste Incinerators 
(CISWI), which burn solid waste (section 129(g)(6) of the CAA, 42 
U.S.C. 7429). Section 129(g)(6) provides that the term ``solid waste'' 
is to be established by EPA under RCRA. Section 2002(a)(1) of RCRA 
authorizes the Agency to promulgate regulations as are necessary to 
carry out its functions under the Act. The statutory definition of 
``solid waste'' is provided in RCRA section 1004(27).

II. List of Abbreviations and Acronyms

AASHTO American Association of State Highway and Transportation 
Officials
ANPRM Advanced Notice of Proposed Rulemaking
ASME American Society of Mechanical Engineers
ASTM American Society for Testing and Materials
Btu British Thermal Unit
CAA Clean Air Act
CAFO Concentrated Animal Feeding Operations
C&D Construction and Demolition
CBO Carbon Burn-Out Unit
CCA Chromated Copper Arsenate
CCR Coal Combustion Residuals
CFB Circulating Fluidized Bed
CFR Code of Federal Regulations
CISWI Commercial and Industrial Solid Waste Incinerator
CKD Cement Kiln Dust
CWA Clean Water Act
DSE Domestic Sewage Exemption
DSW Definition of Solid Waste Rule (2008)
EG Emission Guidelines
EGU Electric Utility Steam Generating Unit
EPA U.S. Environmental Protection Agency
GACT Generally Available Control Technology
GHG Greenhouse Gas
HAP Hazardous Air Pollutant
IWI Institutional Waste Incinerator
LCA Life Cycle Analysis
MACT Maximum Achievable Control Technology
MEK Methyl Ethyl Ketone
NESHAP National Emission Standards for Hazardous Air Pollutants
NHSM Non-Hazardous Secondary Material
NSPS New Source Performance Standards
OCC Old Corrugated Cardboard
OSWI Other Solid Waste Incinerator
PC Portland Cement
PIC Product of Incomplete Combustion
POTW Publicly Owned Treatment Works
PVC Polyvinyl Chloride
RCRA Resource Conservation and Recovery Act
RFS Renewable Fuel Standards
SSI Sewage Sludge Incinerator
SWDA Solid Waste Disposal Act
TCLP Toxicity Characteristic Leaching Procedure
TDF Tire-Derived Fuel
U.S.C. United States Code
USGS U.S. Geological Survey
VSMWC Very Small Municipal Waste Combustor

III. Introduction--Summary of Regulations Being Finalized

    In today's rule, EPA is finalizing standards and procedures to be 
used to identify whether non-hazardous secondary materials are solid 
wastes when used as fuels or ingredients in combustion units. 
``Secondary material'' is defined for the purposes of this rulemaking 
as any material that is not the primary product of a manufacturing or 
commercial process, and can include post-consumer material, off-
specification commercial chemical products or manufacturing chemical 
intermediates, post-industrial material, and scrap (codified in Sec.  
241.2).\1\ ``Non-hazardous secondary material'' is a secondary material 
that, when discarded, would not be identified as a hazardous waste 
under 40 CFR part 261 (codified in Sec.  241.2).
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    \1\ For the purpose of this definition, all commercial products 
from a manufacturing process would be considered ``primary 
products.'' Processes that are designed for the production of 
multiple products could have more than one primary product.
---------------------------------------------------------------------------

    The Agency first solicited comments on how the RCRA definition of 
solid waste should apply to non-hazardous secondary materials used as 
fuels or ingredients in combustion units are solid wastes under RCRA in 
an Advanced Notice of Proposed Rulemaking (ANPRM), which was published 
in the Federal Register on January 2, 2009 (74 FR 41). We then 
published a proposed rule on June 4, 2010 (75 FR 31844).
    Today's preamble is organized as follows: This section of the 
preamble (Section III) describes the principal regulatory provisions 
that are finalized in this rule; Section IV describes the background of 
this final rule, including a brief history of this rulemaking in 
conjunction with the relevant rules being finalized under sections 112 
and 129 of the CAA; Section V contains a discussion of the major public 
comments received on the June 4, 2010 proposal, along with the Agency's 
response to these comments; Section VI explains the ways in which the 
June 2010 proposal differs from today's final rule; Section VII 
provides a detailed explanation of and rationale for the regulations 
being promulgated today; Section VIII describes the effect of today's 
final rule on other programs; Section IX discusses how today's rule 
affects the states' authority over solid waste pursuant to subtitle D 
of RCRA; Section X describes the costs and benefits associated with 
today's rule; and Section XI describes this rule's

[[Page 15459]]

compliance with the appropriate statutory and executive orders reviews.
    Below is a summary of the principal elements of the regulations 
being promulgated today.

A. Identifying Which Non-Hazardous Secondary Materials Are or Are Not 
Solid Wastes When Used in a Combustion Unit

    In our determination, most non-hazardous secondary materials burned 
in combustion units are defined as solid wastes under RCRA. However, 
this rule provides exceptions to that determination. The following non-
hazardous secondary materials are not solid waste when used 
legitimately as a fuel or an ingredient in a combustion unit:
    (1) Those that remain within the control of the generator and used 
as fuel (discussed further below--codified in Sec.  241.3(b)(1));
    (2) Scrap tires managed by established tire collection programs and 
used as fuel (discussed further below--codified in Sec.  
241.3(b)(2)(i));
    (3) Resinated wood used as fuel (discussed further below--codified 
in Sec.  241.3(b)(2)(ii));
    (4) Those that are used as ingredients (discussed further below--
codified in Sec.  241.3(b)(3));
    (5) Discards that have undergone processing to produce fuel or 
ingredient products (discussed further below--codified in Sec.  
241.3(b)(4)); or
    (6) Those that are used as fuels for which a non-waste 
determination has been granted (discussed further below--codified in 
Sec.  241.3(c)).
    Materials are considered legitimate fuels or ingredients if they 
conform to the criteria codified in Sec.  241.3(d), which this action 
refers to as ``legitimacy criteria.'' These criteria are designed to 
ensure that the fuel or ingredient is not being ``sham'' recycled for 
the sole purpose of avoiding being considered a waste. The legitimacy 
criteria for non-hazardous secondary materials used as fuels and 
ingredients in combustion units are discussed below in the 
``Codification of the Legitimacy Criteria'' section.
    Materials designated as ``traditional'' fuels are not wastes when 
used in combustion units. We are finalizing a definition of traditional 
fuels (codified in Sec.  241.2) that applies to this subpart. 
Traditional fuels means materials that are produced as fuels and are 
unused products that have not been discarded and therefore, are not 
solid wastes, including: (1) Fuels that have been historically managed 
as valuable fuel products rather than being managed as waste materials, 
including fossil fuels (e.g., coal, oil and natural gas), their 
derivatives (e.g., petroleum coke, bituminous coke, coal tar oil, 
refinery gas, synthetic fuel, heavy recycle, asphalts, blast furnace 
gas, recovered gaseous butane, and coke oven gas) and cellulosic 
biomass (virgin wood); and (2) alternative fuels developed from virgin 
materials that can now be used as fuel products, including used oil 
which meets the specifications outlined in 40 CFR 279.11, currently 
mined coal refuse that previously had not been usable as coal, and 
clean cellulosic biomass. These fuels are not secondary materials or 
solid wastes unless discarded before they are used.
1. Within the Control of the Generator: Non-Hazardous Secondary 
Materials That Are Legitimately Used as Fuels Within the Control of the 
Generator Are Not Solid Waste When Used in Combustion Units
    Except as otherwise provided, under this provision--40 CFR 
241.3(b)(1)--EPA would consider non-hazardous secondary materials used 
as fuels in combustion units which remain within the control of the 
generator and that meet the specified legitimacy criteria (as codified 
in Sec.  241.3(d)(1)) as not being a solid waste. The legitimacy 
criteria for non-hazardous secondary materials used as fuels in 
combustion units are discussed below in the ``Codification of the 
Legitimacy Criteria'' section. Non-hazardous secondary materials would 
be considered ``within the control of the generator'' under the 
following circumstances:
    (1) They are generated and burned in combustion units at the 
generating facility (as codified in Sec.  241.2); or
    (2) They are generated and burned in combustion units at different 
facilities, if the facility combusting the non-hazardous secondary 
material is controlled (as codified in Sec.  241.2) by the generator; 
or
    (3) Both the generating facility and the facility combusting the 
material are under control of the same person (as codified in Sec.  
241.2).
2. Scrap Tires: Scrap Tires That Are Legitimately Used as a Fuel That 
Are Removed From Vehicles and Managed Under the Oversight of 
Established Tire Collection Programs Are Not Solid Waste When Used in 
Combustion Units
    Under this provision--40 CFR 241.3(b)(2)(i)--EPA would consider 
scrap tires used as a fuel in a combustion unit that are removed from 
vehicles and collected and managed under the oversight of established 
tire collection programs as not being a solid waste, provided these 
materials satisfy the specified legitimacy criteria (as codified in 
Sec.  241.3(d)(1)). This provision would not differentiate between 
scrap tires that are used as a fuel within the control of the generator 
from those that are not. For the purposes of this rule, the term 
``vehicle'' is defined as any mechanical means of conveyance that 
employs the use of tires. ``Established tire collection program'' (as 
codified in Sec.  241.2) means a comprehensive collection system that 
ensures scrap tires are not discarded and are handled as valuable 
commodities in accordance with Sec.  241.3(d)(1)(i) from the point of 
removal from the vehicle through arrival at the combustion facility. 
The legitimacy criteria for non-hazardous secondary materials used as 
fuels in combustion units are discussed below in the ``Codification of 
the Legitimacy Criteria'' section.
3. Resinated Wood: Resinated Wood That Is Legitimately Used as a Fuel 
Is Not a Solid Waste When Used in Combustion Units
    Under this provision--40 CFR 241.3(b)(2)(ii)--EPA would consider 
resinated wood used as a fuel in a combustion unit as not being a solid 
waste, provided these materials satisfy the specified legitimacy 
criteria (as codified in Sec.  241.3(d)(1)). This provision would not 
differentiate between resinated wood that is used as a fuel within the 
control of the generator from those that are not. Resinated wood (as 
codified in Sec.  241.2) means wood products (containing resin 
adhesives) derived from primary and secondary wood products 
manufacturing and comprised of such items as board trim, sander dust, 
and panel trim. The legitimacy criteria for non-hazardous secondary 
materials used as fuels in combustion units is discussed below in the 
``Codification of the Legitimacy Criteria'' section.
4. Ingredients: Non-Hazardous Secondary Materials That Are Legitimately 
Used as Ingredients Are Not Solid Waste When Used in Combustion Units
    Under this provision--40 CFR 241.3(b)(3)--EPA would consider non-
hazardous secondary materials used as ingredients in combustion units 
and that meet the specified legitimacy criteria as not being solid 
waste. This provision does not differentiate between ingredients that 
are used within the control of the generator from those that are not. 
Ingredient (as codified in Sec.  241.2) means a non-hazardous secondary 
material that is a component in a compound, process or product. A 
discussion of the legitimacy criteria (as

[[Page 15460]]

codified in Sec.  241.3(d)(2)) for non-hazardous secondary materials 
used as ingredients in combustion units is included below in the 
``Codification of the Legitimacy Criteria'' section.
5. Discards: Discarded Non-Hazardous Secondary Materials That Have 
Undergone Processing To Produce Legitimate Fuel or Ingredient Products 
Are Not Solid Waste When Used in Combustion Units
    Under this provision--40 CFR 241.3(b)(4)--EPA would consider 
discarded non-hazardous secondary materials that have been sufficiently 
processed into fuel or ingredient products and used in a combustion 
unit as not being a solid waste, provided these materials satisfy the 
specified legitimacy criteria (as codified in Sec.  241.3(d)(1) for 
fuels and (d)(2) for ingredients). Processing (as codified in Sec.  
241.2) means any operations that transform the discarded non-hazardous 
secondary material into a legitimate fuel or ingredient product, and 
includes, but is not limited to, operations that remove or destroy 
contaminants; operations that significantly improve the fuel 
characteristics of the material, e.g., sizing or drying the material in 
combination with other operations; operations that chemically improve 
the as-fired energy content; and operations that improve the ingredient 
characteristics. Minimal operations that result only in modifying the 
size of the material by shredding do not constitute processing for the 
purposes of this definition. Prior to any processing, the discarded 
non-hazardous secondary material would be considered a solid waste and 
would be subject to the appropriate federal, state, and local laws and 
regulations.
6. Non-Waste Determination: Non-Hazardous Secondary Materials Used as a 
Fuel for Which a Non-Waste Determination Has Been Granted Are Not Solid 
Waste When Used in Combustion Units
    Under this provision--40 CFR 241.3(c)--EPA would consider non-
hazardous secondary materials used as fuels that have been transferred 
to a third party, but have been granted a non-waste determination from 
EPA, to not be a solid waste when used in combustion units.\2\ This 
provision establishes a non-waste determination case-by-case process 
that provides persons with an administrative process for receiving a 
formal determination from EPA that their non-hazardous secondary 
material fuel that has not been managed within the control of the 
generator (as codified in Sec.  241.2), has not been discarded, and is 
indistinguishable in all relevant aspects from a fuel product, is not a 
solid waste when used as a fuel in combustion units. Any petition that 
is submitted to EPA requesting a non-waste determination must 
demonstrate that the non-hazardous secondary material has not been 
discarded in the first instance, satisfies the specified legitimacy 
criteria for fuels (as codified in Sec.  241.3(d)(1)), and satisfies 
the following five criteria: (1) Whether market participants treat the 
non-hazardous secondary material as a fuel rather than a solid waste; 
(2) whether the chemical and physical identity of the non-hazardous 
secondary material is comparable to commercial fuels; (3) whether the 
non-hazardous secondary material will be used in a reasonable time 
frame given the state of the market; (4) whether the constituents in 
the non-hazardous secondary material are released to the air, water or 
land from the point of generation to the point just prior to combustion 
of the non-hazardous secondary material at levels comparable to what 
would otherwise be released from traditional fuels; and (5) other 
relevant factors. These criteria are codified in Sec.  241.3(c)(1).
---------------------------------------------------------------------------

    \2\ As noted previously, scrap tires and resinated wood would 
not be considered a solid waste even if transferred to a third party 
provided these secondary materials meet the legitimacy criteria. 
Also, as indicated in Section V.A.1, the Agency will in the future 
solicit comment on other non-hazardous secondary materials in 
addition to scrap tires and resinated wood that can be used as a 
non-waste fuel both by the generator and outside the control of the 
generator.
---------------------------------------------------------------------------

    The process for receiving a non-waste determination is codified in 
Sec.  241.3(c)(2). In order to obtain a non-waste determination, a 
facility that is interested in using non-hazardous secondary materials 
as fuel in combustion units that would otherwise be regulated as a 
solid waste must apply to the Regional Administrator per the procedures 
described in Sec.  241.3(c). The application must address the relevant 
criteria discussed above. The Regional Administrator will evaluate the 
application and issue a draft notice tentatively granting or denying 
the application. Notification of this tentative decision will also be 
provided by newspaper advertisement or radio broadcast in the locality 
where the combustion unit is located. The Regional Administrator will 
accept comments on the tentative decision for at least 30 days, and may 
also hold a public hearing upon request or at his discretion. The 
Regional Administrator will issue a final decision after receipt of 
comments and after the hearing (if any).

B. Codification of the Legitimacy Criteria

    This provision--40 CFR 241.3(d)--codifies the legitimacy criteria 
for fuels and ingredients. In order to be considered a non-waste fuel, 
non-hazardous secondary materials used as a fuel in combustion units 
must meet the legitimacy criteria codified in Sec.  241.3(d)(1). To 
meet the fuel legitimacy criteria, the non-hazardous secondary material 
must be managed as a valuable commodity, have a meaningful heating 
value and be used as a fuel in a combustion unit that recovers energy, 
and contain contaminants at levels comparable to or lower than those in 
traditional fuels which the combustion unit is designed to burn.
    In order to be considered a non-waste ingredient, non-hazardous 
secondary materials used as an ingredient in combustion units must meet 
the legitimacy criteria codified in Sec.  241.3(d)(2). To meet the 
ingredient legitimacy criteria, the non-hazardous secondary material 
must be managed as a valuable commodity, provide a useful contribution 
to the production or manufacturing process, be used to produce a 
valuable product or intermediate, and must result in products that 
contain contaminants at levels that are comparable to or lower than 
those found in traditional products that are manufactured without the 
non-hazardous secondary material.
    Non-hazardous secondary materials that are discarded in the first 
instance (abandoned, disposed of, or thrown away) would still be a 
solid waste even if they satisfy the legitimacy criteria, unless they 
were processed into legitimate non-waste fuel or ingredient products 
or, in the case of fuels, have received a non-waste determination from 
EPA.

IV. Background

    The discussion below is a summary of what was included in the ANPRM 
and in the preamble to the proposed rule. However, because it continues 
to be relevant to several of the key concepts being finalized today, it 
is provided here as background for the benefit of the reader. (For a 
more detailed discussion of what was included in the ANPRM and the 
proposed rule, we refer the reader to the ANPRM (74 FR 41, January 2, 
2009) and the proposed rule (75 FR 31843, June 4, 2010).) The records 
and documents comprising the ANPRM and proposed rule are included in 
the administrative record for this rulemaking. To the extent there are 
any

[[Page 15461]]

inconsistencies or differences between the ANPRM, the proposed rule, 
and this final rule, the statements in this final rule govern.

A. What is the history of CISWI, CISWI definitions, and boiler 
rulemakings?

    CAA section 112 requires EPA to promulgate regulations to control 
emissions of 187 hazardous air pollutants (HAP) from sources in source 
categories listed by EPA under section 112(c), while CAA section 129 
CISWI standards include numeric emission limitations for the nine 
pollutants, plus opacity (as appropriate), that are specified in CAA 
section 129(a)(4).\3\ Pursuant to CAA section 129, EPA promulgated a 
final rule setting forth performance emissions standards for Commercial 
and Industrial Solid Waste Incineration Units (referred to as the 
``CISWI Rule''). 65 FR 75338 (December 1, 2000). Under CAA section 129, 
the term ``solid waste incineration unit'' is defined, in pertinent 
part, to mean ``a distinct operating unit of any facility which 
combusts any solid waste material from commercial or industrial 
establishments * * *'' 42 U.S.C. Sec.  7429(g)(1). The CAA also 
specifically excludes the following types of units from the definition 
of ``solid waste incineration unit'': (1) Incinerators or other units 
required to have a permit under section 3005 of RCRA; (2) material 
recovery facilities (including primary and secondary smelters) which 
combust waste for the primary purpose of recovering metals; (3) 
qualifying small power production facilities, as defined in section 
3(17)(C) of the Federal Power Act, or qualifying cogeneration 
facilities, as defined in section 3(18)(B) of the Federal Power Act, 
which burn homogeneous waste (such as units which burn tires or used 
oil, but not including refuse-derived fuel) for the production of 
electric energy or in the case of qualifying cogeneration facilities 
which burn homogeneous waste for the production of electric energy or 
steam or forms of useful energy (such as heat) which are used for 
industrial, commercial, heating or cooling purposes, or (4) air curtain 
incinerators, provided that such incinerators only burn wood wastes, 
yard wastes and clean lumber and that such air curtain incinerators 
comply with the opacity limitations to be established by the 
Administrator by rule. Id. CAA section 129 further states that the term 
``solid waste'' shall have the meaning ``established by the 
Administrator pursuant to the Solid Waste Disposal Act.'' Id at 
7429(g)(6).\4\
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    \3\ CAA section 129(a)(4) requires that specific numeric 
emission limitations must be established for the following nine 
pollutants, plus opacity (as appropriate): cadmium, carbon monoxide, 
dioxins/furans, hydrogen chloride, lead, mercury, NOx, particulate 
matter (total and fine), and SO<INF>2</INF>. Of these nine 
pollutants, cadmium, dioxins/furans, hydrogen chloride, lead, and 
mercury are also regulated HAP pursuant to CAA section 112.
    \4\ The Solid Waste Disposal Act, as amended, is commonly 
referred to the Resource Conservation and Recovery Act or RCRA.
---------------------------------------------------------------------------

    The CISWI Rule established emission limitations for new and 
existing CISWI units for the following pollutants: cadmium, carbon 
monoxide, dioxins/furans, hydrogen chloride, lead, mercury, oxides of 
nitrogen (NO<INF>X</INF>), particulate matter (PM), sulfur dioxide 
(SO<INF>2</INF>), and opacity. In addition, the rule established 
certain monitoring and operator training and certification 
requirements.
    The CISWI Rule was challenged in Sierra Club v. EPA (No. 01-1048) 
(DC Cir.). However, after promulgation of the CISWI Rule, the DC 
Circuit issued its decision in a challenge to EPA's MACT standards for 
the cement kiln industry. See Cement Kiln Recycling Coalition v. EPA, 
255 F. 3d 855 (DC Cir. 2001) (``Cement Kiln''). As a result, EPA 
requested, and was granted, a voluntary remand without vacatur, of the 
CISWI rule, in order to address the concerns related to the issues that 
were raised by the court in Cement Kiln. Because the CISWI rule was not 
vacated, its requirements remain in effect. See Sierra Club v. EPA, 374 
F. Supp. 2d 30, 32-33 (D.DC 2005).
    On September 22, 2005, EPA issued revised definitions of ``solid 
waste,'' ``commercial or industrial solid waste incineration unit,'' 
and ``commercial or industrial waste'' (the ``CISWI Definitions 
Rule''). See 70 FR 55568. In the CISWI Definitions Rule, EPA defined 
``commercial and industrial solid waste'' to exclude solid waste that 
is combusted at a facility in a combustion unit whose design provides 
for energy recovery or which operates with energy recovery. Therefore, 
a unit combusting solid waste with energy recovery was not considered a 
CISWI unit.
    The CISWI Definitions Rule was vacated by the DC Circuit in NRDC v. 
EPA (489 F.3d 1250 (DC Cir. 2007)) (``NRDC''). The court stated that 
the statute unambiguously requires any unit that combusts ``any solid 
waste material at all''--regardless of whether the material is being 
burned for energy recovery--to be regulated as a ``solid waste 
incineration unit.'' Id. at 1260. In the same decision, the court also 
vacated and remanded EPA's 2005 emissions standards for commercial, 
industrial, and institutional major source boilers and process heaters 
(the Boiler MACT Rule), concluding that ``the universe of boilers 
subject to its [section 112] standards will be far smaller and more 
homogenous after all CISWI units, as the statute unambiguously defines 
them, are removed from its coverage.'' 489 F.3d at 1260.
    In response to the D.C. Circuit's decision, EPA proposed revised 
emissions standards for boilers, process heaters, and CISWI units. 
Specifically, on June 4, 2010, the Agency proposed new National 
Emissions Standards for Area Source Industrial, Commercial, and 
Institutional Boilers (75 FR 31896), National Emission Standards for 
Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and 
Institutional Boilers and Process Heaters (75 FR 32006), and Standards 
of Performance for New Stationary Sources and Emission Guidelines for 
Existing Sources: Commercial and Industrial Solid Waste Incineration 
Units (75 FR 31938). These proposed emissions standards were 
established based on the criteria proposed in the Identification of 
Non-Hazardous Secondary Materials Rule that are Solid Waste proposed 
rule (75 FR 31844).

B. Why is the Court's decision affecting the CAA rules relevant to 
RCRA?

    In responding to the court's vacatur and remand of the CISWI 
Definitions Rule and the Boiler MACT Rule, EPA is establishing, under 
RCRA, which non-hazardous secondary materials \5\ are ``solid waste.'' 
This is necessary because, under the court's decision, any unit 
combusting any ``solid waste'' at all must be regulated as a ``solid 
waste incineration unit,'' regardless of the function of the combustion 
device. If a non-hazardous secondary material (also referred to as a 
``secondary material'' in this rulemaking) is not a ``solid waste'' 
under RCRA, then a unit combusting that material must be regulated 
pursuant to CAA section 112 if it is a source of HAP. Alternatively, if 
such secondary material is classified as a ``solid waste'' under RCRA, 
then a unit combusting that material must be regulated under

[[Page 15462]]

CAA section 129, unless it is within the scope of one of the exclusions 
from the definition of ``solid waste incineration unit'' in section 
129(g)(1) of the CAA.
---------------------------------------------------------------------------

    \5\ A secondary material is any material that is not the primary 
product of a manufacturing or commercial process, and can include 
post-consumer material, post-industrial material, and scrap. Many 
types of secondary materials have Btu or material value, and can be 
reclaimed or reused in industrial processes. For purposes of this 
notice, the term secondary materials include only non-hazardous 
secondary materials. See also American Mining Congress v. EPA, 824 
F.2d 1177 (DC Cir. 1987) in which the U.S. Court of Appeals for the 
District of Columbia Circuit discussed secondary materials.
---------------------------------------------------------------------------

    In addition to this final rule, EPA is concurrently finalizing air 
emission requirements under CAA section 112 for industrial, commercial, 
and institutional boilers and process heaters, as well as air emission 
requirements under CAA section 129 for CISWI units. For a discussion of 
what requirements are being promulgated today pursuant to the relevant 
CAA rules, please see the respective final actions included in today's 
Federal Register. These include: National Emission Standards for 
Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and 
Institutional Boilers (EPA-HQ-OAR-2006-0790); National Emission 
Standards for Hazardous Air Pollutants for Major Sources: Industrial, 
Commercial, and Institutional Boilers and Process Heaters (EPA-HQ-OAR-
2002-0058); and Standards of Performance for New Stationary Sources and 
Emission Guidelines for Existing Sources: Commercial and Industrial 
Solid Waste Incineration Units (EPA-HQ-OAR-2003-0119).

C. What is the history of the definition of solid waste?

1. Statutory Definition of Solid Waste
    RCRA defines ``solid waste'' as ``* * * any garbage, refuse, sludge 
from a waste treatment plant, water supply treatment plant, or air 
pollution control facility and other discarded material * * * resulting 
from industrial, commercial, mining, and agricultural operations, and 
from community activities * * *'' (RCRA section 1004 (27) (emphasis 
added)). The key concept is that of ``discard'' and, in fact, this 
definition turns on the meaning of the phrase, ``other discarded 
material,'' since this term encompasses all other examples provided in 
the definition.
2. Solid Waste Program, RCRA Subtitle D
    The regulations that pertain to non-hazardous solid waste (RCRA 
subtitle D) contain five definitions of the term ``solid waste.'' (See 
40 CFR 240.101(y); 40 CFR 243.101(y); 40 CFR 246.101(bb); 40 CFR 257.2; 
and 40 CFR 258.2.) These regulatory definitions largely mirror the 
statutory definition of solid waste with some clarifications applicable 
to the specific regulatory section. The RCRA statutory definition of 
solid waste has also been repeated in the CAA emission guidelines for 
other solid waste incineration units (e.g., see 40 CFR 60.2977 and 
60.3078).
    Under RCRA subtitle D, EPA has promulgated criteria for municipal 
solid waste landfills and approves state solid waste landfill 
permitting programs; however, it is the states that fully implement 
these programs. EPA does not have the same role in these programs as it 
does in the hazardous waste programs established under RCRA subtitle C. 
As a result, EPA has not promulgated detailed regulations defining 
``solid waste'' for purposes of the subtitle D (non-hazardous) 
programs. States have promulgated their own laws and regulations for 
what constitutes solid waste and have interpreted those laws and 
regulations to determine what types of non-hazardous secondary 
materials management activities constitute discard (and therefore 
involve the management of a solid waste).
    The Agency is now determining at the national level the 
requirements and procedures for identifying non-hazardous secondary 
materials that are solid waste under RCRA subtitle D so that we can 
establish appropriate emissions standards under CAA sections 112 and 
129. We emphasize that we are articulating a narrow definition in this 
final rule and are not making solid waste determinations that cover 
other possible secondary material end uses.
3. Hazardous Waste Program, RCRA Subtitle C
    Under RCRA subtitle C, EPA is responsible for designing and 
implementing a cradle to grave disposal system for hazardous wastes. 
The RCRA subtitle C hazardous waste federal program has a long 
regulatory history in defining ``solid waste'' for purposes of the 
hazardous waste regulations.\6\ However, the 40 CFR 261.2 regulatory 
definition of solid waste explicitly applies only to wastes that also 
are hazardous for purposes of the subtitle C regulations (see 40 CFR 
261.1(b)(1)). EPA emphasizes that it is not reopening any of its 
subtitle C regulations in today's final rule.
---------------------------------------------------------------------------

    \6\ For example, see 45 FR 33066 (May 19, 1980; solid waste 
defined; interim final); 48 FR 14472 (April 4, 1983; Amendments to 
the Definition of Solid Waste; proposed rule); 50 FR 614 (January 4, 
1985; Amendments to the Definition of Solid Waste; final rule); 53 
FR 519 (January 8, 1988; Amendments to the Definition of Solid 
Waste, excludes in-process recycled secondary materials from 
petroleum industry; proposed rule); 59 FR 38536 (July 28, 1994; 
Amendments to the Definition of Solid Waste, excludes in-process 
recycled secondary materials from petroleum industry; final rule); 
67 FR 11251 (March 13, 2002; Response to court Vacaturs; final 
rule); 68 FR 61557 (October 28, 2003; Revisions to the Definition of 
Solid Waste; proposed rule); 72 FR 14172 (March 26, 2007; Revisions 
to the Definition of Solid Waste; supplemental proposed rule); 73 FR 
64668 (October 30, 2008; Revisions to the Definition of Solid Waste; 
final rule).
---------------------------------------------------------------------------

    Under subtitle C of RCRA, EPA promulgated a final rule on October 
30, 2008, which revised the requirements regulating hazardous secondary 
materials when they are recycled via reclamation (The 2008 Definition 
of Solid Waste (DSW) Final Rule).\7\ On January 29, 2009, the Sierra 
Club filed a lawsuit challenging the rule in the U.S. Court of Appeals 
for the District of Columbia Circuit (DC Circuit), Docket No. 09-1041. 
In addition, Sierra Club submitted to the Administrator of EPA an 
administrative petition under RCRA section 7004(a), 42 U.S.C. 6974(a). 
The administrative petition requested that the Agency repeal the 
October 2008 revisions to the 2008 DSW Final Rule and stay the 
implementation of the rule.\8\ EPA reviewed the administrative 
petition, held a public meeting \9\ and requested written comments on 
the petition. As a result of settlement in the litigation, Sierra Club 
has withdrawn its administrative petition, but EPA has agreed to issue 
a proposal to consider the issues raised in the petition. As a result, 
EPA plans to develop a proposed rule asking for comment on potential 
revisions to the October 2008 DSW Final Rule. Under the settlement 
agreement with the Sierra Club in the DC Circuit litigation, EPA has 
committed to a proposed rule on or before June 30, 2011 and to take 
final action on the proposed rulemaking on or before December 31, 
2012.\10\ The DC Circuit approved the settlement agreement by order 
dated January 11, 2011. This subsequent proposed rule will apply to the 
regulation of reclamation of hazardous secondary materials under 
subtitle C of RCRA and is not affecting today's final rule.
---------------------------------------------------------------------------

    \7\ See ``Revisions to the Definition of Solid Waste,'' Final 
Rule, October 30, 2008, at 73 FR 64667.
    \8\ A copy of Sierra Club's Petition to the U.S. EPA to 
Reconsider and Repeal the Definition of Solid Waste Final Rule (DSW 
Rule) can be found in the docket for the 2008 DSW Final Rule. See 
Docket ID: EPA-HQ-RCRA-2009-0315; Document ID No. EPA-HQ-RCRA-2009-
0315-0002.
    \9\ The public meeting was announced in a May 27, 2009 Federal 
Register notice, which also described possible actions and optional 
paths forward. See 74 FR 25200. The transcript of the public hearing 
can also be found in the docket for the DSW Final Rule. See Docket 
ID: EPA-HQ-RCRA-2009-0315, Document ID No. EPA-HQ-RCRA-2009-0315-
0024.
    \10\ A copy of the settlement agreement, entitled ``EPA's and 
Sierra Club's Lodging of Settlement and Motion to Sever and Hold 
Case in Abeyance,'' can be found at http://www.epa.gov/osw/hazard/dsw/sierraclubdsw.pdf.
---------------------------------------------------------------------------

4. Case Law on the Definition of Solid Waste Under RCRA Subtitle C
    Partly because the interpretation of what constitutes a solid waste 
is the

[[Page 15463]]

foundation of the hazardous waste regulatory program (i.e., secondary 
material must qualify as ``solid waste'' before it can be classified as 
``hazardous waste''), there have been a number of court opinions 
discussing the meaning of ``solid waste'' in litigation challenges to 
rules issued under RCRA subtitle C. From these cases, a few key 
principles emerge which guide our thinking on the definition of solid 
waste in today's final rule.
    First, the ordinary plain-English meaning of the term, ``discard,'' 
controls. See American Mining Congress v. EPA, 824 F.2d 1177 (DC Cir. 
1987) (``AMC I''). The ordinary plain-English meaning of the term 
discarded means ``disposed of,'' ``thrown away,'' or ``abandoned.'' The 
court specifically rejected a more expansive meaning for discard that 
would encompass any materials ``no longer useful in their original 
capacity'' even if they were not destined for disposal. 824 F.2d at 
1185-87. The Court further held that the term ``discarded materials'' 
could not include materials ``* * * destined for beneficial reuse or 
recycling in a continuous process by the generating industry itself'' 
(824 F.2d at 1190).
    Subsequent to AMC I, the court discussed the meaning of discard in 
particular cases. In American Petroleum Institute v. EPA, 906 F.2d 729 
(DC Cir. 1990) (``API I''), the court rejected EPA's decision not to 
regulate recycled air pollution control equipment slag based on an 
Agency determination that waste ``ceases to be a `solid waste' when it 
arrives at a metals reclamation facility because at that point it is no 
longer `discarded material.' '' 906 F.2d at 740. Instead, the court 
stated that these materials are part of a mandatory waste treatment 
plan for hazardous wastes prescribed by EPA and continued to be wastes 
even if recycled. 906 F.2d at 741. Further, ``once material qualifies 
as `solid waste,' [footnote omitted] something derived from it retains 
that designation even if it might be reclaimed and reused at some 
future time.'' Association of Battery Recyclers v. EPA, (``ABR'') 208 
F.3d 1047, 1056 (DC Cir. 2000) (referring to API I and the later 
decided case, American Mining Congress v. EPA, (``AMC II'') 907 F.2d 
1179 (DC Cir. 1990)).
    One of the more important holdings of a number of court decisions 
is that simply because a hazardous waste has, or may have, value does 
not mean the material loses its status as a solid waste. See API I, 906 
F.2d at 741 n.16; United States v. ILCO Inc., 996 F.2d 1126, 1131-32 
(11th Cir. 1993) (``ILCO''); Owen Steel v. Browner, 37 F.3d 146, 150 
(4th Cir. 1994) (``Owen Steel''). ILCO and Owen Steel, however, seem to 
recognize that legitimate products made from wastes are, themselves, 
products and not wastes.
    The ABR case reiterated the concepts discussed in the previous 
cases of AMC I and II and API I. The Court held that it had already 
resolved the issue presented in ABR in its opinion in AMC I, where it 
found that ``* * * Congress unambiguously expressed its intent that 
`solid waste' (and therefore EPA's regulatory authority) be limited to 
materials that are `discarded' by virtue of being disposed of, 
abandoned, or thrown away'' (208 F.2d at 1051). It repeated that 
materials that are reused within an ongoing industrial process are 
neither disposed of nor abandoned (208 F.3d at 1051-52). It explained 
that the intervening API I and AMC II decisions had not narrowed the 
holding in AMC I (208 F.3d at 1054-1056).
    Notably, the Court did not hold that storage before reclamation 
automatically makes materials ``discarded.'' Rather, it held that ``* * 
* at least some of the secondary material EPA seeks to regulate as 
solid waste (in the mineral processing rule) is destined for reuse as 
part of a continuous industrial process and thus is not abandoned or 
thrown away'' (208 F.3d at 1056). In this regard, the court criticized 
all parties in the case--industry, as well as EPA--because they 
``presented this aspect of the case in broad abstraction, providing 
little detail about the many processes throughout the industry that 
generate residual material of the sort EPA is attempting to regulate. * 
* *'' (Ibid).
    American Petroleum Institute v. EPA, 216 F.3d 50, 55 (DC Cir. 2000) 
(``API II''), decided shortly after ABR and considered by the court at 
the same time, provides further guidance for defining solid waste, but 
in the context of two specific waste streams in the petroleum refining 
industry. The court overturned EPA's determination that certain 
recycled oil-bearing wastewaters are wastes (216 F.3d at 55-58) and 
upheld conditions imposed by the Agency in excluding petrochemical 
recovered oil from the definition of solid waste (216 F.3d at 58-59). 
In the case of oil-bearing wastewaters, EPA had determined that the 
first phase of treatment, primary treatment, results in a waste being 
created. 216 F.3d at 55. The court overturned this decision and 
remanded it to EPA for a better explanation, neither accepting EPA's 
view nor the contrary industry view. The court noted that the ultimate 
determination that had to be made was whether primary treatment ``is 
simply a step in the act of discarding [* * *][o]r is it the last step 
in a production process before discard?'' 216 F.3d at 57. In 
particular, the court rejected EPA's argument that primary treatment 
was required by regulation, and instead stated that EPA needed to ``set 
forth why it has concluded that the compliance motivation predominates 
over the reclamation motivation'' and ``why that conclusion, even if 
validly reached, compels the further conclusion that the wastewater has 
been discarded.'' 216 F.3d at 58.
    The court also considered whether material is discarded in Safe 
Food and Fertilizer v. EPA, 350 F.3d 1263 (DC Cir. 2003) (``Safe 
Food''). In that case, among other things, the court rejected the 
argument that, as a matter of plain meaning, recycled material destined 
for immediate reuse within an ongoing industrial process is never 
considered ``discarded,'' whereas material that is transferred to 
another firm or industry for subsequent recycling must always be solid 
wastes. 350 F.3d at 1268. Instead, the court evaluated ``whether the 
agency's interpretation of * * * `discarded' * * * is, reasonable and 
consistent with the statutory purpose. * * *'' Id. Thus, EPA has the 
discretion to determine if material is not a solid waste, even if it is 
transferred between industries.
    We also note that the Ninth Circuit has specifically found that 
non-hazardous secondary materials may, under certain circumstances, be 
burned and not constitute a solid waste under RCRA. See Safe Air For 
Everyone v. Waynemeyer (``Safe Air''), 373 F.3d 1035 (9th Cir., 2004). 
In this case, the Court found that Kentucky bluegrass stubble may be 
burned to return nutrients to the soil and not be a solid waste.
5. Concept of Legitimacy
    Under RCRA subtitle C, some hazardous secondary materials that 
would otherwise be subject to regulation under RCRA's ``cradle to 
grave'' hazardous waste system are not considered solid wastes if they 
are ``legitimately recycled'' or legitimately reused as an ingredient 
or substitute for a commercial product. The principal reasoning behind 
this construct is that use/reuse or recycling of such secondary 
materials often closely resembles normal industrial production, rather 
than waste management. Although today's final rule does not address the 
Agency's hazardous waste regulations, EPA finds the concept of 
legitimacy to be an important one in determining when a secondary 
material (whether hazardous or non-hazardous) is genuinely recycled and 
not discarded under the guise of recycling.

[[Page 15464]]

    However, since there can be considerable economic incentive to 
manage recyclable materials outside of the RCRA hazardous waste 
regulatory system, there is a clear potential for, and historical 
evidence of, some handlers claiming they are recycling, when in fact 
they are conducting waste treatment and/or disposal in the guise of 
recycling. EPA considers such ``sham'' recycling to be, in fact, 
discard and these secondary materials being sham recycled are solid 
wastes (or hazardous waste if the material is listed as, or exhibits a 
characteristic of, hazardous waste pursuant to 40 CFR part 261).
    To guard against hazardous secondary materials being discarded in 
the guise of recycling, EPA has long articulated the need to 
distinguish between ``legitimate'' (i.e., true) recycling or other use 
and ``sham'' (i.e., fake) recycling; see the preamble to the 1985 
hazardous waste regulations that established the definition of solid 
waste under RCRA subtitle C (50 FR 638; January 4, 1985). A similar 
discussion that addressed legitimacy as it pertains to burning 
hazardous secondary materials for energy recovery (considered a form of 
recycling under RCRA subtitle C) was presented in the January 9, 1988 
proposed amendments to the definition of solid waste (53 FR 522).
    Then on April 26, 1989, the Office of Solid Waste \11\ issued a 
memorandum that consolidated the various preamble and other statements 
concerning legitimate recycling into a list of questions to be 
considered in evaluating the legitimacy of hazardous secondary 
materials recycling (OSWER directive 9441.1989(19)). This memorandum 
(known to many as the ``Lowrance Memo,'' a copy of which is included in 
the Docket to today's rule) has been a primary source of information 
for the regulated community and for overseeing agencies in 
distinguishing between legitimate and sham recycling.
---------------------------------------------------------------------------

    \11\ On January 9, 2009, the Office of Solid Waste was renamed 
the Office of Resource Conservation and Recovery.
---------------------------------------------------------------------------

    In the October 30, 2008 DSW Final Rule, EPA finalized several 
exclusions from the definition of solid waste for hazardous secondary 
materials being reclaimed and a non-waste determination process for 
persons to receive a formal determination that their hazardous 
secondary materials are not solid wastes when legitimately reclaimed. 
In that action, EPA codified in 40 CFR 260.43 the requirement that 
materials be legitimately recycled as a condition for the exclusion for 
hazardous secondary materials that are legitimately reclaimed under the 
control of the generator (40 CFR 261.2(a)(2)(ii) and 40 CFR 
261.4(a)(23)) and as a condition of the exclusion for hazardous 
secondary materials that are transferred for the purpose of legitimate 
reclamation (40 CFR 261.4(a)(24) and 40 CFR 261.4(a)(25)). As part of 
that final rule, EPA also codified the legitimate recycling provision 
specifically as a requirement for the non-waste determination process 
(40 CFR 260.34).
    As discussed above, the Agency has agreed to prepare a notice of 
proposed rulemaking, which will solicit comment regarding potential 
revisions to the 2008 DSW Final Rule. The definition of ``legitimacy'' 
is one of the issues that will be reconsidered in this subsequent 
proposed rule. This subsequent DSW proposed rule is, by necessity, in a 
different proceeding from the rule we are promulgating today. EPA 
cannot presuppose the results of the DSW rule, but still needs to issue 
a final rule dealing with legitimacy criteria in today's separate rule 
affecting non-hazardous secondary materials. The same concept--
legitimacy--applies to both rules, but, at this point, EPA cannot 
reconcile the differences between the legitimacy criteria in each rule, 
if there are indeed any substantive differences. As a result, each rule 
will have its own definition of legitimate recycling. Although the 
Agency is revisiting the definition of legitimacy in the context of 
regulations promulgated pursuant to RCRA subtitle C, EPA continues to 
find the principle of ``legitimacy'' to be an important element in the 
recycling of both hazardous and non-hazardous secondary materials. That 
is, the concept of legitimate recycling is crucial to determining 
whether a hazardous or non-hazardous secondary material being recycled 
is truly being recycled or is, in fact, being discarded through sham 
recycling and thus, is a solid waste.

D. Summary of the ANPRM

    In the ANPRM, the Agency considered various guiding principles, 
including the concept of discard, and if discarded, whether the 
secondary material has been processed to produce a non-waste fuel or 
ingredient product, and the concept of legitimacy,\12\ in determining 
if secondary materials used in combustion units are solid wastes. Based 
on these guiding principles, the Agency identified a number of 
scenarios in evaluating the usage of secondary materials (e.g., as 
fuels or ingredients) and whether these secondary materials should be 
considered solid wastes under RCRA when used in combustion devices, 
such that units burning these secondary materials would be subject to 
regulation under CAA section 129, rather than subject to CAA section 
112. The ANPRM identified several cases where such secondary materials 
are not solid wastes when combusted, and thus, subject to CAA section 
112. These scenarios were: (1) Traditional fuels, (2) non-hazardous 
secondary materials used as legitimate ``alternative'' fuels that have 
not been previously discarded, (3) non-hazardous secondary materials 
used as legitimate ``alternative fuels'' resulting from the processing 
of discarded secondary materials, (4) non-hazardous secondary materials 
used as legitimate ingredients, and (5) hazardous secondary materials 
that may be excluded from the definition of solid waste under RCRA 
subtitle C because they are more like commodities than wastes. All 
other cases where non-hazardous secondary materials are combusted would 
be considered ``solid wastes'' and subject to CAA section 129. 
Specifically:
---------------------------------------------------------------------------

    \12\ The Agency discussed various criteria regarding the concept 
of legitimacy. Specifically, with respect to secondary materials 
used as a fuel, they should be handled as a valuable commodity, have 
a meaningful heating value, and contain contaminants that are not 
significantly higher in concentration than traditional fuel 
products. For those secondary materials used as an ingredient, they 
should be handled as a valuable commodity, the secondary material 
provides a useful contribution, the recycling results in a valuable 
product, and the product does not contain contaminants that are 
significantly higher in concentration than traditional products. If 
these criteria are not met, then sham recycling may be indicated and 
the secondary material may be a solid waste.
---------------------------------------------------------------------------

    <bullet> Traditional Fuels: EPA identified in the ANPRM fossil 
fuels (e.g., coal, oil, and natural gas) and their derivatives (e.g., 
petroleum coke, bituminous coke, coal tar oil, refinery gas, synthetic 
fuel, heavy recycle, asphalts, blast furnace gas, recovered gaseous 
butane, and coke oven gas), as well as cellulosic biomass (e.g., wood) 
as traditional fuels. Such traditional fuels have been used 
historically as fuels and have been managed as valuable products, such 
that they are considered unused products that have not been discarded 
and therefore, are not solid wastes. In addition, EPA also identified 
as traditional fuels wood collected from forest fire clearance 
activities and tree and uncontaminated wood found in hurricane debris 
if not discarded, if managed properly, and if burned as a legitimate 
fuel.
    <bullet> Non-Hazardous Secondary Materials Used as Legitimate 
``Alternative Fuels'' That Have Not Been Previously Discarded: The 
ANPRM indicated that, in addition to traditional fuels, there may be a 
category of non-

[[Page 15465]]

hazardous secondary materials that are legitimate alternative non-waste 
fuels, even though they may not have been traditionally used as fuels, 
because of changes in technology and in the energy market. Biomass was 
discussed as one large category of these alternatives fuels. EPA also 
discussed that scrap tires used as tire-derived fuel (TDF), which 
includes whole or shredded tires, that have not been previously 
discarded, could also be considered legitimate fuels that meet the 
legitimacy criteria (see Materials Characterization Paper on Scrap 
Tires in the docket for today's rule for a complete discussion on 
contaminants in TDF [EPA-HQ-RCRA-2008-0329]). We noted that in many 
cases, scrap tires are collected pursuant to state tire oversight 
programs (e.g., used tires from tire dealerships that are sent to used 
tire processing facilities) are handled as valuable commodities, and, 
therefore, have not been abandoned, disposed of, or thrown away. We 
noted that because states typically regulate these programs under their 
state solid waste authorities, it was not the Agency's intent to 
undercut the state's authority in this area. We, therefore, requested 
comment on whether scrap tires collected pursuant to state tire 
oversight programs should be considered a non-waste fuel when 
combusted, and whether an EPA designation specifying that scrap tires, 
for example, managed pursuant to state collection programs would 
adversely impact a state's ability to manage such a program. Other non-
traditional alternative fuels that EPA identified in the ANPRM included 
construction and demolition materials, scrap plastics, non-hazardous 
solvents and lubricants, and wastewater treatment sludge. The Agency 
solicited comment on this category.
    <bullet> Non-Hazardous Secondary Materials Used as Legitimate 
``Alternative Fuels'' Resulting from the Processing of Discarded 
Secondary Materials: The Agency also discussed the concept of 
processing of discarded non-hazardous secondary materials, such that 
legitimate fuel products may be extracted, processed, or reclaimed from 
a non-hazardous secondary material that has been discarded in the first 
instance and that such products would generally not be considered solid 
wastes. The principle behind this idea of processing a solid waste to 
produce a product is common to industrial processes. We noted in the 
ANPRM that until a legitimate product has been extracted, processed, or 
reclaimed, the non-hazardous secondary material has been discarded and 
is a solid waste. The ANPRM identified a number of non-hazardous 
materials that can be processed into a legitimate fuel, including 
biomass, coal fines, used oil, tires and landfill ash. Of course, the 
degree of processing necessarily will vary depending on the specific 
material, but the objective is the same--that is, the product from 
processing must be a legitimate fuel (i.e., a material with a 
meaningful heating value, with contaminants that are not present at 
significantly higher concentrations than those of traditional fuel 
products, and managed as a valuable commodity).
    <bullet> Non-Hazardous Secondary Materials Used as Ingredients: In 
addition to legitimate fuel products, the ANPRM also recognized that 
non-hazardous secondary materials that have not been discarded can be 
used as legitimate ingredients, and identified cement kiln dust (CKD), 
bottom ash, boiler slag, blast furnace slag, foundry sand, and 
secondary glass material as secondary materials that could be 
considered as legitimate ingredient products. If, on the other hand, 
such non-hazardous secondary materials have been discarded, the ANPRM 
identified such secondary materials as solid wastes, unless they are 
sufficiently processed into a legitimate product, as would be the case 
for discarded materials that could become products after being 
processed.
    <bullet> Hazardous Secondary Materials That May Be Excluded From 
the Definition of Solid Waste Under RCRA Subtitle C Because They Are 
More Like Commodities Than Wastes: The final category identified in the 
ANPRM are hazardous secondary materials that are recycled and are 
specifically identified in the subtitle C hazardous waste rules as 
secondary materials that may be burned under certain conditions, but 
are not considered solid wastes, at least for purposes of the hazardous 
waste regulations. The ANPRM indicated that EPA was interested in 
extending this determination so that these materials also are not 
considered solid wastes under RCRA subtitle D. The Agency indicated 
that it believed that it had sufficient information in the rulemaking 
records for the various hazardous secondary materials--that is, black 
liquor and spent sulfuric acid,\13\ and comparable fuels \14\ to 
conclude that these subtitle C exclusions are broadly applicable to the 
definition of solid waste under subtitle D of RCRA when these secondary 
materials are used as a fuel or ingredient.
---------------------------------------------------------------------------

    \13\ A determination was made that black liquor reclaimed in a 
pulping liquor recovery furnace and then reused in the pulping 
process and spent sulfuric acid used to produce virgin sulfuric acid 
were not solid wastes because these hazardous secondary materials 
were determined to be an integral part of the manufacturing process.
    \14\ A determination was made with respect to comparable fuels 
that certain hazardous secondary materials meet specific 
requirements to ensure that the materials toxic constituents and 
physical properties are similar to commercial (benchmark) fuels, and 
therefore, are products and not solid wastes.
---------------------------------------------------------------------------

    The ANPRM indicated that in all other cases where secondary 
materials were combusted, they would be considered ``solid wastes'' 
under RCRA subtitle D and thus, subject to CAA section 129. However, 
the Agency solicited comment on many aspects of these scenarios. In 
addition, the ANPRM also solicited comment on the following four 
issues: (1) Whether there are circumstances where discarded secondary 
materials--once recovered from the environment--that can be directly 
used as a legitimate fuel or ingredient product without processing 
should not be considered a solid waste; (2) whether there are other 
approaches for determining that non-hazardous secondary materials when 
used as a legitimate fuel is not a solid waste, and specifically took 
comment on an approach presented to EPA by industry representatives; 
\15\ (3) whether to consider non-hazardous secondary materials that 
receive a state beneficial use determination for use as a fuel or 
ingredient in a combustion unit as not being a solid waste; and (4) how 
to address biofuels and byproducts from the production of biofuels--
that is, whether such secondary materials should be considered a waste 
or not when combusted. (For a more detailed discussion of the ANPRM, 
see 74 FR 41, January 2, 2009.)
---------------------------------------------------------------------------

    \15\ Industry representatives suggested that non-hazardous 
secondary materials should be evaluated, on a case-by-case basis, to 
identify which criteria have been satisfied and determine whether 
the material is legitimately handled as a fuel. Criteria identified 
by industry stakeholders include: Handling and storage of materials 
to minimize loss, use of materials within a reasonable period of 
time, material value (e.g., whether there is a market for the 
material as a fuel, internal or external to the company), material 
managed and treated as a commodity, and processing of material to 
enhance fuel value. See 74 FR 60 for the ANPRM's description of this 
approach. A copy of this industry-recommended approach entitled, 
``Outline of Regulatory Approach to Determine Materials Considered 
Fuels--not Solid Wastes--under RCRA,'' is also included in the 
docket for this rulemaking.
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E. Summary of the Proposed Rule

    The proposal maintained many of the concepts and provisions 
discussed in the ANPRM, including the concept of discard and the 
legitimacy criteria. However, the basic framework differed from the 
ANPRM based partly on the

[[Page 15466]]

approach taken in the Definition of Solid Waste final rule promulgated 
on October 30, 2008 (see 73 FR 64668), based partly on the comments 
received on the ANPRM, as well as EPA's interpretation of whether these 
secondary materials were discarded. For example, comments received on 
the ANPRM from some states suggested that non-hazardous secondary 
material fuels that are transferred to a third party have entered what 
is traditionally considered to be the ``waste stream'' (and have been 
regulated by the states as wastes) and therefore should appropriately 
be considered wastes (e.g., scrap tires, regardless of whether they 
were collected and managed pursuant to state programs or recovered from 
legacy waste piles).
    As a result of comments like these and the Agency's re-examining 
our interpretation of the application of the discard concept to various 
non-hazardous secondary materials, the Agency altered its position in 
the proposed rule. Whereas the ANPRM had indicated that there may be a 
number of non-hazardous secondary materials that would not be 
considered discarded even if the original generator sent them to 
another entity outside of its control, the proposed rule assumed that 
non-hazardous secondary materials that are used as fuels and are 
managed outside the control of the generator are solid wastes, unless 
they were processed into non-waste fuel products or the Agency grants a 
non-waste determination (through a case-by-case petition process) that 
such non-hazardous secondary materials are not solid wastes because 
they have not been discarded and are indistinguishable in all relevant 
aspects from a fuel product.
    In the proposal, EPA stated that when non-hazardous secondary 
material fuels are transferred to another party, the Agency generally 
believed that the material is discarded, since the generator has 
relinquished control of the secondary material and the entity receiving 
such materials may not have the same incentives to manage them as a 
useful product, which results in the materials being discarded. The 
Agency noted that this lack of incentive to manage as a useful product 
has been well-documented in the context of hazardous secondary material 
recycling as evidenced by the results of the environmental problems 
study performed in support of the 2008 DSW Final Rule and believed that 
this finding also held true for non-hazardous secondary materials that 
are used as fuel.
    The proposed rule considered non-hazardous secondary materials used 
as ingredients that are used in combustion units to not be solid waste 
if they were not discarded in the first instance and if they met the 
legitimacy criteria, irrespective of whether they have been transferred 
to a third party. The Agency stated that it was not proposing to 
differentiate ingredients that are used within the control of the 
generator from those that are not since we believed the use of non-
hazardous secondary materials as ingredients is considered to be more 
integral or akin to use in a commercial manufacturing process and thus, 
these non-hazardous secondary materials would not be considered 
discarded provided they satisfy the legitimacy criteria.
    The proposed rule also included a petition process for receiving 
non-waste determinations, which was an additional area for comment in 
the ANPRM, but not included as an approach or scenario that was 
specifically presented. One of the differences between the ANPRM and 
the proposed rule was the classification of ``clean'' biomass and on-
specification used oil as traditional fuels. In addition, the proposed 
rule did not address hazardous secondary materials excluded from the 
definition of solid waste under subtitle C of RCRA, concluding that it 
does not need to address this exclusion in this rulemaking since these 
secondary materials have already been excluded from the definition of 
solid waste as hazardous secondary materials and therefore, should not 
be addressed in the proposed rule, which deals with the definition of 
solid waste for non-hazardous secondary materials used in combustion 
units.
    Finally, the proposed rule also revised the contaminant legitimacy 
criterion, stating that non-hazardous secondary materials used as fuels 
in combustion units must contain contaminants at levels ``comparable to 
or less than'' those in traditional fuels which the combustion unit is 
designed to burn, whereas the ANPRM had stated that non-hazardous 
secondary materials used as fuel could not contain contaminants that 
were ``significantly higher'' than traditional fuel products. In the 
proposed rule, EPA explained its rationale for making this change, 
stating that the requirement that non-hazardous secondary materials 
have contaminants at levels comparable to or less than traditional 
fuels would ensure that the burning of any secondary materials in 
combustion units will not result in discard of materials or their 
contaminants and thus, will not result in increased releases to the 
environment that could adversely impact the health and environment of 
the local community. A similar change was made to the contaminant 
legitimacy criterion for ingredients, with the comparison being made 
between products manufactured with and without non-hazardous secondary 
materials.
    Thus, in the proposed rule, the Agency considered all non-hazardous 
secondary materials burned in combustion units as solid wastes except 
for the following circumstances: (1) Non-hazardous secondary materials 
used as a fuel that remains within the control of the generator 
(whether at the site of generation or another site within the 
generator's control) that meets the legitimacy criteria; (2) non-
hazardous secondary materials used as an ingredient in a manufacturing 
process (whether by the generator or a third party) that meets the 
legitimacy criteria; (3) legitimate fuel or ingredient products that 
are produced from the processing of discarded non-hazardous secondary 
materials; \16\ and (4) non-hazardous secondary materials handled 
outside the control of the generator, but has been determined through a 
case-by-case non-waste determination petition process to not have been 
discarded and to be indistinguishable in all relevant aspects from a 
fuel product.
---------------------------------------------------------------------------

    \16\ As we state throughout the preamble, prior to the 
production of the legitimate fuel or ingredient product, the non-
hazardous secondary material is considered a solid waste and would 
be subject to the appropriate federal, state, and local 
requirements.
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F. Use of Secondary Materials

1. Introduction
    The U.S. is pursuing an approach to sustainable materials 
management that employs the concepts of life cycle assessment \17\ and 
full cost accounting.\18\ Within the context of RCRA,\19\ this final 
rule aims to facilitate materials management to the extent allowed by 
the statute, through the establishment of a regulatory framework that 
guides the beneficial use of various secondary materials, while 
ensuring that such use is protective of human health and the

[[Page 15467]]

environment. EPA, in conjunction with the states, seeks to further 
facilitate this objective through research, analysis, incentives, and 
communication. The Agency recognizes that secondary materials are 
widely used today as fuels and/or ingredients in industrial processes. 
We expect these uses will continue and expand in future years as 
effective materials management becomes more critical to a sustainable 
society. The use of secondary materials from a variety of non-
traditional sources, including the use of energy-containing secondary 
materials, is expected to play an important role in future resource 
conservation efforts.
---------------------------------------------------------------------------

    \17\ The terms ``life cycle analysis'' and ``life cycle 
assessment'' are commonly used interchangeably. Life cycle 
assessment is a system-wide analytical technique for assessing the 
environmental (and sometimes economic) effects of a product, 
process, or activity across all life stages.
    \18\ Full cost accounting is an accounting system that 
incorporates economic, environmental, health, and social costs of a 
product, action, or decision.
    \19\ RCRA section 6901(c)--Materials: The Congress finds with 
respect to materials, that--(1) millions of tons of recoverable 
material which could be used are needlessly buried each year; (2) 
methods are available to separate usable materials from solid waste; 
and (3) the recovery and conservation of such materials can reduce 
the dependence of the United States on foreign resources and reduce 
the deficit in its balance of payments.
---------------------------------------------------------------------------

    The use of secondary materials as alternative fuels and/or 
ingredients in manufacturing processes using combustion not only 
recovers valuable resources, it is known to contribute to emission 
reductions. For example, both greenhouse gas (GHG) and particulate 
matter (PM) emissions have been reduced as a co-benefit of the use of 
secondary materials.\20\ The use of secondary materials, such as use as 
a fuel in industrial processes may also result in other benefits, 
including reduced fuel imports, reduced negative environmental impacts 
caused by previous dumping (e.g., tires), and reduced methane gas 
generation from landfills.
---------------------------------------------------------------------------

    \20\ For example, the GHG emissions rate associated with the 
combustion of scrap tires is approximately 0.081metric tons of 
carbon dioxide equivalents (MTCO<INF>2</INF>E) per million metric 
British thermal units (MMBtu) of scrap tires combusted, while the 
GHG emissions rate for coal is approximately 0.094 MTCO<INF>2</INF>E 
per MMBtu. Combined with the avoided extraction and processing 
emissions 0.006 MTCO<INF>2</INF>E/MMBtu for coal, the total avoided 
GHG is 0.019 MTCO<INF>2</INF>E per MMBtu. Substituting tire-derived 
fuel for coal would also avoid an estimated 0.246 Lbs/MMBtu of PM 
associated with the extraction and processing of the coal. Please 
see the Materials Characterization Papers in the docket for further 
details on these estimates, and other estimates of avoided emissions 
associated with burning tires and other secondary materials as fuel.
---------------------------------------------------------------------------

    Secondary materials may, in some cases, be more appropriately 
defined as ``by-products,'' \21\ reflecting their inherent resource 
recovery value in the generation and production of heat, energy, and/or 
marketable products or intermediates. Secondary materials can provide 
microeconomic (firm level) and macroeconomic benefits when legitimately 
used as effective substitutes for, or supplement to virgin materials. 
Economic efficiencies can be improved with the use of secondary 
materials, when substituted for increasingly scarce virgin materials, 
because the use of such secondary materials often results in an 
equivalent level of outputs at lower overall resource use, or in turn, 
greater outputs could be generated using the same amount of resource 
inputs. When this occurs, monetary savings resulting from reduced 
resources and expenditures would, theoretically, be applied to a higher 
and better use in the economy. This helps advance economic growth as a 
result of improved industrial efficiency,\22\ which, in turn, helps 
move the country toward material sustainability and energy self 
sufficiency, while protecting human health and the environment.
---------------------------------------------------------------------------

    \21\ For purposes of this action, we define by-product as a 
secondary or incidental material derived from the primary use or 
production process that retains value in the marketplace or to an 
end user.
    \22\ Opportunities for improved economic efficiency are 
recognized through the Action Statement of the U.S. Business Council 
For Sustainable Development: ``Promoting Sustainable Development by 
Creating Value Through Action Establishing Networks and 
Partnerships, and Providing a Voice for Industry.''
---------------------------------------------------------------------------

2. Secondary Materials Use and Benefits
    A wide and diverse range of secondary materials are currently used 
as fuels and/or ingredients in manufacturing or service processes. 
Based on our research conducted in support of the January 2, 2009 
ANPRM, we identified eight non-hazardous secondary material fuels or 
fuel groups and six non-hazardous ingredients, or ingredient groups. 
The eight fuel source materials were: The biomass group (pulp and paper 
residuals, forest derived biomass, agricultural residues, food scraps, 
animal manure, and gaseous fuels); construction and demolition 
materials (building related, disaster debris, and land clearing 
debris); scrap tires; scrap plastics; spent solvents; coal refuse; 
waste water treatment sludge, and used oil. The six secondary material 
ingredients were: blast furnace slag; CKD; the coal combustion 
residuals (fly ash, bottom ash, and boiler slag); foundry sand; silica 
fume; and secondary glass material. The ANPRM discussed and described 
these key secondary materials. In addition, we developed Materials 
Characterization Papers for each of these fuel and ingredient 
materials. These papers were included in the docket for the ANPRM, as 
well as the docket for the proposed rule.
    In preparing the proposed rule, we developed three additional 
Materials Characterization Papers for auto shredder residue, 
purification process byproducts, and resinated wood products. For 
today's final rule, we have updated and revised all of the existing 
Materials Characterization Papers for which we received additional data 
and information. We have included these updated Materials 
Characterization Papers in the docket for this final rule. We have 
determined that the non-hazardous secondary fuels and ingredients 
discussed in this series of Materials Characterization Papers account 
for the vast majority of all non-hazardous secondary materials used in 
combustion processes in the U.S.

V. Comments on the Proposed Rule

    Under the approach outlined in the proposed rule, non-hazardous 
secondary materials were defined as a solid waste unless: (1) The non-
hazardous secondary material is used as a fuel and remains within the 
control of the generator that meets the legitimacy criteria; (2) the 
non-hazardous secondary material is used as an ingredient that meets 
the legitimacy criteria; (3) the discarded non-hazardous secondary 
material has been sufficiently processed to produce a non-waste fuel or 
ingredient product that meets the legitimacy criteria; or (4) through a 
case-by-case non-waste determination petition process, EPA has 
determined that the non-hazardous secondary material has not been 
discarded and is indistinguishable in all relevant aspects from a fuel 
product.
    The Agency also took comment on two other approaches regarding the 
combustion of non-hazardous secondary materials. Under the first 
approach, identified in the proposal as the ``Alternative Approach,'' 
all non-hazardous secondary materials and ingredients that were used in 
combustion facilities that were not within the control of the generator 
were considered a solid waste. Thus, only those non-hazardous secondary 
materials or ingredients that were used in combustion facilities within 
control of the generator that meet the legitimacy criteria would be 
considered a non-waste. However, like the proposed rule, traditional 
fuels also would not be considered a solid waste, regardless of the 
generator.
    The second alternative that EPA took comment on was a broader 
definition of solid waste, in which only traditional fuels are not 
solid wastes and all non-hazardous secondary materials burned for 
energy recovery or used as an ingredient are considered discarded, and 
therefore, solid wastes.\23\ This

[[Page 15468]]

section discusses the comments that EPA received, as well as our 
response to those comments.
---------------------------------------------------------------------------

    \23\ On August 18, 2009, EPA received a letter signed by nearly 
one hundred community groups and citizens that urged for an 
expansive definition of solid waste for the purposes of combustion 
and argued against the general approach of the ANPRM. A copy of this 
letter has been placed in the docket to today's final rule. The 
letter highlights stakeholder concerns regarding the differences 
between CAA sections 112 and 129 and argues against an overly narrow 
definition of solid waste.
---------------------------------------------------------------------------

A. Proposed Approach

1. Definition of the Term Discard
    Under the proposed rule, non-hazardous secondary materials that are 
discarded are considered to be a solid waste. On the other hand, 
secondary materials that have not been discarded, for example, 
secondary materials that are managed within the control of the 
generator and meet the specified legitimacy criteria would not be 
considered a solid waste. Many of the comments discussed the definition 
of the term ``discard'' and instances in which the term should or 
should not apply.
    As discussed below, environmental groups argue, generally, that any 
secondary material burned for energy recovery is a solid waste. These 
commenters object to allowing control by the generator to be relevant 
to rendering material a non-waste, even if burned under the legitimacy 
criteria, claiming that these materials are wastes.
    Industry commenters, on the other hand, assert that the secondary 
materials used in their operations exhibit value as evidenced by their 
purchase price, their use as inputs and products, their role in ongoing 
recycling programs, their use as fuels, and/or their use in ``routine 
transactions'' or processing operations. Based on these 
characteristics, industry commenters maintain that such secondary 
materials should not be considered discarded. Industry commenters also 
assert that EPA cannot define something as ``discarded'' when 
transferred to a third party and express concern that the concept of 
discard is ambiguous or incorrectly interpreted by EPA in the proposed 
rule.
    In addition, while industry commenters favor allowing the generator 
to burn secondary materials as non-wastes, they also argue that 
materials are not wastes so long as they are combusted legitimately 
even if the material has been discarded in the first instance. They 
argue that the proposed rule effectively makes the act of moving 
materials from one party to another the equivalent of ``discard,'' 
regardless of intent. These commenters claim that EPA's definition of 
solid waste is overly restrictive and yields little environmental gain. 
Certain comments maintain that as long as a non-hazardous secondary 
material meets the legitimacy criteria for use as a fuel, and it is 
combusted as a fuel, it is not a waste. These comments state that 
secondary materials cannot be assumed to be part of the solid waste 
disposal problem merely because the original generator of the materials 
transfers them to another entity. In fact, depending on the nature of 
the transaction, this transfer may indicate that the company values the 
material.
a. Comments From Environmental Groups
    Comment: Case law prevents EPA from finding that secondary 
materials burned for energy recovery are not solid wastes. The DC 
Circuit holding in AMC I that material ``recycled and reused in an 
ongoing manufacturing or industrial process'' is not ``discarded'' does 
not apply to secondary materials burned for energy recovery even if 
legitimately recycled and reused. AMC I only addresses reclamation of 
secondary materials. Moreover, EPA incorrectly relies on case law to 
give it discretion to define ``discard.'' According to the comment, EPA 
is wrongly implying that, under case law, the meaning of ``discard'' is 
ambiguous and that the Agency has discretion to define burning for 
energy recovery as either discard or not.
    EPA's Response: EPA disagrees with this comment. To reply to this 
commenter, EPA is relying on its explanations in the ANPRM and the 
proposal, as well as the discussion reiterated in this preamble. See 
especially discussions of the law in the proposed rule at 75 FR 31850-
52 (section titled, ``Case Law on Definition of Solid Waste''); 31858-
59 (Comment/Response section titled ``Meaning of Discard''); and 31885-
87 (section titled ``Alternative Approach''). That is, EPA sees nothing 
in the comment that would change the legal basis for this rule. 
However, the Agency would like to clarify the more obvious inaccuracies 
in the comment.
    First, EPA freely admits, as stated in the proposal, that the 
secondary materials at issue in AMC I were not burned for energy 
recovery. See, for example, 75 FR 31887. However, the plain logic of 
the court's opinion and the plain meaning of the statute are 
unmistakable. EPA does not have the discretion to cover as solid waste 
secondary materials recycled in a continuous industrial process, even 
if they are used in a combustion unit. Indeed, if EPA were to assert 
jurisdiction for secondary materials recycled in a continuous process 
for energy recovery, it appears highly likely that the Agency's rule 
would be invalidated in a litigation challenge.
    In addition, EPA has not at any time since the ANPRM in this 
proceeding stated that the term ``discard'' is ambiguous. It is clear 
that EPA's jurisdiction under RCRA applies unambiguously to materials 
that are discarded and the definition is unambiguous in that it means 
thrown away, disposed of or abandoned. It is the application of the 
definition to particular instances that gives rise to ambiguity. The 
ABR court plainly stated that the term may be ambiguous as applied to 
some situations, but not as applied to others. 208 F.3d at 1056, See 
also 75 FR 31887. The comment simply begs the question when it claims 
EPA is relying on an ambiguous meaning to claim discretion. EPA has no 
discretion in certain cases. For example, the Agency may not regulate 
under RCRA secondary materials recycled in a continuous industrial 
process. On the other hand, EPA may have to exercise discretion to 
determine whether particular materials are recycled in a continuous 
process and whether such materials recycled in other ways are solid 
wastes. Agency discretion applies to the application of the discard 
definition.
    Comment: EPA's proposal acknowledges that burning a secondary 
material for energy recovery is not ``traditional'' recycling. Thus, 
EPA may not consider burning for energy recovery as recycling because 
the term, ``recycling,'' is not given its ordinary meaning. See 75 FR 
at 31872.
    EPA's Response: EPA disagrees with the conclusion of the comment, 
but needs to correct the record. EPA received a comment in response to 
the ANPRM that requested the Agency to apply the legitimacy criteria to 
situations where the recycling does not include burning for energy 
recovery. The commenter referred to these other situations as 
``traditional'' recycling. EPA's response noted that this regulation 
specifically applies to whether non-hazardous secondary materials in a 
combustion unit are legitimately recycled or not. This is the general 
policy in this regulation, since states may regulate non-hazardous 
secondary materials recycled in ways not involving combustion units, 
but EPA is required to determine which non-hazardous secondary 
materials are solid waste when combusted for purposes of CAA sections 
112 and 129.
    In its response to the comment wrongly referring to ``traditional'' 
recycling, the Agency used the same term as the commenter. This was a 
mistake, since the Agency makes clear virtually everywhere else in the 
rulemaking record that recycling

[[Page 15469]]

includes legitimate burning for energy recovery and this is very 
clearly understood by almost all of the commenters. The Agency views 
the comment's distinction as a semantic matter, not as a practical 
application of the term ``traditional.'' This mistake is hereby 
corrected for purposes of the final rule. ``Traditional'' recycling may 
include burning for energy recovery of secondary materials.
    Comment: EPA effectively concedes that the ``ordinary everyday'' 
meaning of ``discarded material'' includes ``secondary materials'' when 
they are burned--no matter who burns them and regardless of whether 
energy is recovered from the combustion process. The comment cites the 
preamble to the proposed rule in several places where EPA notes that 
combustion of secondary materials is ``commonly'' associated with 
disposal. See 75 FR at 31859, 31877.
    The comment states, further, EPA's sense of what constitutes 
discard is not the ordinary sense of the term by citing the Agency's 
discussion of the benefits of burning secondary materials. 75 FR at 
31849. In addition, according to the comment, EPA is unlawfully seeking 
to exclude from the definition of solid waste by its discussion of the 
benefits of burning the following materials: Pulp and paper residuals, 
agricultural residues, food scraps, animal manure, construction and 
demolition waste, disaster debris, land clearing debris, scrap 
plastics, spent solvents, coal refuse, waste water treatment sludge and 
used oil. 75 FR at 31850.
    EPA's Response: Other responses deal with the legal arguments made 
by this particular comment on how the statute and case law deal with 
the definition of solid waste. However, the Agency believes it 
necessary to address some of the comment's specific inaccuracies 
separately.
    First, EPA in no way ``concedes'' that all materials burned for 
energy recovery are discarded in the ordinary sense of the term. To the 
extent that the Agency notes certain public perceptions, it plainly 
states (on the same pages cited in the comment) that these are 
misconceptions because they do not take into account that a secondary 
material may often be used to produce a safe fuel product that is a 
valuable commodity or that a secondary material that is burned in a 
combustion unit does not necessarily have high levels of contaminants. 
75 FR 31859.
    In addition, EPA refers to the same misconceptions when it 
discusses whether product fuels may be processed or extracted from 
materials once discarded. EPA notes that fuel processed or extracted 
from discarded non-hazardous secondary materials should not necessarily 
be considered solid waste, just as recycled newspapers, recycled 
aluminum, re-refined oil, to name but a few, are not considered solid 
waste. Moreover, the misperception that contaminant levels are high in 
combusted secondary materials affects the perception that there needs 
to be a very high threshold with respect to the level of processing 
that must take place to render a discarded material into a non-waste 
product. 75 FR 31877.
    Finally, EPA does not understand the comment's citation to 75 FR 
31849-50 as containing statements regarding the Agency's ``sense'' of 
discard or the fact that the Agency is seeking to exclude various 
materials from the definition of solid waste. These pages only discuss 
the benefits of secondary material combustion without opining on 
whether the combusted materials would or would not be a waste. EPA 
cannot understand the comment's motivation in making these statements.
    Comment: RCRA's statutory language shows that Congress did not 
intend EPA to exclude secondary materials that are burned for energy 
recovery from the definition of solid waste. In particular, section 
3004(q) directs EPA to issue regulations both for facilities that 
produce fuels from hazardous waste and for facilities that burn ``for 
purposes of energy recovery'' any fuel that is produced from hazardous 
waste or any fuel that contains any hazardous waste. Thus, EPA may not 
declare that hazardous wastes and hazardous waste derived fuels are not 
discarded when burned for energy recovery. The comment concedes that 
section 3004(q) addresses hazardous waste, but maintains that the 
provision is strongly indicative of Congress' intent that burning a 
material for energy recovery does not transform that material into a 
non-waste.
    EPA's Response: EPA disagrees with this comment. Section 3004(q) 
only applies to specific provisions of the statute and in no way can it 
be considered to present a sweeping bar to the Agency's ability to 
interpret the statute. In fact, since Congress only addressed these 
provisions in the hazardous waste subtitle of RCRA, the more logical 
interpretation is that such provisions would not be applicable to other 
parts of the statute. Section 3004(q) very clearly provides that a 
material must be a hazardous waste, first, before its provisions apply. 
EPA needs to make the determination that material is a hazardous waste 
before even dealing with the restrictions under 3004(q). Thus, it does 
not apply to the present rule where EPA must first determine whether 
the material is a solid waste and there is no question that the 
materials subject to this rule are not hazardous wastes. EPA accepts 
the comment's concession that 3004(q) only applies to hazardous waste.
    Comment: One comment states that ``exemptions'' in EPA's rule from 
the definition of solid waste violate the CAA. EPA interprets this 
comment to mean that the commenter sees violations of the CAA for any 
non-hazardous secondary material the Agency has decided is not a solid 
waste. The comment states the following: ``Congress was not concerned 
either about the ownership of a waste material that was being burned or 
about whether energy was recovered from the combustion process; it 
simply wanted to ensure that all waste combustion units were subject to 
the protective control, monitoring, siting, training, and reporting 
requirements that it found necessary and appropriate for these units.''
    The comment makes four points to support its contention:
    1. The proposed rule is a transparent attempt to exempt facilities 
that recover energy from the section 129 standards and would shrink the 
population of facilities covered to 175, a number far less than 
Congress intended.
    2. Section 129(g)(1) makes clear that Congress viewed refuse-
derived fuel as waste and EPA includes ``refuse-derived'' fuel as a 
non-waste.
    3. Section 129(h)(5) shows that Congress viewed the universe of 
``fuel'' to consist of ``waste'' on the one hand and ``fossil fuel'' on 
the other. Congress's definition of ``municipal waste'' expresses the 
intent that facilities that burn non-fossil fuels and are not covered 
by the express exclusions in section 129(g)(1) must meet the section 
129 incinerator standards.
    4. Because EPA would allow energy recovery facilities controlled by 
the generator to burn non-hazardous secondary materials under section 
112, EPA's regulations would improperly allow hospital-owned medical 
waste incinerators to burn medical and infectious wastes and would not 
be incinerators subject to the section 129 incinerator standards.
    EPA's Response: EPA disagrees that these provisions of the CAA are 
relevant to this regulation. EPA is not creating exemptions to section 
129 for facilities that recover energy. Rather, EPA is establishing a 
definition of non-hazardous solid waste, which, as specified by CAA 
section 129(g)(6), governs the meaning of ``solid waste'' under section 
129. Because Congress

[[Page 15470]]

specifically directed that ``solid waste'' have the meaning established 
by the Administrator under RCRA, instead of defining the term under 
RCRA, the CAA definition of ``municipal waste'' is not relevant to this 
action.
    If any or all of the commenter's contentions are correct, section 
129 would not provide that the term ``solid waste'' shall have the 
meaning promulgated by EPA under RCRA. There would simply be no reason 
for EPA to consider the RCRA definition, since section 129 would take 
care of the issue. Section 129(g)(6) would be meaningless.
    The commenter further argues that EPA should consider the CAA when 
defining solid waste under RCRA. The CAA does not direct the Agency to 
consider the language of section 129 when establishing a RCRA 
definition. So long as EPA's rule is consistent with the RCRA 
definition of ``solid waste,'' it must stand. That is, as long as the 
definition of solid waste is consistent with RCRA, and the Agency 
issues emissions standards for all units that burn commercial and 
industrial solid waste in the CISWI rule, the standards under section 
129 are valid. Therefore, we believe the commenter's general argument 
is without merit.
    With respect to each of the supporting points:
    1. Contrary to the commenter's assertion, EPA is not ``exempting'' 
energy recovery facilities from the section 129 standards. The Agency 
is simply interpreting the term ``solid waste'' under RCRA. The number 
of facilities that are combusting solid waste is not relevant to this 
interpretation. Moreover, there is no indication in the CAA of the 
number of facilities Congress intended to be covered under section 129 
of the Act.
    2. The comment is incorrect that section 129, by excluding 
``refuse-derived fuel'' from the exclusion in 129(g)(1)(B) was somehow 
defining the term as being included in the term, ``solid waste,'' under 
RCRA. Again, if that were the case, section 129(g)(6) would be 
superfluous. Nevertheless, today's rule identifying which non-hazardous 
secondary materials that are solid wastes when combusted does not 
include fuel derived from municipal waste refuse under 129(g)(5). Some 
fuels may be processed from solid waste, but that determination by the 
Agency stands or falls based on the RCRA statute and case law, not the 
CAA. EPA is not defining ``refuse derived fuel'' in this RCRA rule. The 
validity of EPA's interpretation on whether commodity fuels may be 
processed, or extracted, from a waste must stand or fall based on the 
RCRA definition, not provisions of the CAA.
    3. EPA disagrees with the statement that the CAA considers ``the 
universe of `fuel' to consist of `waste' on the one hand and `fossil 
fuel' on the other.'' Again, the CAA is not defining solid waste. Solid 
waste is defined under RCRA as material that is ``discarded.'' There is 
no distinction anywhere in RCRA that would indicate that anything other 
than a fossil fuel must be a waste.
    4. This rule does not address whether or not medical waste is a 
solid waste under RCRA. EPA issued regulations under section 129 of the 
CAA establishing emission standards for hospital and medical waste, and 
today's action does not affect those regulations. [74 FR 51367].
    Comment: EPA's distinction between materials burned for energy 
recovery and those burned for destruction has already been rejected as 
irrelevant in NRDC. 489 F.3d at 1257-1258.
    EPA's Response: EPA agrees that the DC Circuit has rejected for 
purposes of combusting materials under CAA section 129 a distinction 
between materials burned for energy recovery and solid wastes. However, 
EPA is not making that distinction in this rule. EPA agrees that units 
combusting solid waste are generally subject to the emission standards 
issued under section 129 of the CAA whether those wastes are fuels or 
not. Moreover, nothing in the NRDC case addresses EPA's discretion to 
interpret the term ``solid waste'' under the RCRA rulemaking. This 
issue was not before the Court in NRDC, and thus the Court did not 
speak to it. Therefore, we disagree with that portion of the comment.
    It is clear that wastes may have fuel value. EPA, in this rule, is 
making a distinction between materials that are discarded and those 
that are not. One of the considerations is whether a secondary material 
is really being burned for destruction and is, therefore, a waste. If 
it is not being burned for destruction, other factors need to be 
considered to determine whether the non-hazardous secondary material is 
a waste.
    Another way of describing our evaluation process to determine if a 
secondary material is a waste, is that EPA evaluates, first, whether 
such material is discarded in the first instance. If not, the Agency 
needs to consider whether that material is legitimately burned for 
energy recovery.
    There are different ways of explaining the legitimacy criteria and 
the factors are not necessarily considered in any particular order and 
one or more of the factors may render the material a waste. For 
example, one of the legitimacy criteria is the consideration of whether 
the non-hazardous secondary material has meaningful fuel value or is 
simply being burned for destruction--that is, incinerated. If there is 
no meaningful fuel value, the non-hazardous secondary material is 
simply being destroyed.
    If there is meaningful fuel value, other factors must be 
considered, including whether the non-hazardous secondary material is 
managed as a commodity and whether contaminants indicate that 
incineration (destruction) is the real reason for burning. A decision 
as to whether a non-hazardous secondary material is a waste, thus, 
depends on a number of factors, all of which need to be considered by 
the Agency before it decides whether such secondary material is a waste 
or not.
    Comment: It is irrelevant whether non-hazardous secondary materials 
are burned at a facility controlled by the generator. Even EPA does not 
believe its argument because it admits that a secondary material could 
still be a waste even if it is recycled on-site or within the control 
of the generator and cites the court's holding in API II. Instead of 
defending its condition as relevant to whether a non-hazardous 
secondary material is or is not discarded, the Agency merely says that 
the secondary material must both be within the control of the generator 
and must pass the legitimacy criteria. By punting to its legitimacy 
criteria, EPA effectively concedes that its ```on-site' problem'' 
renders irrelevant the condition that non-hazardous secondary materials 
be burned at a facility within control of the generator.
    EPA's Response: EPA disagrees with this comment. If the non-
hazardous secondary material remains within the control of the 
generator, it is more likely to be a material that is saved and not 
thrown away or abandoned. The Agency has explained that case law would 
not allow it to determine that secondary materials are wastes if they 
are recycled as fuels within a continuous industrial process. EPA 
cannot evaluate every non-hazardous secondary material, but believes 
this standard would cover all secondary materials that are recycled as 
a fuel within a continuous process. EPA, however, acknowledges that 
this may capture non-hazardous secondary materials which may be a 
waste, but this is unlikely. There may also be non-hazardous secondary 
materials transferred to another party that may not be a waste and EPA 
is attempting to deal with those categories of non-hazardous secondary 
materials on a case-by-case basis. However, EPA believes that it is a 
reasonable interpretation of the

[[Page 15471]]

statutory definition of discard and the case law to consider that a 
non-hazardous secondary material within the control of its generator 
that is legitimately burned as a fuel is not a solid waste.
    EPA is careful to note that ``legitimacy'' is shorthand for 
referring to non-hazardous secondary materials that are not thrown 
away, are saved and are reused by being burned for their value as a 
fuel. The legitimacy criteria are the factors needed to be examined to 
make this determination. Thus, for example, it is relevant how the non-
hazardous secondary materials is managed and the extent to which 
contaminants in the secondary material may indicate that the real 
reason for burning the secondary material is simply its destruction--
referred to as ``sham'' recycling. The Agency is not simply ``punting'' 
to its legitimacy criteria, but believes they provide a valid basis for 
showing that a non-hazardous secondary material is more commodity-like 
than waste-like.
b. Comments From Industry Groups
    Comment: A number of industry comments object to EPA's explanation 
for determining the extent to which transfer of secondary materials 
between companies for use as a fuel renders the non-hazardous secondary 
materials discarded. According to the comments, EPA not only makes the 
transfer of secondary materials an indication of discard, but transfer 
becomes the primary and controlling condition for determining whether 
secondary materials will be classified as fuel commodities or solid 
waste. One commenter in this general category claims that EPA is 
forbidding economic reuse of such materials by anyone other than the 
generator without prior government permission.
    Moreover, the commenters claim that EPA cannot make a sweeping and 
arbitrary assumption in categorizing these transferred materials as 
``discarded'' and then place the burden on the regulated community to 
challenge the assumption through submission of a petition to declare 
the material a non-waste. According to the commenters, it is incumbent 
upon EPA to explain why a material is discarded before the Agency can 
put the burden on companies to submit non-waste petitions if the 
companies want to claim the secondary material is not a waste.
    The Safe Food case states that firm-to-firm transfers ``are hardly 
good indicia'' of discard. If a fuel can meet all of the legitimacy 
criteria (managed as a valuable commodity, have meaningful heating 
value, not contain elevated levels of contaminants), it cannot 
reasonably be said to be discarded just because it is sold or otherwise 
transferred to an entity separate from the generator. Assuming all 
relevant legitimacy criteria are met, the transfer of secondary 
materials between companies is simply not relevant for determining 
whether such materials have been discarded. In fact, depending on the 
nature of the transaction, this transfer may be a good indicator that a 
company values the material.
    EPA cannot support its position by referring to over-accumulation 
of scrap tires resulting in massive piles of discarded tires. Those 
materials did not meet the legitimacy criteria and should be treated as 
discarded. Such a reference does not rehabilitate EPA's presumption 
that mere transfer of a non-hazardous secondary material could cause 
the mismanagement that resulted in the tire piles.
    Nor can EPA support its position that state agencies consider 
materials wastes when transferred to third parties for use as fuels. 
States can make mistakes, as they did regarding used oil, which they 
classified as a waste, but changed direction after EPA promulgated its 
used oil regulations at 40 CFR part 279.
    One comment states, on the basis of case law on abandonment, that 
to be abandoned there must be a clear and unequivocal intent to abandon 
on the part of the owner and that the burden is on whoever alleges 
abandonment to establish that intent. Of particular significance is the 
principle in the common law that abandonment does not occur where a 
direct transfer of ownership to another party occurs. Where a generator 
conveys title to a secondary material to a third-party, no abandonment 
occurs, whether there is payment for the material or not. Nor, if the 
material is actually recycled (i.e., used, reused, or reclaimed), would 
such material ordinarily be deemed to be ``disposed of'' or ``thrown 
away.'' Materials legitimately burned for energy recovery or used as 
ingredients in combustion units are neither disposed of nor abandoned 
and do not meet the `plain-English meaning' of * * * `discard.'
    Merely because one party has relinquished control of a secondary 
material does not make it a waste nor does the fact that a receiving 
party may not have the same incentives to manage them as a useful 
product. EPA cannot indict all parties that in fact do manage these 
secondary materials as a useful product. Indeed, a generator's use of a 
secondary material does not guarantee its proper use, yet EPA allows 
the legitimacy criteria to suffice in situations in which the generator 
retains control of the non-hazardous secondary material and 
legitimately recycles it.
    Further, EPA seems to contradict itself because it does not presume 
discard of ingredients transferred to other companies and gives no 
reason as to why fuels should be treated differently. EPA only states, 
without giving a reason, that it believes that the use of non-hazardous 
secondary materials as ingredients is considered to be more integral or 
akin to use in a commercial manufacturing process and thus, these non-
hazardous secondary materials should not be considered discarded 
provided they meet the legitimacy criteria. After all, commercial 
manufacturing processes require both ingredients and energy (e.g., 
fuels).
    EPA's Response: EPA disagrees with these comments to the extent 
they argue that the Agency has arbitrarily determined that secondary 
materials transferred between companies are wastes. Instead, EPA has 
evaluated whether certain categories of materials are discarded or not. 
The Agency has not adopted the extremes of saying that all burning of 
secondary material, regardless of ultimate use, is waste treatment or 
that any secondary material that is recycled for legitimate fuel value 
is a commodity and not a waste. Wastes may have value, but are still 
wastes.
    Between these broad parameters, EPA has examined a number of 
specific materials, recycled within the control of the generator and 
transferred to a third party for recycling, and determined whether they 
would be appropriately placed within the waste or non-waste categories. 
EPA would consider transferred materials not to be wastes if it could 
make the appropriate findings for those categories. In fact, the Agency 
does so with respect to scrap tires removed from vehicles and managed 
under the oversight of established tire collection programs and 
resinated wood residuals.
    Consideration of over-accumulation of scrap tires resulting in 
massive piles of discarded tires is not being cited as support for the 
proposition that all transfers of secondary materials result in waste 
treatment, but only for the proposition that the Agency needs to be 
careful in examining whether secondary materials may be transferred as 
commodity fuels or as wastes. Further, EPA is not relying on state 
determinations regarding whether secondary materials are wastes, 
specifically tires, but is instead allowing state tire programs that 
meet certain parameters to affect an EPA determination that transferred 
scrap tires are not wastes.

[[Page 15472]]

    Any of EPA's decisions regarding specific materials, if challenged, 
must stand or fall based on its individual merit. For example, 
resinated wood residuals are routinely transferred between either 
intra- or inter-company facilities and used as either ``furnish'' 
(i.e., raw materials) or fuel at the receiving facilities. The material 
being transferred off-site is used and handled in the same manner that 
resinated wood residuals are used when generated on-site (such that it 
is impossible to distinguish between materials that are being used as a 
raw material and those that are being used as a fuel). Accordingly, 
these materials are not solid wastes whether used within the same 
company or transferred to another company. See below, at sections V.B.6 
for discussion of EPA's response to comments and the Agency rationale 
for how resinated wood should be treated for purposes of this rule.
    Other materials would be wastes based on the Agency's analysis of 
the industry in general or, based on a lack of data or knowledge, an 
effective presumption that recycling materials for a fuel is primarily 
conducted within the control of the generator. For example, use of old 
corrugated cardboard (OCC) rejects (clay, starches, other filler and 
coating materials, as well as fiber) are not discarded when used within 
the control of the generator, since these secondary materials are part 
of the industrial process. OCC rejects can include, and are usually 
burned in conjunction with, other fuels (such as bark) at pulp and 
paper mills that recycle fibers. These materials are not generally 
transferred outside the control of the generator.
    Still other non-hazardous secondary materials may be processed or 
extracted from wastes to produce fuel commodities. Examples include 
tire-derived fuel processed from scrap tires retrieved from waste tire 
piles, and coal refuse retrieved from legacy piles that have been 
processed through the use of grizzlies, screens, and blending to 
improve the quality, remove metal objects, and reduce the 
concentrations of various constituents. To the extent that EPA has 
indicated that particular categories of non-hazardous secondary 
materials are wastes when transferred off-site to a third party, the 
Agency provides companies with the opportunity to petition EPA for a 
non-waste determination; we believe a petition process is essential 
because many non-hazardous secondary materials are recycled and managed 
in many different ways, and the Agency may lack the specific details in 
certain cases to know whether or not such non-hazardous secondary 
materials are or are not solid wastes.
    Thus, EPA is not making a sweeping arbitrary assumption in 
categorizing transferred secondary materials as discarded. In addition, 
EPA is not, in any sense, forbidding economic reuse of such materials 
by anyone other than the generator without prior government permission 
(through the petition process). The effect of this regulation would 
simply be to require the non-hazardous secondary materials designated 
as wastes to be combusted only in facilities regulated under section 
129 of the CAA, while non-waste fuels could be combusted under section 
112 of the CAA.
    EPA also disagrees with the comment's narrow citation to the Safe 
Food case. Safe Food does not stand for the narrow proposition that 
transferring material to another industry is not relevant for 
determining whether material is discarded. The court in that case noted 
that ``the term `discarded' cannot encompass materials that `are 
destined for beneficial reuse or recycling in a continuous process by 
the generating industry itself.' '' 35 F.3d at 1268. Further, 
``materials destined for future recycling by another industry may be 
considered `discarded.' '' Id. With respect to transferring material, 
the court only said ``we have never said that RCRA compels the 
conclusion that material destined for recycling in another industry is 
necessarily `discarded.' '' Id. Rather, the key to understanding the 
importance of Safe Food is the question `` `whether the agency's 
interpretation of * * * `discarded' [is] permissible, that is, 
reasonable and consistent with the statutory purpose.' '' 35 F.3d at 
1269 (citations omitted).
    The point of Safe Food is that the courts are to examine EPA's 
interpretation based on whether it is reasonable. No one factor will be 
determinative.
    Thus, the comment is wrong to try to argue that a quotation in Safe 
Food regarding ``vertical integration'' somehow means that the transfer 
of a secondary material to another party is irrelevant for determining 
whether a secondary material is a waste. Aside from the fact that EPA 
finds no evidence of the relevance of ``vertical integration'' to this 
regulation and no commenter has indicated its relevance, it is plain 
from any reasonable analysis that transfer to another party, where a 
generator of a secondary material relinquishes all control of the 
material is certainly relevant to any determination whether a material 
is a waste.
    EPA is in no way claiming that such transfer is the definitive 
criterion for discard. Instead, EPA has examined the issue of company-
to-company transfers in the context of specific secondary materials and 
to the extent the Agency has found either discard or no legitimate 
recycling, it is requiring companies to file a non-waste petition in 
order to allow the Agency to review the specifics of their cases. 
Further, the Agency will in the future solicit comment on additional 
non-hazardous secondary materials that can be used as a non-waste fuel 
both by the generator and outside the control of the generator. Under 
today's rule, only scrap tires managed under established tire 
collection programs and resinated wood are non-wastes when used both 
within and outside generator control (see Sec.  241.3(b)(2). In 
addition, citations to case law on abandonment issues between private 
parties are not relevant to this case of government regulation. The 
cases do not consider the factors that are relevant to EPA's 
determination under this rule. In this rule, EPA needs to decide 
whether secondary material is discarded in the first instance, and 
whether the transfer represents a legitimate non-waste activity. To 
represent a legitimate non-waste activity, if the material has not been 
discarded in the first instance, it must be handled as a valuable 
commodity, must have meaningful heating value, and must not have 
contaminant levels that show the material is transferred to destroy 
unwanted constituents instead of for its fuel value. A waste owner may 
not be ``abandoning'' a waste when it sends it to another company, but 
the non-hazardous secondary material is still a solid waste if the 
receiver is not burning the secondary material legitimately as a fuel 
(construction debris highly contaminated with lead paint).
    EPA also disagrees with the comment that the Agency is inconsistent 
by allowing the legitimacy criteria to suffice for generators, but not 
for the transferred material. The issue is not whether legitimacy 
suffices for materials under the control of the generator as opposed to 
material transferred to another party. Rather, EPA is using the 
legitimacy standard for generators in order to comply with the holdings 
in the case law that secondary material recycled within a continuous 
industrial process is not a waste. As stated in the preamble to the 
proposed rule, secondary materials recycled or reused legitimately 
under the control of the generator will cover all, or almost all, 
secondary materials recycled or reused

[[Page 15473]]

in a continuous industrial process. See 75 FR 31886-87. EPA thus, 
rejects the environmental groups' argument that any combustion of 
secondary material is a waste. EPA has only decided that there is 
greater likelihood that material will not be a waste if it is under the 
control of the generator. If the generator keeps the material it would 
indicate presumptive non-discard. However, the legitimacy criteria 
serve as a check to make sure discard would not occur. For material 
transferred to another party, as noted above, EPA has greater concern 
since different incentives come into play for the generator as well as 
the recipient, as evidenced by past careless treatment of secondary 
materials.
    Comment: EPA has no authority under section 129 of the CAA to 
regulate the use of non-hazardous secondary materials as ingredients. 
EPA's section 129 authority is limited to ``solid waste incineration 
units,'' which the statute defines as units that ``combust'' solid 
waste. This statutory definition does not say EPA can regulate units 
that ``treat'' solid waste (as provided in RCRA subtitle C). Nor does 
it say that EPA can regulate units that ``use'' solid waste. For 
example, the feedstock for clinker that is placed into a Portland 
Cement kiln is not ``combusted''--rather, it is incorporated into the 
clinker product. Similarly, non-hazardous secondary materials that may 
be used as substitutes for mined or virgin feedstock become 
incorporated into the clinker product and are not ``combusted.''
    EPA's Response: This comment is not relevant to this regulation, 
which determines whether a secondary material is a solid waste, or not 
a solid waste as defined by RCRA. Clearly, EPA has the authority to 
interpret RCRA to decide whether non-hazardous secondary materials are 
solid wastes or not. Whether EPA may cover ingredients used in 
combustors under section 129 of the CAA is a matter for regulations 
under that statute.
    Comment: EPA asserts in its preamble that any material that is 
discarded must be considered forever discarded (and therefore remain a 
solid waste) no matter what value or use it may have to another person 
who may retrieve the material. This logical leap defies common sense, 
and is not in any manner compelled by the statutory language or 
judicial precedent.
    It is illogical and nonsensical to hold that a material must be 
considered forever ``discarded'' if Party B comes upon the material, 
removes it from its ``discarded'' venue, and takes it with him or her 
for a bona fide use. Suppose a woman walks by a town dump and spies a 
chest-of-drawers that has been thrown away (i.e., abandoned, 
discarded). The piece of furniture is old, but it is perfectly usable 
for a room in her house. She takes the chest of drawers and places it 
in a guest bedroom and it now sits there full of clothes. To say the 
chest sitting in that room is now a ``discarded'' material simply 
defies the plain meaning of the word.
    According to the comment, the RCRA subtitle C case API I, which 
deals with hazardous waste under RCRA, in no way impairs EPA's ability 
to craft a subtitle D rule that could allow for materials once deemed 
to have been discarded to cease to be a solid waste when reused. The 
comment acknowledges that in API I, the court disapproved of the 
concept that a material that may have once been thrown away could 
nevertheless ``cease to be a solid waste'' if it were being 
beneficially reused, as it would no longer at that point be considered 
a ``discarded material.'' The comment goes on to say, however, that the 
court only stated that it believed it would be ``unlikely'' that EPA 
could successfully maintain the position that a discarded material 
could cease to be a solid waste when recycled. The court reasoned that 
for EPA to reach such a conclusion, the Agency would have to reconcile 
this position with RCRA's acknowledged objective to establish a cradle-
to-grave regulatory structure for the safe handling of hazardous 
wastes.
    The comment argues that this language of the opinion is a 
``critical'' element of the decision and only applies to hazardous 
wastes. Therefore, it does not apply to non-hazardous waste. The 
comment goes on to say that EPA cites no case law, and they are aware 
of none, in which a court has ruled that a discarded non-hazardous 
secondary material must forever be deemed discarded no matter what 
beneficial use it may subsequently be put to.
    EPA's Response: EPA disagrees with this comment. In the first 
place, the Agency is not saying that wastes are ``forever'' discarded. 
Wastes may be processed into materials that are not wastes. The 
important point, here, is that a waste does not automatically lose its 
waste designation solely because some person has found value in the 
material. Something has to happen to that waste to make it a non-waste.
    Judicial interpretations of the statutory definition of discard 
very plainly hold that a material that has become a waste--because it 
is discarded--may not lose its waste status ``just because a reclaimer 
has purchased or finds value'' in the waste. ILCO at 1131; OWEN STEEL 
at 150. Furthermore, in ABR, the court stated, ``The point of AMC II, 
and for that matter API, is that once material qualifies as `solid 
waste,'' something derived from it retains that designation even if it 
might be reclaimed and reused at some future time.'' ABR at 1056.
    EPA notes in a response to a comment elsewhere in this preamble 
that these cases do not prevent the Agency from considering that wastes 
may be processed in some way into non-waste products. Nevertheless, the 
cases unmistakably hold that secondary materials do not lose their 
waste status simply because they have value.
    The commenter's reference to the API I case's mention of the 
purposes behind the hazardous waste regulation's ``cradle to grave'' 
regime is not ``critical'' to the court's holding. The court only was 
opining on a hypothetical situation should EPA return to the court in a 
future case. It certainly was not necessary to the holding in the case 
and must only be considered dicta. EPA believes it has crafted a valid 
interpretation of the statute based on other relevant case law on the 
subject.
    EPA also acknowledges that persons may find value in materials that 
have been thrown away, such as the chest of drawers to which the 
comment refers. However, this regulation deals with fuels and 
ingredients that are used in combustors, and EPA is not evaluating 
other materials when beneficially used. In fact, EPA has specifically 
indicated that the Agency is not making a determination that non-
hazardous secondary materials are, or are not, solid wastes for other 
possible beneficial end uses. Such beneficial use determinations are 
generally made by the states for these other end uses, and EPA will 
continue to look to the states in making such determinations. Thus, EPA 
does not need to resolve the hypothetical situation as to when the 
chest of drawers becomes a non-waste.
    Comment: In the proposed rule, the Agency indicated that the 2008 
DSW Final Rule included a third part in the definition of ``under the 
control of the generator.'' Specifically, the 2008 DSW Final Rule also 
applies to hazardous secondary materials that are generated pursuant to 
a written contract between a tolling contractor and a toll manufacturer 
and legitimately reclaimed by the tolling contractor. For purposes of 
that exclusion, a tolling contractor is a person who arranges for the 
production of a product or intermediate made from specified raw or 
virgin materials through a written contract with a toll manufacturer. 
The

[[Page 15474]]

Agency requested comment on whether to include this option in the final 
rule.
    Few comments were received on tolling contractors. One commenter 
stated that to the extent that such arrangements facilitate the 
recycling or use of non-hazardous secondary materials and benefit the 
environment by reusing such secondary materials that might otherwise be 
disposed of, it should be included. A state commented, however, only 
that tolling contracts should not be considered under the control of 
the generator.
    EPA's Response: We did not include tolling arrangements as being 
``within the control of the generator'' as we viewed this as a specific 
type of arrangement used in the production of secondary materials that 
are not being used as fuels, and were unaware of these types of 
contractual arrangements where both products and secondary material 
fuels are sent to what we are calling tolling contractors, nor has any 
comment informed the Agency of such arrangements for fuels.
    Comment: In implementing RCRA, EPA must balance the statute's two 
primary goals of (1) protecting human health and the environment and 
(2) encouraging reuse and recycling. The second goal is particularly 
critical in the RCRA subtitle D context. EPA's proposal, along with the 
CISWI proposal, draws many lines that would impose major impediments on 
recycle/reuse. Yet EPA never attempts to justify these choices dealing 
with non-hazardous secondary materials on the grounds of protecting 
human health and the environment.
    EPA's failure to take both of these factors into account produces 
results that impede reuse and recycling of non-hazardous secondary 
materials with no benefit to health and the environment. The commenters 
claim this is arbitrary and capricious and a failure of reasoned 
decision making.
    EPA's Response: EPA disagrees that these policy goals provide the 
legal basis for the Agency's determination whether secondary materials 
are solid wastes--discarded within the ordinary meaning of the term. 
Broad policy goals stated in the statute do not substitute for the 
substantive statutory requirements which the Agency must follow. In the 
NRDC case, the DC Circuit admitted that EPA may have legitimate policy 
reasons for its decision. However, the Agency must still follow the 
statute.
    Yes, the Agency should encourage recycling, but it may not 
encourage that use by allowing discarded materials to be considered 
non-wastes. The overall congressional policies are limited by the 
substantive statutory requirements. Yes, the Agency must protect human 
health the environment, but its ability to do that is limited to its 
ability to regulate material that is discarded--material that is a 
solid waste. The Agency is establishing standards for determining if a 
secondary material is a solid waste, in order to clearly identify which 
combustion units are subject to CAA section 129 standards. We do note 
that as part of the Agency's legitimacy criteria, we consider whether 
there are excessive contaminants in the secondary material that is 
combusted. This analysis delves into matters regarding whether the 
secondary material is actually a waste.
    Comment: In a similar vein, another industry comment argues that 
the statutory definition of solid waste sets the outer limits of EPA's 
regulatory authority under RCRA. However, EPA is neither required nor 
authorized to go to the limits of that definition in each of its 
regulatory programs. Each such program, according to this comment, is 
aimed at specific dangers that the wastes it addresses may pose, and 
each such program must take account other statutory purposes, such as 
encouraging the beneficial reuse of secondary materials. EPA, 
therefore, should exercise its authority to establish a definition of 
waste that is tailored to address the problems at issue, and that does 
not impermissibly infringe on other statutory goals.
    EPA's Response: EPA disagrees with this comment. First, general 
congressional policies that refer to encouraging recycling have no 
place in EPA's determination as to whether a secondary material is a 
waste or not. For purposes of this rule, EPA is evaluating which non-
hazardous secondary materials are discarded under the statute. CAA 
section 129 requires that units burning solid waste, as defined by the 
Administrator, are subject to emissions standards under that section.
    In deciding which non-hazardous secondary materials are in fact 
wastes, the Agency evaluated a number of circumstances and exercised 
discretion to decide on how the definition of solid waste applies in 
various circumstances. However, EPA cannot decide to develop a narrower 
interpretation of what constitutes a waste simply because it does not 
want to have the non-hazardous secondary materials burned under CAA 
section129 instead of CAA section 112. EPA may not say material is not 
discarded if, in fact, it is.
    In this case, EPA is determining which non-hazardous secondary 
materials are solid wastes. EPA has no authority to grant waivers 
simply because it wishes to encourage recycling by making the 
combustion of secondary materials less expensive.
    With respect to RCRA subtitle C regulations, as has been noted 
throughout this proceeding, EPA is not reopening any decisions. Any 
commenter's subjective evaluation of whether a particular hazardous 
waste regulation is more stringent than this regulation has no 
relevance to whether a non-hazardous secondary material is discarded 
for purposes of this regulation.
    EPA has stated that secondary materials excluded from the 
definition of solid waste under the subtitle C regulations will remain 
non-wastes under this rule. We are not reopening the RCRA subtitle C 
rules. EPA also notes that some comments have argued that the 
legitimacy criteria do not apply to the subtitle C rules and, 
therefore, should not apply to this rule. EPA disagrees with that 
concept. In fact, the legitimacy criteria in some form apply to all 
recycling, regardless of how it is formulated, even if there is a 
specific exclusion under RCRA subtitle C.
2. Processing Requirements
    Under the proposal, fuels or ingredients that are produced from the 
processing of discarded non-hazardous secondary materials are not a 
solid waste provided they meet the specified legitimacy criteria. 
Comments from environmental groups rejected in its entirety any 
processing requirement at all. According to these comments, a discarded 
material remains a waste and cannot be rehabilitated to become a 
commodity fuel. Any fuel derived from a waste must be combusted under 
section 129 of the CAA.
    On the other hand, industry commenters in general found the 
proposed definitions of ``processing'' and ``sufficient processing'' 
unclear and the processing requirements generally too restrictive. 
Several comments requested that EPA offer further explanation as to why 
processing is necessary in the first instance. In particular, they 
claimed that the degree of processing required by the proposed rule is 
inappropriate and illogical, arguing that there is no reason to impose 
an artificial and arbitrary requirement that materials first be 
``transformed'' into something different.
    Other commenters argued that secondary materials suitable for use 
as a fuel or ingredient without processing are not solid wastes when 
combusted, even if they have been previously discarded. In other words, 
if previously discarded, non-hazardous secondary materials can be used 
as is, as fuels or as ingredients, then such non-hazardous

[[Page 15475]]

secondary materials are not solid waste. As long as the fuel or 
ingredient meets the legitimacy criteria, affected parties should not 
have to process the material, as doing so would be burdensome and 
unnecessary. Other commenters asserted that minimal processing should 
be sufficient for a fuel not to be considered a solid waste.
a. Comments From Environmental Groups
    Comment: EPA is incorrect in defining discarded materials to be 
considered non-waste product fuels if they have been ``sufficiently 
processed.'' In the view of this commenter, the DC Circuit has held 
plainly and repeatedly that the term solid waste unambiguously includes 
fuels made from processed secondary materials. The comment refers to 
dicta in the DC Circuit opinions of AMC I and ABR, in which the court 
states that EPA may regulate used oil recyclers that collect discarded 
used oils, distill them, and sell the resulting material for use as 
fuel in boilers. In addition, the comment cites cases in other 
circuits--ILCO and Owen Steel--to the effect that wastes may be 
recycled and that their recycling is irrelevant to the determination as 
to whether they are wastes. In particular, the comment cites the facts 
in ILCO where the court found used batteries to be discarded within the 
everyday use of the term and that their secondary character as 
recyclable material is irrelevant to that determination. In addition, 
the comment cites the Owen Steel facts where steel slag recycling 
activities were considered waste treatment even though the recycled 
slag was used commercially. According to the comment, a material is 
discarded and the fact of discard is not changed just because a 
reclaimer has purchased or finds value in the components of such 
secondary materials.
    EPA's Response: EPA disagrees with the comment, and finds that the 
commenter reads too much into these cases. EPA has repeatedly stated in 
this rulemaking that it agrees that wastes may be recycled and that the 
fact of discard does not change solely because the waste may have 
value. As stated earlier, EPA has specifically indicated that the 
Agency is not making a determination that non-hazardous secondary 
materials are, or are not, solid wastes for other possible beneficial 
end uses. These cases do not, however, stand for the proposition that 
any product resulting from the recycling must be a waste. Such a view 
would make almost every aluminum can from which we drink our sodas or 
newspapers on which we read the news ``solid wastes.''
    With respect to AMC I and ABR, the reference to regulating used oil 
processing into fuels that are sold is, first, not necessary to the 
decisions. Those cases overturned rules where EPA was overly broad in 
its regulation. The cases were not deciding which situations constitute 
proper regulation by EPA. Nevertheless, the DC Circuit, by the terms of 
its dicta, was only referring to regulating the processing activity for 
the used oil. The court was not referring to regulation of the 
resulting material that was sold to boilers as a fuel. In fact, the 
court acknowledges that the fuel is sold to boilers and in no way 
opines on whether the resulting fuel is a waste. In this rule, also, 
EPA is not saying that the processing of discarded material is excluded 
from regulation as a waste activity, but only that the resulting fuel 
is not a waste if it has been sufficiently processed and meets the 
criteria of fuels that are not wastes--referred to as meeting the 
legitimacy criteria.
    As for the other recycling cases, EPA has admitted that the mere 
fact of recycling does not change the nature of a secondary material 
that has been discarded. Again, AMC I and ABR cases are not directly on 
point for deciding whether non-waste products can be extracted from 
discarded material because the courts were not called upon to decide 
that issue. In both cases, however, the courts refer to resulting 
products that were sold commercially.
    In the ILCO case, the issue was whether reclaimed lead plates from 
discarded batteries were recycled wastes or raw materials used to 
produce steel ingots. The court found that the lead plates were wastes, 
but only noted that the lead ingots made from the wastes were sold 
commercially and did not opine as to whether the ingots were wastes. 
EPA argues that the ingots were not wastes, since they were processed 
into valuable commodities.
    In Owen Steel, the court found that slag from steel production was 
a waste and the area where the slag was processed was a waste treatment 
facility. The cured slag was sold for various commercial processes, 
including roadbed construction. The court was not asked to opine, nor 
did it, on whether the roadbed material was a waste. Again, EPA argues 
that the cured slag could be a product produced from the waste, even 
though the processing activity involved waste treatment.
    EPA does admit that the cases are not directly on point regarding 
the Agency's determination that discarded materials may be processed 
into legitimate product fuels. The cases do seem to recognize, however, 
that products made from wastes may be products and not wastes.
    More importantly, the cases do not refute EPA's essential logic 
that fuel or ingredients processed or extracted from discarded 
secondary material is analogous to many products that are processed or 
extracted from non-hazardous wastes, such as aluminum cans or recycled 
paper made from recycled secondary materials. The cases indicate that 
the same logic could apply to fuel processed from used oil, lead ingots 
made from battery lead plates, or roadbed construction material made 
from steel slag. This applies even though the processing or extraction 
activities involve waste treatment. EPA believes that, at a minimum, 
there are circumstances in which the resulting materials are not 
wastes.
    EPA's task in the current rule is to decide when such processing 
results in a product or a waste. To resolve the issue, EPA has 
identified conditions on the extent of processing that has been 
conducted. That is, the processed discarded material may become a non-
waste fuel or ingredient if certain conditions are met--that is 
sufficient processing has occurred. If so, and if the material meets 
the legitimacy criteria, the fuel or ingredient product would be 
considered a non-waste material.
b. Comments From Industry Groups
    Comment: A number of industry commenters object to the processing 
requirement for discarded non-hazardous secondary materials to become 
non-waste fuels or ingredients. These comments contrast with the 
argument of environmental groups that no processing would transform 
discarded non-hazardous secondary materials into non-waste fuels or 
ingredients, a contention to which the Agency responds to earlier in 
this preamble.
    Industry commenters argue that the legitimacy criteria are 
sufficient and that there should be no processing requirement for non-
hazardous secondary materials that were discarded and could now be used 
as fuels or ingredients. The general argument is that the very act of 
retrieving a previously discarded material for use as a fuel or an 
ingredient proves that the material is once again wanted by the 
consumer, regardless of the type or extent of processing which the 
secondary material must undergo. According to these comments, the mere 
act of removing the previously discarded material from the environment 
for use ``conclusively'' demonstrates that the non-hazardous

[[Page 15476]]

secondary material has value as a product or intermediate--otherwise, 
no one would invest the significant costs associated with the recovery 
of these materials.
    Various activities were specifically mentioned--recovery of coal 
combustion byproducts from landfills, extraction of coal refuse from 
mine sites and used whole tires retrieved from tire piles. With respect 
to these non-hazardous secondary materials, commenters argue that the 
excessive threshold level of processing makes no sense and that EPA 
should allow only a minimal amount of processing to convert a waste 
into a product fuel or ingredient.
    In particular, the comments argue that normal processing of coal 
refuse (mining rejects) should be sufficient to constitute processing 
needed to convert previously discarded materials to legitimate fuels/
ingredients. The same material mined to be used in today's combustion 
technology is processed in that way and there is no difference between 
the mined materials.\24\ Also, whole tires retrieved from waste tire 
piles may need only minimal processing for use in cement kilns, such as 
removal of excess water and dirt, mud, and debris. Whole tires from 
newer stacks or piles often need no physical processing whatsoever. In 
contrast, EPA argues that scrap tires cannot be considered sufficiently 
``processed'' unless they are physically shredded and undergo metals 
removal processing.
---------------------------------------------------------------------------

    \24\ As discussed later in this preamble, the Agency has changed 
its view regarding coal refuse that was previously abandoned, such 
that if the discarded coal refuse is processed in the same way as 
coal is today, the Agency would not consider the processed coal 
refuse a solid waste.
---------------------------------------------------------------------------

    Establishment of a threshold level of processing that must take 
place before a discarded non-hazardous material is considered a 
legitimate fuel or ingredient would also have the perverse effect of 
applying different standards to identical materials. For example, there 
is no difference in the coal refuse or coal combustion byproducts that 
are recovered from landfills for use in a fluidized bed combustion unit 
or in the cement manufacturing process.
    Some comments claim that under EPA's hazardous waste regulations, 
only minimal processing, such as baling or sorting, is required for 
scrap metal to be excluded from the definition of solid waste. The 
scrap metal, which would otherwise be a hazardous waste, may be sent 
into high-temperature environments, such as electric arc furnaces at 
steel mills and aluminum smelters. EPA had stated that this is a good 
example of where the level of processing necessary to convert a waste 
material to a non-waste material is dependent on the material itself. 
The comments claim that this is inconsistent with requiring used tires 
that have been discarded to not to be considered sufficiently 
``processed,'' unless they are physically shredded and undergo metals 
removal processing.
    EPA's Response: As discussed in the case law elsewhere in this 
preamble, EPA is constrained by the statutory definition of solid waste 
under RCRA and the fact that case law holds that a discarded material 
does not lose its status as a waste solely because it has value or may 
be beneficially reused. Allowing certain non-hazardous secondary 
materials to be combusted as a fuel under the section 112 standards of 
the CAA may have beneficial policy objectives. However, EPA may not 
base its decision on the policy, but must evaluate whether a secondary 
material is a solid waste under RCRA. Specifically, the DC Circuit in 
NRDC would not allow EPA to establish a policy basis for determining 
whether section 112 or 129 applies. Thus, non-hazardous secondary 
materials that are wastes and are used as a fuel/ingredient in a 
combustion unit must be used in section 129 units, whereas non-
hazardous secondary materials that are not wastes and are used as a 
fuel/ingredient in a combustion unit may be used in section 112 units. 
The court stated that ``the distinction EPA draws may well be 
reasonable'' referring to EPA's distinguishing between section 112 
combustors designed to recover energy and section 129 incinerators 
meant to destroy materials. NRDC at 1260. The court, however, was very 
clear that this is not the line drawn by Congress, which intends that 
any waste material, even if burned for energy recovery, must be burned 
in section 129 combustion units.
    The Agency, however, believes that the case law would not prohibit 
the processing or extracting of products from non-hazardous secondary 
materials that were once wastes. This latter view is controversial as 
evidenced by the comments from environmental groups, which claim that 
no amount of processing can convert a waste into a legitimate fuel or 
ingredient product. EPA, however, does not believe it may interpret the 
statute or the case law to allow a clearly discarded secondary material 
to become a non-waste solely because it has value.
    EPA sympathizes with the commenters' concern that the processing 
requirement could have the effect of applying different standards to 
identical materials, such as scrap tires. The Agency, however, is 
constrained by the statute and case law. If the non-hazardous secondary 
material is not discarded in the first instance and is legitimately 
recycled--that is, meets the legitimacy criteria, it is not discarded. 
Once the material has been discarded--thrown into waste piles or on 
stacks--there is no choice. Something other than mere recycling must 
happen to the material before it may lose its waste designation. The 
mere fact that secondary materials may have value after being discarded 
is not sufficient to rehabilitate it.
    Accordingly, EPA is not making any changes to the processing 
requirements for discarded scrap tires, although the Agency is 
providing that tires harvested from vehicles do not need to be 
processed if they are harvested off of the vehicles and are managed 
under the oversight of an established tire collection program and are 
legitimately used as a fuel in a combustion unit (refer to Section 
V.B.5 Scrap Tires) to be considered a non-waste fuel.
    For coal refuse, however, EPA has decided that for the final rule, 
to make some modifications to its determinations regarding sufficient 
processing. In the proposal, EPA was still considering that the coal 
refuse that was abandoned would require additional processing, even 
though they were the same material as coal refuse currently generated 
and used in fluidized bed combustors as traditional mined coal. EPA has 
modified its view to provide that the discarded coal refuse that is 
processed in the same way as coal is today would not be considered a 
waste when combusted. For more information on the rationale for this 
decision, see Section V.B.8 for a discussion of the comments received 
on coal refuse and our response to those comments.
    Finally, in response to the point that minimal processing is 
permitted to exclude scrap metal from the definition of solid waste in 
EPA's hazardous waste regulation, the Agency first states that it is 
not reopening the hazardous waste regulations, including the reasoning 
in those regulations. Besides, the reference to scrap metal in the 
hazardous waste regulation was only used in the preamble to note the 
fact that the extent of processing in general depends on the nature of 
the material, as we have noted elsewhere in the preamble to today's 
rule. Any comparison, other than the very general one that processing 
depends on the material, is not being considered by EPA. Whatever the 
reasoning provided in those regulations, EPA did not cite the scrap 
metal regulation as support for the processing

[[Page 15477]]

definition. The Agency also points out that the scrap metal is not 
combusted.

B. Comments on Specific Materials Used as Fuel

1. Traditional Fuels \25\
---------------------------------------------------------------------------

    \25\ Traditional fuels are not considered secondary materials 
and therefore, are not considered a solid waste unless they 
themselves have been discarded. However, because the Agency received 
comments regarding ``traditional fuels,'' including whether certain 
materials should be considered a traditional fuel, the Agency is 
addressing those comments in this section.
---------------------------------------------------------------------------

    The following discussion describes how EPA has analyzed what is a 
traditional fuel in the ANPRM and the proposal. Next, the Agency shows 
how it considered various comments on the concept of traditional fuels. 
Section VII.A, based on these analyses and all information in the 
rulemaking record, explains the Agency's decision on what constitutes a 
traditional fuel.
    EPA does wish to clarify, however, that it is using the term, 
``traditional,'' more in the sense that we have a product that is 
created for its use as a fuel. Some traditional fuels have been used 
for a long time, while others are ``traditional'' only in the sense 
that they are created in the ``traditional'' way that a product is 
created (or mined), even though they may be newly developed fuels. For 
example, coal refuse that was formerly not able to be used as a fuel 
may now be used in fluidized bed systems. Perhaps, more obvious is the 
fact that petroleum, itself, would not have been considered a 
traditional fuel in the early 1800s, nor would uranium.
    The ANPRM categorized as traditional fuels cellulosic biomass 
(e.g., wood) and fossil fuels (e.g., coal, oil, natural gas), as well 
as fossil fuel derivatives (e.g., petroleum coke, bituminous coke, coal 
tar oil, refinery gas, synthetic fuel, heavy recycle, asphalts, blast 
furnace gas, recovered gaseous butane, and coke oven gas). Traditional 
fuels are those that have been burned historically as fuels and have 
been managed as valuable products. They are unused products that have 
not been discarded. The ANPRM also stated that unadulterated or clean 
wood collected from forest fire clearance activities and trees and such 
wood found in disaster debris, likewise, constitute traditional fuels. 
This basic concept of traditional fuels was discussed at 74 FR 53.
    The ANPRM also discussed other legitimate ``alternative'' fuels 
that have not been previously discarded generally noting that what 
constitutes a new ``fuel'' reflects the availability of the fuel 
materials generally, the demand for the fuel, and technology 
developments. Thus, there is a category of materials that are 
legitimate alternative fuels that may not have been historically used 
as fuels, but that are nonetheless legitimate fuels today because of 
changes in technology and in the energy market. In cases where these 
legitimate alternative fuels have not been discarded, EPA said that it 
would not consider them to be solid wastes. This is explained in the 
ANPRM at 74 FR 56.
    The ANPRM stated that much of the biomass currently used as 
alternative fuels are not solid waste since they have not been 
discarded in the first instance and are legitimate fuel products. It 
noted that biomass can include a wide range of alternative fuels, and 
can be broken down into two different categories--cellulosic biomass 
and non-cellulosic biomass. Cellulosic biomass was described to include 
forest-derived biomass (e.g., green wood, forest thinnings, clean and 
unadulterated bark, sawdust, trim, and tree harvesting residuals from 
logging and sawmill materials), food scraps, pulp and paper mill wood 
residuals (e.g., hog fuel, such as clean and unadulterated bark, 
sawdust, trim screenings; and residuals from tree harvesting),\26\ and 
agricultural residues (e.g., straw, corn husks, peanut shells, and 
bagasse). Non-cellulosic biomass was described to include manures and 
gaseous fuels (e.g., from landfills and manures) (74 FR 56).
---------------------------------------------------------------------------

    \26\ The ANPRM description of cellulosic biomass inadvertently 
repeated the same material--``tree harvesting residuals from 
logging'' and ``residuals from tree harvesting.'' Descriptions of 
cellulosic biomass in the proposed rule and this final rule deleted 
the second reference to residuals from tree harvesting.
---------------------------------------------------------------------------

    The ANPRM stated that biomass, especially cellulosic biomass, has a 
comparable composition to traditional fuel products due to the nature 
of the plants and animals (i.e., they would not be considered to have 
additional ``contaminants''). Thus, if they are managed as valuable 
commodities and have meaningful heating value, they would not be 
considered solid wastes.
    The ANPRM distinguished the traditional fuels from non-traditional 
alternative fuels to decide whether they are discarded, or whether they 
are legitimate alternative fuels. These fuels are those in use today 
that the Agency was evaluating, and continues to evaluate, to determine 
whether they have been discarded and whether they are legitimate 
alternative fuels (e.g., construction and demolition materials, scrap 
plastics, non-hazardous non-halogenated solvents and lubricants, and 
wastewater treatment sludge) (74 FR 56).
    The ANPRM also described secondary materials EPA considered to be 
questionable as to whether they are legitimate fuels because they lack 
adequate heating value (wet biomass), or because they may contain 
contaminants that are significantly higher in concentration than those 
in traditional fuel products to the degree that sham recycling is 
indicated. The secondary materials that were described in the ANPRM 
that could fall into this category include polyvinyl chloride (PVC), 
halogenated plastics, chromated copper arsenate (CCA) lumber, creosote 
lumber, copper-based treated lumber, lead-based treated lumber, and 
secondary mill residues, such as board, trim and breakage from the 
manufacture of reconstituted wood/panel products.
    The proposed rule continued to recognize that traditional fuels, as 
noted above, are not solid wastes, but added to that group clean 
cellulosic biomass and on-specification used oil (75 FR 31856). 
Specifically, in the proposal, ``clean'' biomass material was defined 
as a non-hazardous secondary material that has not been altered (either 
chemically or through some type of production process), such that it 
contains contaminants at concentrations normally associated with virgin 
biomass materials (the description of ``clean'' is being modified 
slightly for today's rule, see discussion below). Clean cellulosic 
biomass was described to include forest-derived biomass (e.g., green 
wood, forest thinnings, clean and unadulterated bark, sawdust, trim, 
and tree harvesting residuals from logging and sawmill materials), corn 
stover and other biomass crops used specifically for energy production 
(e.g., energy cane, other fast growing grasses), bagasse and other crop 
residues (e.g., peanut shells), wood collected from forest fire 
clearance activities, trees and clean wood found in disaster debris, 
and clean biomass from land clearing operations (75 FR 31856). 
Essentially, ``clean'' biomass was that biomass material that was 
simply picked up from its environment and burned for fuel. EPA 
requested comment on whether other types of cellulosic biomass should 
be designated as clean biomass, and thus a traditional fuel (75 FR 
31856).
    EPA also proposed to add on-specification used oil to the list of 
``traditional'' fuels based on the argument that it meets the Agency's 
view of fuels that have been managed as valuable fuel products rather 
than being managed as waste materials. 75 FR 31864. The Agency stated 
that under 40 CFR part 279, once used oil is determined to be on-spec, 
it is no longer regulated under the used oil management standards. This 
means that once the marketer complies with the

[[Page 15478]]

requirements for analysis and record retention, notification, and 
record tracking shipment to on-specification burners, the oil is no 
longer subject to other management standards. Moreover, the on-
specification used oil contains contaminants at levels below the 
maximum concentration limits established in the standards, such that 
they are either at the same concentration or a lower concentration than 
virgin refined fuel oil.
    EPA acknowledged in the proposal that changes in technology and in 
the energy market over time may result in additional materials being 
economically viable to be used as alternative ``traditional'' fuels. It 
also may not always be clear whether a fuel material is a traditional 
fuel. We agreed with commenters to the ANPRM that this rulemaking 
should be flexible to account for increasing use and changes in 
commodities, technologies, markets, and fuel prices. We, therefore, 
requested comment on whether other fuels in use today should be 
classified as traditional fuels, as well as whether to provide a 
petition process that would allow a facility or person to request that 
EPA determine whether the fuel that they burn qualifies as a 
traditional fuel.
    As also discussed in Section VII, the definition of traditional 
fuels has been modified in today's rule. The new definition encompasses 
two categories of fuels: (1) ``Historically managed'' fuels, as 
identified in the proposed rule, and (2) ``alternative'' fuels, as 
discussed in the ANPRM. Through this revised definition, EPA is 
recognizing that changes in technology and in the energy market over 
time have resulted in additional materials being economically viable to 
be used as alternative ``traditional'' fuels. The definitions of 
traditional fuels and clean cellulosic biomass are codified in today's 
rule (Sec.  241.2). ``Traditional fuels'' is defined in today's final 
rule as materials that are produced as fuels and are unused products 
that have not been discarded and therefore, are not solid waste 
including: (1) Fuels that have been historically managed as valuable 
fuel products rather than being managed as waste materials, including 
fossil fuels (e.g., coal, oil and natural gas), their derivatives 
(e.g., petroleum coke, bituminous coke, coal tar oil, refinery gas, 
synthetic fuel, heavy recycle, asphalts, blast furnace gas, recovered 
gaseous butane, and coke oven gas) and cellulosic biomass (virgin 
wood); and (2) alternative fuels developed from virgin materials that 
can now be used as fuel products, including used oil which meets the 
specifications outlined in 40 CFR 279.11, currently mined coal refuse 
that previously had not been usable as coal, and clean cellulosic 
biomass. Clean cellulosic biomass is also codified in today's rule 
(Sec.  241.2) and includes those residuals that are akin to traditional 
cellulosic biomass, such as forest-derived biomass (e.g., green wood, 
forest thinnings, clean and unadulterated bark), sawdust, trim, and 
tree harvesting residuals from logging and sawmill materials), corn 
stover and other biomass crops used specifically for energy production 
(e.g., energy cane, other fast growing grasses), bagasse and other crop 
residues (e.g., peanut shells), wood collected from forest fire 
clearance activities, trees and clean wood found in disaster debris, 
clean biomass from land clearing operations, and clean construction and 
demolition wood. ``Clean'' cellulosic biomass is cellulosic biomass 
that does not contain contaminants at concentrations not normally 
associated with virgin biomass materials. As indicated above, this 
description of clean is modified slightly in today's rule. The previous 
description included non-hazardous secondary material that has not been 
altered (either chemically or through some type of production process), 
such that it contains contaminants at concentrations normally 
associated with virgin biomass materials.
    Traditional fuels as described above are not secondary materials or 
solid wastes.
    Comment: Several industry commenters suggested that EPA include 
off-spec used oil, scrap tires, resinated wood products, treated wood, 
pulp and paper mill residues, and recycling process residuals in its 
definition of traditional fuels. They claim that these materials have 
histories of use as valuable fuel products. Another commenter suggested 
that secondary materials from new processes to meet Renewable Fuel 
Standards (RFS) should be defined as traditional fuels. According to 
the commenter, not defining those materials as traditional fuels could 
lead to reduced beneficial use, could negatively impact the economics 
of these newly developing processes, and could increase the use of 
conventional fossil fuels. This could significantly harm the prospects 
of reaching RFS goals.
    EPA's Response: For a discussion of comments and EPA responses 
related to each of the individual materials listed above and their use 
as traditional fuels, see their respective subsections within Section 
V.B. Regarding the RFS program, the Agency disagrees with the commenter 
that materials from processes to meet the RFS standard should be 
defined as traditional fuels. Under the RFS program, EPA is responsible 
for developing and implementing regulations to ensure that 
transportation fuel sold in the U.S. contains a minimum volume of 
renewable fuel. Today's rule addresses only the use of non-hazardous 
secondary materials as a fuel or ingredient in stationary source 
combustion units (regulated under CAA section 112 and 129), and does 
not impact other end uses of these materials, including their use as a 
transportation fuel.
    Comment: There are many other materials that might be considered as 
secondary materials, but because of their energy content, have been 
identified as viable fuels, particularly as the cost of fossil fuels 
have increased over time. Citing phrases from the proposed rule, one 
commenter stated that ``Changes in * * * the energy market,'' as well 
as systems designed and installed by cement plants in order to manage 
these materials (``changes in technology''), would suggest that 
materials, such as plastics, paper and paper residues, and tires should 
qualify under this definition of ``traditional fuels.''
    EPA's Response: As indicated in the discussion above, EPA agrees 
that there is a category of materials that are legitimate alternative 
fuels that have not been discarded and may not have been traditionally 
used as fuels (i.e., a product that is created for its use as a fuel), 
but that are nonetheless legitimate fuels today because of changes in 
technology and in the energy market. Such alternative fuels would 
include clean cellulosic biomass, currently mined coal refuse, and on-
specification used oil. See the respective subsections within Section 
V.B for a further discussion of each of these materials. As discussed 
in the proposed rule, the Agency believes materials, such as plastics, 
paper and paper residues and tires that have not been removed from 
vehicles and managed under an established tire collection program 
typically have been discarded, and thus would not be considered 
traditional fuels or legitimate alternative fuels.
    Comment: Another commenter stated that EPA does not say why it 
regards certain fuels as ``traditional'' and, indeed, stresses that the 
term ``traditional'' ``should be flexible to account for increasing use 
and changes in commodities, technologies, markets, and fuel prices.'' 
Thus, EPA makes clear that the term ``traditional fuels'' will 
accommodate fuels that are anything, but ``traditional.'' EPA provides 
no basis at all for assuming that none of the fuels

[[Page 15479]]

it labels ``traditional'' are not actually waste.
    EPA's Response: EPA disagrees with the commenter. As described in 
the ANPRM and proposed rule, traditional fuels, such as fossil fuels 
have been burned historically as fuels and have been managed as 
valuable products. They are considered unused products and are not 
secondary materials and are not solid wastes unless discarded. We added 
``alternative fuels'' to the definition of traditional fuel in today's 
rule to recognize that changes in technology and in the energy market 
have resulted in additional materials being economically viable to be 
used as alternative ``traditional'' fuels. The definition is codified 
in Sec.  241.2 in response to comments received on the proposal and to 
provide clarity in the application and the meaning of traditional fuel.
    Comment: Other commenters suggested that, in order to further 
clarify the definition of traditional fuel, if a fuel was on record as 
being used before a specific year, e.g., 1980, that it be categorized 
as a traditional fuel. Still other commenters suggested that additional 
rule text is needed to clarify that non-hazardous secondary materials 
used traditionally as fuels are not solid wastes. Finally, to address 
any ambiguity about which materials are traditional fuels, another 
commenter stated that EPA should include a petition process in the rule 
that would allow sources to seek a determination on whether a material 
may be considered a traditional fuel.
    EPA's Response: As described in the ANPRM and proposed rule, 
traditional fuels, such as fossil fuels have been burned historically 
as fuels and have been managed as valuable products. They are 
considered unused products and are not secondary materials unless 
discarded. We do not agree that a specific year should be identified to 
define historically managed traditional fuels. First, it is not clear 
what year should be selected and why and what the basis for picking a 
particular year would be. In addition, as we noted in the proposal, the 
wide variability of historic use and management of this category of 
fuels does not lend itself to identification of a specific year. As 
discussed above, EPA does wish to clarify that it is using the term, 
``traditional,'' more in the sense that we have a product that is 
created for its use as a fuel. Some traditional fuels have been used 
for a long time, while others are ``traditional'' only in the sense 
that they are created in the ``traditional'' way that a product is 
created (or mined), even though they may be newly developed fuels.
    The Agency received only a few comments that supported a petition 
process for traditional fuels. In light of the time and resource 
intensive nature of such a process for the petitioner, the Agency 
believes that the revised codified definition in today's rule together 
with the preamble discussion should provide the basic guidance needed 
for the regulated facility to determine whether the material qualifies 
as a traditional fuel. Therefore, today's rule does not include a 
petition process for an Agency determination that a material is, or is 
not, a traditional fuel. However, any person can petition EPA under the 
Administrative Procedure Act (APA), section 7004 of RCRA, and general 
principles of administrative law for modifications to its regulations. 
Thus, if a person believes that additional materials should be included 
as a traditional fuel or alternative fuel, they may petition EPA to 
request such a change through rulemaking. In addition to the specific 
changes requested, the petition would also need to include a 
justification and rationale for the change.
    Comments: ``Hogged fuel'' should be added to the list of ``clean'' 
biomass materials. Hogged fuel is bark and other wood removed from the 
tree that cannot be chipped and used in making pulp, paper, and wood 
products.
    EPA's Response: We believe that the materials described by the 
commenter as ``hogged fuel'' are currently covered by the terms ``clean 
and unadulterated bark'' and ``tree harvesting residuals from logging 
and sawmill materials'' within the definition of traditional fuel. 
However, we are aware that there are varying definitions of ``hogged 
fuel'' and point the readers to the sections describing traditional 
fuel and secondary materials to determine if their hogged fuel would be 
considered a type of traditional fuel or a non-hazardous secondary 
material.
2. Manure
    The proposed rule explained that the Agency lacked sufficient data 
to evaluate whether manure burned for energy recovery is a waste. As a 
result, we did not take a position one way or the other, but rather 
requested comment, information and data on the legitimacy criteria, 
which are designed to determine whether a non-hazardous secondary 
material when combusted is a waste. Specifically, these criteria deal 
with the levels of the various contaminants in manure, the energy 
content of the manure, and on how manure is handled from its point of 
generation to the point it is used as a fuel.
    The proposal also stated, however, that if manure is processed into 
biofuels (for example, by anaerobic digesters), such biofuels would be 
considered a legitimate non-waste fuel that has been processed from a 
non-hazardous secondary material provided ``the biofuel'' meets the 
legitimacy criteria--that is, provided it is managed as a valuable 
commodity, has a meaningful heating value and contains contaminants at 
levels that are comparable to or lower than those in traditional fuels. 
The proposal again acknowledged, however, that we had limited data on 
biofuels that are produced from animal manures, and requested that 
commenters provide additional data on the extent to which manures are 
currently processed into biofuels, as well as data to support whether 
biofuels produced from manure meet our legitimacy criteria. See 75 FR 
at 31863.
    Comment: The Agency received comments both supporting and opposing 
the designation of manure as a waste. Specifically, two commenters 
asserted that poultry litter that is burned as a fuel poses health 
hazards (e.g., from arsenic that is added to poultry feed), but 
provided no data to support this position. Another comment submitted in 
response to the ANPRM stated that, due to the nature of manure, there 
is the possibility of widespread environmental harm due to the release 
of pathogens from animal manure, and that concentrated animal feeding 
operation (CAFO) wastes are known to contain heavy metals, halogens, 
dioxins, and other hazardous compounds. They assert chicken litter has 
elevated arsenic levels and that swine waste has high amounts of 
ammonia, nitrogen, and phosphorous. Still another commenter suggested 
that poultry litter that is burned in power plants emit more pollutants 
per million Btus when compared to coal fired power plants. Another 
commenter referenced a 2008 report that described the risks associated 
with CAFOs.\27\ This report stated that CAFOs are sited in rural 
communities that bear the brunt of the harm caused by CAFOs, including 
the frequent presence of foul odors and water contaminated by nitrogen 
and pathogens, and that the use of antibiotics in CAFOs, especially for 
non-therapeutic purposes, such as growth promotion, contributes to the

[[Page 15480]]

development of anti-biotic resistant pathogens that are more difficult 
to treat. Finally, one Midwest state commented that when manure supply 
significantly exceeds demand for manure as a fertilizer, the excess is 
treated as a waste and should be regulated as a waste under this rule.
---------------------------------------------------------------------------

    \27\ Gurian-Sherman, Doug, CAFOs Uncovered: The Untold Costs of 
Confined Animal Feeding Operations, Union of Concerned Scientists 
(April 2008).
---------------------------------------------------------------------------

    On the other hand, a commenter argued that EPA should not classify 
poultry litter as a solid waste and provided some contaminant data on 
poultry litter generated in the United Kingdom.\28\ Another commenter 
described how their company collects poultry litter from growers for 
use as a fuel in dedicated (off-site) biomass power plants. The 
commenter asserts that the poultry litter satisfies all the legitimacy 
criteria. Specifically, this commenter describes operations (and 
argues) that the poultry litter is managed as a valuable product by the 
poultry litter generators and transporters, as well as by the power 
plants. The commenter describes poultry litter generators as collecting 
the litter on a continual basis and storing it in enclosed poultry 
barns. The poultry litter is then transported in completely covered 
trucks to the power plant where it is unloaded in a fully enclosed fuel 
hall and is tested for fuel quality to ensure contractual obligations 
are being met by the growers. After sampling, the trucks dump the 
litter into a concrete reception pit within the fuel hall. Then, before 
being combusted, the commenter indicates that the biomass fuel is 
processed (e.g., processed in a ``de-lumper'' followed by a disc 
screen) to breakdown the clumps of material and remove incidental non-
combustible tramp materials. The commenter also asserts that poultry 
litter satisfies the contaminant legitimacy criterion, but only 
provided data on sulfur and chlorine levels, noting the reported 
chlorine levels averaged 0.7 percent (on a dry basis). They also 
provided data on the heating values of poultry litter that ranged from 
3-4,000 Btu/lb, explaining that this material is a self-sustaining fuel 
(requiring no supplemental fuel), although they also note in their 
comments that the poultry litter is mixed with other biomass before 
being used as a fuel. The developer of this plant has indicated that 
they have proposals to build similar type plants in North Carolina, 
Virginia, and Georgia, but has not received approval from local 
authorities. Another firm has a proposal for a plant in Connecticut, 
designed to run on litter from an egg farm, but funding for this plant 
dried up as a result of the U.S. financial crisis. Additionally, two 
power plants (one in Texas and one in California), each currently 
mothballed, but scheduled to reopen in 2011, would use cattle manure as 
feedstock.
---------------------------------------------------------------------------

    \28\ This commenter reported poultry litter as having sulfur, 
chlorine, and nitrogen levels of 0.35%, 0.16%, and 3.3%, 
respectively, and a net heating value of 4,900 Btu/lb.
---------------------------------------------------------------------------

    Finally, two states commented that manure is excluded from the 
definition of solid waste under their laws and regulations. One of 
these states excludes manure from being defined as a solid waste when 
it is returned to the soil as fertilizer or as a soil conditioner, 
while the other exempts it from its statutory definition of solid 
waste.
    Regarding our request for comment on the extent to which manures 
are currently processed into biofuels, as well as data to support 
whether biofuels meet the legitimacy criteria, one state referenced a 
June 2009 Report to Congress \29\ that reviewed the current commercial 
use of manure to energy systems, and found that few exist, and that it 
is unlikely in the near term future for more to be developed due to 
technological and economic barriers. Another state commented that they 
were aware of one gasification system that has been built on a pilot 
scale that uses chicken and poultry litter as a feedstock. Another 
commenter stated that about 120 dairy farms and 30 hog farms use manure 
as a feedstock for anaerobic digesters which are designed to capture 
the methane gas in manure. Most farms then burn the gas as a feedstock 
for on-farm electrical generation, which can be used to off-set the 
farm's purchases and to sell electricity to the power grid. This 
commenter also noted that one very large farm in the Phoenix area 
further cleans the methane and sells it to a natural gas company whose 
pipeline runs next to the farm.
---------------------------------------------------------------------------

    \29\ USDA, June 2009. Manure Use for Fertilizer and for Energy 
Report to Congress. Economic Research Service. June 2009, pp. 32-39. 
http://www.ers.usda.gov/publications/ap/ap037/ap037.pdf.
---------------------------------------------------------------------------

    A Tribe requested that EPA finalize legitimacy criteria that does 
not discourage the development of biogas technology since it is a clean 
carbon-neutral fuel needed to help address climate change. This Tribe 
explained that its renewable energy plans focus, in part, on production 
of biogas from animal, cheese, and other organic material, and 
requested that EPA either exempt biogas from the contaminant legitimacy 
criterion or require that, overall, contaminants in gaseous fuels not 
be ``significantly higher'' in concentration than contaminants found in 
traditional fuel products that the combustion unit is designed to burn. 
The Tribe is concerned that a direct numerical comparison of 
contaminant levels of biogas to natural gas that requires all 
contaminants in biogas to be equivalent or below the concentrations 
found in natural gas would discourage the development of biogas 
technology.
    EPA's Response: First, based on the information provided to us, we 
could not make a blanket determination that all manure is a traditional 
fuel or that it is a solid waste. However, upon reviewing the few 
comments and data received, we conclude that animal manure that is used 
as a fuel ``as generated'' does not satisfy the legitimacy criteria, 
and thus, if combusted ``as generated,'' is a solid waste. However, as 
we discuss in other parts of today's preamble, there are circumstances 
where manure would not be considered a solid waste when burned as a 
fuel for energy recovery. We discuss these circumstances below. In 
addition, we recognize that manure can have other beneficial uses and 
emphasize that we are not making a solid waste determination on those 
other uses through this rulemaking.
    Specifically, we find that the levels of certain pollutants, such 
as nitrogen and chlorine, in certain types of manure, as generated, may 
not be comparable to those levels found in traditional fuels that 
otherwise would be burned. This is based on limited data found in a 
North Carolina State University \30\ study that indicate some types of 
manure have higher levels of nitrogen and chlorine when compared to 
traditional fuels that otherwise would be burned in the energy recovery 
device.\31\ Regarding the commenter's reference to pathogens, pathogens 
are not included as a contaminant in today's rule, since that 
definition focuses on those constituents identified in the CAA that EPA 
will be evaluating to determine whether to establish emission standards 
(see also the discussion in V.D.3).
---------------------------------------------------------------------------

    \30\ Animal and Poultry Manure Production & Characterization. 
North Carolina State University Cooperative Extension Service. 
Raleigh, NC. http://www.bae.ncsu.edu/programs/extension/manure/awm/program/barker/a&pmp&c/.
    \31\ Some manures were listed as having the following mean 
levels for chlorine and nitrogen: Cl--1% by weight and N--3.5% by 
weight reported as total Kjeldahl nitrogen as N. By comparison, coal 
contains chlorine levels ranging from as low as 0.01% to as high as 
0.74 percent and nitrogen levels ranging from 0.6% to 1.9%.
---------------------------------------------------------------------------

    We also find that manure, as generated, that is used as a fuel does 
not satisfy our meaningful heating value criteria, since the limited 
data we received shows that manure, as generated, has heating values 
lower than 5,000 Btus/lb, as-fired. In fact, one commenter noted that 
for manure to be

[[Page 15481]]

considered to have fuel value, that it typically should have a moisture 
content of less than 25 percent, and manure, as generated, typically 
has a higher moisture content. We also note that to satisfy the 
legitimacy criteria, today's final rule requires that facilities that 
burn non-hazardous secondary materials with a heating value of less 
than 5,000 Btus/lb would need to demonstrate that such non-hazardous 
secondary materials have meaningful heating values by describing 
whether the energy recovery unit can cost-effectively recover 
meaningful energy from the manure (see Section V.D.2).\32\ While one 
commenter provided data to show that a power plant that is dedicated to 
burning poultry litter would meet the meaningful heating value 
criteria, even though the Btu content of the poultry litter is less 
than 5,000 Btu/lb, as-fired, we believe that these limited data can't 
be used to suggest that all or most manure that has a heating value of 
less than 5,000 Btu/lb, as-fired, could meet this demonstration.
---------------------------------------------------------------------------

    \32\ As we note elsewhere in today's preamble, this 
demonstration would be self-implementing and would not require a 
petition to EPA, but the person would be required to keep 
appropriate records as to the basis for this demonstration.
---------------------------------------------------------------------------

    We acknowledge, however, that farms or other facilities may manage 
manure as a valuable fuel commodity and that this manure could also 
satisfy EPA's contaminant and heating value legitimacy criteria. Our 
limited data suggests that manure that is combusted has typically been 
collected, stored, and processed. Thus, today's final rule also says 
that manure would not be considered a solid waste when burned in a 
combustion unit as a fuel for energy recovery under the following 
circumstances:
    <bullet> Within the Control of the Generator: Manure that is burned 
in a combustion unit as a fuel for energy recovery would not be a solid 
waste if the manure is burned in a combustion unit that is within the 
control of the generator and the manure meets the legitimacy criteria.
    <bullet> Processing of Manure: Manure that is ``sufficiently 
processed'' \33\ would not be considered a solid waste (after 
processing) when burned in a combustion unit as a fuel for energy 
recovery provided the processed manure meets the legitimacy criteria. 
This is a self-implementing provision, such that a petition would not 
need to be submitted to EPA and is not limited to ``within the control 
of the generator.'' Thus, for example, a farm or third party could 
process the manure to remove or destroy contaminants that are not at 
levels comparable to those contained in traditional fuels or improve 
the materials heating value, and after processing, to the extent the 
processed manure meets the legitimacy criteria, the processed manure 
would not be a solid waste when burned as a fuel for energy 
recovery.\34\ Also, as we discussed in the proposed rule, we expect 
that manure can be processed into a non-waste gaseous fuel (e.g., via 
anaerobic digestion or gasification processes), as suggested by 
commenters. This gaseous fuel would also have to satisfy the legitimacy 
criteria, and while we did not receive data on contaminant levels of 
gaseous fuels that are, or could be, produced, we generally expect that 
a system could be designed to produce a clean gaseous fuel that would 
satisfy all of our legitimacy criteria.
---------------------------------------------------------------------------

    \33\ Processing (as it relates to fuels) means any operations 
that transform the discarded non-hazardous secondary material into a 
legitimate fuel product, and includes, but is not limited to, 
operations that remove or destroy contaminants, operations that 
significantly improve the fuel characteristics of the material, 
e.g., sizing or drying the material in combination with other 
operations, and operations that chemically improve the as-fired 
energy content of the material. Minimal operations that result only 
in modifying the size of the material do not constitute processing 
for the purposes of this definition.
    \34\ As noted previously, one commenter described their 
operation and noted that ``the mixed biomass fuel is lightly 
processed (e.g., processed in a ``de-lumper'' followed by a disc 
screen) to break down clumps of material and remove incidental non-
combustible tramp materials.'' This comment does not contain enough 
information to determine whether or not this would meet the 
regulatory definition of processing in today's rule. That is, 
processing is designed to produce or extract a product from a 
waste--not just to chop the waste up. However, to the extent that 
this level of processing is considered sufficient, the processed 
manure would not be a solid waste when burned in a combustion unit 
as a fuel for energy recovery.
---------------------------------------------------------------------------

    <bullet> Non-Waste Determination Petition Process: Manure, as 
generated, that has been transferred to a third party for combustion as 
a fuel for energy recovery, but has been granted a non-waste 
determination from EPA would not be considered a solid waste. This 
provision establishes a case-by-case process that provides persons an 
administrative process for receiving a formal determination from EPA 
that, in this case, manure, as generated, that has not been discarded 
in the first instance and is indistinguishable in all relevant aspects 
from a fuel product, is not a solid waste. Any petition submitted to 
EPA requesting a non-waste determination would need to demonstrate that 
the manure has not been discarded in the first instance, satisfies the 
legitimacy criteria for fuels, and satisfies the following criteria: 
(1) Whether market participants treat the manure as a fuel rather than 
a solid waste; (2) whether the chemical and physical identity of the 
manure is comparable to commercial fuels; (3) whether the manure will 
be used in a reasonable time frame given the state of the market; (4) 
whether the constituents in the manure are released to the air, water 
or land from the point of generation to the point just prior to 
combustion of the manure are released at levels that are comparable to 
what would otherwise be released from traditional fuels; and (5) other 
relevant factors.
    We partially agree with the commenter that was concerned about the 
legitimacy criterion that would require contaminants in biofuels to 
either be equivalent to, or lower than, levels found in natural gas. 
While we believe it is beneficial to promote the use of clean burning 
fuels, such as biofuels, non-waste fuels produced from secondary 
materials should have comparable or lower levels of contaminants 
relative to traditional fuels used today, since gaseous fuels that are 
produced from secondary materials have the potential to have elevated 
levels of contaminants (such as sulfur). As a result, we believe it is 
appropriate to require, as proposed, that contaminants be comparable, 
or lower than, those levels found in traditional fuels. However, as 
discussed in Section V.D.3, we are not defining comparable to mean 
``equivalent to or lower than'' or ``no higher than'' the level of the 
contaminant in the traditional fuel. Rather, EPA is generally defining 
``comparable to or lower than'' to mean contaminants can be present in 
non-hazardous secondary materials within a small acceptable range, or 
at lower levels, relative to the contaminants found in the traditional 
fuels. Thus, biofuels that are produced from non-hazardous secondary 
materials can have contaminants that are somewhat higher than the 
traditional fuel that otherwise would be burned and still qualify as 
being comparable, and would not be considered a solid waste.
    Comment: Manure used as a fuel that would otherwise be applied to 
the land covered under a nutrient management plan\35\ is in no way 
discarded.
---------------------------------------------------------------------------

    \35\ A nutrient management plan is defined in the U.S. 
Department of Agriculture Natural Resources Conservation Service 
(NRCS) Standard (590) as, ``Managing the amount, source, placement, 
form and timing of the application of nutrients and soil 
amendments.'' The NRCS nutrient management standard (590) is the 
guidance provided to NRCS field staff and other planners when 
providing technical assistance to producers participating in 
voluntary programs. The purpose of the 590 standard is to meet the 
nutrient needs of the crop to be grown, while minimizing the loss of 
nutrients to surface and ground water.

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

[[Page 15482]]

    EPA's Response: We recognize that manure may also be beneficially 
used in other end uses, such as a fertilizer. As we have noted 
elsewhere in the preamble to today's rule, EPA is not making any 
determination whether non-hazardous secondary materials are or are not 
solid wastes for other possible beneficial end uses. Such beneficial 
use determinations are generally made by the states for these other 
beneficial uses, and EPA will continue to look to the states to make 
such determinations.
    Comment: Combustion of manure is simply one of the ways of 
realizing the carbon value of manure (for energy production/recovery 
rather than as a soil amendment) and should not be considered in any 
way as a means of ``discard,'' since the inherent value of manure as a 
fertilizer is essentially preserved in the resultant ash. Further, 
since the ash from manure combustion is still suitable as a fertilizer, 
the commenter also believes that manure does not contain contaminants 
that are significantly higher in concentration than traditional fuels.
    EPA's Response: Both wastes and non-wastes can be utilized as fuels 
and in this rule EPA is determining what is and is not a solid waste 
when combusted. As we have stated, there are circumstances when manure 
would not be considered a solid waste when combusted. In the 
commenter's case, it does not appear that manure being burned solely to 
improve soil would meet the legitimacy criteria.
    Further, whether the resultant ash is suitable as a fertilizer is 
not directly relevant to EPA's solid waste determination for non-
hazardous secondary materials used as a fuel since contaminants that 
are present in the manure ``as generated'' can also be destroyed 
(discarded) in the combustion process or be directly emitted to the 
environment, either prior to combustion (during storage and 
transportation) or if they are not sufficiently combusted and/or 
controlled by the combustion unit's air pollution control system. 
Contaminants in manure that may be used as a fuel must be present at 
comparable or lower levels relative to traditional fuels for the manure 
to satisfy the contaminant legitimacy criterion. As previously 
discussed, EPA concludes that manure, as generated, may not satisfy 
this criterion for nitrogen and chlorine.
    Comment: Given the biological basis of agricultural products and 
by-products and the unique nature of the transfer of agricultural 
commodities among entities, the commenter requests that EPA 
presumptively grant a non-waste determination for manure that is used 
as a combustion fuel outside the control of the generator that would 
otherwise meet the legitimacy criteria. The commenter states that crops 
grown from a cropping operation may be sold/provided to an animal 
production operation as a feed input, with the manure from the animal 
production operation being sold/provided to a community based or 
regional energy production system as one of many fuel sources from that 
area, with the resultant ash from the energy production system sent 
back to the cropping operation as a fertilizer source. The commenter 
then explains that the cropping and animal production operator may be 
the same entity, and asserts that the transfer among entities in this 
instance is to facilitate energy recovery, not disposal.
    EPA's Response: Unlike scrap tires and resinated wood residuals, 
information and data were not provided that would allow the Agency to 
presumptively grant a non-waste determination for all manure that is 
used as a fuel outside the control of the generator. As a result, we 
conclude that the final rule cannot presumptively grant a non-waste 
determination for manure that is used as a fuel outside the control of 
the generator. We note, however, that sources may petition the Agency 
for a non-waste determination for materials managed outside the control 
of the generator (see Section VII.G), or, as previously discussed, 
process (as codified in Sec.  241.2) the manure into a non-waste fuel 
that meets the legitimacy criteria.
    Comment: Modern manure management systems that are designed and 
operated in accordance with applicable Federal, Tribal, State, and/or 
local regulations and requirements for air and water quality should be 
considered to meet the ``adequate containment'' requirements.
    EPA's Response: EPA does not agree with the commenter that the 
statement ``manure management systems that are designed and operated in 
accordance with applicable Federal, Tribal, State, and/or local 
regulations and requirements for air and water quality should be 
considered to meet the `adequate containment' requirements'' in itself, 
is sufficient for EPA to conclude that these systems satisfy the 
containment requirements because these systems may not have been 
designed for the use of manure as a fuel. These Federal, Tribal, State, 
and/or local regulations and requirements would have to be examined on 
a case-specific basis to determine whether manure that is used as a 
fuel is managed as a valuable commodity pursuant to EPA's legitimacy 
criteria. EPA does not believe that it can conclude that the ``adequate 
management'' criterion is met based on the descriptions of management 
practices that have been provided to EPA, such as stockpiling manure in 
open lots to facilitate drying.
    Comment: Manure satisfies EPA's meaningful heating value legitimacy 
criterion since it typically has energy contents ranging from 6,000 to 
8,000 Btu/lb on a dry basis.
    EPA's Response: The data provided by the commenter summarize 
heating values on a ``dry basis,'' rather than on an ``as-fired'' basis 
that accounts for the moisture content of the material, and thus, these 
data are not relevant to the ``meaningful heating value'' legitimacy 
criterion. Except as otherwise noted, to satisfy the meaningful heating 
value criterion, the non-hazardous secondary material must have at 
least 5,000 Btu/lb, as fired (accounting for moisture), since the as-
fired energy content is the relevant parameter that must be assessed to 
determine if it is being discarded rather than used as a fuel for 
energy recovery. See Section VII.H.1. As previously discussed, the data 
available to EPA on an ``as fired'' basis would suggest that much of 
the manure, as generated, would have heating value levels of less than 
5,000 Btu/lb. If the non-hazardous secondary material has a 
[meaningful] heating value of less than 5,000 Btu/lb, ``as fired,'' the 
secondary material may still be considered to have a ``meaningful 
heating value,'' but the source must demonstrate that a meaningful 
heating value is derived from the manure, and appropriate records kept.
3. Other Biomass
    The proposed rule preamble discussed many different forms of 
biomass, including cellulosic and non-cellulosic biomass.\36\ How the 
final rule views clean biomass was addressed earlier in Section V.B.1, 
which addresses traditional fuel. Manure was discussed in the previous 
section (Section V.B.2), while pulp and paper sludges and resinated 
wood residuals will be discussed in more detail in Sections V.B.4 and 
V.B.6, respectively, of this preamble. This section discusses other 
biomass materials that may be burned as a fuel, and whether or not they 
would be considered a solid waste when combusted as a fuel. 
Specifically, the proposed rule identified lead-based painted wood, and 
wood treated with pentachlorophenol, copper-based and

[[Page 15483]]

borate-based compound treatments as solid wastes due to elevated 
contaminant levels relative to traditional fuels. Moreover, the 
proposed rule explained that, to the extent that any treated wood is 
identified as a hazardous waste, it would not be eligible to be burned 
in a non-hazardous waste combustion unit. We also specifically 
requested comment on the levels of contaminants in creosote-treated 
lumber due to the uncertainty associated with the level of contaminants 
(e.g., levels of polycyclic aromatic hydrocarbons present in 
creosote).\37\ We received comments on construction and demolition 
(C&D)-derived wood, treated wood, and OCC rejects.
---------------------------------------------------------------------------

    \36\ 75 FR 31861-31863.
    \37\ 75 FR 31863.
---------------------------------------------------------------------------

    Comment: Since creosote is a derivative of coal, itself a 
traditional fuel, the comments argued that creosote-treated wood should 
also be considered a traditional fuel. They suggested that this 
material is treated as a valuable commodity and has been used as a fuel 
for over a decade. One commenter provided data that showed that the 
mobility of contaminants indicates that p-cresol leaches at 75 percent 
of the hazardous waste toxicity characteristic leaching procedure 
(TCLP) levels in new ties, but that this is reduced to less than 10 
percent in ties that are over 10 years old. Another commenter provided 
the average results from 605 TCLP tests and 605 totals analyses for 
metals on creosote-treated wood. These results were below TCLP limits 
for all of the contaminants it contains (i.e., cresol, m,p-cresol, o-
cresol leached an average of 1.23 mg/L, 0.90 mg/L, 0.35 mg/L, 
respectively), although two compounds, 2,4-dinitrotoluene and 
hexachlorobenzene, leached at levels close to the toxicity 
characteristic (TC) regulatory level (both leached at 0.09 mg/L with a 
standard deviation of 0.03).\38\ Another commenter submitted a 
compositional analysis that compared the levels of constituents in 
creosote (not creosote-treated wood) to crude coke oven tar, a 
traditional fuel. For example, creosote contains between 8.00-17.30% of 
naphthalene and 0.50-0.80% quinoline, respectively, while crude coke 
oven tar contains between 3.00-11.00% naphthalene and 0.18% quinoline). 
Besides naphthalene and quinoline, data was also submitted for other 
compounds on the CAA section 112 HAP list, including biphenyl and 
dibenzofuran. The data submitted showed that all contaminants were 
present in the creosote at levels greater than in crude coke oven 
tar.\39\ Other studies compared metal contaminants (As, Cr, Pb, and Cu) 
in creosote- and pentachlorophenol-treated wood (<1.97 ppm As, <4.21 
ppm Cr, <64.13 ppm Pb, and 7.65 ppm Cu) to that of wood chips, bark, 
yard waste, and forest residuals and found that the levels were 
comparable (<3.61 ppm As, 0.12-4.77 ppm Cr, <17.5 ppm Pb, and <6.44 ppm 
Cu).\40\
---------------------------------------------------------------------------

    \38\ See document EPA-HQ-RCRA-2008-0329-0875.1.
    \39\ See document EPA-HQ-RCRA-2008-0329-0767.1.
    \40\ Holtzman, M.I. and R.S. Atkins, 1995. ``Emissions from 
Combustion of Treated Wood Fuel and Tires in Industrial Boilers,'' 
Presented to the Air and Waste Management Association's Annual 
Meeting, June 18-23, 1995.
---------------------------------------------------------------------------

    Finally, a study was submitted that demonstrated that the co-firing 
of creosote- and pentachlorophenol-treated wood (10/90 treated wood/
coal mix) results in a reduction of 79-107 ppm of oxides of sulfur 
(SO<INF>2</INF>), 78-100 ppm of oxides of nitrogen (NO<INF>X</INF>), 
and 0.4-0.5 ppm of total hydrocarbon (expressed as propane) emissions 
compared to those from samples of Upper Freeport coal. The same study, 
however, found that there was an increase of 17-84 ppm in HCl emissions 
when co-firing with treated wood, although the study noted these levels 
of HCl emissions could be within the range from coal found in other 
areas of the U.S.\41\ HCl is listed on the CAA 112 HAP list. Other data 
were submitted that showed that PAH emissions from a combustion unit 
are less when burning treated wood (50/50 mixture of creosote- and 
pentachlorophenol-treated wood) than when combusting untreated wood. 
Data were also provided that indicated that pentachlorophenol and total 
chlorophenols were destroyed by combustion at greater than 99.9% 
removal efficiency.\42\
---------------------------------------------------------------------------

    \41\ Freeman, M.C., W.J. O'Dowd, T.D. Brown, R.A. Hargis, Jr., 
R.A. James, S.I. Plasynski, G.F. Walbert, A.F. Lowe, and J.J. 
Battista, Jr. ``Pilot-Scale Air Toxics R&D Assessment of Creosote-
Treated and PCP-Treated Wood Co-firing for Pulverized Coal Utility 
Boiler Applications.'' U.S. Department of Energy's National Energy 
Technology Laboratory. http://www.netl.doe.gov/technologies/coalpower/cctc/cctdp/bibliography/misc/pdfs/haps/2002-710.pdf
    \42\ Smith, S.T., 1996. ``Stack Testing Report, Koppers 
Industries, Inc., Grenada Plant, Tie Plant, MS,'' Submitted to the 
Mississippi Department of Environmental Quality, May 6.
---------------------------------------------------------------------------

    EPA's Response: We do not agree with commenters that creosote-
treated wood should be considered a traditional fuel (either an 
historically managed traditional fuel or an alternative fuel as 
codified in Sec.  241.2) solely based on the fact that it is 
manufactured using coal tar and wood, which are considered traditional 
fuels. Creosote was not derived for the purposes of creating a fuel, or 
the wood treated with creosote to produce a fuel, but the creosote was 
produced and used as a wood preservative. It is not made from virgin 
materials, but is a secondary material. Creosote is derived from coal 
tar through a distillation process and, therefore, creosote has 
different chemical concentrations than coal tar. While we recognize 
that creosote-treated wood has been utilized as a fuel for over ten 
years, few markets are available for creosote-treated wood due to 
concerns about the contaminants. This strongly suggests that burning 
this material is a waste treatment activity.
    The TCLP data generally indicates that the material, on average, is 
not a hazardous waste. This does not mean, however, that the material 
is not a non-hazardous solid waste. Leaching data is not relevant to 
determine whether or not the treated wood is being discarded. We do 
note that the average values and standard deviations provided for 2,4-
dinitrotoluene and hexachlorobenzene suggest that a few samples 
actually failed the TCLP test and would be classified as a hazardous 
waste. Creosote-treated wood that is classified as a hazardous waste 
must be managed as a hazardous waste, which is outside the scope of 
this rulemaking. Even though most creosote-treated wood is non-
hazardous, the presence of hexachlorobenze, a CAA 112 HAP, as well as 
the other HAPs, in creosote-treated lumber suggests that creosote-
treated wood include contaminants at levels that are not comparable to 
those found in wood or coal, the fuel that creosote-treated wood would 
replace.\43\ In fact, the data provided demonstrates that combustion of 
these materials results in significant destruction, which is an 
indication of incineration, a waste activity. Moreover, we would note 
that this concept involving destruction is also consistent with the 
legitimacy criterion for contamination, which is based on the input 
into the combustion unit--that is, the contaminant concentration in the 
secondary material itself and not what may be emitted into the 
environment. Accordingly, creosote treated wood, when burned, seems 
more like a waste than a commodity and does not meet the legitimacy 
criterion for contaminants and, therefore, should be considered a waste 
when burned as a fuel.
---------------------------------------------------------------------------

    \43\ See Preliminary Characterization Study Prepared In Support 
of the Proposed Rulemaking--Identification of Nonhazardous Secondary 
Materials That Are Solid Waste: Traditional Fuels and Key 
Derivatives, EPA-HQ-RCRA-2008-0329-0461.21.
---------------------------------------------------------------------------

    In regards to wood treated with pentachlorophenol, no additional

[[Page 15484]]

contaminant data was provided that would reverse our position from the 
proposal, which determined that pentachlorophenol was a solid waste due 
to concerns of elevated levels of contaminants.\44\ While some 
commenters pointed to data that indicates that pentachlorophenol-
treated wood (as well as creosote-treated wood) would have similar or 
lower air emissions to non-treated woods, the issue to determine 
whether a material is burned as a waste or a commodity is based on 
input and consequent destruction of contaminants. This is consistent 
with the legitimacy criteria, under which to be considered a non-waste 
fuel, the non-hazardous secondary material itself must have contaminant 
levels that are comparable to (or less than) those in traditional 
fuels. Thus, the final rule will retain the proposed approach, which 
considered wood treated with pentachlorophenol a solid waste. Of 
course, this assumes that the pentachlorophenol treated-wood is not 
classified as a hazardous waste. Hazardous wastes are not covered under 
the scope of this rulemaking.
---------------------------------------------------------------------------

    \44\ 75 FR 31863.
---------------------------------------------------------------------------

    Comments: Comments were submitted that argued that wood treated 
with borate-based compounds or copper napthenate did not contain any 
contaminants, but only contaminant data was supplied for wood treated 
with borate-based compounds. That study indicated that the most 
prevalent borate treatment, disodium octaborate tetrahydrate, contained 
1.5 ppm of As, <1 ppm of Cd, <2.5 ppm of Cr, <5 ppm of Co, <0.02 ppm of 
Hg, <2.5 ppm of Ni, and 0.67 ppm of Se.\45\ Since these levels 
represent the contaminant concentration of the borate treatment, the 
comments argued that the resulting wood that is treated with this 
compound would contain even lower concentrations of contaminants.
---------------------------------------------------------------------------

    \45\ See document EPA-HQ-RCRA-2008-0329-1569.
---------------------------------------------------------------------------

    EPA's Response: With respect to borate-treated wood, after 
reviewing data from the one commenter, which shows that the levels of 
contaminants in this material are comparable to those found in 
unadulterated wood for the seven contaminants for which data was 
presented, we believe that such treated-wood meets the legitimacy 
criterion on the level of contaminants and comparability to traditional 
fuels. Therefore, borate-treated wood could be classified as a non-
waste fuel, provided they met the other two legitimacy criteria and 
provided that the contaminant levels for any other HAP that may be 
present in this material are also comparable to or less than those in 
traditional fuels. We would also note that such borate-treated wood 
would need to be burned as a fuel for energy recovery within the 
control of the generator. Finally, we are aware that some borate-
treated wood is subsequently treated with other chemicals, such as 
creosote, to provide an insoluble barrier to prevent the borate 
compounds from leaching out of the wood. We did not receive data on the 
contaminant levels of the resulting material, but data presented on 
creosote treated lumber indicates that this non-hazardous secondary 
material would likely no longer meet the legitimacy criteria and would 
be considered a solid waste when burned as a fuel.
    We do not have information generally about the transfer of borate-
treated wood to other companies to make a broad determination about its 
use as a fuel outside the control of the generator. (See Section V.A.1 
for a general discussion of the issue concerning use of non-hazardous 
secondary materials within and outside the control of the generator and 
the EPA's response.) Thus, under today's rule, borate-treated wood 
would need to be burned as a fuel for energy recovery within the 
control of the generator. With that said, we encourage the use of the 
non-waste determination petition process to address those instances 
where transfer of the non-hazardous secondary material to a different 
company meets the relevant criteria--that the secondary material has 
not been discarded in the first instance and is indistinguishable in 
all relevant aspects from a fuel product.
    With regard to wood treated with copper napthenate, no additional 
contaminant data was provided that would reverse our position in the 
proposed rule, which considered wood treated with copper napthenate a 
solid waste because of concerns of elevated levels of contaminants.\46\ 
We acknowledge today, as we did in the proposed rule, that we do not 
have sufficient information on the contaminant levels in wood treated 
with copper napthenate.\47\ Thus, if a person can demonstrate that 
copper napthenate treated-wood is burned in a combustion unit as a fuel 
for energy recovery within the control of the generator and meets the 
legitimacy criteria or, if discarded, can demonstrate that they have 
sufficiently processed the material, that person can handle its copper 
napthenate treated-wood as a non-waste fuel.
---------------------------------------------------------------------------

    \46\ 75 FR 31863.
    \47\ 75 FR 31863.
---------------------------------------------------------------------------

    Comments: Commenters argued that, although C&D-derived wood is 
discarded by construction and demolition sites, it is sufficiently 
processed into a non-waste fuel. It is received at a mixed C&D 
processing facility as part of loads from construction and demolition 
sites. Potential contaminants are removed as much as possible before it 
enters the plant. Clean C&D wood is then separated out from the rest of 
the incoming stream one of two ways; either through mechanical means or 
through humans sorting along a specially built picking line. Painted 
and treated wood is identified either visually or utilizing x-ray 
fluorescence (XRF) analyzers. After separation, the wood is ground to a 
specific size and density per the specification of the plant using the 
biomass product. The creation of natural wood products follows a 
similar processing path, except that C&D wood is more carefully 
prepared because of the chemical analysis the C&D product undergoes.
    Commenters also stated that C&D-derived wood meets the legitimacy 
criterion for having a meaningful heating value. They stated that C&D-
derived wood has a heating value of between 7,000-8,200 Btu/lb, and 
thus, should be considered a non-waste fuel. Data from one plant that 
combusts C&D-derived wood found that it had a heating value that ranges 
from 6,700-9,000 Btu/lb, with an average value of 8,200 Btu/lb.
    One company provided chemical constituent data on C&D-derived wood 
that is utilized at their plant in order to demonstrate that the 
material meets the legitimacy criterion for contaminants. The results 
of this analysis found that the chemical constituents were comparable 
to or lower to those found in coal (of unknown source or type). See 
Table 1 below for the results of this study.

[[Page 15485]]



Table 1--Comparison of Contaminant Concentrations in Samples of Coal and
                           C&D-Derived Wood48
------------------------------------------------------------------------
                                      Coal (unknown
             Material                source or type)    C&D-derived wood
------------------------------------------------------------------------
Sample Size.......................                 16              14-16
Median contaminant concentrations:
    Cl:
        (lb/billion Btu)..........               46.0               56.0
        (ppm).....................            391-644              459.2
        <greek-i> of non-detects..                  0                  0
    Hg:
        (lb/billion Btu)..........            0.00622             0.0046
        (ppm).....................    0.05287-0.08708            0.03772
        <greek-i> of non-detects..                  0                  0
    Pb:
        (lb/billion Btu)..........              0.374              0.488
        (ppm).....................          3.18-5.24               4.00
        <greek-i> of non-detects..                  0                  0
    Cd:
        (lb/billion Btu)..........            0.00465             0.0218
        (ppm).....................    0.03923-0.06510            0.17876
        <greek-i> of non-detects..                  7                  2
------------------------------------------------------------------------

    Some commenters discussed studies that concluded that the use of 
appropriately processed C&D wood is similar in its emission profile to 
that of virgin wood, although some older studies indicated an increase 
in metals emissions (likely due to the inclusion of treated wood).\49\ 
Another commenter submitted a life-cycle assessment that described how 
the recovery of C&D wood as a fuel decreased greenhouse gas emissions. 
This study found that combusting all C&D wood generated in New 
Hampshire per year (280,000 tons) will off-set energy from the 
northeast power grid and, therefore, result in 70,000-130,000 tons less 
of carbon emissions, 600 tons/year less of particulate matter, 430 
tons/yr less of NO<INF>X</INF>, 2,300 tons/yr less of SO<INF>X</INF>, 
890 tons/yr less of CO, and 10 pounds/yr less of lead. Even when 
compared simply to the combustion of virgin wood, it was found that the 
combustion of C&D-derived wood had lower impacts: 16,700 metric tons of 
carbon equivalents were offset, 50 tons/yr less of particulate matter, 
200 tons/yr less of NO<INF>X</INF>, 485 tons/yr less of SO<INF>X</INF>, 
and 69 tons/yr less of CO.\50\
---------------------------------------------------------------------------

    \48\ Source: EPA-HQ-RCRA-2008-0329-0774; Since the legitimacy 
criterion for contaminants compares concentrations per mass of the 
material (not per the heating value of the material), all 
concentrations reported in pounds per billion Btu (lb/billion Btu) 
were converted into parts per million (ppm) with the assumption that 
C&D-derived wood has a heating value of 8,200 Btu/lb (as fired) and 
that sub-bituminous and bituminous coal (the most common types of 
coal to be utilized in combustion units) have a heating value of 
8,500-14,000 Btu/lb (per Preliminary Characterization Study Prepared 
In Support of the Proposed Rulemaking--Identification of 
Nonhazardous Secondary Materials That Are Solid Waste: Traditional 
Fuels and Key Derivatives, EPA-HQ-RCRA-2008-0329-0461.21).
    \49\ U.S. EPA, ``Wood Products in the Waste Stream: 
Characterization and Combustion Emissions, Vol. 1,'' November 1996.
    National Council for Air and Stream Improvement, Inc. Technical 
Bulletin (TB) 906, ``Alternative Fuels Used in the Forest Products 
Industry: Their Composition and Impact on Emissions.'' September 
2005.
    Larsen, F.S., W.H. McClennen, X. Deng, G.D. Silcox-Person, and 
K. Allison, 1992. ``Hydrocarbon and Formaldehyde Emissions from the 
Combustion of Pulverized Wood Waste.'' Combustion Science and 
Technology, 85 (1-6) p. 259-269.
    \50\ Jambeck, J., A. Carpenter, K. Gardner, and K. Wietz, 2007. 
``University of New Hampshire Life-Cycle Assessment of C&D Derived 
Biomass/Wood Waste Management,'' University of New Hampshire, 
Durham, NH, December 5.
---------------------------------------------------------------------------

    EPA's Response: The proposed rule included clean construction wood 
in the definition of traditional fuels. The final rule retains this 
conclusion, although clarifies the definition of traditional fuels to 
include alternative fuels. Clean cellulosic biomass is an alternative 
fuel as they are clean cellulosic materials that are indistinguishable 
in composition from wood that is commonly burned in combustion units 
(See the explanation in Section V.A). We note that the final definition 
of traditional fuels clarifies that this category includes clean 
demolition wood as well.
    On the other hand, C&D-derived wood that is not clean would not be 
considered a traditional fuel, but a solid waste under today's rule. 
However, C&D-derived wood can be classified as a non-waste fuel if it 
has been sufficiently processed and meets the legitimacy criteria. C&D-
derived wood is typically sorted to remove contaminants (e.g., lead-
painted wood, treated wood, non-wood materials), and size reduced prior 
to burning, producing material that likely meets the processing and 
legitimacy criteria for contaminants. (We would also note that the 
technology in use today to remove contaminants from C&D-derived wood 
has increased considerably.) The data provided by one company 
demonstrates that C&D-derived wood can be sufficiently processed to 
meet the legitimacy criterion for four contaminants, even when these 
contaminants are compared to untreated wood concentrations presented in 
the background document, Preliminary Characterization Study Prepared In 
Support of the Proposed Rulemaking--Identification of Nonhazardous 
Secondary Materials That Are Solid Waste: Traditional Fuels and Key 
Derivatives.\51\ A complete determination, however, would also include 
the comparison of As and Cr concentrations. We would also note that 
based on the data presented, C&D derived wood also meets the meaningful 
heating value criterion.
---------------------------------------------------------------------------

    \51\ EPA-HQ-RCRA-2008-0329-0461.21.
---------------------------------------------------------------------------

    With respect to those comments that argued that C&D derived wood 
have an emissions profile similar to that of virgin wood and that it 
would decrease greenhouse gas emissions, as we have noted previously, 
the criterion or test for determining whether a material is burned as a 
waste or a commodity fuel is the level of the contaminant in the 
secondary material itself--that is destruction of contaminants 
indicates a waste treatment activity rather than a commodity fuel. This 
is also consistent with the legitimacy criteria that would require that 
the non-hazardous secondary material, itself, must have contaminant 
levels that are comparable to (or lower than) those in traditional

[[Page 15486]]

fuels. In any event, because we had no information from the studies on 
the extent that these C&D materials were sufficiently processed to 
remove the contaminants of concern, we do not know what the emissions 
results from the submitted studies represent.
    Comment: Some comments argued that there should be a de minimis 
exemption for C&D-derived wood that is processed to remove painted and 
treated materials, because while most of the contaminants are removed 
from the C&D derived wood, there still may be a small or de minimis 
amount remaining on it. Additionally, they also argued that while most 
non-wood contaminants are removed, there might still remain some small 
or de minimis amounts of other materials (e.g., paper, insulation, 
etc.).
    EPA's Response: C&D-derived wood can contain de minimis amounts of 
contaminants and other materials provided it meets the legitimacy 
criterion for contaminant levels.
    Comment: Comments argued that OCC rejects, also known in the 
industry as ``recycling process residuals,'' are never discarded, and 
therefore, should be considered a traditional fuel because they do not 
leave the plant, but are usually burned on-site as a fuel. In some 
cases, however, they do leave the plant to be burned in municipal or 
commercial energy facilities or employed as a fuel pellet ingredient.
    In addition, while some commenters argued that they did not believe 
OCC rejects are ever discarded, they provided information on how OCC 
rejects are sufficiently processed to remove contaminants if they are 
determined to be discarded. For example, strings, wires, rags, and 
heavy objects are removed using manual and centrifugal force, while 
plastic and non-recyclable paper fibers are removed through screens.
    Commenters also stated that OCC rejects meet the legitimacy 
criterion for contaminants as they have lower contaminants than 
traditional fuels. One comment provided data from 10 samples of OCC 
rejects from one company and 16 samples of coal (of unknown type or 
origin) to substantiate that claim (see Table 2).

Table 2--Comparison of Contaminant Concentrations in Samples of Coal and
                            OCC Rejects \52\
------------------------------------------------------------------------
                                      Coal  (unknown
             Material                type or origin)      OCC rejects
------------------------------------------------------------------------
Sample Size.......................                 16                 10
Median contaminant concentrations:
    Cl:
        (lb/billion Btu)..........               46.0               23.5
        (ppm, estimated)..........            391-644               87.0
        <greek-i> of non-detects..                  0                  0
    Hg:
        (lb/billion Btu)..........            0.00622            0.00324
        (ppm, estimated)..........    0.05287-0.08708            0.01199
        <greek-i> of non-detects..                  0                  0
    Pb:...........................
        (lb/billion Btu)..........              0.374              0.281
        (ppm, estimated)..........          3.18-5.24               1.04
        <greek-i> of non-detects..                  0                  1
    Cd:
        (lb/billion Btu)..........            0.00465            0.00558
        (ppm, estimated)..........    0.03923-0.06510            0.02065
        <greek-i> of non-detects..                  7                  2
------------------------------------------------------------------------

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

    \52\ Source: EPA-HQ-RCRA-2008-0329-0774; Since the legitimacy 
criterion for contaminants compares concentrations per mass of the 
material (not per the heating value of the material), all 
concentrations reported in pounds per billion Btu (lb/billion Btu) 
were converted into parts per million (ppm) with the assumption that 
OCC rejects have a heating value of 3,700 Btu/lb (as fired) and that 
sub-bituminous and bituminous coal (the most common types of coal to 
be utilized in combustion units) have a heating value of 8,500-
14,000 Btu/lb (per Preliminary Characterization Study Prepared In 
Support of the Proposed Rulemaking--Identification of Nonhazardous 
Secondary Materials That Are Solid Waste: Traditional Fuels and Key 
Derivatives, EPA-HQ-RCRA-2008-0329-0461.21).
---------------------------------------------------------------------------

    Commenters also claimed that OCC rejects meet the legitimacy 
criterion for being managed as a valuable commodity, as they are 
managed in the same manner as analogous fuels--bark. Prior to burning, 
this material is co-mingled with bark on the bark pile.
    Furthermore, commenters stated that OCC rejects pass the legitimacy 
criterion for having a meaningful heating value. For example, a 
commenter submitted data that indicated that, on a dry basis, OCC 
rejects have a heating value of 9,100 Btu/lb, while, as fired, they 
have a heating value of 3,700 Btu/lb.\53\ Another commenter submitted 
ten tests at plants from one company that found that the heating value 
of OCC rejects ranged from 8,700-13,600 Btu/lb on a dry basis.\54\
---------------------------------------------------------------------------

    \53\ Source: EPA-HQ-RCRA-2008-0329-0871.1.
    \54\ Source: EPA-HQ-RCRA-2008-0329-0774.1.
---------------------------------------------------------------------------

    Another commenter submitted a study by the National Council for Air 
and Stream Improvement to demonstrate that air emissions from burning 
OCC rejects are comparable to burning wood. In this study, emissions 
results were provided from three plants that burned 4.4-30% OCC rejects 
with 70%-95.6% wood and compared it to emissions from the same three 
plants when they only burned wood. Emissions were tested for total 
particulate matter (TPM), SO<INF>2</INF>, NO<INF>X</INF>, CO, and HCl. 
The results found that burning OCC rejects did not result in increased 
emissions of TPM, SO<INF>2</INF>, NO<INF>X</INF>, or CO, but 
occasionally resulted in a small increase in HCl emissions.\55\
---------------------------------------------------------------------------

    \55\ National Council for Air and Stream Improvement, Inc. 
Technical Bulletin (TB) 906, ``Alternative Fuels Used in the Forest 
Products Industry: Their Composition and Impact on Emissions.'' 
September 2005.
---------------------------------------------------------------------------

    EPA's Response: We do not agree with the commenters that OCC 
rejects should be considered a traditional fuel or alternative fuel 
since this non-hazardous secondary material, consisting of recycled 
paper and paper products, has not historically been managed as a fuel--
that is, the recycling of OCC and the subsequent use of OCC

[[Page 15487]]

rejects is a relatively recent activity, nor is it made from virgin 
materials. However, we believe that these materials are not discarded 
when used within the control of the generator, such as at pulp and 
paper mills, since these non-hazardous secondary materials are part of 
the industrial process.
    The data submitted during the comment period would seem to suggest 
that it would or could meet the legitimacy criteria. For example, the 
data received indicated that OCC rejects have contaminant 
concentrations that are comparable to, if not less than, coal, wood, 
and bark, which are all traditional fuels used at pulp and paper mills. 
While the meaningful heating value of the OCC rejects is lower than 
5,000 Btu/lb, as fired, it can still meet this criterion if it can be 
demonstrated that the unit can cost-effectively recover energy from a 
non-hazardous secondary material. The information submitted also 
demonstrates that OCC rejects are managed as a valuable commodity as 
they are managed in the same manner as the analogous fuel--bark.
    With respect to the OCC rejects that are shipped off-site for use 
by another company, the limited information provided indicates that 
this material is burned in municipal or commercial energy facilities 
(which appears to be municipal or commercial incinerators) and thus, 
would clearly indicate discard, or processed to produce a fuel pellet 
ingredient, which may be a non-waste, if and after it is sufficiently 
processed. That is, such limited information would appear to suggest 
that when OCC rejects are shipped off-site, which may not happen very 
often, it is treated more like a waste than a non-waste fuel. 
Therefore, the Agency finds that OCC rejects shipped off-site for 
burning would be considered a solid waste. However, as already noted, 
if the OCC rejects are sufficiently processed to produce a legitimate 
fuel product, or if a person submits and is granted a non-waste 
determination for such OCC rejects, than such non-hazardous secondary 
material when combusted as a fuel for energy recovery would be 
considered a non-waste fuel.
4. Pulp and Paper Sludge
    In the proposal, EPA determined that pulp and paper sludge \56\ is 
not a waste when used as a fuel within the control of the generator. 
This was based on limited contaminant data and information that these 
sludges are generally used on-site by generators to fuel their boilers 
and are treated like valuable commodities. Comments on the ANPRM had 
stated that these residuals are primarily composed of biomass and that 
emissions from burning these non-hazardous secondary materials are 
essentially the same as emissions from burning other biomass fuels, 
such as bark or wood. Emissions data contained in one report indicated 
that when sludges were burned at levels below about 10 to 15 percent of 
total heat input, that such burning would not result in elevated levels 
of criteria or criteria-related pollutants, forty-eight organic 
compounds, and metals.
---------------------------------------------------------------------------

    \56\ Pulp and paper sludge includes both primary and secondary 
wastewater treatment sludges. Primary sludges consist of wood fiber 
and inorganic materials, while secondary sludges are primarily 
microbial biomass.
---------------------------------------------------------------------------

    However, given the limited data, EPA requested additional comment 
on contaminant levels and the appropriateness of considering these 
sludges to be non-wastes. EPA also noted, as an alternative, that it 
could consider these sludges to be wastes because of chlorine levels in 
the sludge.\57\
---------------------------------------------------------------------------

    \57\ 75 FR 31862-63.
---------------------------------------------------------------------------

    Comment: Pulp and paper sludges should be considered a traditional 
fuel because it has been utilized as a fuel since the early 1960's. In 
2004, 22% of the pulp and paper sludge was used as a fuel.
    EPA's Response: We do not agree that pulp and paper sludges should 
be considered a traditional fuel. While some portion of the pulp and 
paper industry uses these sludges as a fuel, it is not the industry 
norm or used as a fuel by a majority of the industry. For example, in 
2002, 52% of pulp and paper sludges was landfilled or stored in 
lagoons.\58\ Thus, these materials have not been historically managed 
as fuels. Pulp and paper sludges also would not be considered an 
alternative fuel, since they are not derived from virgin materials. 
Pulp and paper mills burn these secondary materials for energy 
recovery, but also for waste minimization purposes.\59\ Therefore, the 
Agency does not consider pulp and paper sludges a traditional or 
alternative fuel.
---------------------------------------------------------------------------

    \58\ Thacker, W., 2007. ``Recycling Paper Mill By-products on 
Forest Lands: By-product Composition, Potential Applications, and 
Industry Case Studies.'' Presentation to EPA Office of Solid Waste 
Staff, Washington, DC, January 23, http://www.epa.gov/osw/conserve/rrr/imr/irc-meet/03-paper.pdf.
    \59\ Someshwar, A.V. and A.K. Jain, 2006. ``Alternative Fuels 
Used in the Forest Products Industry: Their Composition and Impact 
on Emissions,'' Technical Bulletin No. 906, National Council for Air 
and Stream Improvement, Gainesville, Florida.
    Vance, E. 2000. ``Recycling Paper Mill By-products on Forest 
Lands: By-product Composition, Potential Applications, and Industry 
Case Studies'' The Forest Alternative: Principles and Practice of 
Residuals Use. University of Washington College of Forest Resources 
Publication, Seattle, WA, p. 193-207.
---------------------------------------------------------------------------

    Comment: The proposed approach that pulp and paper sludges burned 
within the control of the generator as a fuel would not be considered a 
solid waste needs clarification. Specifically, clarification is needed 
to determine if pulp and paper sludges that do not leave the site and 
have not been discarded (1) can be used as a fuel and (2) must pass the 
legitimacy criteria.
    EPA's Response: The final rule retains the proposed approach, which 
considered pulp and paper sludges that remain within the control of the 
generator--whether burned at the generating facility, or burned in 
combustion units that the generator controls--are considered a non-
waste fuel. However, such pulp and paper sludges must pass the 
legitimacy criteria to demonstrate that these non-hazardous secondary 
materials are ``legitimate fuels'' in order to be considered a non-
waste fuel.
    Comment. Commenters argued that pulp and paper sludges are not 
discarded if used off-site as they are used as a legitimate fuel at 
other locations. One commenter, who identified itself as a power plant, 
utilizes pulp and paper sludges generated less than a mile away and 
stated that the material is loaded into trucks for the short haul to 
the steam boilers, dumped into the wood handling system, conveyed to 
covered storage where it is contained and burned in the boiler all 
within the span of several hours. They suggest that this is a 
legitimate use of pulp and paper sludges off-site and is, therefore, 
not a waste.
    EPA's Response: We agree that the use of secondary materials off-
site (which we assume the commenter means not within the control of the 
generator) is not always indicative of waste activity and would 
generally agree that the case of the power plant provides an example of 
when secondary materials may be legitimately used as non-waste fuels by 
a different company. However, information was not provided in the 
comments which would allow EPA to generally determine that the transfer 
of pulp and paper sludges to other companies should always be 
considered a non-waste fuel, particularly since a large percentage of 
these sludges are actually disposed. (See Section V.A.1 for a general 
discussion of this issue and the EPA's response.) Thus, we will retain 
the proposed approach that pulp and paper sludges that are transferred 
to a different company for use as a fuel will be considered a solid 
waste. With that said, we encourage the use of the non-waste 
determination petition

[[Page 15488]]

process to address those instances where transfer of the non-hazardous 
secondary material to a different company meets the relevant criteria--
that the secondary material has not been discarded in the first 
instance and is indistinguishable in all relevant aspects from a fuel 
product.
    Comment: Commenters stated that pulp and paper sludges are 
adequately processed, such that when discarded (i.e., sent off-site to 
another pulp and paper mill or to a power plant), it is a non-waste 
fuel. Processing is primarily performed by dewatering. In fact, 84% of 
all pulp and paper sludges are dewatered using belt filter presses or 
screw presses.\60\ One state commenter stated that some mills further 
process pulp and paper sludges into dried pellet products for use as a 
fuel.
---------------------------------------------------------------------------

    \60\ See document EPA-HQ-RCRA-2008-0329-0871.
---------------------------------------------------------------------------

    EPA's Response: We do not agree that dewatering alone meets our 
definition of processing.\61\ While dewatering does improve the fuel 
characteristics of the material, this action is not sufficient to make 
the material sufficiently processed into a non-waste fuel as it is 
generally part of normal waste management activities (e.g., prior to 
landfilling, or prior to burning the sludge for disposal in an 
incinerator). In the case of pelletizing the material for use as a 
fuel, we do not have sufficient information to make a general 
determination on whether this would be considered sufficient 
processing. However, if the pelletizing process is used to process the 
sludge into a form that improves its fuel value, we would agree that 
this is indicative of fuel activity (similar to pelletizing sewage 
sludge, which was used as an example of sufficient processing in 
Section VII.D.4 of the proposed rule) \62\ and we would consider those 
activities to meet the definition of processing. Of course, to be 
considered a non-waste fuel, the processed pulp and paper sludges would 
need to meet the legitimacy criteria.
---------------------------------------------------------------------------

    \61\ See the discussion on dewatering of sewage sludge in 
Section VII.F of the proposed rule, 75 FR 31878.
    \62\ 75 FR 31878.
---------------------------------------------------------------------------

    Comment: To show that pulp and paper sludges meet the legitimacy 
criteria for contaminants, three commenters submitted a total of 24 
characterizations of pulp and paper sludge cake from 16 pulp and paper 
mills. These characterizations show that contaminants were found at 
non-detect levels. For example, As, Cr, Hg, and Pb were at levels of 
<0.4 ppm, <21.4 ppm, <0.44 ppm, and <21.6 ppm, respectively.\63\ 
Elevated levels (6.36-45.8 ppm) of methyl ethyl ketone (MEK) were found 
in five out of eight samples from one pulp and paper mill, although we 
do not know to what extent this data is reflective of pulp and paper 
sludges generally since eight other samples (three from the same mill 
and five from five other mills) had non-detect levels of MEK at a 
detection level of <0.013 ppm.
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    \63\ Document EPA-HQ-RCRA-2008-0329-1395; National Council for 
Air and Stream Improvement, Inc. Technical Bulletin (TB) 906, 
``Alternative Fuels Used in the Forest Products Industry: Their 
Composition and Impact on Emissions.'' September 2005.
---------------------------------------------------------------------------

    Chlorine levels among an unknown number of pulp and paper sludge 
samples were noted by one commenter to have an arithmetic mean of 465 
ppm, a median of 318 ppm, a maximum level among mill means of 2,399 
ppm, and a maximum among individual analyses of 4,800 ppm (all on a dry 
weight basis). This is compared to a USGS database on U.S. coals to 
have chlorine levels with an arithmetic mean of 614 ppm and a maximum 
among individual analyses of 8,800 ppm (both on an as-is basis, which 
has <10% moisture). However, one sample provided in the comments had a 
chlorine concentration of 16,550 ppm (as received), while another had a 
chlorine concentration of 23 ppm (as fired). Other samples had chlorine 
concentrations of between 1,050-4,800 ppm (dry basis). Commenters also 
argued that combustion of high chlorine content in some pulp and paper 
sludge is not a waste treatment activity. Sources that produce 
secondary materials that have heat value can increase their energy 
efficiency by re-using these materials as a fuel. Materials are chosen 
for their constituents that are beneficial to the combustion or 
manufacturing process; more often, the materials are chosen for 
extracting their energy value.
    In terms of meeting the legitimacy criteria for a meaningful 
heating value, comments were submitted that pulp and paper sludges have 
a heating value of between 3,300-9,500 Btu/lb, on a dry basis; no 
information was submitted on the ``as fired'' heating value of pulp and 
paper sludges. Commenters also argued that pulp and paper sludges meet 
the legitimacy criterion for being managed as a valuable commodity as 
they are dewatered to increase their energy value, collected on a 
continual or frequent basis (as produced), further processed and 
consolidated, including the removal of biosolids. One state commenter 
stated that some mills make a dried pellet product from the sludges for 
use as a fuel. One power plant that utilizes pulp and paper sludge 
generated less than a mile away stated that the material is loaded onto 
trucks for the short haul to the steam boilers, dumped into the wood 
handling system, conveyed to covered storage where it is contained and 
burned in the boiler all within the span of several hours.
    EPA's Response: The final rule will retain the proposed approach--
pulp and paper sludges managed within the control of the generator are 
a non-waste fuel as they would seem to meet all of the legitimacy 
criteria, as discussed below.
    The proposed rule acknowledged a general lack of data regarding 
contaminant levels in pulp and paper sludges and specifically requested 
data on the issue in order to make a determination of whether pulp and 
paper sludges meets the third criterion of comparable contaminant 
levels to traditional fuels. The information we received indicates that 
these non-hazardous secondary materials meet the contaminant legitimacy 
criterion. While commenters compared contaminant levels in pulp and 
paper sludges to those in coal and found lower levels, we also found it 
appropriate to compare the contaminant concentrations to untreated wood 
since wood is also burned in pulp and paper mills. Since levels of 
chlorine in untreated wood are as high as 11,890 ppm, even the high end 
of the range of chlorine in pulp and paper sludges is comparable to 
that in untreated wood. When comparing to the information that we have 
compiled on coal, we find that chlorine levels in coal are reported to 
be as high as 7,400 ppm, and that average chlorine values for 
bituminous and sub-bituminous coal are 1,200 ppm and 140 ppm, 
respectively. Thus, the average chlorine levels reported in most pulp 
and paper sludge are likely to be comparable with average chlorine 
levels found in bituminous coal.\64\ We note that there is one sample 
in the submitted data set that has a chlorine concentration of 16,550 
ppm. We do not consider this to be comparable to the levels found in 
coal and, where it is replacing coal, would consider this material to 
be a solid waste. However, since this was the only sample with such a 
high concentration of chlorine, we do not think that it is 
representative of pulp and paper sludges generally.
---------------------------------------------------------------------------

    \64\ See the Material Characterization Papers for Pulp and Paper 
Sludges and for Traditional Fuels that are located in the docket for 
today's rule (EPA-HQ-RCRA-2008-0329).
---------------------------------------------------------------------------

    The levels of metals were also lower in pulp and paper sludges than 
untreated wood and coal. For example, untreated wood has levels of As, 
Cr, Hg, and Pb as high as 6.8 ppm, 130 ppm, 2

[[Page 15489]]

ppm, and 340 ppm, respectively, while coal has levels of As, Cr, Hg, 
and Pb as high as 80 ppm, 121.3 ppm, 2 ppm, and 80 ppm, 
respectively.\65\ These levels are all greater than those submitted in 
the comments for pulp and paper sludges. We did receive data on some 
elevated levels of MEK in five samples from one mill, but we do not 
believe that this data changes are view that these sludges generally 
meet the contaminant legitimacy criterion, especially since EPA removed 
MEK from the CAA 112 HAP list in 2005,\66\ and thus, MEK is no longer 
considered a ``contaminant'' in evaluating the contaminant legitimacy 
criterion.
---------------------------------------------------------------------------

    \65\ Ibid.
    \66\ The Agency removed MEK from the list of HAP because it 
concluded that the potential exposures to MEK emitted from 
industrial processes may not reasonably be anticipated to cause 
human health or environmental problems.
---------------------------------------------------------------------------

    While pulp and paper sludges can have a heating value below 5,000 
Btu/lb, even on a dry basis, pulp and paper mills do try to improve the 
heating value through dewatering. Thus, we believe that pulp and paper 
sludges generally meet the meaningful heating value legitimacy 
criterion. Also, since pulp and paper sludges are handled promptly 
(i.e., not stored for long periods of time and are contained in storage 
units along with traditional fuels (such as wood and bark) with minimal 
loss (similar to a valuable commodity), we agree that pulp and paper 
sludges are managed as a valuable commodity.
    Comment: Emission tests from two states were said to have shown no 
significant change in emissions associated with the combustion of pulp 
and paper mill sludge, although the specific emission test results were 
not provided in these comments. One other commenter stated that any 
emissions from those materials will be accounted for in the source's 
emission limits in its permit. One other commenter submitted a study by 
the National Council for Air and Stream Improvement (2006), which 
summarizes many different studies on the emissions from the combustion 
of pulp and paper sludges. Some studies show that keeping the amount of 
pulp and paper sludges to no more than 10-15% of the total heat input 
will result in no increased emission impacts. However, two studies 
stated that dioxin and furan emissions could result from the burning of 
pulp and paper sludges and that the levels of these compounds in the 
emissions are directly relevant to the amount of chlorine in the 
sludges. Thus, chlorine levels should not be greater than those in 
found in wood.\67\
---------------------------------------------------------------------------

    \67\ National Council for Air and Stream Improvement, Inc. 
Technical Bulletin (TB) 906, ``Alternative Fuels Used in the Forest 
Products Industry: Their Composition and Impact on Emissions.'' 
September 2005.
---------------------------------------------------------------------------

    EPA's Response: First, we would note that emissions testing results 
is not the criterion or test for determining legitimacy as combustion 
systems vary greatly and this rule aims to determine what is a solid 
waste. To be considered a legitimate non-waste fuel, the non-hazardous 
secondary material itself must have contaminants at levels that are 
comparable to (or lower than) those in traditional fuels. From the data 
available, it shows that chlorine levels in pulp and paper sludges, for 
example, are typically at levels that are lower than those found in 
coal and wood, as noted above. Nevertheless, we also recognize that 
high chlorine levels are an indicator that the combustion of such 
materials may result in increased emissions of dioxins and furans, such 
that if chlorine levels in pulp and paper sludges are excessively high, 
it may be an indication that the burning of those sludges is more 
reflective of waste management. Thus, chlorine levels in pulp and paper 
sludges should particularly be monitored and evaluated as part of a 
plants determination that their pulp and paper sludges meet the 
contaminant legitimacy criterion.
5. Scrap Tires
    In the proposal, EPA stated that whole used tires, including those 
collected from tire dealerships and automotive shops and overseen by a 
state tire collection oversight program, are initially abandoned and 
thus meet the plain meaning of discard. As a result, whole used tires 
that are not processed into a legitimate fuel or ingredient (e.g., 
shredded/chipped with steel belts removed) were considered a solid 
waste. EPA acknowledged that whole tires can be legitimately burned as 
a fuel, but because they have been discarded, were considered solid 
wastes and subject to the incinerator requirements in section 129 of 
the CAA, unless processed into a non-waste fuel product, in which case 
it would be subject to the section 112 requirements of the CAA.
    However, EPA requested comment in the proposed rule on the discard 
interpretation stated in the ANPRM regarding scrap tires that are 
managed under the oversight of a state tire collection program, such 
that these non-hazardous secondary materials collected and sent for 
legitimate use as fuels are not discarded and are not solid wastes. EPA 
also solicited comment on the processing requirements for whole tires, 
as well as fuel contaminant data on whole tires or tire-derived fuel 
(TDF) chips as compared to coal, the replacement fuel.
    In order to clarify the context of the proposed rule comments, the 
Agency describes the background below in ``a. Background; Scrap Tire 
Approach in ANPRM and Proposal.'' The comments and EPA's responses are 
listed in ``b. Scrap Tire Comments.''
a. Background; Scrap Tire Approach in ANPRM and Proposal
    ANPRM Scrap Tire Approach.\68\ As part of its discussion regarding 
non-hazardous secondary materials used as legitimate ``alternative'' 
fuels that have not been previously discarded, the ANPRM noted that 
scrap tires used as tire-derived fuel, which include whole tires or 
tires that have been processed and have not been previously discarded, 
are legitimate non-waste fuels if they meet the legitimacy criteria 
i.e., they are handled as valuable commodities, have a meaningful 
heating value, and do not contain contaminants that are significantly 
higher in concentration when compared to traditional fuel products (see 
Materials Characterization Paper on Scrap Tires in the docket for 
today's rule for a complete discussion on contaminants in TDF [EPA-HQ-
RCRA-2008-0329]). We noted that in many cases, scrap tires that are 
collected pursuant to state tire oversight programs (e.g., scrap tires 
from tire dealerships that are sent to used tire processing facilities) 
are handled as valuable commodities, and, therefore, have not been 
abandoned, disposed of, or thrown away (not discarded). We also noted 
that because State Agencies typically regulate these programs under 
their state solid waste authorities, it was not the Agency's intent to 
undercut the states' authority in this area. We, therefore, requested 
comment on whether scrap tires collected pursuant to state tire 
oversight programs have been discarded, and whether an EPA designation 
specifying that scrap tires, for example, managed pursuant to state 
tire collection programs are not solid wastes, would adversely impact a 
state's ability to manage such a program.
---------------------------------------------------------------------------

    \68\ The ANPRM was published in the Federal Register on January 
2, 2009 (74 FR 41). This reference can be found on page 57 of the FR 
notice.
---------------------------------------------------------------------------

    Proposed Rule Scrap Tire Approach.\69\ The proposal took a 
different approach regarding the use of scrap tires when used as a 
fuel, based on comments received on the ANPRM.

[[Page 15490]]

Specifically, some states argued that non-hazardous secondary material 
fuels that are transferred to a third party have entered what is 
traditionally considered to be the ``waste stream'' (and have been 
regulated by the states as wastes) and therefore should appropriately 
be considered wastes. Scrap tires, regardless of whether they were 
collected and managed pursuant to state programs or recovered from 
legacy waste piles, would be an example of such materials. As a result, 
the Agency re-examined its position of how the concept of discard 
applies to scrap tires. Whereas the ANPRM had indicated that there may 
be some number of secondary materials that would not be considered 
discarded even if the original generator sent them to another entity 
outside of its control, the proposed rule took the position that non-
hazardous secondary materials that are used as fuels and are managed 
outside the control of the generator are solid wastes unless they were 
processed into non-waste fuel products or a case-by-case non-waste 
determination petition was granted by EPA.
---------------------------------------------------------------------------

    \69\ The proposed rule, published on June 4, 2010 in the Federal 
Register (75 FR 31844) has numerous references to scrap tires. The 
statement described under ``Proposed Rule Scrap Tire Approach'' can 
be found on pages 31874 and 31875 of the proposed rule.
---------------------------------------------------------------------------

    Proposal Kept ANPRM Scrap Tire Approach as an Option. In the ANPRM, 
we considered scrap tires (except from tire dumps) that were collected 
under state tire collection programs as non-waste as described above. 
We reconsidered that position in the proposed rule as follows: ``* * * 
tires collected under these recycling programs are discarded and are 
solid wastes. EPA proposes this formulation for tires, but is asking 
for further comment on the ANPRM formulation that secondary material 
collected and sent for legitimate use as fuels are not discarded and 
are not solid wastes.* * * EPA may issue a final rule containing either 
set of provisions depending on information received in the comment 
period and other information available to the Agency.''
    The Scrap Tire Approach in the Final Rule. Based on the proposed 
rule comments and all other relevant information in the rulemaking 
record, EPA has modified its approach for scrap tires in this final 
rule. Under today's rule, scrap tires are considered a non-waste when 
used as a fuel under the following scenarios:
    (1) Scrap tires that are removed from vehicles and collected and 
managed under the oversight of established tire collection programs (as 
codified at Sec.  241.2) are non-waste fuels \70\ when burned as a fuel 
in a combustion unit. See details at Sec.  241.3(b)(2)(i).
---------------------------------------------------------------------------

    \70\ As described elsewhere, these tires do not need processing 
(as described in Sec.  241.3(b)(4)), in order to be considered non-
waste since they were not ``discarded in the first place.'' Since 
these tires were ``not discarded in the first place,'' boilers and 
cement kilns can use them as non-waste fuel as whole tires, 
shredded, or fully processed TDF at their discretion (provided they 
meet the legitimacy criteria). Regardless, most types of combustors 
require TDF chips, cement kilns are the notable exception.
---------------------------------------------------------------------------

    (2) Scrap tires that undergo a sufficient level of processing (as 
codified at Sec.  241.2 and detailed in the scrap tire response to 
comments) are considered a non-waste fuel, when used as fuel in a 
combustion unit, independent of whether they have been previously 
discarded. See details at Sec.  241.3(b)(4).
    All other scrap tires are considered a waste when combusted, unless 
a non-waste determination petition is granted per the requirements in 
Sec.  241.3(c).
    The comments that led to this approach are further described in the 
response to comments below and in Section VII.C.
b. Scrap Tire Comments
    Comment: Many of the commenters that compared the approach for 
whole scrap tires in the ANPRM (described previously in this section) 
with the proposed approach, preferred the ANPRM approach and believed 
it was an accurate assessment of how scrap tires are managed. Many of 
those commenters argued that whole scrap tires that are handled in this 
situation have not been discarded when removed from vehicles for use as 
a fuel if there is a process or network that ensures their safe 
handling prior to use as a fuel. In addition, many commenters listed 
the attributes that make it a good fuel, in particular they noted that 
the heat value for TDF is higher than typical solid fuels, including 
coal.
    Commenters disagreed with the assumption that we made in the 
proposed rule that off-site/third party use of scrap tires equated to 
discard. Other comments on ``transfer to third parties'' apply to other 
non-hazardous secondary materials in addition to scrap tires and are 
addressed in section V.A.1. In addition, commenters said that the owner 
of the car does not abandon, dispose of, nor throw away the tire when a 
tire is changed at a tire shop. These tires are destined for a 
beneficial use and are managed as a valuable product. Commenters 
disagreed with EPA's statement in the proposal that scrap tires are 
``discarded'' when removed from the automobile because the generator 
has relinquished control and the entity receiving the tires may not 
have the same incentives to manage them as a useful product. For 
example, one scrap tire commenter summarized the discard issue and 
suggests that if transfer to a third party does not equate to discard 
for hazardous secondary materials in specific instances, then EPA is 
able to make distinctions for non-hazardous secondary materials like 
scrap tires. Specifically, the commenter states, with respect to tire 
derived fuel:
    ``EPA's proposed approach stands in stark contrast to EPA's 
approach to hazardous secondary materials * * *. In the Subtitle C 
regulation, EPA was careful to identify circumstances where discard 
would occur based on a record of damages arising from cases of 
hazardous material recycling. EPA then shaped its transfer-based 
exclusion from the definition of solid waste to regulate only transfers 
where discard is taking place. See 73 FR at 64677-78. In contrast, with 
respect to non-hazardous secondary materials, EPA has no record 
identifying circumstances where discard may occur and yet is proposing 
to determine that all transferred material is discarded. Any definition 
of solid waste that sweeps so broadly exceeds EPA's authority under 
RCRA. EPA's proposed approach also stands in stark contrast to the 
approach and guiding principle outlined in the ANPRM. In the ANPRM, EPA 
did not assume that all non-hazardous secondary material that is 
transferred outside the control of the generator is discarded. Instead, 
as in its Subtitle C regulations, EPA was guided by the ``overall 
principle * * * that materials treated as a commodity, rather than as a 
waste, are not discarded and are not solid wastes so long as they are 
legitimately recycled.'' 74 FR 53. If such an approach is appropriate 
for hazardous substances, a similar or perhaps less demanding 
determination would be still more appropriate for non-hazardous 
secondary materials. First, the dangers of sham recycling are far less. 
Second, the fact that industrial boilers are similar and are regulated 
in similar manner from industry to industry makes distinctions between 
industries uniquely hard to justify. EPA offers no persuasive evidence 
to overcome these considerations. As noted earlier, EPA says only that 
it ``believes'' that such materials have been discarded and that third 
parties ``may not'' have the same incentive to manage these materials 
properly as the generator. EPA offers a few off point examples but 
makes no effort to investigate this issue in any detail. Furthermore, 
EPA's approach ignores the fact that there is an established market 
infrastructure for the sale and purchase of secondary fuels such as 
TDF. As a result, TDF is subject to

[[Page 15491]]

normal business practices, including contractual arrangements that 
establish specifications for TDF. Just as a fuel supplier needs to 
provide a specific type of fuel oil to meet a customer's demands, so 
does the supplier of secondary fuels. The supplier will comply with the 
specification demanded by the customer or they will lose the business. 
As a matter of company policy, most generators of secondary material 
fuels take reasonable precautions to evaluate where their materials are 
going as part of risk management.''
    Commenters also disagreed with our assumptions that led to the 
Agency's discard position in the proposal with regard to third party 
use of scrap tires as follows.
    <bullet> They disagreed that third party handlers would lack an 
incentive to manage them as a useful material \71\ because, scrap tire 
derived materials have an exceptionally high rate of use in various 
markets and are sold as valuable products.
---------------------------------------------------------------------------

    \71\ The comments are in regard to this statement in the 
proposal: ``When non-hazardous secondary material fuels are 
transferred to another party, we generally believe that the material 
is discarded since the generator has relinquished control of the 
secondary material and the entity receiving such materials may not 
have the same incentives to manage them as a useful product, which 
results in the materials being discarded.'' See EPA's statement in 
the proposal at 75 FR 31844, page 31875.
---------------------------------------------------------------------------

    <bullet> Commenters also disagreed that scrap tires have the same 
market incentives for misuse as does hazardous waste, which EPA 
referenced in the proposal,\72\ because, in part, hazardous waste are 
likely to have a relatively negative monetary value. They said that 
those EPA arguments based on hazardous waste are not relevant to scrap 
tire markets and usage and is inappropriate to use the rationale based 
on hazardous waste cases. Scrap tires do not have the environmental and 
economic risks associated with hazardous waste.
---------------------------------------------------------------------------

    \72\ The comments are in regard to this statement in the 
proposal, as well as other references to hazardous waste: ``This 
lack of incentive to manage as a useful product has been well 
documented in the context of hazardous secondary material recycling 
as evidenced by the results of the environmental problems study 
performed in support of the DSW [hazardous waste] final rule. (This 
scenario does not apply to transfers taking place under the transfer 
based exclusion for hazardous secondary materials that are generated 
and then transferred to another company for the purpose of 
reclamation.) However, this finding also holds true for non-
hazardous secondary materials that are used as fuel.'' See EPA's 
statement in the proposal at 75 FR 31844, page 31875.
---------------------------------------------------------------------------

    <bullet> Furthermore, commenters disagreed that there was currently 
a pattern of discard at third party scrap tire reclaimers \73\ that can 
be processed and generating stockpiles as possible evidence of the lack 
of incentive to perform actual recycling).
---------------------------------------------------------------------------

    \73\ The comments are in regard to this statement in the 
proposal: ``As discussed in the DSW final rule, this pattern of 
discard at off-site, third party reclaimers appears to be a result 
of inherent differences between commercial recycling and normal 
manufacturing. As opposed to manufacturing, where the cost of raw 
materials or intermediates (or inputs) is greater than zero and 
revenue is generated primarily from the sale of the output, 
secondary materials recycling, including when used as a fuel, can 
involve generating revenue primarily from receipt of the secondary 
materials. Recyclers of secondary materials in this situation may 
thus respond differently than traditional manufacturers to economic 
forces and incentives, accumulating more inputs (secondary 
materials) than can be processed and generating stockpiles with 
sometimes little incentive to perform actual recycling.''
---------------------------------------------------------------------------

    <bullet> Commenters did acknowledge that there were problems in the 
past with tire dumps, but since tires are now effectively managed and 
brought to markets, the over-accumulation, disposal, and dumping that 
occurred in the past (as mentioned in the proposal) \74\ is less of an 
issue now. In justifying this statement, many commenters discussed the 
success of eliminating tire dumps. Specifically, they argued that fewer 
than one million tires remain in stockpiles, compared to an estimate of 
one billion tires in 1990. It is clear the total number of tires 
discarded in tire dumps is being reduced annually, not increasing due 
to the improper management which the proposal postulated regarding the 
current management practices at third party sites. Also, they argued 
that of the 300 million scrap tires that are generated each year, scrap 
tires are reported to have the second lowest disposal rate at 10.7% in 
2007, with lead acid batteries having the lowest disposal rate.
---------------------------------------------------------------------------

    \74\ See EPA's statement in the proposal at 75 FR 31844, page 
31875.
---------------------------------------------------------------------------

    <bullet> Commenters, mainly from industry, also disagreed with our 
statement in the proposal that scrap tires that are transferred to a 
third party have entered what is traditionally considered to be the 
``waste stream'' and therefore should appropriately be considered solid 
wastes. Refer to Section V.A.1 for the discussion on related comments 
(not specific to scrap tires). Some commenters (including some states), 
however, agreed that states tend to initially regard tires as waste 
until they are beneficially used.
    EPA's Response: In the first place, to the extent these comments 
refer to EPA's general approach to secondary material transferred to 
another party, the Agency refers commenters to Section V.A.1. As 
discussed in that section, EPA has evaluated whether certain categories 
of materials are discarded or not. The Agency has not adopted the 
extremes of saying that all burning of secondary material, regardless 
of ultimate use, is waste treatment or that any secondary material that 
is recycled for legitimate fuel value is a commodity and not a waste. 
Wastes may have value, but are still wastes.
    Between these broad parameters, EPA has examined a number of 
specific materials, recycled on-site and transferred to third parties 
for recycling, and determined whether they would be appropriately 
placed within the waste or non-waste categories. EPA would consider 
transferred materials not to be wastes if it could make the appropriate 
findings for those categories. In fact, the Agency does so with respect 
to scrap tires harvested from vehicles and resinated wood residuals. 
Any of EPA's decisions regarding specific materials, if challenged, 
must stand or fall based on its individual merit.
    With respect specifically to how the Agency is dealing with scrap 
tires in this rule, the ANPRM noted that scrap tires that are collected 
pursuant to tire programs (e.g., scrap tires from tire dealerships that 
are sent to used tire processing facilities) are collected and handled 
as valuable commodities, and, therefore, have not been abandoned, 
disposed of, or thrown away. The ANPRM had indicated that there are 
instances where non-hazardous secondary materials would not be 
considered discarded even if the original generator sent them to 
another entity outside of its control.
    The proposed rule took an approach that assumed non-hazardous 
secondary materials that are used as fuels and are managed outside the 
control of the generator are solid wastes, unless they were processed 
into legitimate non-waste fuel products or a non-waste determination 
petition was granted by EPA. However, in the proposed rule, the Agency 
was open to an alternate interpretation and requested further comment 
on the ANPRM formulation that scrap tires collected and sent for 
legitimate use as fuels are not discarded and are not solid wastes, and 
specifically indicated that the Agency ``may issue a final rule 
containing either set of provisions depending on information received 
in the comment period and other information available to the Agency.''
    After careful consideration of the comments and all the material in 
the rulemaking record, including documents cited in the ANPRM and the 
preamble to the proposed rule, the Agency agrees that a system where 
scrap

[[Page 15492]]

tires are removed from vehicles \75\ and are collected and managed 
under the oversight of established tire collection programs are not 
``discarded in the first instance.'' Such tires (including both whole 
tires and tires that have been shredded--with or without metal 
removal)\76\ are non-waste when used as a fuel in combustion units. 
These programs ensure that the tires are not discarded en route to the 
combustor for use as fuel and are handled as a valuable commodity as 
required in the legitimacy criterion in today's rule at Sec.  
241.3(d)(1)(i).
---------------------------------------------------------------------------

    \75\ For purposes of today's rule, the term ``vehicle'' is meant 
to include any mechanical means of conveyance that employs the use 
of tires.
    \76\ If scrap tires are not discarded in the first place, they 
do not have to be processed per the standards in today's rule, but 
they can be converted to rough shreds or processed into TDF chips at 
the discretion of the combustor and still be a non-waste fuel. If 
the scrap tires were discarded, they have to be processed (with 
metal removal) per the standards in today's rule in order to be a 
non-waste fuel.
---------------------------------------------------------------------------

    Consistent with other non-hazardous secondary materials that are 
considered to be non-wastes, scrap tires also meet the rest of the 
legitimacy criteria for fuel. They meet the requirement for meaningful 
heating value, required per Sec.  241.3(d)(1)(ii) in that scrap tires 
have a higher heating value (12,000 Btu/lb to 16,000 Btu/lb) as 
compared to coal (the replacement fuel).
    Scrap tires also meet the requirement specified at Sec.  
241.3(d)(1)(iii) for the non-hazardous secondary materials to have 
comparable (or lower) levels of contaminants as compared to the 
traditional fuel it is replacing. Refer to the specific response to 
comments on contaminants.
    Established tire collection programs promote the collection of 
scrap tires and coordinate with tire dealerships, haulers, processors, 
and end users. The existing tire collection programs form an 
established collection infrastructure. These established tire 
collection programs together with state bans on landfilling in most 
states \77\ effectively result in the beneficial reuse of tires (as 
fuel or used in other scrap tire markets) as the sole \78\ end use 
option for scrap tires in those states.
---------------------------------------------------------------------------

    \77\ A few states allow tires cut up in smaller pieces to be 
landfilled, while fewer states still allow whole tires in landfills.
    \78\ Note, a commenter has indicated that some states are 
considering revoking their tire landfill ban if combustors are no 
longer choosing to use tires for fuel based on the outcome of this 
rule.
---------------------------------------------------------------------------

    While the Agency recognizes that there will be differences between 
the various established tire collection programs, at a minimum, the 
following components would need to be included as part of any 
established tire collection program: (1) A comprehensive system that 
prevents tires from being abandoned when the scrap tires are harvested 
from vehicles and collected at the various businesses where they are 
removed; these tires are not considered ``discarded in the first 
instance'' per this rule; and (2) standards for the scrap tires to be 
managed as a valuable commodity. These programs should ensure storage 
does not exceed reasonable time frames, the scrap tires are managed in 
a manner consistent with the analogous fuel (coal), and a system is in 
place to prevent scrap tires from being discarded (according to the 
plain language definition) en route to the combustor (and during any 
processing prior to combustion).
    An example of this type of program is a tire dealership that has 
prearranged agreements where the combustor pays for the delivery of the 
tires harvested from vehicles and can track the delivery and has 
contractual obligations for a safe delivery. Another example is the 
Texas system where tires are not seen as waste, but have specifications 
for tracking and safe delivery to the end use markets.
    These programs neither allow an opportunity for tires intended as a 
fuel to be discarded in the first place nor discarded while in transit. 
The definition of an established tire collection programs is codified 
in today's rule at Sec.  241.2. These tires have not been ``disposed 
of, abandoned, or thrown away'' through the initial process of removing 
them from cars or collecting them under established tire collection 
programs.
    It is the combustor's responsibility to confirm that the whole 
tires are not discarded and were handled appropriately under the 
established tire collection program. Notification and recordkeeping 
requirements with regard to the use of non-hazardous secondary 
materials under CAA 112 and 129 rules, including whole tires managed 
under established tire collection programs, are outlined in Section 
VII.I.
    This approach for scrap tires is supported by comments from auto 
maintenance shops, tire retailers, and others in the automotive 
business. These commenters discussed the management of tires collected 
from tire and auto-related shops under established tire collection 
programs. Typically, the state and private programs work together to 
encourage the processing, reuse, and/or recycling, which results in a 
market demand for scrap tires to be collected, but the use as fuel is 
more independently sustainable in the free market.\79\ In the event the 
combustor is disposing via combustion (i.e., not utilizing the energy 
from combustion), it is a waste.
---------------------------------------------------------------------------

    \79\ The recovery and management of tires that are removed from 
tire piles are largely supported or subsidized by State Agencies and 
these whole tires are considered discarded and waste when used as a 
fuel. This is not the case for the tires we are calling non-waste 
that are annually generated and are collected off the vehicles and 
sent for use as fuel.
---------------------------------------------------------------------------

    With the approach described in today's rule, EPA is recognizing 
that some specific types of secondary materials are more like valuable 
commodities than solid wastes, and the act of transferring them to a 
third party does not automatically involve discard. As commenters 
noted, the mere relinquishing of ownership does not make something a 
waste.
    Furthermore, as EPA notes below, the fact that states may consider 
tires as wastes under state programs does not affect EPA's 
determination in this rule that certain scrap tires are not wastes for 
purposes of tire combustion under CAA sections 112 and 129. States may 
regulate tires as wastes while EPA, for purposes of the federal 
regulations, may consider them to be commodities.
    We also recognize that the basis for the final position on scrap 
tires is different from the proposal and is more in line with our 
original position in the ANPRM. As we noted many commenters disagreed 
with the basis for the position on scrap tires in the proposal, in 
addition to stating a preference for the ANPRM position on scrap tires. 
The overall rationale for the position in the final rule regarding 
scrap tires is included in Section VII, entitled ``Detailed Discussion 
and Rationale for Today's Final Rule.''
    Comment: A number of commenters stated that the concentration of 
contaminants that are found in tire-derived fuel TDF chips (or whole 
tires) are comparable (or less than) those found in the traditional 
fuels that it would be replacing. In the proposed rule, we requested 
data on the TDF contaminants that are HAP, as listed in section 112(b) 
of the CAA and the nine pollutants, as listed in section 129(a)(4) of 
the CAA. Some commenters provided independent test results that 
correlated to those contaminants and the results showed a trend that 
the contaminants were generally comparable to or lower than coal, the 
replacement fuel, (although individual tests and comparisons vary). In 
addition to independent data, some commenters referenced EPA's 
Materials Characterization Papers (used to support the proposed rule), 
and the TDF

[[Page 15493]]

American Society for Testing and Materials (ASTM) \80\ data on chemical 
constituents and fuel characteristics. The TDF and coal data were 
typically reported as elemental analyses.
---------------------------------------------------------------------------

    \80\ ASTM (American Society for Testing and Materials) or ASTM 
International, is a globally recognized leader in the development 
and delivery of international voluntary consensus standards.
---------------------------------------------------------------------------

    Specifically, commenters provided the following TDF concentrations 
for CAA section 112(b) HAP (some are also CAA 129 pollutants): 
<SUP>81 82</SUP>
---------------------------------------------------------------------------

    \81\ This is the available data for the elements or the 
compounds (that are among the nine CAA section 129(a)(4) pollutants 
or are on the 187 HAP listed in CAA section 112(b)) that were 
reported in comments, as well as data from the scrap tire Materials 
Characterization Paper referenced by commenters. Since TDF is 
usually co-fired with coal, the results can include contaminants 
that originated from the coal.
    \82\ Refer to the Materials Characterization Papers for 
traditional fuels in the docket for today's rule.
---------------------------------------------------------------------------

    <bullet> Cadmium--less than 5 up to 6 ppm (also on the CAA 129 
pollutant list);
    <bullet> Calcium--3,780 ppm (although listed as ``calcium 
cyanamide'' in the HAP list);
    <bullet> Chlorine--non-detect to 1,490 ppm (also listed in the CAA 
129 pollutant list as ``hydrogen chloride'');
    <bullet> Chromium--less than 5 up to 97 ppm; \83\
---------------------------------------------------------------------------

    \83\ If this is present from the steel wire, it is not expected 
to be released during typical boiler combustion.
---------------------------------------------------------------------------

    <bullet> Lead--51-65 ppm (also on the CAA 129 pollutant list);
    <bullet> Manganese--less than 100 ppm; \84\ and
---------------------------------------------------------------------------

    \84\ If this is present from the steel wire, it is not expected 
to be released during typical boiler combustion.
---------------------------------------------------------------------------

    <bullet> Mercury--non-detect up to levels in low-mercury coals 
(also on the CAA 129 pollutant list).
    These contaminant levels, the commenters argue, are at or below 
documented levels in coals. Although barium and zinc are not CAA 129 
pollutants or HAP, commenters also mentioned that barium was non-
detectable and one commenter mentioned that data available from the 
USGS database showed coal can have much higher concentrations of zinc 
\85\ than TDF. It was also reported that the steel wire in tires is 
98.5% iron (which is not a HAP). As noted previously, many commenters 
argue that the small amount of steel wire in typical TDF is not 
considered a contaminant that could result in emissions. Rather, it 
presents a handling concern when used as boiler fuel; specifically, the 
TDF needs to have the exposed wire removed so that it is ``flowable'' 
like coal. One commenter went on to say that they can recycle metals 
from TDF post-combustion. A large number of commenters stated that the 
metal from tires is a necessary ingredient in the formation of clinker 
in cement kilns and becomes part of the clinker product, and is in no 
way considered a ``contaminant'' in cement kilns.\86\
---------------------------------------------------------------------------

    \85\ The commenter said the coal sample was 51,000 ppm zinc, 
while coal is usually less than 100 ppm. TDF usually has higher 
concentrations of zinc than the average in coal.
    \86\ See the comment on cement kilns for more information 
relative to cement kiln usage.
---------------------------------------------------------------------------

    Many of the commenters also reiterated that the constituents in TDF 
fuel product do not lead to emission problems as evidence by comparable 
or lower emissions for the following CAA 129 pollutants according to 
their tests: carbon monoxide (some higher some lower, but comparable), 
dioxins/dibenzofurans (some commenters stated no significant 
difference, while others claimed emission reductions), hydrogen 
chloride (specifically mentioned reduction in cement kilns), oxides of 
nitrogen (usually combustors witness the greatest reductions in this 
pollutant when using TDF \87\), and sulfur dioxide (usually reduced 
when using TDF). Many commenters thought that we should also take into 
consideration the reduction in greenhouse gases and the emissions 
improvements.\88\ On the other hand, a number of commenters voiced 
concerns about emissions from scrap tires used as fuel, anticipating 
that they increased emissions (including those pollutants listed in 
section 129 of the CAA). A commenter cited that emissions increases 
were expected for a paper mill that was testing a substitution of TDF 
for wood.
---------------------------------------------------------------------------

    \87\ Commenters often said this is the biggest benefit in using 
TDF. State regulators are said to suggest the use of TDF if a 
combustor has a problem with NO<INF>X</INF> emissions.
    \88\ Refer to the Materials Characterization Papers for a 
detailed summary of the contaminant data for TDF, including data 
provided by commenters.
---------------------------------------------------------------------------

    Although we requested data on fuel contaminants, some contaminant 
data was reported as emission results. Results of a rather large study 
were reported by a commenter: ``In 2008, PCA member companies completed 
a study on the impact of TDF firing on cement kiln air emissions. The 
study's data set included emission tests from thirty-one of the cement 
plants presently firing TDF. Dioxin-furan emission test results 
indicated that kilns firing TDF had emissions approximately one-third 
of those kilns firing conventional fuels--this difference was 
statistically significant. Emissions of particulate matter (PM) from 
TDF-firing kilns were 35% less than the levels reported for kilns 
firing conventional fuels (not statistically significant due to the low 
PM emissions reported for essentially all cement plants). Nitrogen 
oxides, most metals, and sulfur dioxide emissions from TDF-firing kilns 
also exhibited lower levels than those from conventional fuel kilns. 
The emission values for carbon monoxide and total hydrocarbons were 
slightly higher in TDF versus non-TDF firing kilns. However, none of 
the differences in the emission data sets between TDF versus non-TDF 
firing kilns for sulfur dioxide, nitrogen oxides, total hydrocarbons, 
carbon monoxide, and metals were statistically significant. Separate 
studies conducted by governmental agencies and engineering consulting 
firms have also indicated that TDF firing either reduces or does not 
significantly affect emissions of various contaminants from cement 
kilns.''
    EPA's Response: The Agency assessed the contaminants in TDF using 
the data submitted and the proposed rule data (referenced above) and 
compared it to the concentrations in coal, the traditional fuel that 
scrap tires would be replacing.\89\ While the level of contaminants in 
TDF or tires vary slightly \90\ between test results for the scrap 
tires and for the type of fuel that was used for comparison purposes 
(i.e., coal, the replacement fuel), this data supports the commenters' 
position that the level of contaminants in TDF (or whole tires) are 
comparable to (if not less than) those found in the traditional fuel 
that it would be replacing.\91\ Coal has a number of contaminants that 
are not present in TDF. See the Materials Characterization Papers on 
Traditional Fuels and on Scrap Tires in the docket for today's rule for 
a complete discussion on contaminants in TDF (EPA-HQ-RCRA-2008-0329).
---------------------------------------------------------------------------

    \89\ The ``contaminants'' are the nine CAA section 129(a)(4) 
pollutants and the 187 HAP listed in CAA section 112(b).
    \90\ The elemental constituents in coal vary regionally so the 
test result comparisons to TDF also vary. For example, the relative 
percentage of some elements is sometimes slightly higher in some 
tests and lower in others. Overall, we find that TDF and coal have a 
comparable level of contaminants.
    \91\ While zinc has been reported to have higher levels in TDF 
than in coal, zinc is neither a HAP or one of the nine pollutants 
identified in section 129(a)(4) of the CAA and thus, would not be a 
contaminant for consideration.
---------------------------------------------------------------------------

    The metal wire in tires is 98.5 percent iron, but it is a small 
component of the TDF when processed. The Agency has determined that the 
concentration of iron in the processed TDF chips is comparable to those 
in coal. However, iron is not a HAP, nor are the other components of 
the wire expected to be released to the emissions in a typical boiler. 
Rather, the wire ends up in the bottom ash such that, according to one 
commenter, the metal can be recovered.

[[Page 15494]]

If the scrap tires were discarded (i.e., recovered from a tire dump), 
they would need to be processed into TDF chips with some removal of the 
metal wire (per the processing specifications described in a response 
to comments below) in order to be a non-waste fuel. Based on the 
comments, we recognize that this is more important for handling, than 
for emissions. We would also note that the steel wire in the whole 
tires used in cement kilns is regarded differently since it is needed 
to become part of the cement. That is, if the non-combustible 
ingredient in feedstocks that are necessary (e.g., iron) for clinker 
production are no longer used, those materials must be replaced.
    Finally, although we focus on the contaminants in fuel since that 
is the relevant criterion as it relates to the legitimacy criteria, and 
for deciding whether a material is a waste or a commodity, we do 
recognize the value of the greenhouse gas, as well as other criteria 
pollutant improvements using scrap tires as stated in the proposal and 
also raised by commenters. Specifically, the use of secondary materials 
as alternative fuels and/or ingredients in manufacturing processes 
using combustion not only recovers valuable resources, it is known to 
contribute to emissions reductions. For example, GHG has been reduced 
as a co-benefit of the use of secondary materials--the GHG rate 
associated with the combustion of scrap tires is approximately 0.09 
MTCO<INF>2</INF> E \92\ per million Btu of scrap tires combusted, while 
the GHG emissions rate for coal is approximately 0.094 
MTCO<INF>2</INF>E per million Btu. Combined with the avoided extraction 
and processing emissions 0.006 MTCO<INF>2</INF> E/million Btu for coal, 
the total avoided greenhouse gas is 0.019 MTCO<INF>2</INF> E per 
million Btu. Also, substituting TDF for coal would avoid an estimated 
0.246 Lbs/million Btu of particulate matter associated with the 
extraction and processing of the coal.
---------------------------------------------------------------------------

    \92\ Metric tons of carbon dioxide equivalent 
(MTCO<INF>2</INF>E)
---------------------------------------------------------------------------

    Relative to criteria pollutants, historical EPA and test program 
data demonstrate that, while emission rates vary over different TDF 
levels at different facilities, criteria pollutant emissions from 
combusting TDF have been found a majority of the time to be reduced or 
not significantly different than those from other conventional fossil 
fuels, provided combustion occurs in a well-designed, well-operated and 
well-maintained combustion device. In fact, results from a dedicated 
tires-to-energy (100% TDF) facility indicate that it is possible to 
have emissions much lower than those produced by existing solid-fuel-
fired boilers (on a heat input basis) with a specially designed 
combustor and add-on controls.\93\ Typically boilers use a mix of TDF 
and coal; they have comparable emissions with or without TDF with the 
same air pollution control device. We are not aware any small area 
sources that are able to use TDF for fuel. (See the Materials 
Characterization Papers in the docket for further details on these GHG 
estimates, and other estimates of avoided emissions associated with 
burning tires and other secondary materials as fuel.)
---------------------------------------------------------------------------

    \93\ See, for example, Reisman JI (1997) Air Emissions from 
Scrap Tire Combustion, Appendix: Emissions Data from Controlled Tire 
Burning. Technical Report prepared for USEPA. Office of Research and 
Development, Washington, DC EPA 1997 at http://www.epa.gov/ttn/catc/dir1/tire_eng.pdf
---------------------------------------------------------------------------

    Finally, we would also note that the use of secondary materials, 
such as use as a fuel in industrial processes may also result in other 
benefits, including reduced fuel imports, reduced mining impacts, and 
reduced negative environmental impacts caused by previous dumping 
(e.g., tires).
    Comment: Some industry commenters claimed that the proposed rule 
would increase the costs for facilities that use scrap tires as a fuel 
due to the imposed costs for unnecessary processing, and would 
negatively affect them and existing tire recycling programs. According 
to the many comments by tire retailers, tires are a material handled as 
a commodity. Under the third party processing requirements in the 
proposed rule, they estimated substantially increased costs to remove 
the tires they handle from their shops. This would also have the effect 
of causing the tires to be seen as ``waste-like'' since their monetary 
value would be reduced.
    EPA's Response: As a result of the changes made to the final rule 
concerning scrap tires that are collected as part of an established 
tire collection program, we anticipate that there will be no or minimal 
changes, to the current system that prevents scrap tires from being 
discarded. Thus, the costs for the tire retailers are not expected to 
increase, as anticipated by the commenters.
    Comment: A number of state environmental agencies recommended that 
scrap tires not be considered a solid waste when combusted, because of 
potential impacts on their state programs. These state environmental 
agencies, however, typically preferred EPA to consider scrap tires a 
waste at least until it arrives at the combustion unit (or otherwise 
reasonably processed into a product according to some State Agency 
commenters). Many of these states noted the beneficial aspects of using 
whole scrap tires as a fuel and were concerned with the negative 
impacts and possible interference to the success of their beneficial 
use programs (typically for non-combustion determinations) and 
requested clarification on the scope and impact of this rule for all 
non-hazardous secondary materials, including scrap tires. For instance, 
they asked if the rule would affect or interfere with state solid waste 
regulations, laws, and beneficial use programs. They also requested 
that EPA clarify the implications to a state program if the scrap tires 
are considered non-waste when used as fuel for federal purposes, but 
are considered waste according to the state recycling and waste 
management programs (until beneficially used or made into a non-waste 
product).
    EPA's Response: As discussed, the Agency has decided to identify 
scrap tires that are removed from vehicles and collected as part of an 
established tire collection program as a non-waste fuel when combusted. 
Thus, we believe that the concerns or impacts on the effective 
collection and use as a tire-derived fuel product should no longer be a 
concern. However, this approach would not address the request from 
state agencies that we identify scrap tires as a waste until combusted. 
As discussed previously, existing RCRA case law on hazardous wastes 
would not allow EPA to declare that a discarded material ceases to be a 
waste solely by the fact that it is beneficially used. Wastes may be 
used beneficially. Accordingly, once a non-hazardous secondary material 
(such as scrap tires retrieved from waste tire piles) is identified as 
a waste, its arrival at a facility for combustion would not change its 
status. EPA has also expressed the belief that case law would not 
prevent wastes from being processed into materials that are no longer 
wastes. However, that would require changing the material sufficiently 
so that a new fuel product is created.
    In response to the states question concerning conflicting and 
concurrent interpretations of state and federal waste status (when used 
as fuel), EPA would like to clarify that non-hazardous secondary 
materials may be simultaneously regulated as a non-waste fuel or 
ingredient for use in combustion units under the federal program, but 
as a solid waste by the state's solid waste programs. That is, non-
hazardous secondary materials that are designated as a non-waste by 
today's rule, while

[[Page 15495]]

not subject to the section 129 CAA standards, could be subject to the 
state standards that identify the same non-hazardous secondary material 
as a solid waste. The federal rule does not affect the state waste 
determination in this case. For more information about state agency 
concerns with regulating non-hazardous secondary materials, not just 
scrap tires, refer to Section IX.A, ``Applicability of State Solid 
Waste Definitions and Beneficial Use Determinations.''
    Finally, we would note, and as stated elsewhere in this preamble, 
this rule only addresses those non-hazardous secondary materials that 
are burned in combustion units as a fuel or ingredient. Thus, we are 
not making any determination that non-hazardous secondary materials are 
or are not solid wastes for other possible beneficial uses. Such 
beneficial use determinations are generally made by the states for 
these other beneficial uses, and EPA will continue to look to the 
states in making such determinations.
    Comment: One commenter stated that ``[b]urning in incinerators, 
kilns, boilers, etc. is not the highest best use of scrap tires,'' and 
that with proper processing, they can be used in many value-added 
recycling processes. Many other commenters were opposed to the 
combustion of any non-hazardous secondary materials as a fuel, 
including scrap tires in CAA section 112 regulated units, and support 
the recycling or reuse of scrap tires for other uses instead of 
combustion.
    EPA's Response: The issue that EPA is addressing in this rule is 
whether the burning of non-hazardous secondary materials, including 
scrap tires (whether whole or as TDF) is considered waste management. 
This is critical since the status of scrap tires--that is, whether they 
are a waste or not, determines which CAA emission standards the non-
hazardous secondary material would be subject to. With that said, EPA 
supports the broad use of scrap tires in many different markets (e.g., 
recycled rubber products, use in asphalt, and in civil engineering 
projects). The Agency also believes that the use of scrap tires as a 
fuel is a valuable use and should remain a component in the overall 
suite of recycling/management options provided the combustion units are 
subject to appropriate standards. In some cases, other recycling 
markets may not be available if TDF was not used a fuel. For example, 
in the standard process of shredding tires for tire-derived fuel (TDF), 
finer pieces are created as a by-product appropriate for recycled 
rubber products. In most cases, it would be too expensive to process 
the scrap tires solely for the recycling of this rubber (according to 
sources in the scrap tire program). Comments on the ANPRM and the 
proposal led us to believe that the non-combustion markets for scrap 
tires could not handle the surplus and will reverse the trend in 
cleaning up tire dumps and will lead to many tires being disposed of in 
scrap tire piles.
    Specifically, in 2007, 89.3% percent of the scrap tires generated 
in the U.S. by weight were collected and consumed in end-use markets. 
The total volume of scrap tires consumed in these end use markets 
reached approximately 4,105.8 thousand tons of tires out of an 
estimated 4,595.7 thousand tons of tires generated in the U.S. By 
comparison, in 1990, only eleven percent of the scrap tires were 
consumed on a per tire basis.\94\ Of the scrap tires that are collected 
annually and used in beneficial use end markets, about half are used 
for their fuel value, while the remainder are used in value-added 
recycling processes as the commenter preferred. We recognize that 
regionally, there are sometimes scrap tire shortages in an area that 
could support more non-combustion uses (as compared to the market 
demand for scrap tire usages). That is, some states are net importers 
and have very healthy markets using scrap tires as commodities, while 
other states do not have as much demand for scrap tires. The EPA 
supported scrap tire program is described on our Web site (http://www.epa.gov/osw/conserve/materials/tires/index.htm).
---------------------------------------------------------------------------

    \94\ These tire figures are compiled by RMA and are developed 
jointly with state scrap tire programs and listed in ``U.S. Scrap 
Tire Markets 2007.'' The report can be found at http://www.rma.org/scrap_tires/.
---------------------------------------------------------------------------

    Comment: EPA describes coal and petroleum coke as traditional fuel. 
Based on the extensive use developed over the last 20-30 years in the 
industry, many of the alternative fuels, such as TDF can also be 
considered traditional. A number of commenters cited that scrap tires 
have been used as a fuel for a long time (since the late 70's) which 
should qualify as ``historical use'' and should be regarded as a 
traditional fuel. The cement industry's goals have emphasized use of 
alternate fuels and raw materials based on the industry increasing its 
reliance on this type of material since the 1980s. The use of TDF is a 
long-standing and customary practice now characteristic of cement 
manufacturing fuel options. In fact, commenters have argued that the 
number of major industrial boilers and cement plants utilizing TDF as a 
supplemental fuel has risen dramatically over the last 19 years and 
decreased the dependence on virgin fuel sources.
    Other commenters mentioned that the components of tires are derived 
from hydrocarbons (like fossil fuels, such as coal, oil, and natural 
gas) and natural ``biogenic'' sources (the rubber), and therefore, they 
should be considered a traditional fuel. Still other commenters 
mentioned that TDF should be considered a traditional fuel since it 
should qualify for the same reasons as on-spec used oil. Finally other 
commenters argued that scrap tires should be considered a traditional 
fuel based on the comparable contaminant content and superior Btu value 
(at 12,000 Btu/lb to 16,000 Btu/lb), as compared to coal.
    EPA's Response: We do not agree with the commenters that scrap 
tires should be considered an historically managed traditional fuel or 
alternative fuel. In fact, until this rulemaking, we are not aware that 
anyone has considered or identified scrap tires as a traditional fuel. 
While we recognize that scrap tires may have been used as a fuel since 
the 1970's, we would also note that tires are not produced for their 
fuel value, even though the components of tires are derived from 
hydrocarbons and natural biogenic source. Further, scrap tires are not 
derived from virgin material fuels (e.g., as is the case of coal refuse 
derived from virgin coal).
    Comment: Some commenters regarded the combustion of non-hazardous 
secondary materials, including scrap tires, as waste disposal and 
therefore the combustion unit that burns these secondary materials 
should be regulated as an incinerator. Another commenter was concerned 
with a combustor accepting fees to accept non-hazardous secondary 
materials and argued that waste-burning boilers can receive a pass-
through portion of tipping fees and can also collect fees ``to dispose 
of'' the material through combustion at ``clean energy'' projects. The 
commenter went on to say that the fuel at these facilities is in no way 
sold in the marketplace the way that traditional fuels are sold for 
profit. In fact, the economic model is reversed, so that the combustion 
facility is paid to take the secondary material.
    EPA's Response: The question of whether or not a non-hazardous 
secondary material, including scrap tires is or is not a solid waste, 
depends on whether it has been discarded, and whether it could 
legitimately be considered a fuel-like material, by meeting the 
legitimacy criteria. As we have discussed elsewhere in this preamble, 
we have determined that scrap tires, when collected as part of an

[[Page 15496]]

established tire collection program and sent to a combustion unit for 
use as a fuel, or when sufficiently processed to produce a tire-derived 
fuel, have not been discarded and are not solid wastes. These secondary 
materials are more akin to non-waste fuels in these instances. Thus, we 
disagree with the commenters who argue that the combustion of non-
hazardous secondary materials, including scrap tires, always 
constitutes waste management.
    On the other hand, where scrap tires or any other non-hazardous 
secondary materials are disposed of (part of the plain meaning of 
discard) via combustion, they are a waste. For example, if a combustion 
unit's main purpose is to provide heat to dry a product, but they 
consistently have a surplus of tires received with a tipping fee and 
operate the unit without a product being dried, they are in effect 
destroying the scrap tires. In this case, they would be considered 
solid wastes, and the combustion unit would be subject to the CAA 129 
standards. With respect to the situation where a facility accepts scrap 
tires for a tipping fee (as opposed to paying for the fuel), that can 
be an indicator that disposal may be occurring, but is not 
determinative to indicate that such transactions always constitute 
waste management. For example, the tipping fees could encourage over-
accumulation leading to combustion for disposal versus being used as a 
valuable replacement fuel. Thus, this factor should be considered, in 
light of the other circumstances, in determining whether or not scrap 
tires when combusted as a fuel are or are not a solid waste.
    Comment: A commenter described the associated environmental justice 
impacts that would occur at sites that would receive scrap tires if the 
proposed rule went into effect, as compared to the current 
environmental justice impacts associated with cement kiln sites. The 
commenter provided an analysis that they said showed a decreased chance 
of impacting environmental justice communities based on the demographic 
analysis at cement kilns versus the alternative sites. The commenter 
claimed that the processing described in the proposed rule would 
effectively prohibit them from using scrap tires as a fuel and will 
result in more scrap tires being disposed of or unnecessarily processed 
at sites that are more likely to be in environmental justice 
communities, as EPA's environmental justice analysis indicates.
    The commenters' analyses indicated that cement kilns tend to be 
located in areas with fewer minorities than the national average, as 
well as fewer minorities as compared to the larger set of sites that 
use non-hazardous secondary materials that may become CISWI facilities, 
tire processors, and RCRA subtitle D facilities (as EPA assessed in the 
``Review of Environmental Justice Impacts'' \95\). The commenter stated 
that ``EPA's data shows vividly that there are no Environmental Justice 
issues at any of the cement plants in its CISWI database.'' The 
commenter also argued that land disposal (or processing) sites already 
have environmental justice issues and that the proposed rule would make 
it worse by having more scrap tires diverted to waste tire piles or 
processors. Another commenter indicated that states are considering 
removing landfill bans on whole tires if this rule goes into effect, 
and argued that the proposed rule would cause an increase in the number 
of tires going to landfills or stockpiles and would have a disparate 
impact on adjacent communities and mentioned the risks of fires and 
mosquito born vectors at tire piles.
---------------------------------------------------------------------------

    \95\ EPA's ``Review of Environmental Justice Impacts'' that the 
commenter referenced, can be found in the docket for today's rule 
(EPA-HQ-RCRA-2008-0329-0519). Cement kilns and other combustors that 
use non-hazardous secondary materials were included in the CISWI 
database used for EPA's demographics (many of the units in the CISWI 
database were not regulated as incinerators).
---------------------------------------------------------------------------

    EPA's Response: In the evaluation regarding the use of whole scrap 
tires (predominantly used as a fuel in cement kilns) and whether or not 
they should be considered solid wastes if collected as part of an 
established tire collection program, we considered the environmental 
justice demographics and impacts that would result at cement kilns. 
Based on our review of the demographics at cement kilns, on average, 
they are located in areas with fewer minorities and less poverty than 
RCRA subtitle D disposal sites, processing sites, and facilities 
assessed to become CISWI CAA section 129 incinerators.
    Whole scrap tires can be used as a non-waste fuel in cement kilns 
under today's rule when they were harvested from vehicles and managed 
under the oversight of an established tire collection program prior to 
being delivered to the combustion unit. Based on our most recent 
demographic data, we agree with the commenter that sending whole tires 
to cement kilns as a non-waste fuel is not expected to have a negative 
impact on environmental justice communities. In fact, it appears that 
it would have benefits since RCRA subtitle D disposal sites, processing 
sites, and facilities assessed to become CISWI CAA 129 incinerators 
(the sites that would be accepting scrap tires if not burned as a fuel 
in cement kilns) are more likely to be located in environmental justice 
communities. Thus, while this was not the primary basis on which this 
decision was made, the Agency believes it important that its decision 
would lessen the impacts on environmental justice communities.
    Comment: EPA never explains why it believes that, in the context of 
a secondary material that does not need processing or perhaps needs 
only minimal processing to serve as a wholly bona fide fuel, that scrap 
tires cannot be considered sufficiently ``processed'' unless they are 
physically shredded and undergo metals removal processing. We note that 
whole tires that have long been buried or stacked in aging piles may 
need minimal processing for use in cement kilns, such as removal of 
excess water and dirt, mud, and debris. Whole tires from newer stacks 
or piles often need no physical processing whatever. EPA never explains 
why it thinks this much processing is necessary for tires to escape the 
``discard'' rubric and serve as bona fide fuels in portland cement 
kilns. The result of this faulty logic is that beneficial reuse of 
significant amounts of non-hazardous secondary materials will be 
greatly discouraged, and there will be no health or environmental 
benefits (only detriments). We believe it is obvious that EPA's 
proposal represents a ``classic case of arbitrary and capricious 
rulemaking.''
    The portland cement industry simply cannot afford to jeopardize its 
product by using alternate fuels that affect cement quality. EPA 
justifiably had a concern (reflected in the earlier RCRA subtitle C 
rulemaking and policy documents it cites) that unscrupulous parties 
seeking to avoid the expensive subtitle C cradle-to-grave regime had 
incentives to claim that the hazardous waste they were burning was a 
bona fide fuel. At that stage in RCRA subtitle C development (mid 
1980s), burning of hazardous materials for bona fide energy recovery 
purposes was exempt. This concern simply does not apply to the 
situation in which non-hazardous secondary materials are being burned 
in fully regulated industrial furnaces such as portland cement kilns.
    Ironically, EPA has long recognized that products from portland 
cement kilns burning hazardous waste fuel are not adversely affected in 
any manner. In 1995, after reviewing exhaustive data presented in a 
petition filed under the Toxic Substances Control Act (TSCA), EPA 
rejected the petitioners' request that products produced from cement

[[Page 15497]]

kilns that burn hazardous waste fuel carry warning labels because EPA 
found there was no difference in contaminant levels (or risks) in the 
product. 60 FR 39169 et seq., August 1, 1995. As recently as 2007, 
EPA's Assistant Administrator for Solid Waste and Emergency Response 
(OSWER) stated in a letter to the Center for Maximum Potential Building 
Systems that ``there is no difference in the cement from kilns burning 
hazardous waste compared to cement produced by kilns not burning 
hazardous waste.''
    Moreover, NSF International has reviewed data from several portland 
cement kilns burning hazardous waste fuel to assess whether the product 
from such kilns could be safely used in concrete water pipes and water 
storage tanks. These studies have uniformly concluded that there is no 
statistical difference in contaminants between clinker or products made 
from kilns burning hazardous waste fuel as compared to kilns using only 
fossil fuels.
    The commenters representing cement kilns also noted that a cement 
kiln is not a boiler or an incinerator. One of the commenters went on 
to say that ``in enacting CAA section 129, Congress was focused 
exclusively on ``incinerators.'' Incinerators burn waste materials 
solely for the purposes of destruction. They do not use 
``ingredients,'' and they make no product. Moreover, in all the 
rulemaking and litigation that prompted this proposed rule--culminating 
in the NRDC case * * * EPA, the parties, and the Court were focused 
exclusively on incinerators and boilers. Like incinerators, boilers do 
not use ``ingredients.'' Unlike incinerators, boilers may burn waste 
materials for energy recovery purposes. But the only product they make 
is steam, and the steam that they make never comes in contact with the 
fuel they burn.
    A portland cement kiln is significantly different from an 
incinerator or a boiler in key respects. First, it is one type of 
``industrial furnace'' which, unlike boilers and incinerators, which 
makes a marketable product. All materials that are placed in the kiln--
including fuels--come into mutual contact in the manufacturing process. 
The product the kilns produce must meet strict quality standards. EPA's 
RCRA regulations have long recognized these key distinctions among 
industrial furnaces, boilers, and incinerators. The commenter referred 
to 40 CFR 260.10.
    Despite the fact that there was absolutely no issue with portland 
cement kilns producing ingredients in the development of CAA section 
129 or the rulemaking and litigation leading to this rulemaking, the 
commenter stated that portland cement kilns have been included in this 
proposal in a manner that could have very adverse impacts on a kilns' 
ability to use non-hazardous materials beneficially; the commenter went 
on to argue that a significant flaw in the proposal is its failure to 
recognize the key differences between portland cement kilns as compared 
to incinerators and boilers.
    EPA's Response: These comments may express legitimate policy 
concerns. However, they are essentially irrelevant to the decisions 
that EPA is making in this rulemaking. Tires from tire dumps are 
clearly wastes because they have been disposed for a long time. The 
tires were clearly abandoned if they were left in a tire dump. EPA 
understands the commenter's remarks that cement kilns are not 
``boilers'' nor were designed to be ``incinerators,'' but cement kilns 
are clearly ``combustors'' under the CAA and the Agency needs to decide 
whether CAA section 112 or 129 standards would apply.
    With respect to the comments regarding ``processing,'' EPA's 
intention is to provide a standard for turning clearly discarded 
material into a non-waste. EPA acknowledges that there is no direct 
case on point in which a court has opined on how a material may lose 
its status as a waste.\96\ The comment assumes all fuel is not a waste. 
As EPA has repeatedly stated in this preamble, a waste may be used 
beneficially and may, indeed, be a bona fide fuel. This is consistent 
with the DC Circuit's opinion in NRDC v. EPA. A combustor that burns 
solid waste, even for energy recovery, must be regulated under CAA 129. 
If the kiln is regulated under CAA 129, no processing is needed for a 
waste scrap tire to be burned as a bona fide fuel.
---------------------------------------------------------------------------

    \96\ Although we recognize that some states have systems in 
place where materials lose the waste status if beneficially used 
according to the state's standards.
---------------------------------------------------------------------------

    Given the statutory provisions and case law, EPA is constrained to 
argue that discarded materials are solid wastes and would need to be 
burned under CAA section 129 standards. EPA notes that environmental 
groups would argue that all units combusting tires must be subject to 
emissions standards issued under section 129 of the CAA even if the 
tires have been processed into a separate TDF, and the comments include 
policy arguments to support this contention. The point of the comment 
is that requiring units to meet emissions standards issued under 
section 129 of the CAA would discourage burning of tires as an 
environmentally beneficial replacement for non-renewable fuels, yet 
environmental groups would argue that scrap tires should nevertheless 
be subject to such standards. EPA's focus, however, must be on the 
definition of solid waste under RCRA and the comment gives the Agency 
no basis to determine what kind of activity would make the waste a non-
waste. Whether the material is a bona fide fuel does not provide the 
answer to that inquiry.
    EPA sees no reason based on these comments to eliminate the 
processing requirement for this final rule.
    Comment: The commenters that addressed the specific level of 
processing for whole scrap tires disagreed with EPA on the amount of 
processing required before TDF should be considered a non-waste fuel. 
In addition, many of the commenters had different interpretations of 
our proposed wire removal requirements and on the term ``relatively 
wire free'' (since some incorrectly believed that the proposed standard 
was up to 99% or absolutely no wire). Furthermore, many of these same 
commenters argued that the proposed processing requirements for units 
that use TDF chips were unrealistic and would dramatically increase 
processing costs, while a few commenters cited that many processors 
could not even achieve the specified level of wire removal. These 
changes would significantly deter facilities from using TDF that they 
regarded as a product. In fact, a number of commenters, including some 
state agencies, questioned the value of requiring unnecessarily costly 
processing of whole scrap tires that are to be used as a fuel in units, 
such as cement kilns, since the wire in the scrap tires can be 
beneficial due to the properties of the iron oxide resulting from the 
tire combustion in cement kilns. Other commenters noted that the 
presence of steel in the whole scrap tires or TDF should be irrelevant 
to their waste status since the wire removed is for improvement in 
handling--that is, the TDF needs to have the exposed wire removed so 
that it is ``flowable'' like coal within the combustion unit, as well 
as any loose wire removed since it can also cause handling issues in 
the units, not emissions.
    A few commenters claimed that TDF processed to two-inch pieces was 
seen as the higher end TDF product and that this should be our 
standard. In particular, one commenter that markets TDF as a product, 
``request that the EPA use the widely accepted nominal two-inch minus, 
90%+ wire free standard that has been standard in the industry

[[Page 15498]]

for years'' since this would accurately define a product. The commenter 
said that ``TDF meeting this 90%+ wire free standard typically has a 
wire content of between 2% and 8% by weight.'' In addition, some state 
agencies have been known to specify two-inch TDF as a product rather 
than a waste, while rough shreds used for fuel in some combustors 
(bigger than two inches) are seen as a waste material (not a product) 
by those states. The size restriction is more prevalent in 
specification for TDF than specifying a percentage of metal.
    Other commenters argued that a product is created when tires are 
processed at any level that makes it ``TDF'' and mentioned that the 
ASTM describes a process that creates a ``product'' called TDF. Another 
commenter mentioned that a necessary component in the processing of 
shredded tires is to remove the protruding wire from the shreds and to 
sort the rubber pieces from the wire remnants called ``free wire.'' The 
commenter said that this part of processing is typically necessary in 
order for it to be sold as a TDF product to boilers. The commenter went 
on to say that the completion of this last step can be tested by 
spreading out the TDF chips in a single layer and passing a very strong 
magnet over them to see if any free wire remains. That commenter 
reasoned that TDF chips that pass the magnet test and had the free wire 
removed should qualify as a non-waste TDF product.
    EPA's Response: In the situation where tires are discarded in the 
first place or otherwise do not meet the legitimacy criteria, 
processing is needed before it is considered a non-waste fuel (i.e., 
tires that are not collected from vehicles as part of an established 
tire collection program per Sec.  241.3(b)(2)(i)). We disagree with 
those commenters who addressed the level of processing needed before 
TDF is considered a non-waste as these commenters are answering a 
different question: How much processing is necessary before whole scrap 
tires can be burned properly in any particular combustion unit?
    However, the question that EPA needs to answer is how much 
processing is sufficient before whole scrap tires are considered a non-
waste fuel where the scrap tires are not collected as part of a scrap 
tire collection program? Examples of sufficient processing for other 
non-hazardous secondary materials include the processing of used oil to 
produce on-specification used oil and the processing of construction 
and demolition (C&D) wood into a fuel by sorting to remove contaminants 
(e.g., lead-painted wood, treated wood, non-wood materials), and sizing 
it. In all these instances, the non-hazardous secondary material is 
being sufficiently changed, either chemically or physically to produce 
a non-waste product.
    Thus, while insufficiently processed discarded tires can be burned 
in boilers as a fuel, such TDF would still be considered a waste-
derived product because the Agency does not believe that simply 
shredding or quartering whole tires, or removing some dirt, is adequate 
to produce a non-waste product for use as fuel according to today's 
rule (refer to the processing definition in Sec.  241.2 Definitions). 
While the extent of processing that may be required may vary for 
different types of non-hazardous secondary materials, the Agency 
contends that a sufficient amount of processing must occur to produce a 
non-waste product from secondary materials.
    One commenter mentioned, boiler operators are able to recycle the 
metal from the wire post-combustion (although minimal). This is after 
it has been cleaned of the rubber particles via the combustion process, 
so this iron can be recovered and recycled (not disposed in emissions). 
However, whether or not the metal from the wire (post-combustion) can 
be recycled does not go to the question of whether or not the non-
hazardous secondary material has been ``sufficiently processed'' to 
produce a non-waste product.
    With respect to the technical question of how much wire must be 
removed before the amount of processing is considered sufficient, the 
specific unit types that use TDF chips require different levels of 
metal removal for handling concerns as noted by commenters. The ASTM 
Standard D 6700 ``Standard Practice for Use of Scrap Tire-Derived 
Fuel'' \97\ describes the process for ``dewired'' and has a helpful 
guideline on the appropriate amount of wire removal for different unit 
types under the topic titled ``Handling Considerations Conveying, Grate 
and Ash.'' However, the ASTM standard is concerned with proper dewiring 
and not whether the resultant material is a waste or non-waste fuel.
---------------------------------------------------------------------------

    \97\ ASTM Standard D6700-01, 2006, ``Standard Practice for Use 
of Scrap Tire-Derived Fuel,'' ASTM International, West Conshohocken, 
PA, 2003, DOI: 10.1520/C0033-03, http://www.astm.org. This standard 
can be obtained through the following Web site: http://www.astm.org/Standards/D6700.htm.
---------------------------------------------------------------------------

    In the proposed rule, EPA referred to the level of processing in 
varied terms (``relatively wire free,'' ``processed to the Standard 
Practice for Use of Scrap Tire-Derived Fuel ASTM Standard D 6700-01,'' 
``wire removed,'' ``steel belts removed,'' and ``sufficiently 
processed''). While ASTM was not deciding whether this material would 
be a waste, or not, EPA in the proposal was suggesting that such 
material would be sufficiently processed to render the new material a 
commodity fuel. Thus, to be considered sufficiently processed, there 
has to be metal removed and, it should be at the level of wire removal 
that is specific to the combustion unit as mentioned above. EPA agrees 
with the commenter who stated that TDF that has been chipped/shredded, 
sorted and dewired (or at least 90%+ wire free) would be considered 
sufficiently processed. However, this may not be the only standard, to 
the extent that other unit types require different levels of metal 
removal.
    With respect to the commenter that suggested the removal of free 
wire as an indicator of sufficient processing, we would agree that the 
removal of free wire (as described by the commenter) is a necessary 
component of processing scrap tires into a non-waste product for the 
purposes of this rule, but that alone, may not be sufficient to meet 
our definition of processing. It could qualify if, according to product 
specifications appropriate for the particular combustion unit, it is 
processed into TDF chips and enough wire is removed from the TDF and 
the loose free wire is removed (to the degree practical) appropriate to 
the unit.
    However, we would also note, as is the case for all types of solid 
fuel, proper characterization of the size and composition of TDF are 
important factors that combustion unit operators assess to determine if 
the TDF is a suitable fuel for their specific combustion unit 
design.\98\ For example, ASTM Standard D 6700, describes standard 
practices for using TDF as fuels, and also specifies sampling and 
analysis methods and procedures that apply to TDF that cover 
composition and fuel characterization analyses. The standards also 
address the size of the tire pieces and metal content in order to 
optimize combustion. The ASTM Standard D 6700 ``Standard Practice for 
Use of Scrap Tire-Derived Fuel'' also describes the process for 
``dewired'' TDF and has a helpful guideline on the appropriate amount 
of wire removal for different unit types under the topic

[[Page 15499]]

titled ``Handling Considerations Conveying, Grate and Ash.'' In 
summary, EPA considers that previously discarded tires that have been 
made into TDF (shredded/chipped, sized, sorted, and with a significant 
portion of the metal belts or wire removed, at a level appropriate for 
the unit), meets the definition of ``sufficient processing.''
---------------------------------------------------------------------------

    \98\ With regard to the legitimacy criteria discussed in Section 
V.D., the heating value of scrap tires (12,000 Btu/lb to 16,000 Btu/
lb) is the highest of all non-hazardous secondary materials, except 
used oil (17,800 Btu/lb), and higher than typical coal values. 
Contaminants of potential concern have been measured for both 
materials: The constituents are comparable.
---------------------------------------------------------------------------

    Finally, as discussed above, the final rule also allows for scrap 
tires that have been harvested from vehicles (as part of an established 
tire collection program) to be used as a non-waste fuel. The question 
of processing into TDF or the ``extent of processing'' is only relevant 
if they are using scrap tires that have first been discarded.\99\ Scrap 
tire processors typically enter into contracts with the end users of 
these products that specify that the processed tires meet certain 
specifications (i.e., size of chips and possibly other considerations) 
to ensure that the product that is produced consistently meets the 
needs of that particular end use. Boilers, unlike cement kilns,\100\ 
benefit from TDF that has been processed into small chips that feed in 
the combustion unit like coal and the reduction of metal to improve its 
handling and operational qualities in the combustion unit. For 
instance, the removal of the exposed wire around the perimeter of the 
tire chips makes it ``flowable'' like coal in the combustion unit.
---------------------------------------------------------------------------

    \99\ Since scrap tires that are harvested from vehicles (as part 
of an established tire collection program) can be burned as whole 
tires and still be considered a non-waste fuel, the Agency does not 
believe it appropriate to require such tires to meet the level of 
processing (as codified in Sec.  241.2). However, other scrap tires, 
e.g., those that are removed from tire piles would need to be 
processed (as codified in Sec.  241.2) in order to be burned as a 
non-waste fuel.
    \100\ We note that most cement kilns use whole tires as fuels, 
as opposed to TDF chips, because their process does not require the 
TDF to be in the form of small chips to use it as a fuel, and does 
not require removal of the metal (since they use the metal as an 
ingredient).
---------------------------------------------------------------------------

    EPA notes that merely harvesting tires from vehicles does not 
render the material a non-waste. If the tires are used in a combustor 
for which they are not suitable, which can be determined through the 
analysis of the legitimacy criteria, they would be wastes.
6. Resinated Wood Residuals
    The proposed rule described resinated wood products as those 
generated during the manufacture of particleboard, medium density 
fiberboard, and hardboard and includes materials, such as board trim, 
sander dust, and panel trim. The proposal indicated that such resinated 
wood products were considered a non-waste fuel when burned in a 
combustion unit because this secondary material generally meets the 
legitimacy criteria. We acknowledged, however, that we had limited data 
on the level of contaminants in resinated wood products, but the data 
we had did generally indicate that this non-hazardous secondary 
material would meet the legitimacy criterion for contaminants. In order 
to gather additional information on which to base our decision, we 
requested comment and data on the contaminant levels contained in these 
secondary materials, as well as the appropriateness of calling them a 
non-waste.
    Comment: The American Mining Congress v. EPA case states that 
secondary materials beneficially used within the generating industry, 
not within the generating plant, is part of a continuous industrial 
process and thus, not a solid waste. Therefore, transfer of materials 
within the generating industry would have to be considered a non-waste 
fuel.
    Some commenters contend, however, that any secondary material 
burned for energy recovery is a solid waste, regardless of whether it 
remains within the control of the generator. These commenters object to 
allowing control by the generator to be relevant to rendering secondary 
material a non-waste, even if burned under the legitimacy criteria, 
claiming that these secondary materials are wastes. The commenter goes 
on to note that EPA itself admits that a secondary material could still 
be a waste even if it is recycled on-site or within the control of the 
generator and cites the court's holding in API II.
    EPA's Response: EPA needs to correct some of the industry and 
environmental group misrepresentations of the cases on the definition 
of solid waste. In AMC I, the court was only noting that secondary 
materials reclaimed within a continuous process are not wastes and are 
not subject to EPA's jurisdiction as solid wastes. The case is actually 
a narrow discussion of one basic principle regarding what is not 
discarded. The court does not even state whether any particular 
material is discarded. For example, while there is a reference to used 
oil that could be discarded, the court in no sense was saying that all 
used oil is discarded. In fact, in API II the court specifically noted 
that in AMC I they ``did not address the discard status of any of the 
particular materials discussed in the briefs.'' 216 F.3d at 56. The 
court freely admitted in API II that its ``prior cases have not had to 
draw a line for deciding when discard has occurred,'' but only dealt 
with the extreme cases of materials that were either wastes or non-
wastes. 216 F.3d at 57.
    As the various definition of solid waste cases hold, the ultimate 
issue for deciding when most materials are discarded is whether EPA's 
determination complies with the arbitrary and capricious standard of 
the Administrative Procedure Act (APA). Sweeping formulations involving 
whether a process is within an ``industry'' is not helpful, nor is it 
consistent with the case law. EPA, and the courts, reject any 
formulation that under AMC I the statement that discard cannot be found 
in the case of immediate recycling within a continuous industrial 
process means ipso facto that any material transferred within an 
``industry,'' even between companies located in New York and 
California, is not a waste. EPA's decision on whether resinated wood is 
a waste (within the control of the generator or if transferred) is 
based on the circumstances under which the material is handled and 
combusted. Merely keeping material on-site will not render it a non-
waste, nor will mere transfer make the material a waste.
    Comment: Trim, sawdust, shavings, sander dust and other residual 
materials from producing panels and other engineered wood products 
containing resins have been widely used as fuels by wood product plants 
since the industry began in the 1950s and should, therefore, be 
classified as a traditional fuel. In fact, the wood product plants have 
been designed so as to specifically utilize these residuals that the 
process creates and would not be able to operate as designed without 
this material. The commenters argue that there are no significant 
contaminants in resinated wood residuals that are used as fuels. None 
of the constituents are among the contaminants controlled under CISWI. 
This fact provides sufficient justification to accept resinated fuels 
as traditional fuels from the standpoint of contaminants.
    EPA's Response: We do not agree with those commenters who argue 
that resinated wood residuals should be considered a traditional fuel, 
since it can have contaminants at levels greater than traditional fuels 
(as discussed below). We recognize, however, that much of the resinated 
wood residuals are used as a product fuel, and that the plants have 
been designed to catch and then burn these residuals to supply energy 
and heat to other parts of the plant. EPA recognizes that some specific 
types of non-hazardous secondary materials, such as resinated wood 
residuals, are more like valuable

[[Page 15500]]

commodities than solid wastes. Resinated wood is a secondary material 
that, upon examination, is not discarded when used on-site or 
transferred off-site to a different company. Thus, EPA would consider 
resinated wood residuals used as a fuel in a combustion unit as not 
being a solid waste, provided these materials satisfy the specified 
legitimacy criteria for fuels.
    Comment: Commenters argued that resinated wood residuals are often 
used off-site in a manner that does not constitute discard and the 
secondary materials should not be classified as solid waste when 
transferred between facilities or companies. As much as 6% of resinated 
wood residuals are sold into the fuel market and are routinely 
transferred between either intra- or inter-company facilities and used 
as either ``furnish'' (i.e., raw materials) or fuel at the receiving 
facilities. Inter-company transfers are typically managed through buy-
sell contracts that likely do not specify how the materials will be 
used because the receiving facility likely mixes the purchased material 
with self-generated materials. Those combined materials are either used 
as furnish or fuel in accordance with the needs of the facility at the 
time. Because these resinated materials are bought and sold and used in 
a manner--either as furnish or fuel--similar to how self-generated 
resinated materials are used, this transaction does not constitute 
discard and the materials should not be classified as solid waste 
simply due to the transfer between facilities or between companies.
    EPA's Response: We agree that transferring secondary materials 
between companies or facilities does not necessarily mean that the 
material has been discarded. As resinated wood residuals transferred 
off-site are utilized in the same manner as self-generated resinated 
wood residuals (i.e., contained in the same bins as furnish materials 
used in the product, transferred via conveyors or ducts), which the 
plants are specifically designed to burn as a fuel, we agree that this 
does not constitute discard. Thus, we have determined that resinated 
wood residuals are not solid waste when transferred off-site for use as 
fuel, provided the material meets the legitimacy criteria and has not 
been otherwise deemed to be discarded. We have codified this concept 
under 40 CFR 241.3(b)(2)(ii).
    Comment: Processing should not be necessary when utilizing the 
material on-site or off-site to be considered a non-waste fuel. 
However, resinated wood residuals are generally chipped or hogged to 
reduce its size before burning. This should be sufficient to meet the 
processing requirement.
    EPA's Response: We generally agree with the commenters that 
resinated wood residuals do not need to be processed, but if processed, 
such as by chipping or hogging, this level of processing would not 
affect the status of this material.
    Comment: Resinated wood residuals have contaminants that are 
comparable to traditional fuels. The list of resins and adhesives 
include constituent chemicals that are on the hazardous air pollutant 
list. Notably, phenol, formaldehyde, methylene di-isocyanate and 
epichlorohydrine are HAP. However, these individual components react 
completely within the resin curing process, leaving, in the worst case, 
only trace amounts of the HAP. With the exception of formaldehyde, 
undetectable or extremely low levels of these HAP remain behind after 
the resin/adhesive cure. As noted in the comments referenced in the 
proposal, miniscule amounts of formaldehyde remain in some resinated 
wood residuals, less than 0.02%, a number that is expected to fall as 
the California Air Resource Board (CARB) Composite Wood Airborne Toxic 
Control Measure (ATCM) is implemented nationwide, per the new Public 
Law 111-199 (which establishes consistent standards for wood products 
across the country). Further, since formaldehyde is found in natural 
wood, it should not be considered a contaminant in resinated wood.
    EPA's Response: The proposed rule acknowledged a general lack of 
data regarding the levels of formaldehyde in these non-hazardous 
secondary materials and specifically requested data on this issue. 
While we received only limited contaminant information during the 
comment period, the data we do have suggests that the levels of 
formaldehyde in these resinated wood residuals is at non-detect levels. 
The existing data we have is that resinated wood residuals contain 
``free'' formaldehyde at levels less than 0.02 percent (or 200 ppm). In 
addition, new rules, as mandated by the CARB Composite Wood ATCM, per 
new Public Law 111-199, will reduce the formaldehyde levels even 
further to levels that are comparable to unadulterated wood. We also 
have limited data on the formaldehyde levels in traditional fuels. 
Specifically, we have limited data that natural wood has between 0.6 
and 8.5 ppm of formaldehyde,\101\ but we have no data on formaldehyde 
levels in other traditional fuels, such as coal, oil, and natural gas. 
We do know, however, that organic materials produce formaldehyde. For 
example, studies have shown that formaldehyde is generated from coal 
piles.\102\
---------------------------------------------------------------------------

    \101\ Weigl, M., R. Wimmer, E. Sykacek, and M. Steinwender, 
2009. ``Wood-borne formaldehyde varying with species, wood grade, 
and cambial age,'' Forest Products Journal 59(1/2) 88-92.
    Meyer, B. and C. Boehme, 1997. ``Formaldehyde Emission from 
Solid Wood,'' Forest Products Journal 47(5) 45-48.
    Killiam, B. ``Background Formaldehyde Emissions for Solid 
Wood,'' Temple-Inland Forest Products Corporation, Diboll, TX.
    \102\ Cohen, H. and U. Green, 2009. ``Oxidative decomposition of 
formaldehyde catalyzed by bituminous coal,'' Energy Fuels 23(6) 
3078-3082. Nehemia, V., S. Davidi, and H. Cohen, 1999. ``Emission of 
hydrogen gas from weathered steam coal piles via formaldehyde as a 
precursor: I. Oxidative decomposition of formaldehyde catalyzed by 
coal--batch reactor studies,'' Fuel, 78(7) 775-780.
    Nehemia, V., 1997. ``Oxidative decomposition of formaldehyde 
catalyzed by coal,'' Fuel and Energy Abstracts 38(6) p. 386.
---------------------------------------------------------------------------

    Thus, considering the fact that new rules will reduce the amount of 
formaldehyde to levels comparable to unadulterated wood, we have 
concluded that resinated wood residuals when burned as a fuel by the 
generator or outside the control of the generator and not discarded 
should be considered a non-waste fuel. However, as we have noted 
elsewhere, the generator of these secondary materials would still need 
to demonstrate that such residuals meet the legitimacy criteria. Thus, 
they would need to show that the levels of formaldehyde, as well as 
other possible contaminants, in the resinated wood residuals are at 
levels comparable to those found in traditional fuels, which in this 
case would be natural wood. We would note that we would not consider 
levels of formaldehyde of 200 ppm or slightly less to be comparable 
since the levels in unadulterated wood are at least two orders of 
magnitude lower. The levels would need to be lower to be considered 
comparable to those found in natural wood.
    Comment: The comments indicated that resinated wood residuals have 
about 5 percent moisture content, with heating values typically between 
8,500-9,000 Btu/lb (as fired). This fuel value is equal to or better 
than unadulterated wood, which has higher moisture content.
    The comments also argue that resinated wood residuals are managed 
as a commodity as they are typically pneumatically transferred through 
ducts, stored temporarily in a fuel silo, and then utilized in boilers 
to provide heat to hot presses and dryers. In fact, wood product plants 
have been designed so as to specifically utilize

[[Page 15501]]

these residuals that the process creates and would not be able to 
operate as designed without this material.
    EPA's Response: The heating value range presented (8,500-9,000 Btu/
lb) indicates that resinated wood residuals meet the meaningful heating 
value criterion as it is greater than the heating value of 
unadulterated wood. We also agree with the commenters that resinated 
wood residuals meet the legitimacy criterion for being managed as a 
valuable commodity since these residuals are managed as a primary fuel 
for wood products manufacturers. We acknowledge that wood products 
manufacturing plants were specifically designed to burn these resinated 
wood residuals to power the facility. In addition, wood product 
manufacturers have designed their plants to use their residuals 
(including placing the material in silos and transferring the material 
via conveyor belts and ducts) that supply the process both as a raw 
material and as a fuel, indicating that the resinated wood residuals 
are managed as a valuable commodity.
    Comment: Commenters referred to studies that show that the 
combustion of resinated wood residuals does not produce adverse air 
emissions. Specifically, EPA's ``Wood Products in the Waste Stream--
Characterization and Combustion Emissions'' (1996) describes studies 
that were conducted to determine if various types of wood produce more 
non-criteria air pollutants than typical wood sources. Air emissions 
and fuel materials were sampled at six different processors and 
boilers. Fuel materials that were used at the boilers were a mixture of 
wood produced at construction and demolition sites at the time: 
Unadulterated lumber, treated wood (including CCA-treated wood), 
resinated wood residuals, and painted wood (including lead-based 
paint). The study concludes that organic compounds that are emitted 
include aldehydes, benzene, phenol, and polynuclear aromatic 
hydrocarbons (PAH). These compounds are formed as products of 
incomplete combustion and did not appear to be a function of the woods 
composition or source. Instead, they appear to be an indicator of 
combustion inefficiency. ``Good'' combustion conditions appear to 
minimize organic emissions. Metals usually found in wood combustor 
particulate include As, Cr, Cu, Pb, Zn, Al, Ti, Fe, and Mg. Metals were 
found to be higher in samples taken, although this could be a result of 
the inclusion of treated wood in the samples combusted. Metals control 
efficiency appears to be roughly equivalent to total particulate 
control efficiency. Chlorinated organic compounds, such as dioxins, 
furans, polychlorinated biphenyls, chlorinated phenols, and chlor-
benzenes were measured at extremely low concentrations or were reported 
to be less than minimum detection limits.
    One commenter argued that, since resins contain only carbon, 
hydrogen, oxygen, and nitrogen, the wood and its adhesives will convert 
to carbon dioxide, water, and nitrogen oxides (which would be produced 
even if nitrogen is not present in the fuel, since nitrogen represents 
approximately 80% of air) under normal conditions that normally occur 
in industrial wood combustion units. Thus, the products of combustion 
from wood are the same from the adhesives. Adhesives are expected to be 
more combustible than wood, due to their simpler structure and lower 
molecular weights. Conditions which assure the complete combustion of 
wood are adequate to assure the complete combustion of these adhesives. 
Although it is possible that different types of compounds could be 
produced from the adhesives than from wood and that more of certain 
types of compounds might be produced from one fuel or another, there 
does not appear to be any scientific basis for a presumption that 
emissions from incompletely combusted adhesives are more harmful than 
emissions from incompletely combusted wood. In fact, the results of 
toxicity studies commissioned by National Forest Products Association 
in response to New York State law which requires manufacturers to 
provide data on the toxicity of smoke from their products indicate that 
smoke from glued wood products is no more toxic than wood smoke. There 
are a few halogen-containing synthetic polymers, such as 
polytetrafluorethylene, which can produce more hazardous fumes, but 
they are not normally used in wood products.
    The commenter also submitted data on HCl and NO<INF>X</INF> 
emissions from burning sander dust that was not yet published. 
Emissions from five combustion systems that burned a combination of 
sander dust and hog fuel were sampled. One test was run only using hog 
fuel (which consisted primarily of bark). Results are presented in 
Table 3. The commenter argued that these results prove that HCl and 
NO<INF>X</INF> emissions from the combustion of resinated wood 
residuals are comparable to the combustion of hog fuel alone. In fact, 
the three samples that contained the lowest percentages of sander dust 
(0%, 15%, and 25%) produced the greatest percentages of chloride in the 
fuel emitted as HCl and nitrogen in the fuel that was subsequently 
emitted as NO<INF>X</INF>.

  Table 3--Emissions Data From Six Combustors That Burned Hog Fuel or a Combination of Hog Fuel and Sander Dust
----------------------------------------------------------------------------------------------------------------
                 Sample number                      1          2          3          4          5          6
----------------------------------------------------------------------------------------------------------------
Fuel mixture, %Hog fuel/Sander dust...........      100/0      75/25      85/15      60/40      60/40      60/40
Hog Fuel content (%, dry basis):
    Chloride..................................       0.02       0.01       0.01       0.02       0.02       0.02
    Nitrogen..................................       0.58       0.56       0.56       0.51       0.58       0.56
    Sulfur....................................       0.02       0.04       0.04       0.04       0.05       0.03
Sander dust content (%, dry basis):
    Chloride..................................  .........       0.18       0.18       0.16       0.15       0.15
    Nitrogen..................................  .........        3.7        3.7        3.2        3.4        3.8
    Sulfur....................................  .........       0.05       0.05       0.06       0.04       0.03
Total Fuel Content (lb/hr):
    Chloride..................................        1.7        3.3        2.1        6.0        6.4        5.6
     Nitrogen.................................         49         84         60        136        151        143
    HCl.......................................       0.17       0.19       0.08       0.09       0.11       0.16
    NOX.......................................         26         53         31         45         48         53
Emissions (lb/MMBtu):
    HCl.......................................     0.0024     0.0038     0.0017     0.0012     0.0015     0.0023
    NOX.......................................       0.38       1.08       0.69       0.62       0.64       0.75
% of Cl in Fuel Emitted as HCl................        9.6        5.5        3.5        1.4        1.7        2.8
% of N in Fuel Emitted as NOX.................       16.1       19.3       15.7       10.1        9.7       11.2
----------------------------------------------------------------------------------------------------------------


[[Page 15502]]

    EPA's Response: We recognize that the studies have shown that there 
are decreased HAP emissions from burning resinated wood residuals. As 
we have stated previously, however, the criterion or test in 
determining the legitimacy criterion is based on the level of 
contaminants in the secondary material itself, and not by comparing the 
differences in emissions. We believe that in order for a non-hazardous 
secondary material to be considered a non-waste fuel, it must be 
similar in composition, whereas comparing the emissions profiles 
between combustion units that burn traditional fuels and non-hazardous 
secondary materials only tells one how well the combustion unit is 
operating, not what the material is that is being burned. Thus, while 
the Agency recognizes that such emissions data can be useful in 
determining whether or not burning such material presents a risk to 
human health or the environment, we believe it says nothing in terms of 
whether or not the non-hazardous secondary material is a legitimate 
non-waste fuel (see also Section V.D.3 discussion on legitimacy 
criteria).
    In response to some of the specific comments made, we would note 
that none of the studies or data provided information on formaldehyde 
emissions, the HAP that we identified that we were most concerned with 
in the proposal.\103\ While the EPA study did state that organics were 
not detected above typical wood fuel, it is not possible to ascertain 
what percentage of the material that was burned was represented by 
resinated wood residuals. Thus, we do not know how much resinated wood 
materials were in the samples that were tested and how it correlates to 
the emissions data.
---------------------------------------------------------------------------

    \103\ 75 FR 31862.
---------------------------------------------------------------------------

    We also acknowledge that resins are made from H, N, C, and O. 
However, our concern rests with the amount of formaldehyde (which is a 
HAP and also is made of H, C, and O) that is generated in the stack. 
While formaldehyde may be generated as a product of incomplete 
combustion, it may also be emitted from the stack if it is present in 
the fuel material and is not combusted at all. In other words, if some 
of the formaldehyde escapes combustion while in the fuel chamber and is 
emitted in the stack, more formaldehyde is likely to escape. A unit 
combusting 10 tons of formaldehyde is likely to result in more 
formaldehyde emissions than a unit combusting one ton of formaldehyde 
simply due to the fact that there is more formaldehyde in the fuel. 
Therefore, none of the information provided addresses our concern 
regarding formaldehyde emissions. However, given that Public Law 111-
199 will decrease formaldehyde levels in the resinated wood residuals, 
the combustion of resinated wood residuals should not increase the 
amount of formaldehyde that is emitted.
7. Used Oil
    In the ANPRM, EPA had stated that off-specification (or ``off-
spec'') used oil that is collected from repair shops is generally 
thought to be originally discarded, but that on-specification (or ``on-
spec'') used oil was considered to be a product fuel, not a waste, 
because it meets the fuel specification requirements of 40 CFR 
279.11.\104\ However, between the ANPRM and the proposal, EPA modified 
its view of on-spec used oil and identified it as a traditional fuel 
because the Agency had decided that the on-spec used oil is similar in 
composition to virgin fuel oil and has been historically managed as a 
valuable fuel product rather than as a waste.\105\
---------------------------------------------------------------------------

    \104\ See 74 FR at 58.
    \105\ See 75 FR 31855, 31861, 31864.
---------------------------------------------------------------------------

    While EPA considers on-spec used oil to be an alternative fuel and 
thus, within our definition of traditional fuel (see Section VII.A), 
the Agency finds that the rationale in the ANPRM also provides a valid 
reason for considering on-spec used oil to be a legitimate product fuel 
and not a solid waste. The proposal also referred to the provisions of 
40 CFR Part 279 that allows off-specification used oil to be processed 
into on-specification used oil.\106\ Used oil may be rendered on-
specification, therefore, either by being generated that way or by 
being processed under existing EPA regulations. These circumstances are 
not changed by EPA's issuing today's rule.
---------------------------------------------------------------------------

    \106\ 75 FR 31865, 31877.
---------------------------------------------------------------------------

    On the other hand, based on the information received and the record 
established for this rulemaking, we still consider off-spec used oil to 
be a solid waste, as off-spec used oil contains contaminants at levels 
that are not comparable to those in traditional fuels. Under the 
existing used oil regulations promulgated under RCRA, off-spec used oil 
can only be used in limited devices, as identified in 40 CFR 279.61, 
including small oil-fired space heaters provided the burner meets the 
provisions of 40 CFR 279.23.
    EPA reiterates that the determination as to the waste status of 
used oil does not reopen the regulations in Part 279. Those regulations 
remain in place. This rule considers the waste status for purposes of 
CAA sections 112 and 129 based on the existing regulations. Further, 
EPA is specifically clarifying in this final rule that used oil 
combusted in an oil-fired space heater that meets the provisions of 40 
CFR 279.23 need not be tested to establish whether or not such oil is 
on or off-spec. This includes used oil generated by small facilities 
such as auto repair shops and machine shops that have such units, and 
used oil-generated by homeowners who change their own oil (referred to 
as ``do-it-yourself'' or ``DIY'' oil) that are burned in such units. 
This is because the CISWI regulations promulgated elsewhere in the 
Federal Register today do not establish emissions limits for such 
units, and therefore the concerns of the commenters that such units 
would have to comply with CAA Section 129 standards have been addressed 
for this population of combustion units.
    Comment: Many argued that all used oil is a traditional fuel and 
should not be considered a solid waste regardless of its chemical 
composition, as it is treated as a valuable product no different than 
virgin fuel oil. Thus, some commenters agreed with EPA that on-spec 
used oil is a traditional fuel, but disagreed with the Agency's 
determination that off-spec used oil is a solid waste.
    Other commenters believe that that used oil, both on- and off-spec, 
falls within the ``ordinary everyday sense'' of discarded materials 
whether they are burned or not and that all used oil should be 
classified as a solid waste. Indeed, EPA does not identify any 
situation in which these secondary materials are not wastes, except 
when they are burned for energy recovery. Thus, EPA is essentially 
claiming that non-hazardous secondary materials, including used oil, 
which would otherwise indisputably be wastes become non-wastes solely 
because they can be burned with energy recovery. Neither RCRA nor any 
of the case law interpreting RCRA lends the slightest support to that 
notion.
    EPA's Response: We disagree that off-spec used oil should be 
considered a traditional fuel, or even a non-waste fuel, since as we 
have discussed elsewhere in the preamble, such used oil contains 
contaminants at levels that are not comparable to (or lower than) in 
traditional virgin refined fuel oil. In fact, off-spec used oil may 
contain contaminants at levels that are significantly higher than those 
in traditional virgin refined fuel oil. On the other hand, used oil 
that has been determined to be on-spec contains contaminants at levels 
below the maximum concentration limits established in the standards, 
levels that

[[Page 15503]]

EPA considers to be comparable to (or less than) those in traditional 
virgin refined fuel oil.\107\ In accordance with 40 CFR part 279, once 
used oil is determined to be on-spec, it is no longer regulated under 
the used oil management standards.\108\
---------------------------------------------------------------------------

    \107\ See Used Oil Final Rule, 50 FR 49181 (November 29, 1985).
    \108\ Once used oil is claimed to be on-spec and the marketer 
complies with the requirements for analysis and record retention, 
notification, and record tracking shipment to on-specification 
burners, it is no longer subject to other management standards. We 
note that today's rule does not change any of the regulations in 
place that regulate on-spec used oil.
---------------------------------------------------------------------------

    We also disagree that we are defining the use of used oil as fuel 
oil as the only situation where used oil is not a solid waste. RCRA is 
silent on the issue of whether or not used oil is or is not a solid 
waste. This rulemaking effort is the first to determine in which 
situations used oil would be considered a solid waste. Additionally, 40 
CFR part 279 puts no restrictions on the use of on-spec used oil once 
it has been determined to be on-spec, which indicates that the Agency 
has historically viewed this material as a commodity and not a waste. 
We are also simply not opining on other situations where used oil is 
used beyond its use as fuel as it does not matter for federal law. 
States may make their own decisions on whether other uses are solid 
wastes.
    Comment: Industry commenters argue that off-specification used oil 
should not be considered a solid waste for a number of reasons relating 
to the statute and EPA regulations, as well as policy preferences. (We 
elaborate and respond to each of the comments separately, below. The 
comments also refer to on-specification used oil in much of the 
argument, but we have dealt with on-specification used oil above. Thus, 
the comments and responses below only deal with off-specification used 
oil issues.)
    Comment: Section 3014 of RCRA did not classify used oil as a waste 
and instead established a separate regulatory program for used oil. 
This section provides EPA with authority to regulate used oil that is 
recycled, independent of any determination whether or not used oil is a 
waste. Moreover, RCRA section 1004(37) defines used oil to include 
``recycled oil'' that is ``burned.'' Consistent with this provision, 
the used oil regulations in 40 CFR part 279 state ``EPA presumes that 
used oil is to be recycled unless a used oil handler disposes of used 
oil, or sends used oil for disposal.'' 40 CFR 279.10(a). The commenters 
claim that these provisions mean that ``disposal'' is separate from 
``burning'' because ``disposal'' must be separate from ``recycling.'' 
Thus, ``recycling'' is separate from ``solid waste'' because the two 
terms are mutually exclusive.
    In addition, the 40 CFR part 279 regulations already define what is 
legitimate used oil recycling under section 3014 of RCRA, which 
includes recycling of off-specification used oil with appropriate 
environmental safeguards. EPA cannot now reverse this determination 
without a reasoned analysis.
    Another provision of EPA's hazardous waste regulations, 40 CFR 
section 261.33, supports this position with respect to whether off-
specification used oil is a solid waste. Under this provision, 
commercial chemical products and intermediates and off-specification 
variants listed as hazardous wastes in 40 CFR 261.33, as well as some 
other materials not relevant here, are solid wastes when burned for 
energy recovery unless the commercial chemicals are themselves fuels. 
Commercial chemicals that are themselves fuels are not wastes when 
burned for energy recovery. According to the comments, even off-
specification variants of the commercial chemical products may be 
burned as fuels and not be considered solid waste. See 40 CFR 261.33(a) 
and (b); 40 CFR 261.2(c)(2)(B)(ii). The argument is that off-
specification used oil should also be treated as a non-waste when 
burned for energy recovery. That is, used oil, even if off-
specification, should be considered a product and not a waste under the 
rationale that used oil is a commercial chemical product. Further, EPA 
should not treat off-specification potentially hazardous wastes 
different from off-specification non-hazardous wastes.
    EPA's Response: EPA disagrees that this analysis of the statute and 
regulations shows that off-specification used oil is not a solid waste. 
The Agency agrees that section 3014 of RCRA does not classify used oil 
as either a waste or a commodity. However, section 1004(37), also, does 
not define ``recycled oil'' as either a waste or a commodity. As EPA 
has explained elsewhere in this preamble, the recycling of secondary 
materials, per se, does not mean that such materials are either wastes 
or not. Wastes may have value and may be recycled, but they are still 
wastes. Used oil may be recycled by being ``burned,'' as provided under 
1004(37), or may be recycled in any number of other ways. The mere fact 
that the secondary material is recycled is not dispositive for 
determining whether it is a waste. Thus, under the statute, contrary to 
the commenter's view, ``recycling'' and ``solid waste'' are not 
mutually exclusive. This means that EPA must decide whether the 
secondary material is a waste based on the definition of solid waste in 
RCRA 1004(27) by deciding whether material is ``discarded'' in the 
plain meaning of the word.
    Similarly, part 279 does not provide that the terms, ``recycling'' 
and ``solid waste,'' are mutually exclusive. Section 279.10(a) does 
distinguish between materials that are clearly ``disposed of'' by, for 
example, being thrown into a landfill, but makes no determination as to 
whether recycled secondary material is ``discarded'' in any other 
sense. Both ILCO and Owen Steel, for example, provide examples of 
recycling of wastes. As EPA continues to emphasize, wastes may be 
recycled even by being burned for energy recovery, but they are still 
wastes.
    As mentioned above, based on the information received and the 
record established for this rulemaking, we have concluded that off-spec 
used oil does not meet the legitimacy criteria. EPA has determined that 
off-specification used oil is a solid waste when burned for energy 
recovery because it has greater contaminant levels than fuel oils and 
its markets are limited due to this contamination. In particular, 40 
CFR part 279 restricts the burning of off-specification used oil to 
industrial furnaces, industrial boilers, utility boilers, certain used 
oil-fired space heaters, and hazardous waste incinerators and 
specifically excludes non-industrial boilers, such as those located in 
apartment and office buildings, schools, and hospitals. For a more 
detailed discussion of off-spec used oil, see 75 FR 31865. On-
specification used oil, on the other hand, is not a waste because it 
has contaminant concentrations similar to fuel oils. Due to this, 40 
CFR part 279 does not restrict where on-specification used oil can be 
burned. The definitions cited by the commenters in the statute and 
regulations do not affect these determinations.
    Section 261.33, also, does not affect EPA's interpretation of the 
waste status of used oil. That provision deals with hazardous wastes 
and EPA has repeatedly stated that it is not reopening its RCRA 
subtitle C regulations for comment. In any event, however, section 
261.33 provides that chemicals manufactured as a fuel may be burned for 
energy recovery. It does not apply to secondary materials that may 
later be used as fuels when their original use was different.

[[Page 15504]]

    Furthermore, EPA is not making any changes to 40 CFR part 279 by 
virtue of this rule. The Agency is not reversing itself on any part of 
40 CFR part 279. Also, 40 CFR part 279 makes no determination regarding 
the nature of the CAA regulations for any facilities that burn used oil 
and EPA is not amending 40 CFR part 279 to state whether any used oil 
is a waste or not. Based on the current provisions of 40 CFR part 279, 
it is entirely reasonable for the Agency to find that on-specification 
used oil is not a waste, while off-specification used oil is a waste. 
Also, we would note that off-spec used oil may still be burned in the 
same types of facilities provided in 40 CFR part 279, but the CAA must 
determine how they are to be controlled based on the fact that the off-
spec used oil is a waste.
    Comment: If EPA classifies burning off-specification used oil as a 
waste, it will no longer be covered by the Part 279 Used Oil Management 
Standards. As EPA noted when it promulgated the Part 279 Used Oil 
Management Standards, section 3014 only authorizes the regulation of 
oil that is destined for recycling, not oil that is ``discarded.''
    EPA's Response: EPA disagrees with this comment. As noted above, 
EPA is not changing the used oil regulations and off-spec used oil 
burned as a waste would still be subject to 40 CFR part 279. The 
commenter is conflating the clear disposal of used oil--throwing it in 
a landfill, for example--with the concept of ``discard.'' ``Discard'' 
is not used in 40 CFR part 279 and ``disposal'' is not a congruent term 
to ``discard.'' That is, the regulations at 40 CFR part 279 do not 
discuss or address whether used oil has been discarded; rather the 
requirements ensure that used oil that is recycled is done so in a 
manner that protects human health and the environment.
    Also, as noted repeatedly in the rulemaking record, wastes may be 
recycled as a fuel, but they would still be wastes and would be 
discarded. The determination in this rule that off-spec used oil is a 
waste only means that the facilities that burn it are burning it as a 
waste and they will be subject to the appropriate CAA authorities. EPA 
has not previously opined as to the consequences under the CAA of the 
various facilities that burn used oil.
    Comment: If EPA fails to classify off-specification used oil as a 
product, it will be in violation of the Congressional mandate to 
promulgate regulations that ``do not discourage the recovery or 
recycling of used oil, consistent with the protection of human health 
and the environment.'' 42 U.S.C. 6935(a).
    EPA's Response: EPA disagrees with this comment. The Agency is 
constrained by the provisions of RCRA that define solid waste as 
material that is discarded. Furthermore, we feel the definitions 
established in this rulemaking in fact do not discourage the recovery 
or recycling of used oil. For example, EPA is specifically clarifying 
in this final rule that used oil combusted in an oil-fired space heater 
that meets the provisions of 40 CFR 279.23 need not be tested to 
establish whether or not such oil is on or off-spec. This includes used 
oil generated by small facilities such as auto repair shops and machine 
shops that have such units, and used oil-generated by homeowners who 
change their own oil (referred to as ``do-it-yourself'' or ``DIY'' oil) 
that are burned in such units. This is because the CISWI regulations 
promulgated elsewhere in the Federal Register today do not establish 
emissions limits for such units, and therefore the concerns of the 
commenters that such units would have to comply with CAA Section 129 
standards have been addressed for this population of combustion units.
    Comment: Commenters argued that contaminant concentrations found in 
``off-spec used oil'' is comparable to traditional fuels. While 
commenters submitted studies that looked at both on-spec and off-spec 
used oil to support this assertion, Table 4 only summarizes data 
presented in the comments on the contaminant levels in off-spec used 
oil as compared to fuel oil and coal. In U.S. Study 1, 55 samples were 
collected ``throughout the USA'' from facilities that combust used oil 
in space heaters and/or small boilers. Two of the 55 samples were off-
spec; one was off-spec for total halogens and the other was off-spec 
for cadmium. The researchers identified the off-spec used oil for total 
halogens was an industrial oil that contains non-hazardous chlorinated 
paraffin and the other was from a military operation. Table 4 presents 
the data on the two samples that were off-spec. In the U.S. Study 2, 
researchers looked at a database of used oil samples maintained by a 
national commercial laboratory. The database contained over 3,500 used 
oil samples from the U.S. and other countries on which over 17,000 
analyses were performed from 2008 to present. Between 24 and 53 samples 
in this dataset exceed the specification for one of the contaminants--
specifically for total halogens and chromium. The researchers 
speculated that the high levels of halogens were due to non-hazardous 
chlorinated paraffin which is used (added to the oil by lubricant 
manufacturers) in industrial oils designed to encounter high pressure. 
The researchers did not speculate on the reasons for the high levels of 
chromium. Table 4 presents the data on the off-spec samples, only. In 
the Canadian study, 230 samples of used oil were collected from various 
businesses in Ontario, Canada between 2003 and 2010. Of those samples, 
four were off-spec for arsenic, but not by significant amounts. The 
commenters did not speculate on the reasons for the high levels of 
arsenic. Table 4 presents the results of the analysis of the four off-
spec samples.

                 Table 4--Contaminant Concentrations in Off-Spec Used Oil and Traditional Fuels
----------------------------------------------------------------------------------------------------------------
                                                       U.S.        U.S.      Canadian     Fuel oil
                     Material                         study 1     study 2      study    No. 1,2,4,6   Coal \113\
                                                       \109\       \110\       \111\       \112\
----------------------------------------------------------------------------------------------------------------
<greek-i> Samples.................................           2       24-53           4      Unknown     Unknown.
Year..............................................        2010        2010   2003-2010      Unknown     Unknown.
Containment Concentrations:
    Total Halogens (ppm):
----------------------------------------------------------------------------------------------------------------
        Minimum...................................       2,700          NR        42.2         <500       13,140
        Maximum...................................       6,170          NR       151.0
        Median....................................       4,435       6,642        80.5
        Average...................................       4,435       9,409        88.6
----------------------------------------------------------------------------------------------------------------
    As (ppm):
        Minimum...................................        <1.0          NR         5.1         <2.3     1.0--120

[[Page 15505]]

 
        Maximum...................................        <1.0          NR         6.7
        Median....................................        <1.0        <1.0         6.1
        Average...................................        <1.0        1.95         6.0
----------------------------------------------------------------------------------------------------------------
    Cd (ppm):
        Minimum...................................        0.30          NR       <0.92         <1.2     0.2--5.0
        Maximum...................................        2.60          NR          <1
        Median....................................        1.45        0.13        0.97
        Average...................................        1.45        0.69        0.97
----------------------------------------------------------------------------------------------------------------
    CR (ppm):
        Minimum...................................        <4.0          NR        <1.2         <2.3      1.0--90
        Maximum...................................        <4.0          NR         2.2
        Median....................................        <4.0        16.0         2.0
        Average...................................        <4.0        20.9         2.0
----------------------------------------------------------------------------------------------------------------
    Pb (ppm):
        Minimum...................................          14          NR        <4.6         7-57      0.5-0.9
        Maximum...................................          15          NR        17.0
        Median....................................          15        11.0         5.6
        Average...................................          15        35.2        8.2
----------------------------------------------------------------------------------------------------------------
NR = Not Reported.

    EPA's Response: While data was submitted regarding higher levels of 
contaminants in coal than in off-spec used oil, coal is not an 
appropriate comparison for used oil since some combustion units that 
burn used oil can alternatively only burn fuel oil and not coal (such 
as space heaters). Thus, used oil should be compared to fuel oil. The 
specifications promulgated under 40 CFR 279.11 were developed by 
looking at contaminants in fuel oil and the risks posed by those 
contaminants. The data submitted states that the average total halogen 
content of off-spec used oil from one study is 9,409 ppm (with the on-
spec concentration of 4,000 ppm maximum). Also, off-spec used oil 
contains as much as 21 ppm of Cr, on average, (with the on-spec 
concentration of 10 ppm maximum). Thus, off-spec used oil does not meet 
the legitimacy criterion for contaminants.
---------------------------------------------------------------------------

    \109\ Source: EPA-HQ-RCRA-2008-0329-0799.2
    \110\ Source: EPA-HQ-RCRA-2008-0329-1273.1 Attachment B
    \111\ Source: EPA-HQ-RCRA-2008-0329-0799.4
    \112\ Source: EPA-HQ-RCRA-2008-0329-0799.2, EPA-HQ-RCRA-2008-
0329-1273.1, Attachment B
    \113\ Ibid.
---------------------------------------------------------------------------

    When EPA created the specification levels set in 40 CFR 279.11, it 
identified those levels as being comparable to fuel oils. EPA maintains 
that these levels are appropriate standards to measure what should and 
should not be burned in CAA section 112 and 129 units. Thus, off-spec 
used oil (those oils that do not meet the specification levels set in 
40 CFR 279.11) is deemed to have more contaminants than fuel oils 
produced for burning and, therefore, are a solid waste.
    Comment: EPA is ignoring the fact that the level of contaminants in 
a secondary material is not dispositive of whether or not a secondary 
material is a waste. It is merely an indicator of whether or not EPA 
should look more closely at the recycling activity when making the 
waste determination. Levels of contaminants only insignificantly higher 
than those found in traditional fuels hardly imply a purpose of 
disposal, assuming the secondary material being combusted is otherwise 
a valuable fuel. Only when a material contains contaminants at 
significantly elevated levels does it begin to become reasonable to 
presume that there may be an intention to discard.
    EPA's Response: We agree that contaminant levels are an indicator 
of waste activity and we have investigated the case of off-spec used 
oil to fully assess if its use in a combustion unit is truly a waste 
activity. As a result of our investigation, it is clear from the data 
in Table 4 that off-spec used oil does not contain comparable levels of 
contaminants to fuel oils.
    Comment: In the context of determining whether a hazardous 
secondary material is a solid waste, EPA recognizes that legitimate 
recycling can occur even if the material has higher levels of toxics 
than virgin materials. To show this, the comment cites a discussion by 
the Agency in an earlier rule in which foundry sands are reused for 
mold making in a facility's sand loop. The comment argues that it is 
relevant that the sands used to make the molds may have significantly 
higher concentrations of hazardous constituents than virgin sand. 
However, because the sand is part of an industrial process where there 
is little chance of the hazardous constituents being released into the 
environment or causing damage to human health and the environment, 
these levels would not affect the legitimacy of the recycling process.
    EPA's Response: EPA disagrees with this comment. In the first 
place, the Agency is not reopening its hazardous waste regulation. 
EPA's identification of the legitimacy criteria is based on the record 
for today's action, and does not address hazardous waste. In any event, 
the discussion of foundry sand contamination, even though it would be a 
hazardous waste without application of the legitimacy criteria for that 
rule, presents what appears to be a vastly different recycling 
situation. In this rule, combustion will result in releases to the air. 
This is why the rule calls for restrictions on burning. The foundry 
sand example is a closed loop system and is not implicated by 
contamination problems that releases lead to the atmosphere. We would 
also note that in a March 28, 2001 letter from Elizabeth Cotsworth, 
then Director of the Office of Solid Waste and Eric Schaeffer, then 
Director of the Office of Regulatory Enforcement to Amy Blankenbiller 
of the American Foundry Society, we also discussed the use of foundry 
sand as part of the sand loop for mold-making being part of a 
continuous industrial

[[Page 15506]]

process.\114\ However, the letter also made clear that the letter did 
not address the thermal processing of sand, which would be a combustion 
unit, and would be more equivalent to a scenario that is addressed in 
today's final rule.
---------------------------------------------------------------------------

    \114\ A copy of this letter can be found in the docket to 
today's rule.
---------------------------------------------------------------------------

    Comment: Commenters argued that processing of off-spec used oil is 
contrary to the goals of energy efficiency and wise resource 
utilization. They argued that the rule should continue to allow/follow 
the rules set forth in 40 CFR 279.11 as it pertains to used oil as a 
viable and not discarded fuel. That is, if off-spec used oil is blended 
with virgin oil or on-spec used oil to meet the 40 CFR part 279 used 
oil specs, the resulting oil should be considered a legitimate fuel 
product.
    Other commenters argued, however, that when these materials are 
distilled into fuel, they are still wastes, regardless if they have 
been blended or processed to obtain an on-spec material. Wastes are 
always wastes and their status cannot be changed through simple 
processing.
    EPA's Response: Whether or not processing of used oil is contrary 
to the goals of energy efficiency, off-spec used oil contains more 
contaminants than traditional fuels, and thus, is not a traditional 
fuel. In addition, as we have stated previously, the regulations at 40 
CFR part 279 do not discuss or address whether used oil has been 
discarded, as commenters have claimed, but rather ensure that used oil 
that is recycled is conducted in a manner that protects human health 
and the environment. To that end, we encourage, and the RCRA used oil 
regulations currently allow, the processing of off-spec oil to create 
on-spec used oil as per 40 CFR 279.50, which states that processing 
``includes, but is not limited to: blending used oil with virgin 
petroleum products, blending used oils to meet the fuel specification, 
filtration, simple distillation, chemical or physical separation and 
re-refining.'' There is nothing in today's rule that would change this 
requirement.
    We also disagree with commenters that processing of off-spec used 
oil into on-spec used oil still renders it a waste. EPA's regulations 
at 40 CFR 279.11 state that, once oil is determined to be on-
specification in accordance with the regulations in Part 279, the used 
oil regulations do not apply to the material. On-specification used oil 
is for all intents and purposes the same as oil refined as a product 
fuel in the first instance and the Agency is not reopening its 40 CFR 
part 279 regulations.
    Comment: Commenters argued that used oil, particularly from 
automobiles, is on-specification and facilities that burn automobile 
oil should be allowed to burn them under CAA section 112, along with 
other on-spec used oil. Comments base this determination on the 
elimination of leaded gasoline. Commenters also supplied studies to 
support this assertion.\115\
---------------------------------------------------------------------------

    \115\ See documents EPA-HQ-RCRA-2008-0329-0799; EPA-HQ-RCRA-
2008-0329-1273.1; EPA-HQ-RCRA-2008-0329-1686.
---------------------------------------------------------------------------

    EPA's Response: The data provided in the comments indicates that a 
very small portion of used oil is off-spec. Assuming the data is 
representative of used oil, most used oil will be an alternative fuel 
(within the definition of a traditional fuel). This does not allow us 
to make a broad classification that, because only a small portion of 
used oil is off-spec, used oil can be generally classified as on-spec. 
On the other hand, the data in the studies submitted by commenters 
indicate that used oil obtained from small, private automobiles 
serviced by DIYers and auto repair shops will be on-spec, which would 
not be a solid waste. In addition, as we describe elsewhere in today's 
preamble, persons can submit a non-waste determination petition if they 
believe that their used oil is not a waste.
    Comment: Many commenters stated that there are numerous auto repair 
shops that use used oil to fuel their space heaters, which do not (or 
would not likely) meet the air pollution controls required by the CAA 
section 129 standards. The commenters argue that such auto repair shops 
will no longer be able to use off-spec used oil in their space heaters 
if off-spec used oil is determined to be a solid waste.
    Moreover, commenters assert that auto repair shops will likely not 
want to take on the additional burden of testing the used oil to 
determine if it is on-spec in order to use some portion of the material 
in their space heaters without having to comply with the CAA section 
129 standards. They further assert that these shops may illegally 
dispose of used oil if they cannot burn it in their space heaters and 
they are not located near a processor. Commenters expressed concerns 
that they may also stop collecting used oil from individuals who remove 
their own used oil (do-it-yourselfers, or DIYers) as they have no 
incentive to take the DIYers oil, which may lead to DIYers illegally 
disposing of their used oil.
    EPA's Response: In this rule, EPA determined whether off-
specification used oil is a solid waste. However, EPA's regulations 
promulgated today under CAA 129 do not apply to space heaters. Thus, 
today's rule would not in any way change the current regulatory scheme 
or operations for burning of used oil in space heaters since the Agency 
is not promulgating emission standards for such units.
    In particular, EPA is specifically clarifying in this final rule 
that used oil combusted in an oil-fired space heater that meets the 
provisions of 40 CFR 279.23 need not be tested to establish whether or 
not such oil is on or off-spec. This includes used oil generated by 
small facilities such as auto repair shops and machine shops that have 
such units, and used oil-generated by homeowners who change their own 
oil (referred to as ``do-it-yourself'' or ``DIY'' oil) that are burned 
in such units. This is because the CISWI regulations promulgated 
elsewhere in the Federal Register today do not establish emissions 
limits for such units, and therefore the concerns of the commenters 
that such units would have to comply with CAA Section 129 standards 
have been addressed for this population of combustion units.
    EPA also points out that anyone wishing to show that the material 
is on-spec does not have to test the used oil, but can use other 
information besides analyses. Specifically, the existing regulation 
under 40 CFR 279.72 states that used oil fuel can be determined to be 
on-spec by ``performing analyses or obtaining copies of analyses or 
other information documenting that the used oil fuel meets 
specifications.''
8. Coal Refuse \116\
---------------------------------------------------------------------------

    \116\ The proposed rule differentiated between coal refuse and 
mined landfill ash. For a discussion regarding the use of mined 
landfilled ash as a fuel, see the coal combustion residuals section 
for fuels (Section V.B.9); for a discussion regarding the use of 
these non-hazardous secondary materials as ingredients, see the coal 
combustion residuals section for ingredients (Section V.C.2).
---------------------------------------------------------------------------

    Coal refuse refers to any by-product of coal mining or coal 
cleaning operations. Coal refuse is generally defined by a minimum ash 
content combined with a maximum heating value, measured on a dry basis. 
Coal refuse consists primarily of non-combustible rock with attached 
coal that could not be effectively separated in the era in which it was 
mined. Due to advances in coal preparation technology over the past 
century, the processing of coal has evolved such that materials that 
are now generated in the coal mining process, which would have been 
considered coal mining rejects in the past and discarded in waste 
piles, are now handled and

[[Page 15507]]

processed as coal. In the early twentieth century, coal preparation 
involved simple size segregation into lump coal for domestic use and 
intermediate-sized coal for industrial use. Coal fines were considered 
unfit for use and were disposed of as mine rejects in discarded coal 
refuse piles. Today, however, coal preparation plants are much more 
capable of separating coal from mineral matter through processes, such 
as density separation and froth flotation.\117\
---------------------------------------------------------------------------

    \117\ See National Research Council of the National Academies 
(NRC), ``Coal Research and Development,'' 2007, accessed on May 14, 
2008 at: http://www.nap.edu/catalog.php?record_id=11977. See 
generally ``Materials Characterization Paper on Coal Refuse,'' a 
copy of which is included in the docket for today's rulemaking.
---------------------------------------------------------------------------

    Thus, the proposed rule differentiated between coal refuse that is 
currently generated and coal refuse that was generated in the past and 
placed into ``legacy'' piles. The proposed rule considered coal refuse 
that is currently generated and used as a fuel as not being abandoned 
or disposed of and, therefore, is not considered a solid waste. On the 
other hand, the proposed rule stated that coal refuse placed in legacy 
piles has clearly been discarded, thus meeting the definition of a 
solid waste material. With regard to coal refuse from legacy piles, the 
proposed rule described the processing of this non-hazardous secondary 
material as involving separation through the use of screens or 
grizzlies, blending, crushing, or drying. Although we understand that 
virgin coal is similarly processed, the proposal stated that the Agency 
believes that such operations would constitute ``minimal processing'' 
and would not meet the processing definition, as proposed. Thus, under 
the proposed rule, coal refuse abandoned in legacy piles would be 
considered solid waste, as would the coal refuse that has been 
processed and used as a fuel in what was considered to be a minimal set 
of sizing activities.
    The proposal also noted one commenter who contended that coal 
refuse contained elevated levels of mercury, chromium, and lead when 
compared to other coals. Because the proposal already determined coal 
refuse in legacy piles to be a solid waste (discarded and 
insufficiently processed), we did not believe it was necessary to 
determine whether coal refuse from legacy piles would satisfy the 
contaminant legitimacy criterion. However, the proposed rule noted that 
although coal refuse can contain metals concentrations that are higher 
than found in virgin coal, data also show that emissions levels from 
some facilities burning coal refuse (namely those equipped with 
circulating fluidized beds (CFBs)) are lower than most existing 
pulverized coal utility boilers. For the proposed rule's 
characterization of coal refuse, see 75 FR 31865-6.
    Accordingly, the Agency seems to have faced a dilemma in deciding 
how to treat the ``legacy'' piles. This dilemma was reflected in the 
comments, described below, which shows an inherent illogic in treating 
coal refuse generated from mining operations today and used as fuel 
differently from coal refuse mined from the ``legacy'' piles, which 
seem to be no different.
    Comment: Responding to EPA's request for comment regarding whether 
other fuels in use today should also be classified as traditional 
fuels, several commenters argued that coal refuse should be considered 
a traditional fuel, regardless of when generated, as it has been used 
as a fuel for approximately 30 years. Citing the preamble to the 
proposed rule, commenters stated that EPA recognized that ``changes in 
technology and in the energy market over time may result in additional 
secondary materials being economically viable to be used as 
`traditional' fuels,'' and that the advancement of technology, 
specifically the advent of circulating fluidized beds (CFBs), has 
allowed coal refuse to be used as fuels for decades.\118\ Thus, these 
commenters reason, it is most appropriate to consider coal refuse to be 
a traditional fuel.
---------------------------------------------------------------------------

    \118\ Referenced citation can be found at 75 FR 31856.
---------------------------------------------------------------------------

    EPA's Response: We begin by recognizing that we have several 
difficulties in dealing with coal refuse. We are faced with a statute 
that places limits on the Agency's ability to cover ``discarded'' 
material. Case law indicates that a material may not lose its waste 
status merely because it has value. As technology advances, material 
that has been a waste may be no different from material that may today 
be used as a product. EPA, in fact, has no jurisdiction to consider as 
wastes currently mined coal that was formerly ``refuse.''
    Coal refuse is unique, however, from other non-hazardous secondary 
materials addressed in this rulemaking, as it is generated in the 
process of producing fuels (i.e., the mining of coal for use as fuel) 
and its subsequent use and value as a secondary material is also as a 
fuel. Since the primary product of a coal mining operation is itself 
fuel, we consider coal refuse to be more akin to a raw material that is 
subsequently processed and utilized to produce a fuel. In other words, 
coal refuse is different from other non-hazardous secondary materials, 
such as used tires or resinated wood residuals, in that it is generated 
in the production of fuel and can be used itself as a fuel (and in fact 
has never been used for anything else).
    The two materials that are used in major quantities today as 
valuable fuels, but have formerly been discarded are coal refuse and 
tires. A major difference between these two materials that EPA finds 
relevant is that the coal refuse in the legacy piles has never been 
used for anything else and is mined as fuel in the first place. Tires, 
on the other hand, are originally produced for a use that is 
fundamentally different from its current use as a fuel. Cement kiln 
users do not ask tire manufacturers to produce tires for burning in the 
kilns. Coal, however, was never used for any other activity. It was 
mined years ago to produce a fuel, but may now be used itself as fuel. 
Therefore, coal refuse is fundamentally different from tires, as well 
as the other non-hazardous secondary materials that are discussed in 
the preamble to this final rule.
    Responding to commenters that also noted that coal refuse has been 
used as a fuel for thirty years due to advances in technology, we find 
this information useful, but not determinative in our analysis of 
whether or not coal refuse meets our definition of a traditional fuel. 
However, the fact that coal refuse has been used and managed as a fuel 
for thirty years when coupled with the fact that coal refuse is unique 
from other non-hazardous secondary materials in that it is a byproduct 
of fuel production processes and is itself a raw material that can be 
used as a fuel leads us to determine that coal refuse that is currently 
generated and used as a fuel should be considered a traditional 
``alternative fuel.'' However, coal refuse that has been abandoned long 
ago in legacy coal refuse piles would not be considered a traditional 
fuel that is not subject to coverage and assessment in this rule, since 
it is clearly a material that has been discarded in the first instance.
    We note that other non-hazardous secondary materials have also been 
used as fuels for similar lengths of time or even longer, but would not 
be considered traditional fuels. We again emphasize that our decision 
to classify coal refuse as an alternative fuel is based both on the 
fact that it has been used and managed as a fuel for thirty years 
combined with the fact that we find coal refuse to be distinctive among 
the other non-hazardous secondary materials at issue in today's rule; 
i.e., coal refuse is in fact raw material coal that is generated as a 
result of coal

[[Page 15508]]

mining operations whose primary product is fuel.
    We also note that our characterization of coal refuse that is 
currently generated as an alternative fuel is not inconsistent with the 
proposed rule's characterization of this material. The proposed rule 
stated that currently generated coal refuse would not be abandoned or 
disposed of and, therefore, not a solid waste. The proposed rule did 
not, however, specifically state that coal refuse that is currently 
generated is a traditional fuel. For clarity, it is appropriate to do 
so today, and will amend our definition of traditional fuels to also 
include alternative fuels that reflect this determination.
    As previously discussed, coal refuse that has been placed in legacy 
piles would not meet the definition of traditional fuels, as they 
clearly have not been historically used and managed as a fuel. It is 
clear that coal refuse abandoned in legacy piles has been discarded and 
managed as a waste. Our rationale for this distinction between coal 
refuse that is currently generated and coal refuse that was placed in 
legacy piles is further discussed in the comment response below. Thus, 
coal refuse that has been placed in legacy piles would be considered 
solid waste unless it is processed into a legitimate fuel product. We 
respond to comments received regarding the processing of coal refuse 
later in this section.
    Comment: Many commenters stated that all coal refuse should be 
considered a ``fuel,'' regardless of when the coal refuse is generated 
and urged EPA to eliminate the ``false distinction'' based on when the 
coal was mined (i.e., coal refuse that is mined from legacy piles 
shares the same characteristics as coal refuse that is generated 
today).
    At least one commenter cited 40 CFR 60.41 as defining ``fossil 
fuel'' as ``natural gas, petroleum, coal, and any form of solid, 
liquid, or gaseous fuel derived from such materials for the purpose of 
creating useful heat.'' The commenter went on to cite 40 CFR 60.41b, 
which states that ``Coal means * * * coal refuse * * *'' \119\ and 
argues that this definition in the regulation has nothing to do with 
when the coal refuse was generated and should always be considered a 
fuel.
---------------------------------------------------------------------------

    \119\ ``Coal means all solid fuels classified as anthracite, 
bituminous, sub-bituminous, or lignite by the American Society of 
Testing and Materials in ASTM D388 (incorporated by reference, see 
Sec. 60.17), coal refuse, and petroleum coke * * *'' See 40 CFR 
60.41b.
---------------------------------------------------------------------------

    EPA's Response: We disagree with the comments contending that coal 
refuse placed in legacy piles should be characterized and regulated the 
same as coal refuse that is generated currently, as this fails to 
acknowledge that such coal refuse has been discarded. As has been 
discussed, the statutory definition of solid waste turns on whether or 
not a material has been discarded in the first instance. Courts have 
consistently held that the term ``discard,'' is to have the ordinary, 
plain-English meaning (i.e., ``disposed of,'' ``thrown away,'' or 
``abandoned''). As coal refuse placed in legacy piles have clearly been 
abandoned, we cannot ignore the fact that these materials have been 
discarded in the first instance and, therefore, do not agree with the 
contention that this construct represents a ``false distinction.'' The 
resulting distinction may lead to results that some may find illogical, 
but we are faced with the definition of ``discard'' and the fact that 
the mere fact that discarded material may have value does not allow the 
material to lose its waste status.
    Although we recognize that all coal refuse is (and was) generated 
during the fuel production process and are more akin to raw materials, 
coal refuse that has been abandoned in legacy piles have not been 
historically used and managed as a fuel and therefore cannot be 
considered a traditional fuel. Because the technology did not exist 
that could effectively make use of the fuel value of these materials at 
the time of their generation, they were managed as wastes and abandoned 
in legacy piles. While we find that currently generated coal refuse 
should now be considered alternative fuels for the reasons stated 
above, we cannot ignore that coal refuse that has been placed in legacy 
piles have clearly been discarded and, thus, unless these materials are 
``sufficiently processed'' and satisfy all legitimacy criteria for 
fuels, these secondary materials would be considered solid wastes when 
burned as fuels in combustion units.
    Regarding the comments that argue that EPA has previously defined 
coal to include coal refuse, we note that this information was helpful, 
but disagree the cited regulatory definitions control in this 
rulemaking. The cited definitions, which are included in the standards 
of performance for new stationary source regulations, were developed 
pursuant to the CAA and do not address the issue of discard. Today's 
rulemaking is being promulgated under RCRA, which, as mentioned above, 
hinges on the whether or not the non-hazardous secondary material at 
issue has been discarded. EPA also reemphasizes that the distinction is 
not between ``fuel'' and ``waste,'' but between fuel that is a 
commodity (not a waste because it has not been discarded) and waste 
fuel that has value, but is still a waste.
    In the same CFR sections cited by commenters which define coal as 
including coal refuse, we note that coal refuse is defined as meaning 
``waste-products of coal mining, cleaning, and coal preparation 
operations (e.g., culm, gob, etc.) containing coal, matrix material, 
clay, and other organic and inorganic material'' \120\ and ``any 
byproduct of coal mining or coal mining operations with an ash content 
greater than 50 percent, by weight, and a heating value less than 
13,900 kJ/kg (6,000 Btu/lb) on a dry basis.'' \121\ These definitions 
highlight the uniqueness of coal refuse and in fact support the 
distinction we are making between coal refuse that is currently 
generated and coal refuse that has been placed in legacy piles. That 
is, it may be appropriate to consider coal refuse to be within the 
definition of coal because it may now be used as coal, while at the 
same time, it may also be appropriate to consider coal refuse to be a 
``waste-product'' or ``byproduct'' of coal mining operations. EPA's 
evaluation that coal refuse that is currently generated and used as a 
fuel has never been discarded and should be considered an alternative 
fuel, while discarded coal refuse should be considered a solid waste, 
is consistent with these regulatory definitions.
---------------------------------------------------------------------------

    \120\ See 40 CFR 60.41.
    \121\ See 40 CFR 60.41b.
---------------------------------------------------------------------------

    Comment: Most commenters addressing the issue of processing coal 
refuse stated that coal refuse from legacy piles is processed the same 
way as is virgin coal; that is, the processing of these materials 
includes the use of grizzlies, screens, and blending to improve the 
quality, remove metal objects, reduce the ash content, reduce the 
sulfur content, and reduce concentrations of various constituents. 
These comments maintained that this level of processing should satisfy 
EPA's definition of ``processing'' because the processing that occurs 
is designed specifically to improve the fuel quality and remove 
contaminants in the process (for example, metals that are removed with 
ash that is screened out).
    One commenter stated that it is illogical and problematic for EPA 
to propose a minimal level of processing that requires additional 
activities than are used to prepare virgin materials for use. This 
commenter provides the example of a company that recovers coal refuse 
from previously discarded piles, screen the refuse to remove large 
pieces of slate and rock, conducts a chemical

[[Page 15509]]

analysis to identify Btu, ash, and sulfur characteristics, hauls the 
coal refuse to its preparation plant where it is cleaned just like 
mined coal, and then sold as is or blended with mined coal to meet 
contractual orders. This commenter argues that EPA did not provide 
adequate justification in the proposed rule for why this process would 
be insufficient to turn a once discarded non-hazardous secondary 
material into a non-waste fuel product.
    Additionally, commenters noted that in the case of facilities 
burning coal refuse, regardless of whether it is generated currently or 
was placed in legacy piles, the engineering design of a CFB is based on 
the quality of the coal refuse available to be burned in the boiler. In 
other words, considerations for use of the coal refuse as a fuel 
precede facility construction and directly impact boiler design and 
application. Therefore, coal refuse from legacy piles that is processed 
in this manner (i.e., in the same manner as currently generated coal 
refuse) should not be considered a solid waste.
    EPA's Response: As finalized in Sec.  241.2, the term 
``processing'' is defined as meaning ``any operations that transform 
discarded non-hazardous secondary material into a non-waste fuel or 
non-waste ingredient product. Processing includes, but is not limited 
to, operations necessary to: remove or destroy contaminants; 
significantly improve the fuel characteristics of the material, e.g., 
sizing or drying the material in combination with other operations; 
chemically improve the as-fired energy content; or improve the 
ingredient characteristics. Minimal operations that result only in 
modifying the size of the material by shredding, do not constitute 
processing for purposes of this definition.'' We have determined that 
this definition encompasses an appropriate level of processing 
necessary to render a discarded material into a non-waste product.
    As several commenters noted, the processes that are employed to 
recover coal refuse that has been placed in legacy piles in order to be 
used as fuels are the same as the processes that virgin coal is subject 
to. As discussed above, coal refuse is unique from other non-hazardous 
secondary materials in that it is a byproduct of fuel production 
processes and is itself a raw material that can be used as a fuel. 
Because coal refuse is essentially raw material coal, which is 
generated in the production of fuel and can be used itself as fuel, we 
agree with the commenter who stated that it would be illogical to 
require a different level of processing for discarded coal refuse than 
is used for virgin coal. Therefore, coal refuse that is recovered from 
legacy piles and used as fuel that is subjected to the types of 
operations that are used to process virgin coal, which serve to both 
increase energy values as well as reduce contaminants, would meet our 
definition of processing and would not be considered solid waste, 
provided these materials satisfy our legitimacy criteria, which they do 
since currently mined coal is certainly a legitimate fuel and is the 
same as those from the legacy piles.
    Comment: EPA received comments providing new contaminant data for 
coal refuse. However, some commenters acknowledged that coal refuse can 
have higher levels of some metals, but agreed with EPA that coal refuse 
is typically used as a fuel in newer boilers equipped with CFBs, which 
have emissions levels lower than most existing coal utility 
boilers.\122\ One commenter stated that notwithstanding the higher 
metals content of coal refuse, CFBs typically capture between 90-99 
percent of mercury and other metals. While most commenters noted that 
emissions levels associated with burning coal refuse are similar to 
those found when burning virgin coal, one commenter did provide a 
comparison in concentration levels of various contaminants between coal 
refuse and regional coal samples. A selection of the specific data 
provided by the commenter is replicated in Table 5 below:
---------------------------------------------------------------------------

    \122\ CFBs ability to achieve lower emissions levels is due to 
several factors: (1) CFB boilers are often newer than many existing 
pulverized coal utility boilers and may be equipped with better 
particulate matter (PM) controls; (2) CFBs utilize lower operating 
temperatures, which result in lower metal and NO<INF>X</INF> 
emissions; and (3) CFB boilers often add limestone to their feed to 
control SO<INF>2</INF> emissions, which results in greater fixation 
to the ash.
    \123\ Coal sample data found in the U.S. Geological Survey--
National Coal Resources Data System. For more information, see 
http://energy.er.usgs.gov/coalqual.htm).

                 Table 5--Comparison of Trace Metal Contents (ppm) of Regional Coal Samples and Coal Refuse From Legacy Piles, as Provided in Comments on the NHSM Proposed Rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
               Sample description                              Sample ID                 Sb       As       Be       Cd       Cr       Co       Pb       Mn       Hg       Ni       P        Se
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Coal samples from USGS database--Cambria,         No. Samples.......................      244      244      244      244      244      244      244      244      244      244      244      244
 Indiana, and Somerset Counties, PA \123\.
                                                  Minimum...........................     0.11        0      0.6     0.01        2      1.5      0.8        2     0.00      3.4       22     0.68
                                                  Maximum...........................     7.80      200      9.5     1.00       65     34.0     44.0      390     2.90     86.0     3400    20.00
Samples of coal refuse from legacy piles located
 in Cambria, Indiana, and Somerset Counties, PA.
                                                  Sample 1..........................      1.5     50.7      2.1      0.3     80.2     22.7     33.1      134    0.644     44.7      718      7.8
                                                  Sample 2..........................      1.7     53.4      2.1      0.3     84.5     23.8     35.2      139    0.748     50.5      719      8.6
                                                  Sample 3..........................      1.5     47.3      2.1      0.3     84.7     22.8     33.1      144    0.613     47.1      745      8.6
                                                  Average...........................      1.6     50.5      2.1      0.3     83.1     23.1     33.8      139    0.668     47.4      727      8.3
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

    This data indicates that the concentration of the various 
contaminants in the coal refuse samples were lower for almost all 
constituents (including mercury and lead) when compared to regional 
coal samples. According to this data set, only chromium was 
consistently higher in the coal refuse samples than the regional virgin 
coal, which also indicates that the difference in concentration may be 
much closer than previously indicated in the preamble to the 
proposal.\124\ Therefore, provided

[[Page 15510]]

that coal refuse from legacy piles are sufficiently processed, this 
commenter asserts that coal refuse would pass the contaminant 
legitimacy criterion and should therefore not be classified as a solid 
waste.
---------------------------------------------------------------------------

    \124\ Data provided by the commenter indicated that the average 
chromium levels of coal refuse was 83.1 ppm, whereas the range of 
chromium levels for the regional virgin coal samples was between 2-
65 ppm. The proposed rule noted that chromium levels of coal refuse 
can be up to four times higher than virgin coal.
---------------------------------------------------------------------------

    EPA's Response: Regarding the contaminant levels in coal refuse in 
legacy piles, we agree with those commenters who acknowledged that coal 
refuse can have higher concentrations of some metals than is found in 
virgin coal. As noted in the proposed rule, at least one commenter on 
the ANPRM contended that coal refuse could have up to four times more 
mercury and chromium, and three times more lead than virgin coal.\125\ 
We note that this commenter did not provide primary sources for this 
data, a point which was raised by at least one commenter. We generally 
recognize, however, that available data show that coal refuse placed in 
legacy piles often has higher metals concentrations than non-refuse 
coal concentrations, but we would presume that the levels of 
contaminants are the same as in currently mined coal that would have 
been placed into these piles in the past. We also recognize that 
contaminant levels will vary significantly depending upon the region 
and type of coal at issue.\126\
---------------------------------------------------------------------------

    \125\ See 75 FR 31865.
    \126\ See our Materials Characterization Paper on Coal Refuse, 
located in the docket for today's final rule.
---------------------------------------------------------------------------

    As discussed above, we now determine that coal refuse that is 
currently generated should be considered an alternative fuel. On the 
other hand, coal refuse that is recovered and processed from the 
discard environment would need to pass the legitimacy criteria in order 
to be considered a non-waste fuel. As coal refuse is recovered from 
legacy piles are subject to the same processes as currently-generated 
coal refuse in order to meet the same fuel specifications, they would 
contain any potential contaminants at levels that are comparable to or 
lower than coal refuse that is currently generated.
    We would further note that the contaminant data provided by the one 
commenter demonstrates that there are also examples of coal refuse 
taken from legacy piles satisfying the contaminant legitimacy criterion 
when directly compared to contaminant levels in coal. Given the 
regional variations in coal compositions, the analysis is on point 
given the fact that the commenter compared similar regional coal refuse 
and virgin coal samples. Therefore, we agree with the commenter that 
there are instances when coal refuse would also satisfy the contaminant 
legitimacy criterion when compared to virgin coal as well.
    Finally, we would note that although emissions comparisons are not 
a direct indicator of whether these materials satisfy the contaminant 
legitimacy criterion, the emissions from CFBs that use coal refuse as 
fuel typically have lower levels of emissions than typical pulverized 
coal burners.
    Comment: Several commenters contended that the management of coal 
refuse at mining sites is already regulated under the Surface Mining 
Control and Reclamation Act of 1997 (SMCRA) and that defining coal 
refuse as a solid waste would be inconsistent with SMCRA. Specifically, 
some commenters point out that although the term ``solid waste'' under 
RCRA includes mining waste in the definition, EPA determined, in 
accordance with section 1006(c) of RCRA that provides for the 
integration of RCRA with SMCRA, that materials and products associated 
with coal mining activities should not be regulated as hazardous 
wastes.
    EPA's Response: RCRA section 1006(c) pertains to hazardous wastes 
under RCRA subtitle C. As such, it is inapplicable for today's 
rulemaking, which is solely concerned with non-hazardous secondary 
materials. Thus, we disagree with those commenters who cited section 
1006(c) of RCRA and argued that regulation of coal refuse found in 
legacy piles should be deferred to SMCRA. In addition, SMCRA is 
concerned with the management and removal of coal refuse piles at 
mining sites. It does not address the issue of ``discard,'' which is 
critical to the definition of solid waste under RCRA, and as such, 
which emission standards coal refuse that is in legacy piles and burned 
in a combustion unit is subject to under the CAA.
9. Coal Combustion Residuals <SUP>127 128</SUP>
---------------------------------------------------------------------------

    \127\ In a separate rulemaking effort, EPA has proposed 
regulations that will provide for the safe disposal and management 
of coal combustion residuals from utility coal-fired power plants 
(the ``Coal Combustion Residuals Proposed Rule''). The proposed rule 
was published in the Federal Register on June 21, 2010. See 75 FR 
35127. Today's final rule does not affect that rulemaking effort, as 
our rule considers the use of coal combustion residuals in 
combustion units as fuels or ingredients, while the coal combustion 
residual proposed rule is concerned with the safe disposal and 
management of these residuals in landfills and surface impoundments. 
For more information on the coal combustion residual proposed rule, 
see Docket ID No. EPA-HQ-RCRA-2009-0640.
    \128\ For a discussion of CCRs used as ingredients, see Section 
V.C.2 of this final rule.
---------------------------------------------------------------------------

    Coal combustion residuals (CCRs) are formed during coal-burning 
processes in power plants and industrial boilers, and are produced in 
various forms that are categorized by the process in which they are 
generated. The proposed rule differentiated between CCRs (which include 
such secondary materials as fly ash, bottom ash, and boiler slag), that 
are currently generated from those CCRs that have been previously 
disposed of (such as, mined landfill ash) and are used as fuels in 
combustion units. Under the proposed rule, currently generated CCRs 
that have not been discarded in the first instance and satisfy the 
legitimacy criteria would not be considered a solid waste when used as 
a fuel in combustion units provided the CCRs were burned in units 
within the control of the generator. For example, the proposal 
described a situation where currently generated, high-carbon fly and 
bottom ash that is taken directly from existing boilers is burned 
within the control of the generator at power generating stations. On 
the other hand, CCRs recovered from landfills or other disposal units 
would clearly have been discarded in the first instance and would 
therefore have to be sufficiently processed into a non-waste fuel 
product and meet the legitimacy criteria in order not to be considered 
a solid waste when used as a fuel.
    The proposed rule also noted comments received on the ANPRM 
describing patented processes that separate the carbon from the fly ash 
in order to produce a new fuel product. Although this level of 
processing appeared likely to meet the proposed definition of 
processing, the proposed rule solicited comment on how CCRs are 
processed. The proposed rule also requested comment regarding the 
extent to which CCRs are recovered from the discard environment (e.g., 
landfills) and used as fuels. For the proposed rule's discussion of 
CCRs used as fuels, see 75 FR 31865-6.
    Comment: Most commenters argued that CCRs, when used in combustion 
units, should be classified as ingredients rather than as fuels. The 
commenters often contended that classifying all CCRs as ingredients 
would simplify waste determinations for these secondary materials by 
clearly establishing the appropriate legitimacy criteria that apply 
(i.e., facilities would not need to determine whether the fuel or 
ingredient legitimacy criteria apply based on the primary purpose of 
the secondary materials). Some commenters acknowledged, however, that 
CCRs can be combusted (e.g., by electric utilities) for energy recovery 
of its carbon content

[[Page 15511]]

or combustion in carbon burn-out (CBO) units for processing marketable 
fly ash products.
    One commenter described CBO units, which they explained burn 
``unwanted carbon'' from fly ash to produce a low-carbon fly ash that 
is more suitable for use as an ingredient in Portland cement, as being 
typically integrated with power plants. The CBO unit combusts fly ash 
from the power plant in a fluidized bed, extracts the residual energy 
content of the fly ash to fuel the CBO, and returns useful heat to the 
power plant. The commenter stated that the major equipment that 
comprises the CBO unit includes a fluidized bed combustor and heat 
exchanger to recover heat from the fly ash combustion. This same 
commenter described the heat generated from the combustion of the 
carbon in the fly ash as ``valuable'' and is typically recovered from 
the CBO and used to heat the host plant's condensate stream, which 
reduces the amount of extraction steam required. In reasoning that this 
high-carbon fly ash should be considered an ingredient, however, the 
commenter notes that energy generated from burning the secondary 
material is of secondary importance to the production of the valuable 
low-carbon fly ash to be sold to cement kilns.
    EPA's Response: We do not agree with commenters that all CCRs, when 
used in combustion units, should categorically be defined as 
ingredients. As some commenters acknowledged, some CCRs are indeed used 
for their fuel value as opposed to their ingredient value, especially 
when re-burned, as in the case of their use in combustion units by 
electric utilities. Therefore, we cannot categorically classify CCRs as 
ingredients when it is clear that, in some cases, these secondary 
materials are being burned for their fuel value and/or to produce a new 
secondary material (i.e., low-carbon fly ash). In cases where the 
primary purpose of using CCRs is for their fuel value and not for the 
ingredient value (e.g., by electric utilities in utility boilers), the 
secondary materials must meet the requirements for fuels, including the 
legitimacy criteria, in order to not be considered a solid waste. In 
other words, to the extent that CCRs are used as fuels, these secondary 
materials must remain within the control of the generator and meet the 
legitimacy criteria for fuels or be sufficiently processed into a new 
fuel product in order not to be considered a solid waste. We note, 
however, that sources may petition the Agency for a non-waste 
determination for secondary materials managed outside the control of 
the generator, including CCRs. See Section VII.G.
    Regarding CBO units that burn high-carbon fly ash, creating both 
energy, as well as a new marketable ingredient (i.e., low carbon fly 
ash), this activity would not constitute use of these secondary 
materials as ingredients. When the fly ash goes into a CBO unit, it is 
clearly not being used as an ingredient, but is used to produce an 
ingredient. It is less clear, however, whether this activity represents 
a legitimate use of these secondary materials as fuels or should be 
considered a type of waste management. The commenter states that 
burning of this fly ash in CBO units provides ``valuable heat'' and 
indicates that the energy is used in turn to power the CBO or returned 
to the power plant, which indicates that the burning of the fly ash 
could constitute a legitimate use as a fuel. On the other hand, the 
same commenter also noted that the fuel value is ``secondary'' to its 
value as an ingredient and the CBO process as removing ``unwanted 
carbon'' from the fly ash, which may suggest that the fly ash is being 
burned as a waste activity (i.e., the destruction of the unwanted 
carbon in order to generate a marketable product).
    Unfortunately, from the comments received, we are not able to make 
a categorical determination whether or not the burning of fly ash in 
these units would constitute ``discard,'' as it is unclear whether the 
carbon is being destroyed or whether it is actually used for its fuel 
value. In other words, the CBO unit is either ``destroying'' the 
carbon, which would make these materials a solid waste, or the carbon 
is being recovered and used as a fuel, in which case these materials 
would not be considered a solid waste provided they meet the legitimacy 
criteria.
    While the CBO units are burning the ash to create a marketable 
product, in so doing they may also be utilizing the separated carbon 
for its fuel value. The commenter indicates that use of high carbon-fly 
ash in these CBOs may have more than marginal energy value and can even 
be a source of additional power to an adjoining power plant. While we 
do not have sufficient information to make a categorical determination 
regarding the use of fly ash as a fuel in these CBO units, it is 
appropriate for these units to consider the legitimacy criteria in 
order to determine whether or not the fly ash is being burned for 
discard or burned legitimately for its fuel value.
    As discussed in Section VII.H, legitimacy criteria are critical to 
ensuring that non-hazardous secondary materials are being legitimately 
used. To the extent that a CBO unit can determine that it meets the 
legitimacy criteria for fuels (including whether the fly ash has 
meaningful heating value and is used as a fuel in a combustion unit 
that recovers energy), we would consider such a use to be legitimate. 
We emphasize, however, that mere destruction of the unwanted carbon 
would clearly represent discard and would by definition fail the 
meaningful heating value legitimacy criterion. We also note that it is 
not clear from the comments how the CBO unit recovers energy and 
whether it would meet our definition of a legitimate energy recovery 
device. For a discussion of legitimate energy recovery devices, see the 
Response to Comments on Sewage Sludge (Section V.B.10). If these units 
do not legitimately recover energy, they would not meet the meaningful 
heating value criterion. See also Section VII.I, which discusses the 
types of notification and recordkeeping requirements, including 
documentation as to how the non-hazardous secondary material meets the 
legitimacy criteria, that a facility using these secondary materials as 
fuels that remain within the control of the generator are subject to.
    Finally, we note that the resulting low-carbon fly ash would be 
considered a new secondary material, which would be considered an 
ingredient if it is later used in the production of cement.
    Comment: One commenter, a utility, stated that the proposed rule's 
setting of minimum energy content values for a secondary material to be 
used as a fuel and not be considered a solid waste (i.e., the 
meaningful heating value legitimacy criterion) is inappropriate for the 
re-burning of fly ash when producing concrete quality fly ash, as the 
coal ash used for re-burn is selected based on its mineral content, 
combined with the mineralogy of the coal currently being used as a 
fuel. The fuel value of the fly ash is only one technical consideration 
when introducing coal ash in combustion systems for creating concrete 
quality fly ash and requiring a minimum heating value may restrict the 
use of high quality fly ash for use in concrete and other applications.
    EPA's Response: We appreciate that the fuel value is only one of 
several considerations made when selecting fly ash for re-burn; 
however, in order for fly ash that is re-burned to not be a solid waste 
under today's final rule, it would need to either remain within the 
control of the generator and meet the legitimacy criteria for fuels, 
including the meaningful heating value criterion, or, if discarded, be 
processed into a new, legitimate fuel product. Some

[[Page 15512]]

commenters stated that the energy content of fly ash when burned is 
returned as useful heat. Based on the comments received, however, it is 
unclear whether the fly ash in that instance would meet the meaningful 
heating value criterion, as these comments do not include enough 
information about how much energy is being recovered from the use of 
these secondary materials as fuels. In order to not be considered a 
solid waste, the facility must determine whether the fly ash meets the 
legitimacy criteria, including whether the fly ash has meaningful 
heating value and is used as a fuel in a combustion unit that recovers 
energy.
    We also note that we are not establishing a bright line test for 
satisfying the meaningful heating value test. Rather, for purposes of 
meeting the legitimacy criteria for fuels, we would consider non-
hazardous secondary materials with an energy value greater than 5,000 
Btu/lb, as-fired, to have a meaningful heating value, and satisfy this 
legitimacy criterion. However, for facilities with energy recovery 
units that use non-hazardous secondary materials as fuels with an 
energy content lower than 5,000 Btu/lb, as fired, we believe it is also 
appropriate to allow a person to demonstrate that a meaningful heating 
value is derived from the non-hazardous secondary material if the 
energy recovery unit can cost-effectively recover meaningful energy 
from the non-hazardous secondary materials used as fuels. See Section 
VII.H.1 for a discussion of how non-hazardous secondary materials can 
satisfy the meaningful heating value criterion for fuels.
    Comment: Some commenters argued generally that EPA should not 
restrict the source of coal ash that is re-burned and should allow coal 
ash that is used as a fuel to be transferred between facilities and 
retrieved from landfills because it is being beneficially used. One of 
these commenters described how one of its power plants re-burns coal 
ash that it receives from two other power plants that it also owns. 
This same commenter also noted that it re-burns coal ash in one of its 
power plants that it has retrieved from an off-site landfill.
    EPA's Response: As discussed in Section V.A.1, EPA is not making a 
sweeping arbitrary assumption in categorizing transferred secondary 
materials as discarded. Instead, EPA has evaluated whether certain 
categories of materials are discarded or not. The Agency has not 
adopted the extremes of saying that all burning of secondary material, 
regardless of ultimate use, is waste treatment or that any secondary 
material that is recycled for legitimate fuel value is a commodity and 
not a waste. Wastes may have value, but are still wastes.
    Between these broad parameters, EPA has examined a number of 
specific materials, recycled on-site and transferred for recycling, and 
determined whether they would be appropriately placed within the waste 
or non-waste categories. EPA would consider transferred non-hazardous 
secondary materials not to be wastes if it could make the appropriate 
findings for those categories. In fact, the Agency does so with respect 
to scrap tires harvested from vehicles and resinated wood residuals.
    Commenters discussing scrap tires and resinated wood residuals, 
however, provided specific information regarding how these secondary 
materials were managed when they no longer remained within the control 
of the generator and the frequency with which these materials were 
collected and transferred off-site. For example, resinated wood 
residuals are routinely transferred between either intra- or inter- 
company facilities and used as either ``furnish'' (i.e., raw materials) 
or fuel at the receiving facilities. The material being transferred 
off-site is used and handled in the same manner that resinated wood 
residuals are used when generated on-site (such that it is impossible 
to distinguish between materials that are being used as a raw material 
and those that are being used as a fuel).
    On the other hand, commenters discussing the use of CCRs as fuels 
outside the control of the generator did so only in general terms. 
Commenters provided legal arguments that case law holds that transfer 
of such materials between companies were irrelevant for determining 
whether a recycled material was properly viewed as a solid waste. See 
Section V.A.1 for our response to these legal arguments on the issue of 
``transfer'' as it relates to the concept of discard. However, these 
commenters did not specify how the proposed rule's presumption that 
non-hazardous secondary materials that are used as fuels and are 
managed outside the control of the generator are solid wastes was 
inappropriate for CCRs. In general, the DC Circuit has not accepted 
such presentations in ``broad abstraction.'' See ABR at 1056.
    Because commenters did not provide sufficient information detailing 
how CCRs are managed when transferred outside the control of the 
generator, we are unable to determine whether such movement of CCRs 
outside the control of the generator is or is not indicative of 
discard. Thus, such a determination is best left to the non-waste 
petition process, as finalized in today's rule. As we've discussed, we 
believe this petition process is essential because many non-hazardous 
secondary materials are recycled and managed in many different ways, 
and the Agency may lack the specific details in certain cases to know 
whether such non-hazardous secondary materials are or are not solid 
wastes. For a discussion of non-waste determination petitions, see 
Section VII.G of today's rule.
    Regarding the commenter who described how one of its power plants 
re-burns coal ash that it receives from two other power plants it also 
owns, we would expect that such a situation would fall within the 
definition of ``within the control of the generator,'' as codified in 
Sec.  241.2. For the purposes of today's final rule, ``within the 
control of the generator'' means that the non-hazardous secondary 
material is generated and burned in combustion units at the generating 
facility; or that such material is generated and burned in combustion 
units at different facilities, provided the facility combusting the 
non-hazardous secondary material is controlled by the generator; or 
both the generating facility and the facility combusting the non-
hazardous secondary material are under the control of the same person. 
We have also codified the definition of ``control'' as meaning the 
power to direct the policies of the facility, whether by the ownership 
of stock, voting rights, or otherwise, except that contractors who 
operate facilities on behalf of a different person as defined in this 
section shall not be deemed to ``control'' such facilities. See Sec.  
241.2. As the commenter states that it owns the other two plants, such 
intra-company movement would ensure that the materials would remain 
within the control of the generator and, therefore, such CCRs would not 
be considered a solid waste when used as a fuel provided they meet the 
legitimacy criteria. In the instance where a facility is re-burning 
coal ash that is recovered from landfills, such coal ash is a solid 
waste, as this material has clearly been discarded. Coal ash that is 
recovered from landfills must be sufficiently processed in order to no 
longer be considered a solid waste.
    Comment: We received a few comments regarding the extent to which 
CCRs are mined from landfills (i.e., recovered from the discard 
environment). One commenter asserted that it was unaware of any 
recovery of CCR from disposal sites, while one another commenter 
acknowledged that while it could utilize recovered landfill fly ash, it 
was not currently doing so.

[[Page 15513]]

Still another commenter stated it removes CCRs from landfills and that 
such removal for either energy recovery or beneficial reuse was 
facilitated by a regulatory innovation program sponsored by the state 
and endorsed by EPA. Consequently, this commenter commonly re-burns 
coal ash that is recovered from landfills. This commenter notes that it 
has developed and uses patented processes to use this fly ash, but does 
not provide specific details regarding how these secondary materials 
are processed.
    EPA's Response: It does not appear that it is a widespread practice 
for CCRs to be recovered from the discard environment (e.g., landfills) 
and beneficially used. However, from comments received both on the 
ANPRM and the proposed rule, it appears that at least some CCRs are 
being recovered from the discard environment or could be recovered from 
the discard environment--for example by the one commenter citing its 
participation in a state regulatory innovation program. Although we 
recognize the benefits associated with recovering CCRs from landfills, 
these non-hazardous secondary materials have clearly been discarded in 
the first instance and would have to be sufficiently processed into a 
new fuel product (or ingredient product) to not be considered a solid 
waste when used in combustion units. As we've stated elsewhere in the 
preamble, today's final rule is limited to CCRs used as fuels or 
ingredients in combustion units. In other words, today's rulemaking 
should not impact other potential beneficial uses of CCRs, such as 
using these secondary materials as a base material to replace stone or 
gravel under roads, parking lots and buildings.
    Comment: EPA received comments on the ANPRM stating that there are 
at least four patented processes for removing unwanted carbon from fly 
and bottom ash that allow the processed ash to produce both technically 
compliant ash for use in concrete and a separate carbon stream that can 
be re-introduced into the boiler for its fuel value. One electric 
utility, commenting on the proposed rule, also mentioned patented 
processes for using CCRs recovered from landfills. However, neither of 
these commenters provided specific details regarding how the CCRs are 
actually processed.
    EPA's Response: Unfortunately, EPA did not receive sufficient 
information during the comment period describing the types of processes 
that CCRs undergo to be able to make a categorical determination 
whether the patented processes referenced in the proposed rule would 
meet the definition of processing being promulgated in today's final 
rule. Although we did receive some information regarding how CCRs are 
processed, we have determined, as we stated in the proposed rule, that 
certain operations are currently being utilized to recover CCRs from 
the discard environment that would likely meet our definition of 
``processing.'' For example, we are aware of at least one electric 
utility that recovers ash from ponds or landfills and then separates 
this secondary material into its fundamental components: carbon, 
silicates, and high-density, iron-rich materials. A coarse carbon-fuel 
product is then recovered by density separation using concentrating 
spirals. A fine carbon-fuel product is also recovered with flotation 
cells.\129\ We believe that this type of processing operation is likely 
to meet our definition of processing, as it appears that these 
operations in fact remove contaminants and improve the fuel 
characteristics of recovered CCRs. Thus, a determination would need to 
be made as to whether such processes meet the definition of processing, 
as codified in Sec.  241.2.\130\
---------------------------------------------------------------------------

    \129\ See ``Materials Characterization Paper on Coal Combustion 
Residuals-Coal Fly Ash, Bottom Ash, and Boiler Slag.'' A copy of 
this document has been placed in the docket for today's rule.
    \130\ We note, however, that burning any secondary material, 
including CCRs, in a combustion unit would not constitute 
``processing,'' as determining whether or not a material is a solid 
waste must occur prior to its placement in the combustion unit. To 
consider the burning of such materials as ``processing'' would be 
circular.
---------------------------------------------------------------------------

10. Sewage Sludge
    The proposed rule classified sewage sludge (or wastewater treatment 
sludge) generated from publicly owned treatment works (POTWs) as solid 
waste when burned as fuels in combustion units. However, the proposed 
rule also specifically solicited comment on whether it is within the 
Agency's discretion to provide a regulatory solid waste exclusion for 
sewage sludge when burned in incinerators in order to preserve the 
current framework for regulating sewage sludge managed under section 
405 of the Clean Water Act (CWA) and to avoid redundancy. When making 
the determination that sewage sludge is a solid waste when burned as a 
fuel in a combustion unit, the proposed rule stated that the Domestic 
Sewage Exclusion (DSE) under RCRA (see 261.4(a)) does not apply to the 
sludge generated from the treatment process and thus, sewage sludge is 
a solid waste if discarded. The proposed rule also noted that burning 
sewage sludge without energy recovery (i.e., burned for destruction) 
would constitute discard. Responding to commenters describing POTWs 
that recover heat in the form of usable heat via waste heat boilers, 
the proposed rule stated that the Agency does not consider waste heat 
boilers to be legitimate energy recovery devices, but rather these 
combustion units are burning the sewage sludge primarily for disposal 
purposes. Finally, the proposed rule stated that sewage sludge would 
likely not satisfy the contaminant legitimacy criterion, as data 
indicates that sewage sludge often contains metals at levels that are 
significantly higher in concentration when compared to traditional 
fuels. For the proposed rule's discussion of sewage sludge, see 75 FR 
31866-7.
    Comment: Several commenters argued that EPA has the discretion to 
exclude or exempt sewage sludge from this rulemaking and should 
exercise that discretion in order to preserve the current framework for 
regulating the burning of sewage sludge pursuant to 40 CFR 503 (Part 
503), which codifies regulations developed under the authority of 
section 405 of the CWA. These commenters also note that EPA has a non-
discretionary duty to consider all environmental laws to prevent 
duplication when promulgating regulations under section 1006(b) of RCRA 
and that deeming sewage sludge a solid waste to be regulated under 
section 129 of the CAA violates EPA's non-discretionary duty to 
harmonize environmental laws because emissions from sewage sludge 
incinerators (SSIs) are already comprehensively regulated under other 
statutes.
    EPA's Response: We agree with the commenters that section 1006(b) 
requires EPA to integrate the RCRA requirements with the requirements 
of the CWA and the CAA, as well as other laws. Section 1006(b) also 
states that such integration shall be effected only to the extent that 
it can be done in a manner consistent with the goals and policies 
expressed in RCRA and in the other acts referred to in section 1006(b). 
Thus, while we recognize that emissions from SSIs have been regulated 
under other statutes, the purpose of today's final rule is not to 
regulate emissions from SSIs, but rather to determine whether sewage 
sludge is or is not a solid waste to allow the Agency to decide whether 
the material must be combusted under emissions standards developed 
under section 112 or 129 of the CAA. Sewage sludge is one of many non-
hazardous secondary materials that are discussed and analyzed in this 
final rule.
    We also note that section 405(d)(5) of the CWA states that nothing 
in section

[[Page 15514]]

405 is intended to waive more stringent requirements established by the 
CWA or by any other law. This provision clearly states that section 405 
of the CWA does not preempt other regulation. Therefore, we believe 
today's final rule is consistent with the goals and policies of RCRA, 
the CWA, and the CAA and thus, satisfies the requirements of section 
1006(b).
    Comment: Commenters asserted that Congress wrote section 112 of the 
CAA to regulate sewage sludge emissions, stating that section 112(e)(5) 
\131\ of the CAA directs EPA to issue emissions standards under section 
112(d) for POTWs, including SSIs. These commenters also argued that 
sewage sludge quality and incineration is strictly regulated under the 
CWA and that the current regulatory structure under both the CWA and 
section 112 of the CAA is effective and should not be altered.
---------------------------------------------------------------------------

    \131\ CAA section 112(e)(5) states, ``The Administrator shall 
promulgate standards pursuant to subsection (d) of this section 
applicable to publicly owned treatments works (as defined in Title 
II of the Federal Water Pollution Control Act [33 U.S.C.A. Sec.  
1281 et seq.] not later than 5 years after November 15, 1990.''
---------------------------------------------------------------------------

    EPA's Response: Today's final action is defining solid waste under 
RCRA and as such we are not addressing the definition of POTW under the 
CWA or the requirements of the CAA.
    Comment: Several commenters reiterated the position that the DSE 
applies to sewage sludge generated by POTWs and, therefore, stated that 
sewage sludge is exempted from the definition of solid waste under 
RCRA. Citing the preamble to the 1980 RCRA subtitle C regulations, at 
least one commenter stated that the Agency indicated that once the to-
be-developed regulation under section 405 of the CWA is promulgated, 
sewage sludge would be exempt from coverage under other sets of 
regulations.\132\ The same commenter also cites the 1990 Petroleum 
Refinery Primary and Secondary Oil/Water/Solids Separation Sludge 
Listings Rule (1990 Listings Rule), which states ``It should be noted 
that if wastewaters generated at petroleum refineries are discharged to 
a POTW and such wastewaters are mixed with domestic sewage from 
nonindustrial sources, the sludges generated in the POTW are covered 
under the domestic sewage exclusion and are not included in today's 
listings.'' \133\
---------------------------------------------------------------------------

    \132\ See 45 FR 33102 (May 19, 1980).
    \133\ See 55 FR 46364 (November 2, 1990) (Footnote 14).
---------------------------------------------------------------------------

    EPA's Response: For the same reasons stated in the proposed rule, 
we do not agree with the comments suggesting that the DSE applies to 
the sludge generated from the treatment process. EPA has long viewed 
sewage sludge generated from POTWs as a solid waste, beginning with the 
1980 Identification and Listing of Hazardous Waste rulemaking. In that 
final rule, EPA stated that the DSE is ``only applicable to non-
domestic wastes that mix with sanitary waste in a sewer system leading 
to a POTW.'' \134\ In that same rule, EPA further said it decided not 
to exclude sewage sludge from regulation under RCRA, since the 
statutory expressions regarding the definitions of ``solid waste'' and 
``sludge'' was clear.\135\
---------------------------------------------------------------------------

    \134\ Id at 45 FR 33097.
    \135\ Id at 45 FR 33101. ``Under Section 1004(27) of RCRA, the 
definition of ``solid waste'' specifically includes ``sludge from a 
waste treatment plant.'' In defining ``sludge,'' Section 1004(26A) 
includes wastes from a ``municipal wastewater treatment plan.'' 
Because of these very clear statutory expressions, EPA must regulate 
sewage sludge under RCRA. * * *''
---------------------------------------------------------------------------

    We agree that the 1980 Identification and Listing of Hazardous 
Waste rulemaking referenced by the commenter states that once the 
regulations are promulgated under section 405(d) of the CWA, sewage 
sludge will be exempted from coverage from ``other sets of 
regulations.'' The preamble continues, however, to state: ``In 
particular sewage sludge that qualifies as a hazardous waste will be 
exempted from this Part [261] and Parts 262 through 265'' once this 
program is promulgated under CWA section 405. However, this exclusion 
is specifically limited to RCRA subtitle C (i.e., hazardous 
waste),\136\ and does not apply to the subtitle D program under RCRA.
---------------------------------------------------------------------------

    \136\ We would note that even though the CWA section 405(d) 
regulations have been promulgated, EPA never exempted sewage sludge 
from the subtitle C hazardous waste regulations, and thus, sewage 
sludge that exhibits any of the characteristics of hazardous waste 
must be managed as a hazardous waste. See 45 FR 33102, May 19, 1980 
where it states, ``The Agency's strategy for the development of a 
comprehensive sewage sludge management regulation will eventually 
result in the establishment of a separate regulation. Once such a 
regulation is in place, sewage sludge will be exempted from coverage 
under other sets of regulations. * * * Pending promulgation of this 
comprehensive sewage sludge regulation, sewage sludge will not be 
specifically excluded from Subtitle C.''
---------------------------------------------------------------------------

    Regarding the citation from the 1990 Listings Rule, this footnote 
is in error and is inconsistent with our historic interpretation of the 
scope of the DSE, as discussed both in the proposed rule and today's 
final rule. Thus, the DSE does not apply to the sludge generated from 
the treatment process.
    Comment: Several commenters stated that sewage sludge has 
meaningful heating value and that EPA should re-evaluate its 
description of this criterion. Commenters argued that EPA's 
determination that waste heat boilers do not qualify as combustion 
units that recover energy is arbitrary and does not recognize the 
significant value of waste heat boilers and their role in energy 
generation. One commenter, a regional sewer district that estimated 
roughly 93 percent of its sewage sludge was ``incinerated,'' stated 
that four of its boilers had produced a total of 2.5 billion pounds of 
high pressure steam over a twenty-five year span by converting the heat 
generated from burning sewage sludge in multiple hearth incinerators to 
high pressure steam.
    EPA Response: We find that most sewage sludge is burned not for 
energy recovery, but for destruction. Sewage sludge burned in an 
incinerator for the purposes of destruction would clearly meet the 
meaning of discard, and thus be a solid waste. While we recognize that 
waste heat boilers are useful devices for providing energy in the form 
of steam for secondary processes, the presence of a waste heat boiler 
does not, by itself, change the fact that the unit combusting the non-
hazardous secondary material is primarily an incineration unit burning 
waste for disposal purposes.
    Further, the Agency does not regard waste heat boilers as 
legitimate energy recovery devices because they receive their energy 
input from the combustion of off-gases via a separate combustion 
chamber. Under the RCRA program, a legitimate energy recovery device is 
one that meets the definition of a boiler or an industrial 
furnace.\137\ Among other criteria, a boiler's combustion chamber and 
primary energy recovery section(s) must be of integral design, unless 
it falls under the process heater or fluidized bed combustion 
exemption. Thus, a combustion chamber that is connected by a duct to a 
waste heat boiler (or recuperator/heat exchanger) does not qualify as a 
legitimate energy recovery device.
---------------------------------------------------------------------------

    \137\ See February 28, 1984 Memorandum from John H. Skinner, 
Director, Office of Solid Waste, to Thomas W. Devine, Director, Air 
and Waste Management Division, EPA Region IV, entitled, ``Guidance 
on Determining When a Hazardous Waste Is a Legitimate Fuel That May 
Be Burned for Energy Recovery in Boiler or Industrial Furnace.'' A 
copy of this memorandum is included in the docket for today's rule. 
For definitions of ``boiler'' and ``industrial furnace'' under RCRA, 
see 40 CFR 260.10.
---------------------------------------------------------------------------

    Unlike boilers, which are specifically designed to recover the 
maximum amount of heat from a material's combustion, waste heat 
recovery units are designed to cool the exhaust gas stream, and/or to 
recover, indirectly, the useful heat remaining in the exhaust gas

[[Page 15515]]

from a combustion unit that has some other primary purpose (such as an 
institutional waste incinerator). Thus, we continue to consider that 
sewage sludge is primarily burned for destruction and the presence of a 
waste heat recovery unit would not, by itself, satisfy the meaningful 
heating value legitimacy criterion.
    Comment: Regarding the contaminant levels in sewage sludge, a 
number of commenters noted that the pretreatment standards have reduced 
contaminants (particularly metals) in sewage sludge, with a few 
commenters providing more recent contaminant data for sewage sludge 
than was available in the proposed rule and stated that this new data 
demonstrates that currently generated sewage sludge would meet the 
contaminant legitimacy criterion.\138\ The National Association of 
Clean Water Agencies (NACWA) amended the data set included in the 
proposed rule by providing data from a 2006-2007 Targeted National 
Sewage Sludge Survey (TNSSS). See column four of Table 6 below:
---------------------------------------------------------------------------

    \138\ The proposed rule included a table comparing sewage sludge 
data taken from a 1982 40-city study and a 1988 National Sewage 
Sludge Survey, cited in the National Biosolids Partnership's 2005 
``National Manual of Good Practices for Biosolids,'' and coal data 
taken from a 1998 U.S. EPA report entitled, ``Development of 
Comparable Fuels Specifications.'' May 1998.

          Table 6--Comparison of Toxics of Municipal Wastewater Treatment Sludges to Traditional Fuels
----------------------------------------------------------------------------------------------------------------
                                                                                     Targeted
                                                                     National        national
                     Element                       40 City study   sewage sludge   sewage sludge       Coal
                                                      (1982)      survey  (1988)      survey
                                                                                      (TNSSS)
----------------------------------------------------------------------------------------------------------------
                                                    Mg/dry kg
----------------------------------------------------------------------------------------------------------------
Arsenic.........................................             9.9             6.7             6.9              10
Cadmium.........................................              69             6.9             2.6             0.5
Chromium........................................             429             119              80              20
Lead............................................             369           134.4              76              40
Mercury.........................................             2.8             5.2             1.2             0.1
Nickel..........................................           135.1            42.7              48              20
Selenium........................................             7.3             5.2               7               1
----------------------------------------------------------------------------------------------------------------

    Other commenters, however, agreeing that sewage sludge should be 
considered a solid waste, noted that sewage sludge tended to have 
higher contaminant levels than traditional fuels and should be 
regulated as solid waste when used as a fuel. Although not a part of 
the proposed definition of ``contaminants,'' some commenters noted the 
presence of pathogens in sewage sludge.
    EPA's Response: The Agency appreciates the more recent and site-
specific data provided by several commenters. We agree that in most 
cases, the specific data provided by commenters indicates that 
contaminant levels for most contaminants is not as high as previously 
reported in the earlier studies. However, we note that the TNSSS data 
provided by commenters still indicates higher levels, and those that 
EPA would not consider to be ``comparable'' for most of the 
contaminants found in sewage sludge when compared to coal. Thus, under 
today's final rule, sewage sludge would not satisfy the contaminant 
legitimacy criterion because of the presence of non-comparable levels 
of metals when compared to traditional fuels. Regarding the commenter's 
reference to pathogens, pathogens are not included as a contaminant in 
today's rule since that definition focuses on those constituents 
identified in the CAA that EPA will be evaluating to determine whether 
to establish emission standards (see also discussion in V.D.3).
    Comment: Finally, several commenters urged EPA to explicitly limit 
the scope of the final rule, making it clear that this rulemaking would 
have no regulatory effects or impacts for sewage sludge that is not 
incinerated (e.g., land application). On the other hand, one commenter 
requested that the Agency designate sewage sludge as a solid waste 
regardless of the manner that it is managed for disposal (land 
application, surface disposal, co-disposal in a municipal solid waste 
landfill, or incineration).
    EPA's Response: We disagree with the one commenter who requested 
that this rulemaking define sewage sludge as a solid waste regardless 
of its end use (i.e., land application, surface disposal, etc.). In 
this final rule, EPA is articulating a framework for determining 
whether a non-hazardous secondary material is or is not a solid waste 
when burned as a fuel or ingredient in a combustion unit; we are not 
making solid waste determinations that cover other possible end uses 
(e.g., land application of sewage sludge). It is the Agency's view that 
these regulations should not dictate to state programs how to 
characterize and/or regulate this material (as well as any other non-
hazardous secondary material), particularly since EPA does not have 
authority to regulate the beneficial use of non-hazardous secondary 
materials under subtitle D of RCRA. Therefore, EPA agrees with those 
commenters who suggested the limited scope of this final rule and 
explicitly recognize the narrow focus of this rulemaking.
11. Processed Fats
    Processed fats, including both animal fats and vegetable oils, can 
be turned into biofuels for use in industrial boilers. The proposal did 
not discuss the use of this non-hazardous secondary material or discuss 
its status as a fuel or waste under this rule. We did receive comments 
pertaining to its status, however.
    Comment: Commenters have argued that processed fats are a 
traditional fuel as they are not discarded and are legitimate fuel 
products. Specifically, they argue that the use of processed fats as 
fuel has been used in industrial boilers for more than a decade, as 
evidenced by approval of the use of such fats as fuels in air permits 
for industrial boilers. The commenters also note that processed fats 
are a primary product of the rendering process and not secondary 
materials or by-products, are derived from inedible animal products, 
which are the primary products of value and sale of the meat industry 
and not a secondary material or by-products, and are therefore not a 
solid waste since it or its primary feedstock have never been a waste 
or discarded.

[[Page 15516]]

    Processed fats also are managed as valuable commodities and have 
meaningful heating value. They are managed similar to traditional oils, 
utilizing the same tanks, hoses, nozzles, and tanker trucks, and have a 
heating value of around 17,000 Btu/lb.\139\ Processed fats, the 
commenters argue, also have a comparable composition to traditional 
fuel products. In fact, processed fats contain considerably less 
contaminants (e.g., <0.010% sulfur by weight, 0.022% ash by weight) and 
burn cleaner than many traditional fuels and derivatives (e.g., coal, 
oil, coal tar oil, asphalts, etc). The limited contaminant data that 
was submitted showed that processed fats had less than 1 ppm of 
vanadium. Commenters also stated that processed fats have fewer 
contaminants than No. 6 residual oil (2% sulfur content), which will 
result in lower emissions of sulfur dioxide, nitrogen oxides, 
particulate matter, and carbon monoxide. Furthermore, they stated that 
processed fats also have lower emissions of sulfur dioxide, particulate 
matter and carbon monoxide, as compared to No. 2 distillate oil (0.5% 
sulfur content). However, no data was submitted to validate these 
statements.
---------------------------------------------------------------------------

    \139\ See document EPA-HQ-RCRA-2008-0329-0706.1. Adams, T.T., J. 
Walsh, M. Brown, J. Goodrum, J. Sellers, and K. Das, 2002. ``A 
Demonstration of Fat and Grease as an Industrial Boiler Fuel,'' 
University of Georgia, Athens, GA.
---------------------------------------------------------------------------

    The commenters also note that the federal government has encouraged 
the development and use of materials, such as processed fats as a 
clean, renewable fuel that reduces dependency on petroleum oils. Since 
2006, the use of processed fats as fuel has been encouraged through the 
Alternative Fuel Mixture Credit (26 U.S.C. 6426(e)). Although the 
proposed rule is intended to facilitate the use of certain materials 
that would otherwise be treated as waste by allowing them to be 
designated as non-hazardous secondary materials and burned as fuels, 
the net effect, with respect to processed fats, is the opposite. Rather 
than facilitate the use of processed fats as fuel, the rule will 
effectively end the development of this market. This is because the end 
result under the rule as it currently is proposed is a requirement that 
each potential customer must petition and obtain EPA approval for each 
facility in which they wish to burn processed fats. The burden and 
delay of submitting to such a process will have a chilling effect on 
the development of new customers and markets for processed fats as 
fuel. As a practical matter, this outcome is contrary to longstanding 
federal policy encouraging the development and use of clean, renewable 
fuels in place of petroleum and other fossil fuels.
    EPA's Response: We disagree that process fats are a traditional 
fuel. Process fats are secondary materials as they are produced from 
inedible parts of animals that were primarily butchered for meat, not 
for use as a fuel. We recognize, however, that these non-hazardous 
secondary materials contain lower concentrations of contaminants than 
traditional fuels \140\ and, as such, are being encouraged for use 
instead of fossil fuels.\141\ In addition, since the fats are managed 
the same way that traditional oil is, it is evident that the material 
is handled as a valuable commodity, meeting that legitimacy criterion. 
Additionally, the material meets the legitimacy criterion for a 
meaningful heating value. Since these materials are sometimes not 
managed within the control of the generator (i.e., the butcher, the 
restaurant, etc.), questions could be raised as to whether they are 
discarded if not burned in a combustion unit within the control of the 
generator. However, we would note that the rendering process 
``sufficiently processes'' the material into a non-waste fuel that 
meets the legitimacy criteria, as we note above. Thus, the commenters 
concern that non-waste determination petitions would need to be 
submitted on a case-by-case basis, and would have a chilling effect on 
the development of new customers and markets for processed fats, is not 
the case. Thus, the final rule establishes these non-hazardous 
secondary materials, after being processed, as a non-waste fuel.
---------------------------------------------------------------------------

    \140\ See the Preliminary Characterization Study Prepared In 
Support of the Proposed Rulemaking--Identification of Nonhazardous 
Secondary Materials That Are Solid Waste: Traditional Fuels and Key 
Derivatives, EPA-HQ-RCRA-2008-0329-0461.21.
    \141\ See Adams, T.T., J. Walsh, M, Brown, J. Goodrum, J. 
Sellers, and K. Das, 2002. ``A demonstration of Fat and Grease as an 
Industrial Boiler Fuel,'' University of Georgia, Athens, GA.
---------------------------------------------------------------------------

C. Comments on Specific Materials Used as Ingredients

    The ANPRM identified a number of non-hazardous secondary materials 
that the Agency believes are currently being used as legitimate non-
waste ingredients in combustion processes. The proposed rule then 
identified the four material groups for which we received the majority 
of the comments on the ANPRM. The four material groups are CKD, CCRs, 
foundry sand, and blast furnace slag/steel slag. The proposed rule did 
not assume that ingredients used in combustion units that are not 
managed within the control of the generator are discarded materials (as 
is the case for most non-hazardous secondary material fuels), since we 
believe that non-hazardous secondary materials used as ingredients are 
more akin to commodities managed within continuous commerce and are 
used as an integral part of the manufacturing process. That is, non-
hazardous secondary materials that are directly used (or in the case of 
previously used materials, reused), function as effective substitutes 
(i.e., as raw materials) in normal manufacturing operations or as 
products in normal commercial applications, and thus, EPA has 
interpreted the definition of solid waste as excluding non-hazardous 
secondary materials recycled in ways that most closely resemble normal 
production processes, provided they meet the legitimacy criteria.
    Besides the comments on specific non-hazardous secondary materials 
used as ingredients described below, we again note the overarching 
comment that was raised by some commenters that the Agency has no 
authority under section 129 of the CAA to regulate the use of secondary 
materials as ingredients, as EPA's section 129 authority is limited to 
``solid waste incineration units,'' which the statute defines as units 
that ``combust'' solid waste. As discussed in Section V.A of today's 
final rule, we believe that this comment is not relevant to this 
regulation, which determines whether non-hazardous secondary material 
is a solid waste, or not under RCRA. EPA has clear authority to 
interpret RCRA to decide whether non-hazardous secondary materials are 
solid wastes or not.
1. Cement Kiln Dust
    CKD is a fine-grained, solid, highly alkaline material removed from 
the cement kiln exhaust gas by scrubbers. Much of the material 
comprising CKD is incompletely reacted raw material, including a raw 
mix at various stages of burning, and particles of clinker. Generation 
of CKD is directly connected to the production of cement clinker. The 
proposed rule indicated that CKD used in a cement kiln would not be 
considered a solid waste when used as an ingredient in a combustion 
unit, so long as it was not discarded in the first instance and 
satisfies the legitimacy criteria for ingredients. Whether CKD remains 
within the control of the generator or is transferred to another person 
is not in and of itself indicative of discard, as discussed above. If 
CKD has been discarded, however, its use as an ingredient in cement 
kilns would be considered combustion of a solid waste, unless it has 
been processed to produce a non-waste ingredient.

[[Page 15517]]

    Comment: We received limited comments on CKD. One commenter urged 
EPA to state that CKD that is removed from on-site storage piles or 
monofills should be considered a legitimate non-hazardous secondary 
material and should not be considered a solid waste. The commenter 
explains that while CKD may have been previously placed in storage 
piles or even permitted solid waste management units (SWMUs), the 
technology did not exist previously to reuse the material. However, 
newer kiln systems can now use the CKD that has previously been 
disposed of, and thus, these non-hazardous secondary materials (which 
are ingredients in the manufacture of cement) should not be subject to 
the CAA section 129 standards.
    EPA's Response: The commenter acknowledges that even though the CKD 
has remained on-site, the intent or purpose of placing CKD in storage 
piles or SWMUs was to dispose of them (i.e., discard). Additionally, 
CKD that has been placed in storage piles in this manner would likely 
not meet the legitimacy criterion of ``managed as a valuable 
commodity.'' Thus, it would appear in this instance that CKD that has 
been placed in storage piles for the purpose of disposal, even if on-
site, has been discarded and would be considered a solid waste if 
burned in a combustion unit, unless the discarded CKD is processed into 
a non-waste ingredient product. (See discussion elsewhere in today's 
preamble regarding the reason why non-hazardous secondary materials 
that have been discarded in the first instance are solid waste if 
burned in a combustion unit, unless the non-hazardous secondary 
material is processed into a non-waste ingredient product.) CKD that 
has not been discarded in the first instance, however, and satisfies 
the legitimacy criteria would not be considered a solid waste when used 
as an ingredient.
2. Coal Combustion Residuals \142\
---------------------------------------------------------------------------

    \142\ In a separate rulemaking effort, EPA has proposed 
regulations that will provide for the safe disposal and management 
of coal combustion residuals from utility coal-fired power plants 
(the ``Coal Combustion Residuals Proposed Rule''). The proposed rule 
was published in the Federal Register on June 21, 2010. See 75 FR 
35127. Today's final rule does not affect that rulemaking effort, as 
our rule considers the use of coal combustion residuals in 
combustion units as fuels or ingredients, while the coal combustion 
residual proposed rule is concerned with the safe disposal and 
management of these residuals in landfills and surface impoundments. 
For more information on the coal combustion residual proposed rule, 
see Docket ID No. EPA-HQ-RCRA-2009-0640.
---------------------------------------------------------------------------

    CCRs are formed during the coal-burning processes in power plants 
and industrial boilers, and are produced in various forms (i.e., fly 
ash, bottom ash, and boiler slag) that are categorized by the process 
in which they are generated. The proposed rule indicated that CCRs used 
as ingredients in combustion units would not be considered solid 
wastes, provided they were not discarded in the first instance and 
satisfy the legitimacy criteria.\143\ We also noted that CCRs can be 
used both as an ingredient and as a fuel supplement and proposed that 
the decision to treat them as a fuel or ingredient should be based on 
the primary purpose of their use in a combustion unit. We took comment 
on this approach, especially our characterization that the primary use 
of CCRs in cement kilns is generally for their ingredient value, as 
opposed to their fuel value.
---------------------------------------------------------------------------

    \143\ For a discussion of CCRs used as fuels in combustion 
units, see Section V.B.9 of this final rule.
---------------------------------------------------------------------------

    The proposal also indicated that when CCRs are used for their 
ingredient value, the transferring of these materials to another person 
would not in and of itself be indicative of discard. However, to the 
extent that CCRs have been discarded in the first instance, they would 
have to be processed into a non-waste ingredient product and satisfy 
the legitimacy criteria in order not to be considered a solid waste. We 
also noted that comments were submitted on the ANPRM, which described 
patented processes that remove unwanted carbon from coal fly ash in 
order for these non-hazardous secondary materials to be used as an 
ingredient. While these processes--that is, those that separate carbon 
from fly ash to produce technically compliant fly ash for use in 
concrete appear to satisfy our processing requirement, we requested 
that commenters provide additional information explaining how this 
processing is conducted, and whether this type of fly ash is used as an 
ingredient in the clinker production process. The proposed rule also 
requested comment on the extent to which CCRs are recovered from the 
discard environment (e.g., landfills) and used as ingredients in cement 
kilns, as well as more information on the extent to which these CCRs 
are processed.
    In addressing the commenter who submitted comments on the ANPRM and 
argued that CCRs are solid wastes due to their high concentration of 
contaminants, the proposal noted that the chemical properties of CCRs 
are influenced to a great extent by the coal burned, the type of 
combustion unit, and the air pollution controls applied.\144\ 
Acknowledging that fly ash may contain various levels of metals, such 
as vanadium, zinc, copper, chromium, nickel, lead, arsenic, and 
mercury,\145\ the proposed rule noted that in a 2008 Report to Congress 
addressing the use of these secondary materials as ingredients in 
cement and concrete applications, the overall conclusion reached with 
respect to the perceived safety health risk barriers was a positive 
one, in that the risk analyses did not identify significant risks to 
human health and the environment associated with these uses.\146\
---------------------------------------------------------------------------

    \144\ For more information on the different types, or ranks, of 
coal, please refer to the Materials Characterization Paper on 
Traditional Fuels and Key Derivatives, which is located in the 
docket of today's final rule.
    \145\ See ``Technical Background Document for the Report to 
Congress on Removing Wastes from Fossil Fuel Combustion: Waste 
Characterization.'' U.S. EPA. March 15, 1999.
    \146\ ``Study on Increasing the Usage of Recovered Mineral 
Components in Federally Funded Projects Involving Procurement of 
Cement or Concrete to Address the Safe, Accountable, Flexible, 
Efficient Transportation Equity Act: A Legacy for Users. Report to 
Congress.'' June, 3, 2008. EPA530-R-08-007. When analyzing perceived 
safety and health risk barriers associated with the beneficial use 
of recovered mineral components (including CCRs et al.), this study 
concluded that ``Findings from [several cited] analyses did not 
identify significant risks to human health and the environment 
associated with the beneficial uses of concern. In addition, [EPA] 
identified no documents providing evidence of damage to human health 
and the environment from these beneficial uses. Our overall 
conclusions from these efforts, therefore, are that encapsulated 
applications, including cement and concrete uses, appear to present 
minimal risk.'' Id. at 4-11.
---------------------------------------------------------------------------

    The proposed rule also noted that the Agency is studying the 
possible effects of new air emission control technologies and 
configurations on the composition of CCRs and requested comment on 
whether advanced emission control technologies, such as carbon control 
technologies for mercury and NO<INF>X</INF>, are resulting or will 
result in increased levels of contaminants in coal ash to the extent 
that coal ash would not satisfy our legitimacy criteria.
    Comment: Almost all commenters agreed that the primary purpose when 
using CCRs in cement kilns was to utilize these secondary materials as 
ingredients. Most commenters further asserted that all CCRs, when used 
in combustion units, should always be classified as ingredients rather 
than as fuels. (See Section V.B.9 for a further discussion on this 
comment and the Agency's response.) These commenters claimed that any 
energy value that is recovered is secondary to its value as an 
ingredient, and argued that classifying CCRs always as ingredients 
would simplify the waste determinations for these non-hazardous 
secondary

[[Page 15518]]

materials by clearly establishing the appropriate legitimacy criteria 
that apply (i.e., facilities would not need to determine whether the 
fuel or ingredient legitimacy criteria apply based on the primary 
purpose of the secondary materials).
    Some commenters were also concerned that if cement kilns burned 
high-carbon content fly ash (which has more pronounced fuel content), 
the provisions of this rule applying to fuels would be triggered, even 
though these secondary materials have nearly identical characteristics, 
is managed in an identical manner, and is combusted in the same unit as 
the material used primarily as an ingredient (i.e., low-carbon content 
fly ash).
    EPA's Response: EPA agrees with the commenters that the primary 
purpose when using CCRs in cement kilns is to utilize it as an 
ingredient. However, we disagree with those commenters that argued that 
all CCRs, when used in combustion units, should be categorically 
defined as ingredients. As some commenters acknowledged (and as we also 
discussed in Section V.B.9 above), some CCRs are indeed used for their 
fuel value as opposed to their ingredient value, especially when re-
burned, as in the case of their use in combustion units by electric 
utilities. Therefore, we cannot categorically classify CCRs as 
ingredients when it is clear that, in some cases, these non-hazardous 
secondary materials are being burned for their fuel value and/or to 
produce a new secondary material (i.e., low-carbon fly ash). In cases 
where the primary purpose of using CCRs is for their fuel value and not 
for their ingredient value (e.g., by electric utilities), the secondary 
materials must meet the requirements for fuels, including the 
legitimacy criteria, in order not to be considered a solid waste.
    With respect to the issue of high-carbon fly ash burned in cement 
kilns, it is not clear the extent to which cement kilns burn high-
carbon fly ash or rather if commenters were providing a hypothetical 
situation in order to highlight potential issues that could arise for 
secondary materials that could have value as both a fuel and 
ingredient. It is also unclear whether low-carbon fly ash is required 
as a substitute ingredient in Portland cement or if cement kilns can 
also use high-carbon fly ash for its ingredient value. To the extent 
that these kilns are burning these secondary materials for their fuel 
value as opposed to their value as an ingredient, these secondary 
materials would be subject to the requirements for non-hazardous 
secondary materials used as fuels promulgated in today's final rule.
    We note other commenters who describe processes for removing 
unwanted carbon from fly ash in order to produce concrete quality fly 
ash (lower carbon content), which could suggest that cement kilns that 
burn high-carbon fly ash may be using these secondary materials for 
their fuel value, as well as their ingredient value. These commenters, 
however, discussed instances where fly ash was used as a fuel only in 
regards to its use in utility boilers and CBO units--where there is 
clearly not an ingredient value, as is the case with burning fly ash in 
cement kilns.
    Comment: EPA received comments on the ANPRM stating that there are 
at least four patented processes for removing unwanted carbon from fly 
and bottom ash that allow the processed ash to produce both technically 
compliant ash for use in concrete and a separate carbon stream that can 
be re-introduced into the boiler for its fuel value. One electric 
utility, commenting on the proposed rule, also mentioned patented 
processes for using CCRs recovered from landfills. However, neither of 
these commenters provided specific details regarding how CCRs that are 
recovered from the discard environment are actually ``processed.'' One 
other commenter discussed a two-stage process to maintain low carbon 
content, but was not aware whether the material was used for concrete 
or clinker production. Another commenter argued that the same processes 
used for currently generated fly ash to separate high-carbon ash from 
mineral ash could be applied to reclaimed fly ash and produce similar 
secondary ingredients. This commenter argued that the processes produce 
two materials that are chemically distinct from the reclaimed fly ash 
and should therefore satisfy our proposed processing requirement.
    EPA's Response: Unfortunately, EPA did not receive information 
during the comment period describing the types of processing that 
discarded CCRs undergo prior to being used as an ingredient in a 
combustion unit and are, thus, unable to make a categorical 
determination whether the patented processes referenced in the proposed 
rule would meet the definition of processing being promulgated in 
today's final rule. Although we did not receive new information 
regarding how CCRs are processed, as we stated in the proposed rule, 
certain processes are currently being utilized to recover CCRs from the 
discard environment that would likely meet our definition of 
``processing.'' For example, we are aware of at least one electric 
utility that recovers ash from ponds or landfills and then separates 
this secondary material into its fundamental components: Carbon, 
silicates, and high-density, iron-rich materials. A coarse carbon-fuel 
product is then recovered by density separation using concentrating 
spirals. A fine carbon-fuel product is also recovered with flotation 
cells.\147\ We believe that this type of processing is likely to meet 
our definition of processing, as it appears that these processes in 
fact remove contaminants and improve the ingredient characteristics of 
these recovered CCRs. Thus, a determination would need to be made as to 
whether such processes meet the definition of processing, as codified 
in Sec.  241.2.
---------------------------------------------------------------------------

    \147\ See ``Materials Characterization Paper on Coal Combustion 
Residuals--Coal Fly Ash, Bottom Ash, and Boiler Slag.'' A copy of 
this document has been placed in the docket for today's rule.
---------------------------------------------------------------------------

    Comment: As noted above, we solicited comments in the proposed rule 
regarding the extent to which CCRs are recovered from the discard 
environment and used as ingredients in cement kilns. We received a few 
comments regarding the extent to which CCRs are mined from landfills 
(i.e., recovered from the discard environment). Most of these comments 
did not specify, however, whether these recovered CCRs were 
subsequently used for their fuel or ingredient value.
    EPA's Response: Based on the comments, it does not appear that it 
is a common practice for CCRs to be recovered from the discard 
environment (e.g., landfills) and beneficially used. We respond to 
these comments in Section V.B.9 (Comments on Specific Materials Used as 
Fuel-Coal Combustion Residuals).
    Comment: Regarding the question of whether advanced emission 
control technologies are resulting or will result in increased levels 
of contaminants in CCRs, one commenter stated that there was no 
credible way to know or anticipate this information. Another commenter 
agreed, stating that there is no data and no way to predict the result 
of new or future technology on the character of fly ash because of the 
use of advanced pollution control technology. This commenter also notes 
that there is no current information available that has proven that 
advanced emission control technologies directly result in increased 
contaminant levels.
    One state commenter, however, stated that it expects the mercury 
content of coal fly ash to increase significantly in upcoming years. 
Consequently, this state commenter described its current efforts to 
remove a generic, pre-determined beneficial use determination for coal 
fly ash as an ingredient in

[[Page 15519]]

cement manufacturing. Additionally, another commenter stated that when 
using the CBO process to combust fly ash, essentially 100 percent of 
the mercury entering the CBO unit as feed ash leaves with the product 
ash.
    EPA's Response: EPA recognizes that it is difficult to anticipate 
what contaminant levels in coal fly ash will result from implementation 
of future technologies. We also believe, however, that it is important 
to be studying and anticipating the possible effects of new air 
pollution control (APC) technologies and configurations on the 
composition of CCRs to the greatest extent possible. As noted in the 
proposed rulemaking, EPA has begun publishing a series of reports to 
analyze this issue further.\148\ Based on these reports, EPA believes 
that changes to APCs at coal-fired power plants (e.g., addition of 
flue-gas desulfurization (FGD) systems, selective catalytic reduction, 
and activated carbon injection to capture mercury and other pollutants) 
are shifting mercury and other pollutants (e.g., metals) from the flue 
gas to fly ash, FGD gypsum, and other APC residues. The Agency will 
continue to research the possible effects of APCs on contaminant levels 
in fly ash. We note that under today's final rule, fly ash used as an 
ingredient would need to pass the contaminant legitimacy criterion for 
ingredients in order to not be considered a solid waste.\149\
---------------------------------------------------------------------------

    \148\ A series of reports have been and are being developed by 
U.S. EPA's Office of Research Development. To date, three documents 
have been finalized, including: (1) ``Characterization of Mercury-
Enriched Coal Combustion Residuals from Electric Utilities Using 
Enhanced Sorbents for Mercury Control.'' EPA-600/R-06/008. Feb. 
2006; (2) ``Characterization of Coal Combustion Residuals from 
Electric Utilities Using Wet Scrubbers for Multi-Pollutant 
Control.'' EPA-600/R-08/077. July 2008; and (3) ``Characterization 
of Coal Combustion Residuals from Electric Utilities Using Multi-
Pollutant Control Technology--Leaching and Characterization Data.'' 
EPA-600/R-09/151. December 2009. Ongoing work to complete this 
research includes: (1) Probabilistic assessment of the leaching 
source term for plausible CCR management scenarios, (2) Leach-XS 
Lite which is free software providing electronic access to data from 
this research, and (3) test methods for the Leaching Environmental 
Assessment Framework (LEAF).
    \149\ We also note that CCRs used as fuels must also meet the 
contaminant legitimacy criterion in order not to be considered a 
solid waste.
---------------------------------------------------------------------------

3. Foundry Sand
    Foundry sand is an industrial material generated by the metal-
casting industry, which uses the sand to form a physical mold used in 
the production of metal products. After multiple uses in castings, the 
sand becomes unsuitable for castings and is either disposed of in 
landfills or beneficially used in other applications, including use as 
an ingredient in the manufacture of Portland cement. The proposed rule 
classified foundry sand as not being a solid waste when used as an 
ingredient in a combustion unit, so long as it was not discarded in the 
first instance and satisfies the legitimacy criteria for ingredients. 
Whether foundry sand remains within the control of the generator or is 
transferred to another person is not in and of itself indicative of 
discard, as discussed previously. If foundry sand has been discarded, 
however, it would be considered a solid waste, unless it has been 
processed to produce a non-waste ingredient.
    Comment: We received a few comments regarding the characterization 
of foundry sand in the proposed rule. One commenter discussed how 
foundry sand is reused in the metal casting process as part of its 
argument that foundry sand should not be considered a solid waste, 
citing a 2001 letter from EPA which indicated that foundry sand reused 
on-site within the sand loop for mold making is part of a continuous 
industrial process and, therefore, not a solid waste.\150\ The same 
commenter also discussed how this sand can also be processed on-site in 
a thermal reclamation unit so that the sand can be returned to the 
mold- and core-making process. Commenters also discussed a variety of 
other beneficial uses for foundry sand.
---------------------------------------------------------------------------

    \150\ March 28, 2001 letter from Elizabeth Cotsworth, Director, 
EPA's Office of Solid Waste to Ms. Amy J. Blankenbiller, American 
Foundry Society. A copy of this letter can be found in the docket to 
today's rule.
---------------------------------------------------------------------------

    EPA's Response: The foundry sand uses evaluated as part of this 
rulemaking only include their use as an ingredient in combustion, such 
as cement kilns. We do not consider the reuse of foundry sand in the 
metal casting operations to constitute the use of a non-hazardous 
secondary material either as a fuel or ingredient in a combustion 
system, but rather as a type of beneficial use that is routinely 
employed by foundries in the production of metal products. As we stated 
in the referenced 2001 letter, foundry sands that are re-used on-site 
in the primary production process on a continuous basis in the sand 
loop are not solid wastes.\151\
---------------------------------------------------------------------------

    \151\ For more information on the reuse of foundry sands as 
molds, see ``Revisions to the Definition of Solid Waste'' Final Rule 
at 73 FR 64705. October 30, 2010.
---------------------------------------------------------------------------

    We note, however, that the 2001 letter cited by one commenter 
explicitly states that the Agency is not addressing the status of any 
thermal processing of sand in the letter. It appears that the purpose 
of ``processing'' foundry sand in a thermal reclamation unit is to 
destroy or dispose of the contaminants so that the foundry sand can be 
re-used. As such, the burning of foundry sand in a thermal reclamation 
unit is burning for discard and, thus, would be considered a solid 
waste if combusted in such a unit, which would be subject to the 
section 129 CAA standards. Regarding comments that discussed other 
beneficial uses of foundry sand, we again note that this rule is 
limited to situations where the non-hazardous secondary material is 
used as a fuel or ingredient in a combustion unit and, as such, other 
examples of using foundry sand in other applications is beyond the 
scope of this rulemaking.
4. Blast Furnace Slag/Steel Slag
    Blast furnace slag and steel furnace slag (steel slag) are by-
products of iron and steel manufacturing in both iron and steel mills. 
Slags are used as ingredients in cement clinker manufacturing, 
bituminous concrete, road building and construction, among other 
beneficial uses. The proposed rule indicated that blast furnace and 
steel slag used as ingredients in combustion units that are not 
discarded in the first instance would not be considered a solid waste 
provided they satisfy the legitimacy criteria for ingredients. Whether 
blast furnace and steel slag remains within the control of the 
generator or is transferred to another person is not in and of itself 
indicative of discard, as previously discussed. However, if blast 
furnace and steel slag are in fact discarded in the first instance, 
then they would have to be sufficiently processed into a non-waste 
ingredient that satisfies the legitimacy criteria in order to be 
classified as a non-waste ingredient. However, we solicited comments on 
the level of processing that these materials undergo before determining 
whether such operations would meet our definition of processing.
    Comment: We received few comments specifically on blast furnace and 
steel slag. One commenter discussed the use of blast furnace slag as a 
raw material substitute in the glass manufacturing process. Another 
commenter discussed how blast furnace and steel slag are typically 
returned to the iron and steel making processes and are not discarded 
in the first instance. The same commenter also discussed slag piles 
that were previously discarded and the processing that these non-
hazardous secondary materials go through. Specifically, such processing 
includes extraction, passing the slag through grizzlies, removal of 
iron bearing scrap using magnets, and then screening to

[[Page 15520]]

size the aggregate. Some commenters also asserted that because these 
slags are reused as part of a continuous process, the application of 
the legitimacy criteria are inappropriate.
    EPA's Response: We agree with the commenters that blast furnace and 
steel slag that are reused as an ingredient, either in the iron and 
steel making processes or in the manufacturing of glass, are not solid 
wastes provided they have not been discarded in the first instance and 
meet the legitimacy criteria. However, we disagree with the commenters, 
who argued that because they are reusing these slags in a ``continuous 
process,'' the application of the legitimacy criteria do not apply. EPA 
has a long-standing policy that the recycling of secondary materials, 
both hazardous and non-hazardous, including as part of a continuous 
industrial process, must be legitimate. The legitimacy provisions in 
today's rule are designed to distinguish between real recycling 
activities and ``sham'' recycling, an activity undertaken by an entity 
to avoid certain requirements, which in this case would be to avoid 
triggering the section 129 CAA requirements for solid waste 
incinerators. Because of the economic advantages in managing the non-
hazardous secondary material as a non-waste ingredient as opposed to a 
solid waste ingredient, there is an incentive for some handlers to 
claim they are recycling, when, in fact, they are conducting waste 
disposal. Therefore, blast furnace and steel slag used as an ingredient 
in a combustion unit, including as part of a continuous industrial 
process, must satisfy all of the legitimacy criteria in order to not be 
considered a solid waste.
    Regarding the description provided by the commenter on the extent 
of processing conducted on slags that have been previously discarded, 
it appears that this level of processing would meet our definition of 
processing, as the processing includes not only rigorous operations to 
extract the slag from the discard environment, but also the concerted 
removal of constituents through magnetic separation. Assuming the 
processed slag meets the legitimacy criteria for ingredients, the slag 
resulting from the processing operation would constitute a non-waste 
ingredient and would not be considered a solid waste.

D. Comments on Legitimacy Criteria for Fuels

    Non-hazardous secondary materials used as fuels in combustion units 
must meet the legitimacy criteria specified in Sec.  241.3(d)(1) in 
order to be considered a non-waste fuel. To meet the fuel legitimacy 
criteria, the non-hazardous secondary material must be managed as a 
valuable commodity, have a meaningful heating value and be used as a 
fuel in a combustion unit that recovers energy, and contain 
contaminants at levels comparable to or lower than those in traditional 
fuels which the combustion unit is designed to burn. Details on each 
criterion as outlined in the proposed rule and the comments received 
are discussed below.
1. Managed as a Valuable Commodity
    Under the proposed rule, non-hazardous secondary materials used as 
fuels must be managed as valuable commodities, including being stored 
for a reasonable time frame. Where there is an analogous fuel, the non-
hazardous secondary material used as a fuel must be managed in a manner 
consistent with the management of the analogous fuel or otherwise be 
adequately contained so as to prevent releases to the environment. 
Where there is no analogous fuel, the non-hazardous secondary material 
must be adequately contained so as to prevent releases to the 
environment. An ``analogous fuel'' is a traditional fuel for which the 
non-hazardous secondary material substitutes, and which serves the same 
function and has similar physical and chemical properties as the non-
hazardous secondary material. In addition to requesting comment on this 
criterion, the Agency solicited comment on whether it should define a 
specific ``reasonable'' time frame or range of time frames for storage 
as part of this criterion and on the time period or range of time 
periods that traditional fuels are typically held before they are used 
as a fuel. Comment was also solicited as to whether the ``contained'' 
standard, which is a general performance standard, provides sufficient 
direction to the regulated community or whether the Agency should 
include specific technical standards or limit the types of units in 
which such non-hazardous secondary materials may be managed, in order 
for them to be considered to be ``managed as a valuable commodity.''
    Comment: Recommendations on a reasonable time frame to determine if 
a non-hazardous secondary material is managed as a valuable commodity 
brought a range of responses. Many commented that a one-rule-fits-all 
policy for the reasonable time frame of storage of non-hazardous 
secondary materials is impractical and arbitrary, since the definition 
of what is ``reasonable'' will vary by secondary material, industry, 
and facility. Instead, they argued that facilities should be allowed to 
determine what constitutes the most reasonable time frame, based on 
what is most economical. The most appropriate time frame will vary 
depending upon the non-hazardous secondary material and the industry 
and may reflect the rate at which the non-hazardous secondary material 
at issue is generated. If a non-hazardous secondary material is 
generated continuously, then use and storage is predictable and can be 
kept consistent. However, some non-hazardous secondary materials are 
stored for long periods and may be removed only once or twice per year.
    While many commenters rejected the idea of a specific storage time 
limit, a limited number were supportive of such an approach. For 
example, one commenter recommended that no more than 180 days of 
inventory using the design process rate be stored at any given time and 
no more than 49 percent of the inventory be in storage for more than 2 
years. These time frames allow the energy/material recovery facility a 
reasonable amount of time to make arrangements to establish, buy, and 
sell the non-hazardous secondary material. Other commenters recommended 
a time frame of one year, consistent with the hazardous waste 
requirements for speculative accumulation.
    EPA's Response: After further evaluation, EPA agrees with the 
majority of commenters that ``reasonable time frame'' should not be 
specifically defined as such time frames vary according to the non-
hazardous secondary material and industry involved. The ``reasonable 
time frame'' is an appropriate standard considering the large number of 
non-hazardous materials that may be subject to this rule, and is 
flexible enough to allow accumulation of these materials to be cost-
effective. In addition, persons will need to document in their records 
the ``reasonable time frame'' selected and the basis for such time 
frames. (See Section VII.I for further discussion on documentation of 
legitimacy decisions.) The Agency did not receive information that such 
flexibility would lead to non-hazardous secondary materials being over-
accumulated.
    Comment: The Agency solicited comment on this aspect of this 
criterion, including whether a ``contained'' standard, which is a 
general performance standard, provides sufficient direction to the 
regulated community. Other approaches that EPA considered were: (1) 
Providing a more specific definition of ``contained'' in the rules, or 
(2) including specific technical standards or (3) limiting the types of 
units in which such non-hazardous secondary materials may be managed, 
in

[[Page 15521]]

order for them to be considered to be ``managed as a valuable 
commodity.''
    Several commenters recommended that the definition of ``contained'' 
be clarified and to include the concept of maintaining the 
recyclability of the non-hazardous secondary material. In contrast, 
other commenters stated that the proposed ``contained'' standard 
provides sufficient direction to the regulated community and that the 
definition of ``contained'' in the proposed rule adequately describes 
how and when a non-hazardous secondary material will be considered 
``contained.'' They asserted that industry will use this definition as 
a general guideline for the safe handling and storage of non-hazardous 
secondary materials and that further ``specific'' definitions or other 
approaches would not be beneficial since the current guidance provides 
clear and sensible direction.
    Others commented that the ``contained'' standard is inadequate to 
determine whether a material is ``valuable'' or discarded. They argue 
that the standard does not explain what adequately contained means nor 
does it account for differences in the necessary level of containment 
for different materials.
    EPA's Response: The Agency recognizes that the ``contained'' 
concept can be somewhat difficult to grasp, but also notes that the 
``contained'' standard is to be used only in those situations where 
there is not an analogous fuel product. That is, if there is an 
analogous fuel product to the non-hazardous secondary material, then 
the non-hazardous secondary material must be stored in a similar manner 
and, since it is indeed a valuable material, EPA could reasonably 
expect it to be contained so as not to be lost to the environment. In 
EPA's view, a recycler will value non-hazardous secondary materials 
that are contributing fuel value to its process or product and, 
therefore, will manage those non-hazardous secondary materials in a 
manner consistent with how it manages a valuable fuel. If, on the other 
hand, the recycler does not manage the non-hazardous secondary 
materials as it would a valuable fuel, that behavior may indicate that 
the non-hazardous secondary materials may not be burned as fuel, but 
rather released into the environment and discarded. This criterion's 
primary focus is on storage in a manner consistent with the analogous 
valuable raw material.
    However, EPA realizes that in some processes, there is not a raw 
material that can be called ``analogous'' and, in order to allow 
facilities with those processes to evaluate the legitimacy of their 
recycling, EPA added the requirement that the materials be 
``contained'' if there is no analogous product to achieve the same 
relative standard of secondary materials being managed as valuable 
commodities. Furthermore, EPA has explained what it means to be 
contained in today's preamble and includes that definition in the 
regulatory text. Specifically, a non-hazardous secondary material is 
``adequately contained'' if it is stored in a manner that adequately 
prevents releases or other hazards to human health and the environment, 
considering the nature and toxicity of the secondary material. Thus, we 
are finalizing the contained standard, as proposed.
    Nevertheless, the Agency recognizes that providing greater clarity 
to this definition may be useful to the regulated community and the 
public. To this end, EPA has agreed to issue a proposed rule by June 
2011 on the definition of solid waste under the hazardous waste 
provisions of RCRA (see Section VIII.C for additional details). One of 
the issues that EPA will be evaluating as part of that proposal is the 
``contained'' standard, as promulgated in that rule.\152\
---------------------------------------------------------------------------

    \152\ In a Federal Register notice where EPA announced a public 
meeting on the Definition of Solid Waste under the hazardous waste 
provisions of RCRA, we specifically identified the definition of 
``contained'' as one of the provisions that EPA was further 
evaluating. (74 FR 25202, May 27, 2009.) Among other things, the 
Agency noted that it could ``address this issue by setting specific 
performance or storage standards as a condition of the transfer-
based exclusion. Finally, EPA could address this concern by 
developing more detailed guidance on what might constitute 
``contained,'' for different types of units or management 
practices.''
---------------------------------------------------------------------------

    Comment: Several commenters expressed uncertainty about the meaning 
of ``valuable commodity,'' noting that the definition of valuable 
commodity should be clarified, or requested that EPA specify clear 
criteria for determining whether a non-hazardous secondary material is 
managed as a valuable commodity.
    EPA's Response: Given the nature of this legitimacy criterion and 
the need to apply it to a variety of non-hazardous secondary materials 
that are managed in various ways, we have determined that it is not 
appropriate or practicable for EPA to develop specific technical 
standards. The Agency is using this criterion: Materials must be 
managed as analogous raw materials or, if there are no analogous raw 
materials, the materials must be adequately contained; contained is 
defined to mean ``the non-hazardous secondary material is stored in a 
manner that adequately prevents releases or other hazards to human 
health and the environment considering the nature and toxicity of the 
non-hazardous secondary material.'' This definition provides ample 
direction and guidance, as a number of commenters argued, while at the 
same time provides the flexibility needed since this criterion will 
apply to a large number of non-hazardous secondary materials and 
industries. As an example, resinated wood residuals are adequately 
contained since they are pneumatically transferred through enclosed 
ducts, stored temporarily in a fuel silo, and then utilized in boilers 
to provide heat to hot presses and dryers (see Section V.B.6).
    Regarding the term ``valuable commodity,'' EPA's intent with this 
criterion is that non-hazardous secondary materials are managed in the 
same manner as materials that have been purchased or obtained at some 
cost, just as fuels or raw materials are. We expect non-hazardous 
secondary materials that are used as fuels or ingredients to be managed 
effectively and efficiently in order that their full value to the 
combustion process is realized. The standard for management of the non-
hazardous secondary materials is reasonable for helping assess whether 
disposal in the guise of normal manufacturing is occurring. As an 
example, scrap tires collected under the oversight of established tire 
collection programs (see Section VII.C) would generally be considered 
managed as a valuable commodity. These programs promote the beneficial 
use of scrap tires and form established collection infrastructures 
through coordination with tire dealerships, haulers, processors and end 
users. On the other hand, scrap tires that are managed in waste tire 
piles would not be considered to be managed as a valuable commodity 
because they are stored for long periods of time without any 
safeguards.
    Comments: One commenter suggested that the tests to determine if a 
material is managed as a valuable commodity (determining if it is 
managed consistent with the management of an analogous ingredient and 
used within a reasonable time frame) are irrelevant because solid 
wastes are managed in ways similar to commodities (i.e., solid wastes 
and solid commodities are stored in piles on the ground, liquid wastes 
and commodities are stored in tanks and barrels). Another commenter 
asked that EPA provide clarity on managing a non-hazardous secondary 
material as a valuable commodity and the kinds of practices a facility 
must implement to demonstrate that it is managing the non-hazardous 
secondary material as a valuable commodity.

[[Page 15522]]

    EPA's Response: We disagree with the commenter that this criterion 
is irrelevant because we cannot determine (nor does our experience 
suggest) that solid wastes and commodities are always managed in a 
similar manner. Commodities, on the one hand, are handled specifically 
to prevent the loss of material because of its value. Solid wastes, on 
the other hand, when they are not highly regarded for a beneficial 
reuse, are often not managed in a way that minimizes the release of the 
material itself, but more in a way that protects the surrounding 
environment from the material. However, we also know that solid wastes, 
if not properly managed, have created damages to the environment. For 
example, the over-accumulation of scrap tires is well known and has 
resulted in massive piles of discarded tires that have contributed to 
the overall solid waste management problem due to the threat of fires, 
such as the Rhinehart Tire Fire Dump,\153\ and because they provide an 
ideal breeding ground for mosquitoes and rodents.
---------------------------------------------------------------------------

    \153\ See 51 FR 21054, June 10, 1986.
---------------------------------------------------------------------------

    As discussed previously, given the nature of this legitimacy 
criterion and the need to apply it to a variety of non-hazardous 
secondary materials that are managed in various ways, we are not 
identifying specific standards or practices for managing a material as 
a valuable commodity beyond those examples for resinated wood and scrap 
tires outlined above. If any material, whether a non-hazardous 
secondary material or a raw material commodity, is mis-managed in a 
manner that releases significant material to the environment, a waste 
problem may result. Although the raw material commodity is not subject 
to the RCRA definition of solid waste, the released material may be. In 
this rule, where the Agency is dealing with secondary materials that 
could either be wastes or commodities, if non-hazardous secondary 
material is being released to the environment, it would not be 
considered a commodity material. All site-specific practices designed 
to meet the legitimacy criteria must be documented as outlined in 
Section VII.I.
    Thus, the final rule will retain the proposed approach that non-
hazardous secondary materials used as a fuel must be managed in a 
manner consistent with the management of an analogous fuel (where there 
is an analogous fuel), or otherwise be adequately contained so as to 
prevent releases to the environment.
2. Meaningful Heating Value and Use as a Fuel
    Under the proposed rule, the non-hazardous secondary material must 
have a meaningful heating value and be used as a fuel in a combustion 
unit that recovers energy. In addition to requesting comment on this 
criterion, the Agency also requested comment on whether it should 
promulgate a bright-line test for determining what is considered a 
meaningful heating value in an effort to provide greater certainty to 
both the regulated community and regulatory officials. For example, the 
Agency could establish 5,000 Btu/lb or some other value as the bright-
line test. In addition, EPA requested comment on whether we should 
identify a Btu/lb cutoff below which the Agency would declare that the 
non-hazardous secondary material is being burned for destruction as 
opposed to energy recovery. Under this approach, non-hazardous 
secondary materials between this lower level and 5,000 Btu/lb (assuming 
there is a difference) could pass this criterion provided the facility 
demonstrates the energy recovery unit can cost-effectively recover 
meaningful energy from the non-hazardous secondary materials used as 
fuels; below this lower level, all non-hazardous secondary materials 
that are burned in a combustion unit would be considered to be burned 
for destruction and thus a solid waste if combusted.
    Comment: Many comments related to the establishment of a Btu 
threshold claimed that any heating value is ``meaningful.'' Other 
commenters expressed opposition to the imposition of a bright-line 
test, with one commenter arguing that inflexible Btu/lb cutoffs, as 
well as ``benchmark'' values could prevent utilities and other 
industries from using alternative fuels to recover energy. Another 
commenter echoed opposition to a bright-line test since the use of a 
non-hazardous secondary material with any heating value reduces the use 
of fossil fuels, indicating that any value for the bright line test 
would be arbitrary and would result in costly impacts to current 
production systems and would stifle technological advancements in 
combustion unit designs.
    Other commenters stated that a minimum heating value, below which 
the non-hazardous secondary material would not be considered to have a 
meaningful heating value will restrict the marketplace, hamper advances 
and innovation in energy recovery, and add costs where they are not 
justified from an environmental standpoint. If EPA insists on a minimum 
heating value, they recommend including a cost effectiveness provision 
in the rule that would enable facilities to demonstrate the value of 
using a material below this threshold.
    Commenters from state agencies differed somewhat in their positions 
regarding the 5,000 Btu/lb threshold. Two state agencies requested that 
EPA lower the minimum Btu threshold from 5,000 Btu/lb to 4,000 Btu/lb, 
but another State agency supports the 5,000 Btu/lb threshold. Still 
another state commenter recommends that if EPA establishes a lower 
threshold, below which the non-hazardous secondary material would not 
be considered to have a meaningful heating value, that this value be 
based on innovation in energy recovery technologies from secondary 
materials with lower heating values. Due to the continuing evolution of 
energy recovery technologies, this commenter argues that EPA should 
include a ``safe harbor'' cut-off level in the rule with a provision 
for case-by-case approvals based on the most current proven technology. 
Another commenter recommends that if such a lower threshold is 
established, that it be based on the high moisture content of wood 
products that prevent these materials from reaching the minimum 5,000 
Btu/lb threshold.
    EPA's Response: After further evaluation, the Agency agrees with 
commenters that imposition of a strict bright-line test for minimum 
heating value could hamper advances and innovation in energy recovery, 
and add costs where they are not justified. The Agency also did not 
receive persuasive information that a lower than 5,000 Btu/lb 
threshold, or entirely eliminating the threshold, would be an 
appropriate measure in establishing this legitimacy criterion.
    As discussed in the proposed rule, the concept of a 5,000 Btu/lb 
benchmark was addressed in the ``comparable fuels'' rule (63 FR 33781) 
for hazardous secondary materials. EPA had previously stated that 
industrial furnaces (i.e., cement kilns and industrial boilers) burning 
hazardous wastes with an energy value greater than 5,000 Btu/lb may 
generally be said to be burning for energy recovery; however, hazardous 
wastes with a lower Btu content could conceivably be burned for energy 
recovery due to the devices' general efficiency of combustion. At the 
same time, EPA is trying to avoid sham situations where non-hazardous 
secondary materials with low Btu value are burned for destruction in 
lieu of proper disposal.
    Thus, the 5,000 Btu/lb limit is a general guideline, which is being 
adopted in this final rule, but allows

[[Page 15523]]

some flexibility. To allow such flexibility for facilities with energy 
recovery units that use non-hazardous secondary materials as fuels with 
an energy content lower than 5,000 Btu/lb, as fired, a person may 
demonstrate (see Section VII.I Determining That Non-Hazardous Secondary 
Material Meets the Legitimacy Criteria) that a meaningful heating value 
is derived from the non-hazardous secondary material if the energy 
recovery unit can cost-effectively recover meaningful energy from the 
non-hazardous secondary materials used as fuels. Factors that may be 
appropriate in determining whether an energy recovery unit can cost-
effectively recover energy from the non-hazardous secondary material 
include, but are not limited to, whether the facility encounters a cost 
savings due to not having to purchase significant amounts of 
traditional fuels they otherwise would need, whether they are 
purchasing the non-hazardous secondary material to use as a fuel, 
whether the non-hazardous secondary material they are burning can self-
sustain combustion, and whether their operation produces energy that is 
sold for a profit (e.g., a utility boiler that is dedicated to burning 
a specific type of non-hazardous secondary material that is below 5,000 
Btu/lb could show that their operation produces electricity that is 
sold for a profit).
3. Have Contaminants at Comparable Levels or Lower Than Traditional 
Fuels
    Under the proposed rule, non-hazardous secondary materials must 
contain contaminants at levels comparable to or lower than those in 
traditional fuels which the combustion unit is designed to burn. Such 
comparison is to be based on a direct comparison of the contaminant 
levels in the non-hazardous secondary material to the traditional fuel 
itself. Contaminants were defined under the proposal as any constituent 
in non-hazardous secondary materials that will result in emissions of 
the air pollutants identified in CAA section 112(b), and the nine 
pollutants listed under CAA section 129(a)(4) when such secondary 
materials are burned as a fuel or used as an ingredient, including 
those constituents that could generate products of incomplete 
combustion.
    The Agency specifically solicited comments on how EPA should 
interpret the ``comparable to or lower than'' standard. For example, 
should comparable mean the same as or lower, taking into consideration 
natural variations in sampling events? Also, instead of requiring that 
contaminant levels in non-hazardous secondary materials be comparable 
to traditional fuels, the Agency also requested comment as to whether 
to adopt a ``not significantly higher'' standard--that is, contaminants 
in non-hazardous secondary material used as a fuel in combustion units 
could not be significantly higher in concentration than contaminants in 
traditional fuel products.
    The Agency also solicited comment on whether the comparison should 
be based upon the total level of contaminants, or on the level of 
contaminants per Btu of heat value, whether the list of contaminants 
should be narrower or broader, or whether the Agency should look at 
other possible lists. For example, since the Agency is determining 
which non-hazardous secondary materials are considered solid waste 
under RCRA, the Agency could consider the list of hazardous 
constituents promulgated in Appendix VIII of 40 CFR part 261, which is 
a list of hazardous constituents that have been shown in scientific 
studies to have toxic, carcinogenic, mutagenic or teratogenic effects 
on humans and other life forms. Finally, comment was solicited as to 
whether the comparison should be based on an established ``bright 
line'' level of contaminants to those contained in traditional fuels.
    Comment: Several commenters addressed the ``comparable'' standard 
and the ``not significantly higher'' standard. Many of these comments 
stated that ``comparable'' should be understood to mean ``similar, 
higher or lower,'' not ``equal'' or the ``same.'' Commenters also 
requested that EPA clarify the definition of ``comparable'' and 
specifically requested that EPA explain the concept in greater detail. 
Of the comments that expressed a preference for either the 
``comparable'' or ``not significantly higher'' standard, most preferred 
the latter, stating that it is more consistent with the approach used 
by EPA for hazardous waste in the 2008 DSW Final Rule and would not 
discourage beneficial use as much as the ``comparable'' standard. Two 
other commenters argued that instead of using a ``not significantly 
higher'' standard, the total environmental impact of using a non-
hazardous material should be considered. For example, a non-hazardous 
secondary material may be lower in all contaminants, except one that 
may be considered higher than ``comparable,'' but the overall impact is 
beneficial in terms of less total contaminants and improved emissions.
    Other commenters offered suggestions on how to interpret 
``comparable,'' but also on how to implement the ``comparable'' 
standard. For example, ``comparable'' should refer to the traditional 
fuel that would be used if the non-hazardous secondary material was not 
being burned or allowed to be burned. Another commenter believed that 
the ``comparable'' standard should only be used as an initial step to 
determine if the material is a legitimate fuel. For example, where a 
material has high levels of a low-impact contaminant or a contaminant 
is controlled by the emission control device in the incineration unit, 
there should be a process to see whether the material can still be 
considered a fuel. Similarly, another commenter also recommended using 
the ``comparable'' standard as an initial determination step, with the 
``not significantly higher'' standard being used as a secondary 
determination step in some situations. These situations would primarily 
be when there is a low-impact contaminant without environmental, 
health, or product quality impacts present in concentrations above 
those found in traditional raw materials.
    EPA's Response: EPA has retained the legitimacy criterion that non-
hazardous secondary materials used as a fuel must contain contaminants 
at levels that are comparable to or lower than the concentrations found 
in traditional fuels which the combustion unit is designed to burn. The 
``comparable to or lower than'' standard means any contaminants present 
in non-hazardous secondary materials that are within a small acceptable 
range, or lower than, the contaminant in the traditional fuel. We have 
decided to select this standard since we have determined it more 
closely reflects EPA's intent with respect to this legitimacy criterion 
than the phrase ``not significantly higher,'' which suggests that 
contaminants can be present in non-hazardous secondary materials at 
levels that could reflect discard, especially since we are addressing 
non-hazardous secondary materials that are being combusted.
    EPA recognizes that combustion is an inherently destructive 
process, even when energy is recovered. If a non-hazardous secondary 
material contains contaminants that are not comparable to those found 
in traditional fuels, and those contaminants are related to pollutants 
that are of concern at solid waste combustion units, then it follows 
that discard is occurring. The contaminants in these cases could not be 
considered a normal part of a legitimate fuel and are being discarded, 
either through destruction in the combustion unit or through releases 
into the air. Units that burn such materials are therefore most 
appropriately

[[Page 15524]]

regulated under the CAA section 129 standards for solid waste 
incinerators.
    In response to those commenters requesting further guidance on how 
to interpret the ``comparable to or lower than'' standard, the 
following examples are provided.
    <bullet> A non-hazardous secondary material contains 500 parts per 
million (ppm) of lead, while the traditional fuel that would or could 
be burned in the combustion unit contains 475 ppm of lead. These levels 
would be considered comparable (since it falls within a small 
acceptable range) and thus, would meet this factor. If, on the other 
hand, the level of lead in the non-hazardous secondary material was 
1,000 ppm, these levels would not be comparable and it may indicate 
that the non-hazardous secondary material was being burned to dispose 
of the material and that the activity is sham recycling.
    <bullet> A traditional fuel contains no detectable amounts of 
barium, while the non-hazardous secondary material contains a minimal 
amount of barium (e.g., 1 ppm). In this situation, the levels would be 
considered comparable since it falls within a small acceptable range. 
If, however, the barium were at much higher levels in the non-hazardous 
secondary material (such as 50 ppm), the levels would not be comparable 
and it may indicate discard of the barium and sham recycling.
    EPA does not agree with those commenters who suggest that in 
evaluating the constituent concentrations in non-hazardous secondary 
materials, that the total environmental impact should be considered, 
rather than comparing each constituent to levels found in traditional 
fuels. Under such an approach, a non-hazardous secondary material may 
be judged not to present an environmental problem when assessing all 
contaminants together, although significantly higher levels for one or 
more contaminants may be present such that they are destroyed or 
discarded by means of combustion. This, we have determined, is 
inconsistent with the concept of discard under the statute, since it 
would allow a solid waste to be subject to the CAA section 112 
standards, even though the non-hazardous secondary material has been 
discarded.
    We also disagree with commenters who believe that the comparable 
standard should only be used as an initial step to determine if the 
material is a legitimate fuel, particularly in those situations 
involving low-impact contaminants. Today's rule does not differentiate 
low-impact contaminants from other contaminants, since such an 
assessment would require a risk analysis of each chemical. We believe 
that ``comparable'' is protective because it ensures that no more 
contaminants than those found in traditional fuels are released into 
the environment. EPA has already determined that these contaminants 
pose a threat to human health and the environment. Therefore, the 
Agency will finalize the proposed approach of evaluating all of the 
contaminants to ensure that they are present in the non-hazardous 
secondary material at levels that are comparable to (or lower than) the 
concentrations found in traditional fuels that the combustion unit is 
designed to burn.
    Comments: Many comments discussed whether contaminants, and their 
concentrations in the non-hazardous secondary material, should have any 
bearing on the legitimacy determination for a given non-hazardous 
secondary material. Many of these commenters expressed opposition to 
using contaminants, and their concentrations in the non-hazardous 
secondary material, as a basis for legitimacy decisions. Some of these 
commenters argued that comparing contaminant levels would impose an 
unnecessary burden on emissions sources that are already stringently 
controlled under the CAA regulations. Other comments indicated that it 
would be more appropriate to compare emissions profiles from the 
combustion units rather than contaminant levels in the non-hazardous 
secondary materials themselves using the CAA section 129 pollutant list 
and the 112 HAP list. Referring to existing stack testing data and the 
risk assessment performed by the cement industry, the commenter states 
that ``it is accepted that organics in fuels do not survive intact to 
exit a cement kiln or cause harm to human health and the environment. 
In addition, stack testing comparing different fuels (tires, waste-
derived fuel, coal, coke, etc.) on a single kiln system under normal 
operating conditions supports the same conclusion.''
    States offered a range of comments on this issue. One state 
contends that using the list of contaminants in CAA section 129(a)(4) 
is inadequate because it does not address all heavy metals or organic 
hazardous air pollutants. Another commenter argued that while section 
112 of the CAA and Appendix VIII of 40 CFR part 261 would be 
impractical if parameter testing was required, the Appendix VIII list 
of constituents in 40 CFR part 261 would serve as a useful starting 
point for evaluating different issues related to those contaminants.
    Other commenters suggested that EPA narrow the list of contaminants 
considered in the legitimacy criteria. One commenter recommends that 
those constituents that contribute to the secondary material's value as 
a fuel be excluded from the contaminant list. Another commenter states 
that the list of contaminants should be limited to only the subset of 
HAP and pollutants listed in CAA section 129 that have the potential of 
being present in the emissions from burning the non-hazardous secondary 
materials. Broadening the list and requiring the evaluation and 
analysis of more constituents would be unnecessary and a waste of 
resources. The commenter, therefore, recommends that the list of 
contaminants be limited to only those pollutants found in section 112 
of the CAA. Furthermore, this commenter argued that organic HAP do not 
need to be included in the legitimacy criteria because the rule is 
intended to define which non-hazardous secondary materials are non-
wastes, as opposed to which HAP emission standards should be developed. 
The commenter further notes that the Boiler and Process Heater MACT 
will ensure that the organic HAP are properly controlled. Finally, 
although not specifically commenting on the legitimacy criterion for 
contaminants in the contaminant definition, the Agency received several 
comments that pathogens are present in both manure and sewage sludge, 
and received specific monitoring data confirming the presence of 
pathogens in certain varieties of chicken litter.
    EPA's Response: EPA is defining the term ``contaminant,'' as 
constituents that will result in emissions of the air pollutants 
identified in CAA section 112(b) and the nine pollutants listed under 
CAA section 129(a)(4) when such non-hazardous secondary materials are 
burned as a fuel or used as ingredients, including those constituents 
that could generate products of incomplete combustion. EPA has decided 
that these constituents are appropriate for the comparisons required by 
this criterion because these are the contaminants identified in the CAA 
that are to be considered by EPA in evaluating which contaminants to 
establish emission standards. Thus, we disagree with those commenters 
who believe that the list should be narrowed, including the commenter 
who argued that those contaminants that contribute to the material's 
value as a fuel be excluded from the list of contaminants, as well as 
all organic HAP since they will be burned during the combustion 
process. Because EPA is to consider these contaminants as part of the 
CAA regulations, they should also be

[[Page 15525]]

considered in determining whether non-hazardous secondary materials 
that contain these contaminants are being discarded, and thus, subject 
to the section 129 CAA standards.
    We also disagree with the commenters who argue that the list is not 
broad enough because it does not address all heavy metals, organic 
hazardous pollutants or pathogens for the same reasons described 
above--that is, we should be focusing, in general, on those 
contaminants identified in the CAA that EPA will be evaluating to 
determine whether to establish emission standards. The Agency also 
disagrees that Appendix VIII to 40 CFR part 261 is an appropriate list 
for determining which contaminants to consider for the purposes of 
defining non-hazardous solid waste, since the purpose of Appendix VIII 
is to be used by the Agency to make hazardous waste listing 
determinations (see 40 CFR 261.11(a)(3)) and the chemicals in Appendix 
VIII would not apply to non-hazardous wastes.
    Finally, we disagree with those commenters who argue that we should 
not be considering the contaminants in the non-hazardous secondary 
materials themselves as part of the legitimacy criteria, but, if 
considered necessary, compare the emissions profiles from the 
combustion units. In order for a non-hazardous secondary material to be 
considered a non-waste fuel, it must be similar in composition, whereas 
comparing the emissions profiles between combustion units that burn 
traditional fuels and non-hazardous secondary materials only tells one 
how well the combustion unit is operating, not what the secondary 
material is that is being burned. Thus, while the Agency recognizes 
that such data can be useful in determining whether or not burning such 
secondary materials present a risk to human health or the environment, 
such a concept says nothing in terms of whether or not the non-
hazardous secondary material is a legitimate non-waste commodity fuel.
    Moreover, when contaminants have no fuel value, and are being 
destroyed, they do not have an energy recovery intention. Burning is an 
inherently destructive process, even if there is a beneficial use. 
Therefore, the Agency needs to be cautious in evaluating whether 
burning a non-hazardous material for energy recovery, also has a waste 
destroying intention.
    Comment: Some commenters believe the approach of measuring 
contaminants per Btu was more scientifically sound, while one commenter 
argued that comparisons of contaminants should focus on the loading of 
contaminants to the process rather than concentrations, which they 
believe is similar to measuring contaminants per Btu in ingredients. 
For example, the commenter indicates that coal fly ash is utilized in 
place of bauxite in cement manufacturing. Because coal fly ash may 
contain only 20 percent of the alumina found in bauxite, the process 
requires five times more coal fly ash than alumina for a given quantity 
of cement product. Under this scenario, even if coal fly ash contains a 
mercury concentration comparable to bauxite, the loading of mercury to 
the combustion unit would be five times higher than that if traditional 
feedstock was used. The commenter maintains that the rule should be 
changed to require a comparison of loading rates rather than 
concentrations.
    Another commenter argues that any comparison between contaminant 
levels in the non-hazardous secondary material and contaminant levels 
in traditional fuels should consider the entire characteristics of the 
material. Some non-hazardous secondary materials may have high 
concentrations of some constituents and low concentrations of others, 
relative to traditional fuels. Thus, decisions regarding legitimacy 
will not always be clear cut and the overall characteristics need to be 
considered qualitatively. In addition, given the variability of 
constituent concentrations in traditional fuels and non-hazardous 
secondary materials, solid waste determinations which requires a 
comparison, should allow for such variability in a reasonable manner. 
The commenter supports the method that looks at constituent 
concentrations (e.g., percent by weight or ppm by weight) as a 
reasonable approach that limits the impact of variability, whereas 
using lb/MMBtu compounds the impacts of variability. Since either the 
Boiler/Process Heater MACT or CISWI rule will adequately limit 
emissions from combustion of non-hazardous secondary materials, there 
is no justification for evaluating contaminant comparisons on a heating 
value basis.
    EPA's Response: The Agency agrees with commenters that a lb/MMBtu 
approach can serve to normalize contaminant concentration comparisons 
across a range of material loading scenarios. At this time, however, 
the Agency lacks sufficient lb/MMBtu information for all non-hazardous 
secondary materials under consideration. Accordingly, this approach is 
not being adopted for today's final rule. As guidance is developed for 
implementation, a lb/MMBtu approach may be further considered. Thus, in 
today's final rule, the assessment of whether the non-hazardous 
secondary material has contaminants comparable to traditional fuel 
products is to be made by directly comparing the numerical contaminant 
levels in the non-hazardous secondary material to the contaminant 
levels in traditional fuels based on the total level of contaminants, 
and not on contaminants per Btu of heat value. This approach is most 
appropriate because contaminant information is readily available to the 
respondent.
    The Agency recognizes that variability in constituent levels exist 
in non-hazardous secondary materials and traditional fuels, generally 
based on the source and geographic region that the material came from. 
Thus, we agree that such considerations can be taken into account in a 
reasonable manner when comparing constituent levels in the non-
hazardous secondary material and the traditional fuel.
    We disagree with the commenters that comparison between contaminant 
levels in the non-hazardous secondary material and contaminant levels 
in traditional fuels should consider the entire characteristics of the 
material. Such an approach would suggest that contaminants can be 
present in the non-hazardous secondary material at levels that are not 
comparable in concentration to those contained in traditional fuel 
products, which could result in contaminants being combusted as a means 
of discarding them.
    Comment: Commenters disagreed about whether to implement a bright-
line test for contaminants. One commenter supports the delineation of 
bright-line contaminant levels that would apply regardless of the type 
of traditional fuel burned, while another commenter maintains that it 
would not be appropriate to compare contaminant concentrations between 
non-hazardous secondary materials and traditional fuels based on a 
bright line approach. Another commenter states that the need to 
classify non-hazardous secondary materials as waste or non-waste may 
dictate the need for a bright line test rather than emissions testing 
from combustion units, given that emissions controls and limits are 
established in permits. Other commenters also disagreed with the 
establishment of a bright-line level comparison, with one commenter 
objecting to the establishment of any other contaminant level 
comparison, arguing that such a comparison would provide no benefit to 
the regulated community and arbitrarily assigns levels of contaminants 
without

[[Page 15526]]

accounting for differences in materials and/or facilities.
    EPA's Response: EPA recognizes that the ``bright line'' approach 
may provide greater clarity and predictability to the regulated 
community, but that in both cases, the Agency would have to establish a 
line for what is acceptable and the line may either be somewhat 
arbitrary or it may exclude materials that, if carefully considered, 
should be considered legitimate. Based on the comments received on 
those approaches, we are convinced that they would not be workable. On 
the other hand, case-by-case comparisons by each person evaluating this 
legitimacy criterion can take into account the wide variety of non-
hazardous secondary materials, as well as the appropriate traditional 
fuel to which it is being compared. Because this factor must apply to 
various different recycling activities and industries, the case-by-case 
approach is most appropriate.

E. Comments on Legitimacy Criteria for Ingredients

    In the proposed rule, non-hazardous secondary materials used as an 
ingredient in combustion units must meet the legitimacy criteria 
specified in 241.3(d)(2) in order to be considered a non-waste 
ingredient. To meet the ingredient legitimacy criteria, the non-
hazardous secondary material must be handled as a valuable commodity, 
must provide a useful contribution to the production or manufacturing 
process, must be used to produce a valuable product or intermediate, 
and must result in products that contain contaminants at levels that 
are comparable in concentration to or lower than those found in 
traditional products that are manufactured without non-hazardous 
secondary materials.
1. Managed as Valuable Commodities
    Because the criterion ``managing as a valuable commodity'' for non-
hazardous secondary materials used as an ingredient (storage not 
exceeding reasonable time frames, manage it consistent with an 
analogous ingredient or adequately contain to prevent release) are the 
same as those for non-hazardous secondary materials used as a fuel, EPA 
indicated that if changes are made to the criteria with respect to 
those non-hazardous secondary materials that are used as fuels, we 
would likewise make the same changes with respect to those non-
hazardous secondary materials used as ingredients. We did solicit 
comments, however, on whether using these criteria for managing as 
valuable commodities (similar to the type of criteria for fuels) are 
appropriate for ingredients.
    Comment: As discussed in the section on legitimacy criteria for 
fuels, one commenter suggested that the criterion that a non-hazardous 
secondary material be managed as a valuable commodity (determining if 
it is managed consistent with the management of an analogous ingredient 
and used within a reasonable time frame) is irrelevant because solid 
wastes are managed in ways similar to commodities (i.e., solid wastes 
and solid commodities are stored in piles on the ground, liquid wastes 
and commodities are stored in tanks and barrels). Another commenter 
requested that EPA provide clarity on managing a non-hazardous 
secondary material as a valuable commodity and the kinds of practices a 
facility must implement to demonstrate that it is managing the material 
as a valuable commodity.
    EPA's Response: The final rule will retain the proposed approach 
that this legitimacy criterion for non-hazardous secondary material 
used as ingredients (i.e., that they must be managed as valuable 
commodities) will be consistent with that of fuels. As we noted 
previously, we disagree with the commenter that solid wastes and 
commodities are always managed in a similar manner. That is, 
commodities, on the one hand, are handled specifically to prevent the 
loss of the material because of its value. Solid wastes, on the other 
hand, when they are not highly regarded for a beneficial reuse, are 
often not managed in a way that minimizes the release of the material 
itself, but more in a way that protects the surrounding environment 
from the material. However, we also know that solid wastes, if not 
properly managed have created damages to the environment. Thus, non-
hazardous secondary materials used as an ingredient must be managed in 
a manner consistent with the management of an analogous ingredient 
(where there is an analogous ingredient), or otherwise be adequately 
contained so as to prevent releases to the environment. For example, 
non-hazardous secondary materials that are used as ingredients in 
cement kilns must be managed in a manner consistent with the analogous 
ingredients that these secondary materials are replacing. An 
``analogous ingredient'' is defined as a manufacturing process 
ingredient for which the secondary material substitutes and which 
serves the same function and has similar physical and chemical 
properties as the non-hazardous secondary material. Where there is no 
analogous ingredient, the non-hazardous secondary material must be 
adequately contained so as to prevent releases to the environment. 
However, the Agency may provide further guidance on what we consider to 
be managed as a valuable commodity.
2. Useful Contribution
    EPA received comments on the five ways the proposed rule states 
that a non-hazardous secondary material can add value and usefully 
contribute to a recycling process (based on criteria initially 
developed for hazardous secondary materials): (i) The non-hazardous 
secondary material contributes valuable ingredients to a product or 
intermediate; or (ii) replaces a catalyst or carrier in the recycling 
process; or (iii) is the source of a valuable constituent recovered in 
the recycling process; or (iv) is recovered or regenerated by the 
recycling process; or (v) is used as an effective substitute for a 
commercial product. The proposed rule stated that we believe that only 
items (i) and (v) are specifically relevant to our assessment of 
whether these non-hazardous secondary materials provide a useful 
contribution in combustion scenarios. We requested comment, however, on 
whether the non-hazardous secondary materials we are assessing as 
ingredients can provide useful contributions in other ways.
    Comment: A commenter requested that the EPA remain flexible and 
acknowledge that there may be other ways to demonstrate a secondary 
materials' useful contribution.
    EPA's Response: The Agency was unable to identify, and commenters 
did not identify any other way a non-hazardous secondary material could 
contribute to the recycling process, so the language in the final rule 
was not changed. The two ways to determine if the material provides a 
useful contribution are sufficiently flexible and will provide for 
accurate assessments. Thus, the final rule will continue to maintain 
that non-hazardous secondary materials contribute valuable ingredients 
to a product or intermediate and that non-hazardous secondary materials 
are used as an effective substitute for a commercial product will be 
used to determine if a material provides a useful contribution as an 
ingredient.
3. Quantifying an Ingredient's Contribution to Production/Manufacturing 
Activity
    Not all of the constituents or components of the non-hazardous 
secondary material have to make a contribution to the production/
manufacturing activity. EPA solicited comments on whether the Agency

[[Page 15527]]

should quantitatively define how much of the non-hazardous secondary 
material must provide a useful contribution, or alternatively, the 
quantity of constituents or components in a non-hazardous secondary 
material there would need to be before the non-hazardous secondary 
material would not be considered to provide a useful contribution.
    Comment: Generally, commenters disagreed with the establishment of 
a quantitative definition as to how much of a material must provide a 
useful contribution. One state agency is opposed to a quantitative 
definition because the numbers will vary by non-hazardous secondary 
material. Similarly, another state commenter also opposed a nationwide 
definition or percentage stipulating what constitutes a ``useful 
contribution'' because of the different possible reuse processes that 
may vary in terms of the amount of material that is deemed useful. One 
other commenter also objected to the establishment of any limits, but 
specifically commented on the establishment of a quantitative 
definition. They explain that a given non-hazardous secondary material 
can have several useful components, but the ability to use those 
components is dependent on the available manufacturing process or 
technology type. This variation would make it difficult and inefficient 
to apply a general quantitative rule of useful contribution.
    EPA's Response: We agree with the commenters that quantifying the 
amount that all non-hazardous secondary materials must contribute to a 
production/manufacturing activity would be a challenge, if at all 
possible, given the breadth and depth of ways that non-hazardous 
secondary materials may be used as ingredients in combustion processes. 
As the non-hazardous secondary materials vary significantly in their 
character, composition and uses, trying to define useful contribution 
quantitatively would not, in our view, be practical. The complexities 
of defining ``useful contribution'' so that it can be determined 
through a bright-line test, and remain appropriate across industries, 
different recycling processes, and a variety of recycled non-hazardous 
secondary materials are too great for the Agency to design in a simple 
and straightforward manner so as to be used in making such 
determinations. In addition, legitimacy determinations are best made on 
a case-by-case basis, with the facts of a specific situation in hand. 
Thus, we have not defined a quantitative amount that non-hazardous 
secondary materials must contribute.
    In general, the regulated community should look to typical industry 
recovery rates in similar manufacturing processes to determine if the 
recycling recovery rates are reasonably efficient in terms of the 
ingredient making a useful contribution to the recycling process or 
product. In addition, it should be noted that EPA would generally look 
at the quantity required, the duration, and the extent of processing, 
and/or the rate of recovery of the overall process, not the recovery 
rate of a single step in the process, when analyzing this criterion for 
legitimacy. For example, if one step in the process recovers a small 
percentage of the constituent, but the overall process recovers a much 
larger percentage, the Agency would consider the overall efficiency of 
the recycling process in determining whether the non-hazardous 
secondary materials are providing a useful contribution. This assumes 
that there is enough of the target constituent or component present in 
the non-hazardous secondary materials to contribute meaningfully as an 
ingredient to the recycling process.
    In addition, the Agency is reiterating its longstanding position 
that not every constituent or component in a non-hazardous secondary 
material would have to contribute to a recycled product or intermediate 
or to the recycling process in order for there to be an overall 
contribution. Thus, we agree with commenters who raised questions about 
this and have restated our position in this preamble to the final rule.
4. Contaminants in Ingredients
    The Agency requested comments on whether we should have a different 
definition of contaminants that applies specifically to ingredients. 
That is, since contaminant comparisons for the contaminant legitimacy 
criterion apply to a comparison of products rather than to the non-
hazardous secondary material, we requested comment on whether a 
different list of contaminants should apply or whether we should 
generically define contaminants to be constituents that may be a 
concern with respect to the product that is produced.
    Comment: Commenters suggested that when comparing the products 
derived from non-hazardous secondary materials and traditional raw 
materials, the Agency be mindful of the fact that the concentrations of 
contaminants can vary geographically. In terms of cement production, a 
few commenters said that the current stringent product standards 
effectively keep cement kilns from using contaminated ingredients. One 
state supports the use of the same contaminant list for non-hazardous 
secondary material fuels and ingredients, but notes that EPA should 
recognize that constituent concentrations for a given virgin fuel or 
feedstock can vary dependent on the geographic region of where it is 
produced. Another commenter said that since all processes differ, the 
states should be allowed to establish a petition process for 
ingredients where industry can demonstrate that the higher 
contamination in a given non-hazardous secondary material will not 
result in harm to human health or the environment (i.e., through either 
risk assessment or handling restrictions). Another commenter argued 
that using the list of contaminants in CAA section 129(a)(4) is 
inadequate because it does not address all heavy metals or organic 
hazardous air pollutants. Still, another commenter suggested that 
although the CAA section 112 HAP list and the list of constituents in 
Appendix VIII of 40 CFR part 261 would be impractical if parameter 
testing was required, Appendix VIII of 40 CFR part 261 would be a good 
starting point for evaluating different issues related to those 
contaminants. Finally, one state agency recommends the Agency develop a 
list of currently acceptable non-hazardous secondary materials used as 
ingredients for quick reference and develop guidance to assess 
materials not on the list.
    EPA's Response: EPA is defining the term ``contaminant'' to include 
constituents that may result in emissions of air pollutants identified 
in CAA section 112(b) and the nine pollutants listed under CAA section 
129(a)(4)) when such non-hazardous secondary materials are burned as a 
fuel or used as an ingredient, including those constituents that could 
generate products of incomplete combustion. These constituents are 
appropriate for the comparisons required by this criterion because 
these are the contaminants identified in the CAA that are to be 
considered by EPA in evaluating which contaminants to establish 
emission standards. That is, the contaminants to be considered in the 
legitimacy criteria should generally be the same that EPA is to 
consider in establishing emission standards. Thus, we disagree with the 
commenter who argues that this list is not broad enough because it does 
not address all heavy metals or organic hazardous pollutants. Appendix 
VIII to 40 CFR Part 261 is also not an appropriate list for determining 
which contaminants to consider for the purposes of defining non-
hazardous

[[Page 15528]]

solid waste, since the purpose of Appendix VIII is to be used by the 
Agency to make hazardous waste listing determinations (see 40 CFR 
261.11(a)(3)) and the chemicals in Appendix VIII would not apply to 
non-hazardous wastes. Please see the related response on usage of the 
Appendix VIII list with regard to fuels (Section V.D.3).
    With that said, the Agency recognizes and agrees with the 
commenters that variability in constituents exist between non-hazardous 
secondary materials based on the source and geographic region that it 
may come from. Thus, such considerations can be taken into account in 
determining which contaminants to evaluate. Regarding the comments 
dealing with state program involvement, EPA's response to these 
comments is described in Section IX. ``State Authority.'' Finally, with 
respect to the commenter who requested that EPA develop a list of 
acceptable non-hazardous secondary materials that are used as 
ingredients for quick reference and develop guidance to assess non-
hazardous secondary materials on this list, we have made some general 
conclusions throughout the preamble on which non-hazardous secondary 
materials when used as an ingredient in a combustion process would 
generally meet the legitimacy criteria. Persons may also refer to the 
various Materials Characterization Papers that are in the docket to 
today's rule. However, each person will need to confirm that such non-
hazardous secondary material ingredients meet the legitimacy criteria 
and provide documentation, as required in the CAA rules.
5. Comparing Contaminant Levels in Products
    EPA requested comment on whether, instead of requiring that 
contaminant levels in products manufactured from non-hazardous 
secondary material ingredients be comparable in concentration than 
those found in traditional products, that the Agency adopt a criterion 
under which contaminants in the product could not be significantly 
higher than found in the traditional products that are manufactured 
without the non-hazardous secondary material.
    Comment: A number of commenters disagree with the contaminant 
comparison criteria for non-hazardous secondary material ingredients to 
the final product. One commenter asserts that EPA should not use the 
term ``contaminant'' in connection with the legitimacy criteria for 
ingredients. Instead, the Agency should refer to constituents that may 
actually be a concern with respect to the product that is produced. The 
same commenter also recommends that the ``toxics along for the ride'' 
criterion only should be considered and not required, and that the 
Agency should adopt a ``not significantly higher'' standard. Also, 
while the Agency should retain the focus of the ``toxics along for the 
ride'' criterion upon products, that criterion should refer to 
constituents that may actually be a concern with respect to the 
products that are produced and should not use the defined term 
``contaminant.''
    Other commenters oppose any limits on contaminants in ingredients. 
It was argued that portland cement is manufactured to meet strict 
chemical and performance specifications under such organizations as 
ASTM and the American Association of State Highway and Transportation 
Officials (AASHTO). These specifications dictate, to a large degree, 
the ingredients that can be used in cement manufacturing. There are a 
wide range of raw materials and fuels that can be used to meet cement 
manufacturing quality objectives. The levels of contaminants in these 
traditional raw materials and fuels can vary significantly. These 
variations occur within materials taken from the same source (e.g., 
single quarry) and also between different sources. For the purpose of 
comparing levels of contaminants found in non-hazardous secondary 
materials with levels found in traditional products, the non-hazardous 
secondary material contaminant should be allowed to be compared to 
multiple sources of the traditional raw materials that are available 
across the market to the facility. Such a comparison should be allowed 
regardless of whether or not the traditional material is being used by 
the facility at the time of the comparison. Doing so would allow for 
the variability of constituent levels to be properly accounted for when 
going through the comparison process. Variability needs to be 
considered because multiple sources of a single traditional material 
are typically available to a facility
    EPA's Response: In today's action, EPA is finalizing this criterion 
as a part of the legitimacy requirement because it is essential in 
determining whether a non-hazardous secondary material that is 
combusted is in fact being legitimately used or is essentially being 
discarded--that is destroyed, in the name of legitimate recycling. EPA 
is also retaining the requirement that the recycling process must 
result in products that contain contaminants at levels that are 
comparable to (or lower than) concentrations found in traditional 
products that are manufactured without the non-hazardous secondary 
material. Establishing ``comparable to or lower than'' contaminant 
levels more closely reflects its intent that non-hazardous secondary 
materials that are legitimately used must have levels of contaminants 
within a small acceptable range of those found in traditional products 
than the phrase ``not significantly higher.'' (See Section V.D.3 for 
further discussion of this issue and EPA's response.) With that said, 
we agree with those commenters who argue that there are a wide range of 
raw materials and fuels that can be used and that the level of 
contaminants in these secondary materials can also vary. Thus, for 
purposes of comparing levels of contaminants found in non-hazardous 
secondary materials to traditional products, a person can make that 
comparison with traditional raw materials and fuels that come from 
multiple sources, provided such sources can be used in the combustion 
unit. Such a comparison, as the commenters argue, would account for the 
natural variability that needs to be considered in making such a 
comparison.
    With respect to the comment requesting that EPA change the word 
``contaminant'' to ``constituent'' when referring to the legitimacy 
criteria, EPA is retaining the use of the word ``contaminant'' in this 
criterion as it has been defined in this rule and accurately describes 
which individual constituents EPA is seeking to control in this 
criterion. The selection of that term was originally discussed in the 
ANPRM and was chosen since it refers to the constituents in secondary 
materials that may be of a concern when burned as a fuel or used as an 
ingredient.
    Finally, EPA notes that industry specifications can be very useful 
in making a legitimacy determination and, in particular, in evaluating 
compliance with this criterion. However, EPA cannot rely solely on 
product specifications to cover all possible situations and is 
including the contaminant comparison between products as a critical 
part of the legitimacy requirement.

F. Comments on Non-Waste Determination Petitions

    The proposed rule established a non-waste determination process 
that would provide persons with an administrative process for receiving 
a formal determination from the EPA Regional Administrator that non-
hazardous secondary materials that are burned as a fuel in a combustion 
unit and have not been managed within the control of the generator, 
have not been discarded in the first instance, and are

[[Page 15529]]

indistinguishable in all relevant aspects from a fuel product are not 
solid wastes. This assumes all the criteria for the non-waste 
determination at Sec.  241.3(c) are met.
    Industry and state agencies both submitted a number of comments on 
the non-waste determination process included in the proposed rule. 
While many of these comments supported the idea of a non-waste 
determination process in order to include appropriate fuels, many 
commenters suggested that the process would be difficult to implement 
since the requirements are vague, and too resource intensive. Many 
commenters did not want the process at all for opposing reasons; some 
said it was too lenient in that the process could allow the 
inappropriate use of non-hazardous secondary materials, while others 
said it was unnecessary in that CAA section 112 third-party combustors 
should be able to use appropriate comparable fuels without the 
inconvenience of a petition process. The specific comments are detailed 
below. The overview of the petition process is described in Section 
VII.G. The petition requirements in today's rule are found at Sec.  
241.3(c).
    Comment: A large number of commenters (including many from state 
agencies) argued that state agencies should be provided the authority 
to make non-waste determinations as part of the petition process. Some 
commenters suggested that States be allowed to grant such petitions 
under their existing beneficial use programs and encouraged EPA to 
allow the States' existing regulatory structures to remain in place. 
Many commenters expressed a preference for the approach currently used 
by States to determine the acceptability of used materials for 
beneficial use whereby specific classes of non-hazardous secondary 
materials considered wastes (in that State) are assessed and, if 
determined acceptable, are considered non-waste or exempt from the 
State waste licensing, permitting and other requirements. State 
procedures for beneficial use determinations vary, some requiring more 
extensive characterization of materials and uses than others, and some 
requiring a degree of processing and others not. Some beneficial use 
designations are more stringent than others since they are material-
specific.
    Many commenters, including state agencies were still concerned that 
this rule could jeopardize or interfere with the State beneficial use 
designations and procedures and requested that EPA clearly indicate 
that today's rule applies only for purposes of determining CAA 129 
applicability to non-hazardous secondary materials that are burned for 
energy recovery. They do not want today's rule to set a precedent or 
interfere with their ongoing programs to allow and encourage the 
beneficial use of secondary materials which otherwise would be waste.
    EPA's Response: CAA section 129 states that the term ``solid 
waste'' shall have the meaning ``established by the Administrator 
pursuant to the Solid Waste Disposal Act'' Id. at 7429(g)(6). 
Accordingly, the Administrator (or Regional Administrator) must 
establish the meaning and make the determinations, and the states' 
definition of solid waste would not be applicable for purposes of the 
definition of solid waste under RCRA for establishing emissions 
standards under the CAA. No federal approval procedures for state 
adoption of today's rule are included in this rule under RCRA subtitle 
D. Although EPA does promulgate criteria for solid waste landfills and 
approves state municipal solid waste landfill permitting programs, RCRA 
does not provide EPA with authority to approve state programs beyond 
municipal solid waste landfill permitting programs.
    With that said, EPA would like to utilize the expertise and 
interest residing in the state beneficial use programs to bolster 
Agency decisions on non-waste determination petitions. The Agency may 
request the assistance of states or may utilize the information and 
contaminant data from state beneficial use determinations if it is 
applicable to the non-hazardous secondary material when used as a fuel 
or an ingredient in combustion units. These state beneficial use 
programs have been developed to encourage recycling and reuse, provided 
that the uses maintain the specified state's acceptable level of risk, 
protect human health and the environment, and are managed in accordance 
with the conditions of the determination.
    Generally, when a state beneficial use determination has been 
granted (thus no longer a solid waste within that state), it may have 
chemical and physical properties that are comparable to the raw 
material it is replacing or, when incorporated into a product, its use 
is beneficial to the final product. Assuming the data to support the 
beneficial use determination remains available, it could help support 
EPA's investigation of the contaminant concentrations for the purpose 
of making the legitimacy criteria determination.
    State beneficial use determinations and procedures will continue 
intact for purposes of State laws, regulations, and programs. Thus, we 
do not expect that this rule will set a precedent or interfere with the 
States' solid waste programs and the States will continue to employ 
their procedures to assess and regulate the management and use of non-
hazardous secondary materials for purposes of State laws and 
regulations. In addition, as we have stated elsewhere in today's 
preamble, this rule is limited for purposes of determining CAA 129 
applicability for non-hazardous secondary materials that are burned for 
energy recovery or as an ingredient in a combustion unit. Thus, EPA 
will not be making any determination that non-hazardous secondary 
materials are or are not solid wastes for other possible beneficial 
uses. Such beneficial use determinations are generally made by the 
state for these other beneficial uses and EPA will continue to look to 
the states to make such determinations (e.g., land application, reuse 
as non-waste, etc.).
    Comment: Commenters indicated that the petition process does not 
consider potential scheduling issues regarding compliance with the 
section 112 Boiler MACT or the 129 CISWI standards. Therefore, the non-
waste determination petition process should include deadlines for both 
petition submissions and rulings from regulators so that the applicant 
would know which emission standards requirements they would be subject 
to--that is, the CAA section 112 standards or the CAA section 129 
standards. Some commenters (including many state agencies) also 
expressed concern that EPA would not have the resources necessary to 
address such non-waste determination petitions within a schedule 
consistent with State deadlines for their air permits (e.g., 90 days). 
In addition, a few commenters questioned the environmental benefits of 
shifting the burden of determination to EPA instead of the generators 
in question.
    EPA's Response: EPA is not imposing deadlines for the petition 
decisions, either for the submission of such petitions or on EPA making 
decisions on petitions that are submitted, since the Agency believes 
that before a final decision is made, that the necessary information be 
submitted, and the public afforded an opportunity to comment on such 
draft decisions. Setting a time limit may make it difficult to make 
such informed decisions. Nevertheless, EPA commits to work with the 
State (where the combustor is located) in an effort to not hold up, to 
the extent practicable, the State air permitting process. We recognize 
that the non-waste determination decision should be finalized prior to 
any related State air

[[Page 15530]]

permit. We would also note that EPA's responsibility for the petition 
decisions in the final rule should maintain national consistency, while 
recognizing the state's interest and expertise in this area.
    Comment: If EPA maintains authority for non-waste determinations, 
commenters request that EPA Regional offices notify States when 
requests and determinations are made. In addition, several 
environmental groups requested that the public notification be required 
for any petitions for non-waste classification.
    EPA's Response: Today's rule outlines the petition process for the 
Regional Administrator to follow. As part of that process, the draft 
decision will be published in local media and will be available on 
EPA's Web site, and thus, all draft decisions will be available to the 
public for comment. In addition, although not in the regulations, EPA 
will inform the State Agency of a petition request in their states, and 
work with them, to the extent practicable.
    Comment: State Agencies recommended that EPA maintain a state or 
publicly available database of non-waste determination decisions if the 
Agency maintains decision-making authority under the petition process.
    EPA's Response: EPA agrees that it would be appropriate for EPA to 
maintain a database that is a compilation of decisions made on non-
hazardous secondary material non-waste determinations. This would allow 
decisions made in one EPA Region, including the basis for the decision, 
to be available to other EPA Regions pertaining to the same or similar 
non-hazardous secondary materials and would support national 
consistency and minimize redundant efforts. Thus, the Agency expects to 
put together such a database and will make it available not only to its 
Regions, but will also make such a database publicly available.
    Comment: Some commenters said States (or non-State Agencies) should 
be able to submit a non-waste determination on behalf of the 
petitioner.
    EPA's Response: As stated in the proposal and in the final rule, 
states, or private entities, can submit non-waste determination 
petitions to the EPA Regional Administrator on behalf of petitioners. 
They can petition for a single combustor or a class of combustors 
(e.g., a specific usage of a non-hazardous secondary material in a 
particular state).
    Comment: Many commenters did not want the petition process included 
in the rule. Some commenters said it was too lenient in that the 
process could allow the inappropriate use of non-hazardous secondary 
materials.
    EPA's Response: We disagree with the commenters since the petition 
process provides a vehicle to accommodate those instances where it is 
not apparent that the non-hazardous secondary material is not discarded 
and that it complies with the legitimacy criteria and thus, is not a 
solid waste under RCRA. Those requirements would be documented in 
addition to the other petition requirements. This would provide the 
needed assurance that it is an appropriate non-waste fuel. In addition, 
all draft decisions will be made available to the public (local 
newspaper advertisement or radio broadcast and on EPA's Web site) and 
the Regional Administrator may hold public hearings, such that the 
public will be informed and has the opportunity to comment and be 
involved in the process.
    Comment: Commenters mentioned that the process will be difficult to 
implement since the requirements in proposed Sec.  241.3(c) are too 
vague. A few commenters mentioned that they preferred the clarity in 
state determinations where they have criteria specific to each 
secondary material they regulate or make specific beneficial use 
determinations, as opposed to this petition process where all non-
hazardous secondary materials have to comply with the same guidelines. 
Commenters requested that we create clear guidance on the petition 
process and on related implementation.
    EPA's Response: We disagree with the commenters who argue that the 
petition process is vague and will be difficult to implement. All 
petitions that are submitted must clearly explain how the non-hazardous 
secondary material has not been discarded and meets the other relevant 
criteria, including the legitimacy criteria. All draft decisions will 
also be subject to notice and comment, so any particular issues or 
concerns can be raised for the Agency's consideration. With that said, 
the Agency expects to develop additional guidance to assist petitioners 
in the implementation of the petition process.

G. Comments on the Other Approaches for Defining Solid Wastes

    In addition to the proposed approach, EPA also identified and 
solicited comment on two other approaches for defining which non-
hazardous secondary materials are solid wastes when combusted. One 
approach, which was called the ``alternative approach,'' was intended 
to be broader than the proposed approach, but still consistent, in the 
Agency's judgment, with RCRA and relevant case law. Under the 
alternative approach, non-hazardous secondary materials that are burned 
in a combustion unit would be considered solid wastes, unless such non-
hazardous secondary materials would remain within the control of the 
generator and meet the legitimacy criteria; in this limited instance, 
the non-hazardous secondary materials would not be considered solid 
wastes. Thus, under the alternative approach, fuels and ingredients 
that are generated from the processing of discarded non-hazardous 
secondary materials would be considered a solid waste, as well as non-
hazardous secondary materials used as ingredients that are combusted at 
facilities that are not within the control of the generator. In 
addition, the alternative approach did not provide for a non-waste 
determination petition process, as described elsewhere in this 
preamble. The proposed rule noted that this approach could be adopted 
in a final rule if warranted by information presented during the public 
comment period and solicited comment on all aspects of the alternative 
approach.
    The other approach on which we requested comment was to identify 
all non-hazardous secondary materials that are burned in combustion 
units for energy recovery or as an ingredient as solid wastes and thus, 
all non-hazardous secondary materials would be subject to the section 
129 CAA requirements. The proposal noted that while the Agency believes 
there are legal constraints to taking such a broad approach in defining 
solid waste under RCRA, we solicited comment on this approach and 
specifically requested that commenters provide the basis for their 
position, in light of the existing case law on the issue of 
``discard.''
    Comment: All commenters addressing the alternative approach were 
opposed to the Agency adopting such an approach in the final rule. 
Several commenters argued generally against any approach that would 
allow any non-hazardous secondary material to ever be burned as non-
waste fuels or ingredients, regardless of whether or not the secondary 
materials remained within the control of the generator. These 
commenters strongly urged the Agency to adopt a final rule that 
considers all non-hazardous secondary materials burned in a combustion 
unit for energy recovery or used as an ingredient to be included within 
the definition of solid waste and therefore, subject to the CAA section 
129 requirements. These commenters argue that non-hazardous secondary 
materials that are burned in combustion units fall within the 
unambiguous meaning of the

[[Page 15531]]

term ``discarded material,'' and therefore, both EPA's proposed and 
alternative approach are unlawful, as well as arbitrary and capricious.
    On the other hand, industry commenters generally contended that the 
alternative approach was unacceptable as a matter of law and policy, 
but for different reasons. These commenters, who also disagreed with 
the proposed approach's classification that non-hazardous secondary 
materials used as fuels which did not remain within the control of the 
generator are solid waste unless granted a non-waste determination, 
strongly opposed the alternative approach for many of the same reasons. 
Of particular concern of the commenters was their disagreement with EPA 
that one may not look to a material's transfer between entities to 
determine whether the non-hazardous secondary material has been 
discarded and constitutes a solid waste under RCRA, a concept which 
would apply equally to non-hazardous secondary materials being used as 
ingredients, as well as to non-hazardous secondary materials used as 
fuels. In addition, these same commenters also strongly disagreed with 
the other approach on which the Agency solicited comment--that is, the 
approach that would characterize all non-hazardous secondary materials 
as solid waste when burned in a combustion unit for energy recovery or 
as an ingredient. These commenters argued that this would exceed the 
Agency's authority to regulate secondary materials that have not been 
discarded.
    EPA's Response: Although some commenters supported a broader 
definition of solid waste than described in the alternative approach, 
the Agency did not receive any support for the alternative approach, 
and has therefore decided not to adopt it in this final rule. Regarding 
comments that advocated for all non-hazardous secondary materials 
burned in a combustion unit for energy recovery or as an ingredient to 
be discarded and, thus, solid waste, EPA has replied to this comment 
above in Section V.A. The Agency presumes that these commenters would 
like neither our proposed approach nor any alternative that allows any 
non-hazardous secondary material to be burned as other than a waste.
    Regarding industry comments which opposed the alternative approach 
because its characterization that all non-hazardous secondary materials 
that do not remain within the control of the generator are solid waste, 
we respond to the issue of transferring non-hazardous secondary 
materials off-site in Section V.A.
    EPA continues to believe that today's final rule is a reasonable 
interpretation of the statutory definition of discard to consider that 
non-hazardous secondary materials under the control of its generator 
that are legitimately burned as fuels are not solid waste, that certain 
non-hazardous secondary materials (i.e., scrap tires under the 
oversight of established tire collection programs and resinated wood) 
that are not discarded and are legitimately used as fuels or 
ingredients are not solid waste, that non-hazardous secondary materials 
that are legitimately burned as ingredients are not solid wastes, and 
that fuels and ingredients that are produced from the processing of 
discarded non-hazardous secondary materials are not solid wastes.

VI. Summary of Major Differences Between the Proposed Rule and Final 
Rule

    The basic framework outlined in the proposed rule is being adopted 
in today's final rule. However, as indicated in the discussions in 
Section VII, the Agency has made several significant changes to the 
proposal regarding: (1) The status of scrap tires when they are 
combusted and used as a fuel; (2) the status of resinated wood 
residuals when they are combusted and used as a fuel; (3) the status of 
coal refuse that has been previously discarded, but has been processed 
in the same way as coal is today; and (4) the definition of traditional 
fuel and several other terms to clarify their meaning in the final 
rule. Specifically,
    <bullet> Under the proposed rule, scrap tires were considered to be 
solid waste when combusted and used as a fuel unless they were 
sufficiently processed into a non-waste fuel product. Today's rule 
continues to include this concept of processing of scrap tires that 
have been discarded, particularly for tires in waste tire piles. 
However, after reviewing the comments, as well as reviewing the 
approach that was discussed in the ANPRM for scrap tires, the Agency 
has concluded that scrap tires used as fuel in a combustion unit that 
are removed from vehicles and managed and collected under the oversight 
of an established tire collection program would not be considered a 
solid waste In this situation, the scrap tires have not been discarded 
and therefore, should not be considered a solid waste. See Section 
VII.C for a full discussion of the rationale and changes to the 
approach for scrap tires.
    <bullet> Under the proposed rule, resinated wood residuals that 
were burned in a combustion unit within the control of the generator 
and which met the legitimacy criteria was considered a non-waste fuel. 
However, if such resinated wood residuals were transferred off-site to 
a different company, there were considered a solid waste when burned in 
a combustion unit, unless they were ``sufficiently processed to produce 
a non-waste fuel. However, after reviewing the comments, the Agency has 
concluded that resinated wood residuals when burned in a combustion 
unit (whether within the control of the generator or outside the 
control of the generator) would not be a solid waste, provided the 
resinated wood residuals met the legitimacy criteria. In this 
situation, the Agency finds that the resinated wood residuals have not 
been discarded and therefore, should not be considered a solid waste. 
See Section VII.D for a full discussion of the rational and changes to 
the approach for resinated wood residuals.
    <bullet> Under the proposed rule, coal refuse that has been 
previously abandoned and was processed, even if such processing was the 
same as coal is processed today, was considered a solid waste and, if 
combusted, would be subject to the CAA section 129 emission standards. 
However, after reviewing the comments and after further evaluation, we 
have decided that coal refuse that is processed the same as coal is 
today, which serves to both increase its energy value, as well as 
reduce the level of contaminants in coal refuse, should not be 
considered a solid waste. (Of course, prior to such processing, the 
coal refuse that has been abandoned is a solid waste and would be 
subject to appropriate federal, state and local laws and regulations.) 
This change is based on the fact that coal refuse is distinctive from 
other non-hazardous secondary materials at issue in today's rule in 
that it is in fact raw material coal (even if it has been previously 
abandoned) that is generated as a result of coal mining operations 
whose primary product is a fuel.
    <bullet> In response to comments received on the proposal, under 
today's rule, we have added an ``alternative fuels'' category to the 
definition of traditional fuels, so the definition now includes 
``alternative traditional fuels'' and ``historically managed'' 
traditional fuels. EPA is recognizing that changes in technology and in 
the energy market over time have resulted in additional materials being 
economically viable to be used as alternative ``traditional'' fuels. In 
addition, to provide clarity in the application and the meaning of 
traditional fuel and clean cellulosic biomass, we have codified these 
definitions in Sec.  241.2. The new definition of traditional fuel also

[[Page 15532]]

clarifies that traditional fuels are not secondary materials and are 
not solid wastes unless discarded.

VII. Detailed Discussion and Rationale for Today's Final Rule

    As indicated previously, today's final rule identifies those non-
hazardous secondary materials that, when burned in a combustion unit, 
are solid wastes. In general, EPA defines non-hazardous secondary 
materials that are used as fuels or ingredients in combustion units as 
solid waste unless: \154\
---------------------------------------------------------------------------

    \154\ Traditional fuels are not secondary materials or solid 
waste, unless discarded.
---------------------------------------------------------------------------

    <bullet> The non-hazardous secondary material is used as a fuel and 
remains within the control of the generator (whether at the site of 
generation or another site the generator has control over) and it meets 
the legitimacy criteria;
    <bullet> They are the following materials that meet the legitimacy 
criteria when used as a fuel (by the generator or outside the control 
of the generator):
    [cir] Scrap tires removed from vehicles under the oversight of 
established tire collection programs;
    [cir] Resinated wood;
    <bullet> The non-hazardous secondary material is used as an 
ingredient (whether by the generator or outside the control of the 
generator) and it meets the legitimacy criteria;
    <bullet> The discarded non-hazardous secondary material is 
sufficiently processed to produce legitimate fuel or ingredient 
products and it meets the legitimacy criteria;
    <bullet> The non-hazardous secondary material is used as a fuel and 
is handled outside the control of the generator where it is determined 
through a case-by-case non-waste determination petition process that 
the material has not been discarded and is indistinguishable in all 
relevant aspects from a fuel product.

The following sections discuss in detail the rationale and regulations 
being promulgated today in 40 CFR part 241 for the identification of 
non-hazardous secondary materials that are solid waste when used in 
combustion units. We use this rationale to support the final rule based 
on information the Agency has received and public comments. To the 
extent we have decided not to alter our supporting reasoning or have 
rejected comments received on the proposed rule, we also discuss these 
matters in Section V. Reasoning, information and arguments provided in 
the ANPRM and proposed rule that support these decisions are also 
incorporated into the reasoning for the final decisions.

A. Traditional Fuels \155\
---------------------------------------------------------------------------

    \155\ While the Agency believes that traditional fuels are not 
secondary materials, we believe it appropriate to provide a general 
definition and description of what is considered a traditional fuel.
---------------------------------------------------------------------------

    As discussed in Section V, the definition of traditional fuels has 
been modified in today's final rule. The new definition encompasses two 
categories of fuels: (1) ``Historically managed'' fuels, as identified 
in the proposed rule, and (2) ``alternative'' fuels, as described in 
the ANPRM. Through this revised definition, EPA is recognizing that 
changes in technology and in the energy market over time have resulted 
in additional materials being economically viable, or for policy 
reasons, to be used as alternative ``traditional'' fuels. Thus, 
``traditional fuels'' is defined in today's final rule as materials 
that are produced as fuels and are unused products that have not been 
discarded and therefore, are not solid waste including: (1) Fuels that 
have been historically managed as valuable fuel products rather than 
being managed as waste materials, including fossil fuels (e.g., coal, 
oil and natural gas), their derivatives (e.g., petroleum coke, 
bituminous coke, coal tar oil, refinery gas, synthetic fuel, heavy 
recycle, asphalts, blast furnace gas, recovered gaseous butane, and 
coke oven gas) and cellulosic biomass (virgin wood); and (2) 
alternative fuels developed from virgin materials that can now be used 
as valuable fuel products rather than waste materials. Alternative 
fuels include used oil which meets the specifications outlined in 40 
CFR 279.11; currently mined coal refuse that previously had not been 
usable coal; and clean cellulosic biomass. Clean cellulosic biomass is 
defined as those residuals that are akin to traditional cellulosic 
biomass, such as forest-derived biomass (e.g., green wood, forest 
thinnings, clean and unadulterated bark, sawdust, trim, and tree 
harvesting residuals from logging and sawmill materials), corn stover 
and other biomass crops used specifically for energy production (e.g., 
energy cane, other fast growing grasses), bagasse and other crop 
residues (e.g., peanut shells), wood collected from forest fire 
clearance activities, trees and clean wood found in disaster debris, 
clean biomass from land clearing operations, and clean construction and 
demolition wood. Clean biomass is defined as biomass that does not 
contain contaminants at concentrations not normally associated with 
virgin biomass materials. Such historically managed traditional fuels 
and alternative fuels are not secondary materials or solid wastes 
unless discarded. The revised definition also clarifies that clean wood 
includes, similar to clean disaster debris, clean construction and 
demolition material.
    Both clean cellulosic biomass and on-specification used oil were 
identified in the proposed rule definition as historically managed 
traditional fuels. However, as the viability of these materials as 
fuels reflects relatively recent changes in market conditions and 
technology, they are more appropriately characterized as alternative 
traditional fuels.
    The new definition also adds currently generated coal refuse as an 
alternative traditional fuel. As discussed in Section V.B.8., this 
material is distinctive among the other non-hazardous secondary 
materials. Coal refuse is in fact raw material coal that is generated 
as a result of coal mining operations whose primary product is fuel. We 
consider currently generated coal refuse to be more akin to a raw 
material that, due to technological developments, can now be processed 
and utilized to produce a marketable fuel. Coal refuse is different 
from other non-hazardous secondary materials, such as scrap tires or 
resinated wood residuals, in that it is generated in the production of 
a traditional fuel and can be used, itself, as fuel.
    The definition goes on to clarify that traditional fuels are not 
secondary materials and are not solid wastes unless discarded. In 
response to comments received on the proposal and to provide clarity in 
the application and the meaning of traditional fuel, both the new 
definition of traditional fuels and the definition of clean cellulosic 
biomass are codified in Sec.  241.2
    Recommendations from commenters to the proposed rule on specific 
materials that should be considered traditional fuels are discussed in 
Section V.B. That section also includes responses to the Agency's 
request for comment regarding a possible petition process to make 
determinations on traditional fuels.

B. Non-Hazardous Secondary Materials Used as Fuel That Remain Within 
the Control of the Generator

1. Scope and Applicability
    Non-hazardous secondary materials used as a fuel in combustion 
units that remain within the control of the generator and that meet the 
legitimacy criteria specified in Sec.  241.3(d)(1) would not be solid 
waste. Such non-hazardous secondary materials are referred to as 
legitimate (non-waste) fuel products.
    As discussed previously in Section V.A, if the non-hazardous 
secondary material remains within the control of

[[Page 15533]]

the generator, it is more likely to be material that is saved and not 
thrown away. The Agency has explained that case law would not allow it 
to determine that secondary material is a waste if it is recycled as a 
fuel within a continuous industrial process. EPA cannot evaluate every 
non-hazardous secondary material, but considers that this standard 
would cover all such non-hazardous secondary materials that are 
recycled as a fuel within a continuous process. EPA, however, 
acknowledges that this may capture certain non-hazardous secondary 
materials which may be a waste, but is unlikely. Thus, this is a 
reasonable interpretation of the statutory definition of discard to 
consider non-hazardous secondary materials that are managed within the 
control of its generator and legitimately burned as fuels to not be 
solid waste.
    The Agency also recognizes that there may also be non-hazardous 
secondary materials transferred to another party that are not discarded 
in the first instance, and thus may not be a solid waste. EPA is 
dealing with those categories of non-hazardous secondary materials on a 
case-by-case basis by specifically identifying such non-hazardous 
secondary materials in the regulations (see discussions in Section 
VII.C on scrap tires managed under an established tire collection 
program and Section VII.D for resinated wood or through the non-waste 
determination process (Section VII.G).
    Non-hazardous secondary materials used as fuels remain within the 
control of the generator under two scenarios (See Sec.  241.2). As 
such, the regulation consists of two parts in determining whether these 
non-hazardous secondary materials qualify for being ``within the 
control of the generator.'' The first part applies to non-hazardous 
secondary materials generated and used as fuels at the generating 
facility. For purposes of this criteria, ``generating facility'' means 
all contiguous property owned, leased, or otherwise controlled by the 
secondary material generator; ``secondary material generator'' means 
any person whose act or process produces non-hazardous secondary 
materials at the generating facility.
    If a generator hires or contracts with a different company to use 
the non-hazardous secondary materials at the generator's facility as 
fuel, either temporarily or permanently, these materials remain within 
the control of the generator. However, generators sometimes contract 
with a second company to collect non-hazardous secondary materials at 
the generating facility and such materials are subsequently used as 
fuels in a combustion unit at another facility. In that situation, if 
the facility that burns the non-hazardous secondary material is not 
``within the control of the generator'' as defined below in the second 
part of the definition, then the non-hazardous secondary material fuel 
would be considered a solid waste unless a non-waste determination has 
been granted pursuant to the petition process.
    The second part of the definition applies to non-hazardous 
secondary materials generated and used as fuels at a different facility 
that is controlled by the generator (or if a person as codified in 
Sec.  241.2 controls both the generator and the facility using the fuel 
in a combustion unit). For purposes of this criterion, ``control'' 
means the power to direct the policies of the facility, whether by 
ownership of stock, voting rights, or otherwise, except that 
contractors who operate facilities on behalf of a different person as 
codified in Sec.  241.2 shall not be deemed to ``control'' such 
facilities. Thus, when a contractor operates two facilities, each of 
which is owned by a different company, the non-hazardous secondary 
materials generated at the first facility and used as a fuel at the 
second facility is not considered ``within the control of the 
generator.''
    In the proposed rule, the Agency also indicated that the 2008 DSW 
Final Rule included a third part in the definition of ``within the 
control of the generator;'' specifically, hazardous secondary materials 
that are generated pursuant to a written contract between a tolling 
contractor and a toll manufacturer and legitimately reclaimed by the 
tolling contractor. For purposes of that exclusion, a tolling 
contractor is a person who arranges for the production of a product or 
intermediate made from specified raw or virgin materials through a 
written contract with a toll manufacturer. We did not propose to 
include this arrangement as being ``within the control of the 
generator'' as we viewed this as a specific type of arrangement used in 
the production of materials, and were unaware of these types of 
contractual arrangements where both products and secondary material 
fuel are sent to what we are calling tolling contractors. Nevertheless, 
the Agency requested comment on whether to include this option in the 
final rule. We have decided not to include this option in the final 
rule. See Section V.A.1.
2. Restrictions and Requirements
a. Legitimate Use
    Under this rule, non-hazardous secondary materials used as fuels in 
combustion units that remain within the control of the generator must 
meet the legitimacy criteria in Sec.  241.3(d)(1) to be considered a 
non-waste fuel. To satisfy the legitimacy criteria, the non-hazardous 
secondary material (non-waste) fuel must be handled as a valuable 
commodity, have a meaningful heating value and be used as a fuel in a 
combustion unit that recovers energy, and contain contaminants at 
levels comparable to (or lower than) those in traditional fuels which 
the combustion unit is designed to burn as discussed in Section VII.H.
b. Notification
    We are not requiring facilities that use non-hazardous secondary 
material fuels within the control of the generator and that meet the 
legitimacy criteria to notify EPA under this rule. This notice would be 
duplicative of the notification and recordkeeping requirements being 
promulgated for boilers and process heaters at major sources of air 
toxics. That is, the CAA section 112 rule requires notifications and 
recordkeeping, including documentation as to how the non-hazardous 
secondary material meets the legitimacy criteria, and satisfies the 
definition of processing and/or the requirements for the petition 
process. (40 CFR 63.7530 and 63.7555). Specific recordkeeping 
requirements for area source boilers combusting non-hazardous secondary 
materials are also found at 40 CFR 63.11225(c)(2)(ii) under the CAA 
section 112 rule for area source boilers.
    Additionally, regulations at 40 CFR 60.2175(v) promulgated for 
commercial and industrial solid waste incinerators under CAA section 
129 requires basic recordkeeping to establish whether materials 
combusted in a commercial or industrial unit meet the standards and 
procedures for identification of non-hazardous secondary materials that 
are not solid wastes. Owners or operators of commercial or industrial 
facilities that combust non-hazardous secondary materials that are not 
traditional fuels are directed to the CAA section 112 regulations for 
boilers, and the CAA section 129 regulations for commercial and 
industrial incinerators, to determine the recordkeeping provisions 
related to the definition of solid waste that may apply to them. These 
records and notifications under the CAA regulations provide assurance 
that facilities will apply the legitimacy criteria, and that requiring 
notification under this rule is not necessary.

[[Page 15534]]

C. Non-Hazardous Secondary Materials That Have Not Been Discarded: 
Scrap Tires Collected Under Established Tire Collection Programs

1. Scope and Applicability
    EPA has determined that scrap tires removed from vehicles and 
managed under the oversight of state and other established tire 
collection programs are not ``discarded in the first instance.'' Such 
tires (including both whole tires and tires that have been shredded--
with or without metal removal \156\) are non-waste when legitimately 
used as a fuel in combustion units. These collection programs (codified 
in Sec.  241.2) ensure that the scrap tires are not discarded en route 
to the combustor for use as a fuel and are handled as a valuable 
commodity (Sec.  241.3(d)(1)(i)).
---------------------------------------------------------------------------

    \156\ If scrap tires are not discarded in the first place, they 
do not have to be processed per the standards in today's rule, but 
can be converted to rough shreds or processed into TDF chips at the 
discretion of the combustor and still be non-waste fuel. If the 
scrap tires were discarded, they have to be processed (with metal 
removal, see Section V.B.5) per the standards in today's rule in 
order to be a non-waste fuel.
---------------------------------------------------------------------------

    State programs and other established tire collection programs 
promote the collection of scrap tires in coordination with tire 
dealerships, haulers, processors, and end users, forming an established 
collection infrastructure. These established tire collection programs 
together with state bans on landfilling in most states \157\ 
effectively result in the beneficial reuse of tires (as fuel or used in 
other scrap tire markets) as the sole \158\ end use option for scrap 
tires in those states.
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    \157\ A few states allow tires cut up in smaller pieces to be 
landfilled, while fewer still allow whole tires in landfills.
    \158\ Note, a commenter has indicated that some states are 
considering revoking their tire landfill ban if combustors are no 
longer choosing to use tires for fuel based on the outcome of this 
rule.
---------------------------------------------------------------------------

    While the Agency recognizes that there will be differences between 
the various established tire collection programs, at a minimum, the 
following components would need to be included as part of any 
established tire collection program: (1) A comprehensive system that 
prevents tires from being abandoned when the scrap tires are harvested 
from vehicles and collected at the various businesses where they are 
removed; these tires are not considered ``discarded in the first 
instance'' per this rule; and (2) standards for the scrap tires to be 
managed as a valuable commodity. These programs would ensure storage 
does not exceed reasonable time frames, the scrap tires are managed in 
a manner consistent with the analogous fuel (coal), and a system is in 
place to prevent scrap tires from being discarded (according to the 
plain language definition) en route to the combustor (and during any 
processing prior to combustion).
    An example of this type of program is a tire dealership that has 
pre-arranged agreements where the combustor pays for the delivery of 
the tires harvested from automobiles and can track the delivery and has 
contractual obligations for a safe delivery. Another example is the 
Texas system where tires are not seen as waste, but have specifications 
for tracking and safe delivery to the end use markets.
    In essence, these programs are ones that neither allow for an 
opportunity for scrap tires intended as a fuel to be discarded in the 
first place nor discarded in transit. A definition of established tire 
collection programs is codified in today's rule at Sec.  241.2. 
According to the plain English meaning of discard, these tires would 
not have been ``disposed of, abandoned, or thrown away'' through the 
initial process of removing them from cars or collecting them under 
established tire collection programs.
    In reaching this position, the Agency considered several factors:
a. Some Specific Types of Secondary Materials Are More Like Valuable 
Commodities Than Solid Wastes
    As noted above, when non-hazardous secondary material fuels are 
transferred to another party, the secondary material is generally 
discarded since the generator has relinquished control of the secondary 
material and the entity receiving such materials may not have the same 
incentives to manage them as a useful product, which results in the 
materials being discarded. At the same time, EPA acknowledges that some 
specific types of secondary materials are more like valuable 
commodities than solid wastes, and the mere act of transferring them to 
a third-party does not automatically involve discard.
    After reviewing the comments on the proposal and all other 
information in the rulemaking record, EPA has determined that, unlike 
the historic management of scrap tires that resulted in many waste tire 
piles, the annually generated scrap tires that are removed from 
vehicles under established tire collection programs shows that they are 
not being discarded, as evidenced by the dramatic decrease in the 
number of tires in waste tire dumps. Fewer than one million tires 
remain in tire piles, as compared to an estimate of one billion tires 
in 1990. In addition, scrap tires have nearly the highest percentage of 
reuse, recycling, or otherwise being beneficially used in the markets. 
That is, of the 300 million scrap tires being generated every year, 
nearly 90% of those tires go to beneficial use markets. The change in 
market conditions since the historic management of scrap tires in piles 
have helped ensure that scrap tires collected as part of established 
tire collection programs are not discarded.
    Under the scrap tire program, oversight starts at the point the 
tires are removed from the vehicle and continues until they are used as 
a fuel at combustion units (or used in other scrap tire markets), 
ensuring that discard does not occur. Although we mentioned in the 
proposed rule that there was a pattern of discard at third party-off 
site reclaimers, based on the information in the record, we understand 
that it is no longer the case for scrap tires, while acknowledging that 
there was a problem in the past.
    In regard to the proposed rule statement that state environmental 
agencies often consider tires to have entered the ``waste stream'' and 
were concerned about conflicting interpretations, we recognize that 
states \159\ typically call tires a waste until beneficially used. As 
described above, discard is not occurring (according to the plain 
language definition since they have not been abandoned, disposed of, or 
thrown away) for tires collected from vehicles under established tire 
collection programs (as defined). Secondly, this rule is specifically 
for use of non-hazardous secondary materials as fuels and ingredients 
(including scrap tires) in combustion units and this rule has different 
criteria than State Agency definitions for general use of scrap tires. 
These issues are discussed further in Sections IX (State Authority) and 
in Section V.B.5 (Response to Comments on Scrap Tires).
---------------------------------------------------------------------------

    \159\ There are many variations on how scrap tires are regarded 
in State Environmental Agencies, of note, Texas considers that tires 
are non-waste, but that the shipments have to be documented. For 
details, please refer to comments by the Texas Commission on 
Environmental Quality (TCEQ), commenter ID EPA-HQ-RCRA-2008-0329-
1306.
---------------------------------------------------------------------------

    Typically, the state and private programs work together to 
encourage processing, reuse, and/or recycling, that would result in a 
market demand for scrap tires to be collected; however, the market for 
fuel use is more independently sustainable in the free market, while 
other markets for scrap tire reuse and recycling often need to function 
with state subsidies to support them.\160\
---------------------------------------------------------------------------

    \160\ The recovery and management of scrap tires that are 
recovered from tire piles are largely supported or subsidized by 
State Agencies and these whole tires are considered discarded and 
waste when used as fuel, unless they are sufficiently processed.

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[[Page 15535]]

b. Beneficial Use of Whole Scrap Tires
    Since most combustion units will continue to use tires that have 
been processed into TDF chips, the biggest change in the final rule 
(with regard to the use of scrap tires) is that cement kilns will be 
able to use whole tires as non-waste fuels if those tires are removed 
from vehicles under established tire collection programs. In 
particular, cement kilns operate at much higher temperatures and need, 
not only the fuel from the tires, but also the non-combustible portions 
in order to produce cement clinker, creating a strong market for this 
type of beneficial use. Whole tires removed from vehicles under 
established tire collection programs still meet the legitimacy criteria 
and using whole tires for their fuel value would lead to an overall 
decrease in the emissions of HAP or the section 129 pollutants in the 
CAA when replacing traditional fuel sources (e.g., coal) in cement 
kilns due to the contaminant levels and combustion properties. Many 
state environmental agencies and cement kilns supplied data and support 
for use of whole tires in cement kilns.
    Since cement kilns' use of whole tires as a non-waste would be a 
change from the proposal, EPA considered potential environmental 
justice impacts. The assessment of the demographic analysis at the 
cement kilns using scrap tires showed a decreased chance of impacting 
environmental justice communities based on the demographic analysis at 
cement kilns versus the alternative sites. The demographics at cement 
kilns showed that they were sited in areas that were lower in minority 
and had less poverty that the alternative CISWI combustors, tire 
processors, or disposal sites. In addition, scrap tires are prevented 
from being disposed of in states that ban whole tires from landfills 
\161\ and that have an established collection infrastructure. Not all 
states have programs that prevent landfilling and tires recovered from 
tire dumps are not always suitable for market use. However, as we have 
noted previously, scrap tires have nearly the highest percentage of 
reuse, recycling, or are otherwise being beneficially used in the 
markets to ensure that scrap tires collected as part of established 
tire collection programs are not discarded.
---------------------------------------------------------------------------

    \161\ A few states allow tires cut up in smaller pieces to be 
landfilled, while fewer states still allow whole tires in landfills.
---------------------------------------------------------------------------

2. Restrictions and Requirements
a. Legitimate Use
    Consistent with other non-hazardous secondary materials used as a 
non-waste fuel, scrap tires collected pursuant to established tire 
collection programs must meet the legitimacy criteria in Sec.  
241.3(d)(1) to be considered a non-waste fuel under this rule. 
Specifically:
    <bullet> Scrap tires are considered to be handled as a valuable 
commodity when they are collected from vehicles under established scrap 
tire collection programs. If at any point these tires or tires that 
otherwise qualify to be non-waste (processed or petitioned) are not 
managed as a valuable commodity, they would become a solid waste. See 
Sec.  241.3(d)(1)(i).
    <bullet> Scrap tires (whole or TDF chips) have an exceptionally 
high heating value; they are considered to meet the legitimacy criteria 
for meaningful heating value established in today's rule at Sec.  
241.3(d)(1)(ii). In fact, the heating value of scrap tires (12,000 Btu/
lb to 16,000 Btu/lb) is higher than typical coal values and other solid 
fuels.
    <bullet> EPA's analysis of the contaminant concentrations in scrap 
tires shows that it is comparable to the traditional fuel it replaces 
(i.e., coal); therefore, it is considered to meet the legitimacy 
criteria for comparable contaminants established in today's rule at 
Sec.  241.3(d)(1)(iii). The comparison to the contaminant 
concentrations is given in the scrap tire response to comments. See 
Section V.B.5.
b. Notification
    We are not requiring facilities that use scrap tires collected 
under established tire collection programs and that meet the legitimacy 
criteria to notify EPA under this rule. This notice would be 
duplicative of the notifications and recordkeeping requirements being 
promulgated for boilers and process heaters at major sources of air 
toxics. That is, the CAA section 112 rule requires notifications and 
recordkeeping, including documentation as to how the non-hazardous 
secondary material meets the legitimacy criteria, and satisfies the 
definition of processing and/or the requirements for the petition 
process. (40 CFR 63.7530 and 63.7555). Specific recordkeeping 
requirements for area source boilers combusting non-hazardous secondary 
materials are also found at 40 CFR 63.11225(c)(2)(ii) under the CAA 
section 112 rule for area source boilers.
    Additionally, regulations at 40 CFR 60.2175(v) promulgated for 
commercial and industrial solid waste incinerators under CAA section 
129 requires basic recordkeeping to establish whether materials 
combusted in a commercial or industrial unit meet the standards and 
procedures for identification of non-hazardous secondary materials that 
are not solid wastes. Under the provisions of Sec.  60.2175(w), for 
combustors burning scrap tires, a certification must be maintained 
stating that the scrap tires combusted under Sec.  241.3(b)(2)(i) were 
obtained through an established tire collection program.
    Owners or operators of commercial or industrial facilities that 
combust materials that are not traditional fuels are directed to the 
CAA section 112 regulations for boilers, and the CAA section 129 
regulations for commercial and industrial incinerators, to determine 
the recordkeeping provisions related to the definition of solid waste 
that may apply to them. These records and notifications under the CAA 
regulations provide assurance that facilities will apply the legitimacy 
criteria, and that requiring notification under this rule is not 
necessary.

D. Non-Hazardous Secondary Materials That Have Not Been Discarded: 
Resinated Wood Residuals

1. Scope and Applicability
    Resinated wood (also referred to as resinated wood residuals) is 
another secondary material that, upon examination, is not discarded 
when used on-site or transferred off-site. EPA would consider resinated 
wood used as a fuel in a combustion unit as not being a solid waste, 
provided these materials satisfy the specified legitimacy criteria for 
fuels (Sec.  241.3(d)(1)).
    The definition of ``resinated wood'' has been codified in Sec.  
241.2 and means wood products (containing resin adhesives) derived from 
primary and secondary wood products manufacturing and comprised of such 
items as board trim, sander dust, and panel trim. Wood products 
manufacturers in many cases have constructed their facilities to 
utilize resinated wood residuals as fuels. Specialized burners 
specifically to fire sander dust and replace oil and natural gas were 
developed and were integral to the growth of the industry. This 
secondary material is routinely transferred between either intra- or 
inter-company facilities and used as either ``furnish'' (i.e., raw 
materials) or fuel at the receiving facilities. This material when 
transferred off-site is used and handled in the same manner that 
resinated wood residuals are used when generated on-site, such that it 
is impossible to distinguish between

[[Page 15536]]

materials that are being used as a raw material and those that are 
being used as a fuel.
    Consistent with the approach taken for scrap tires, EPA recognizes 
that some specific types of non-hazardous secondary materials, such as 
resinated wood residuals, are more like valuable commodities than solid 
wastes, and per the holding of the Safe Food case, the act of 
transferring them to a third-party does not automatically involve 
discard. Consistent with Safe Food, EPA's determination that resinated 
wood is not a solid waste, even if it is transferred between industries 
or ownership of the material is relinquished, ``is reasonable and 
consistent with the statutory purpose.'' 35 F.3d at 1269.
2. Restrictions and Requirements
a. Legitimate Use
    As we have noted above, the combustor of these secondary materials 
would still need to demonstrate that such residuals meet the legitimacy 
criteria. Thus, they would need to show the material is handled as a 
valuable commodity, has meaningful heating value and is used as a fuel 
in a combustion unit that recovers energy, and contains contaminants at 
levels comparable to (or lower than) those in traditional fuels for 
which the combustion unit is designed to burn.
b. Notification
    We are not requiring facilities that use resinated wood residuals 
and that meet the legitimacy criteria to notify EPA under this rule. 
This notice would be duplicative of the notifications and recordkeeping 
requirements being promulgated for boilers and process heaters at major 
sources of air toxics. That is, the CAA section 112 rule requires 
notifications and recordkeeping, including documentation as to how the 
non-hazardous secondary material meets the legitimacy criteria, and 
satisfies the definition of processing and/or the requirements for the 
petition process. (40 CFR 63.7530 and 63.7555). Specific recordkeeping 
requirements for area source boilers combusting non-hazardous secondary 
materials are also found at 40 CFR 63.11225(c)(2)(ii) under the CAA 
section 112 rule for area source boilers.
    Additionally, regulations at 40 CFR 60.2175(v) promulgated for 
commercial and industrial solid waste incinerators under CAA section 
129 requires basic recordkeeping to establish whether materials 
combusted in a commercial or industrial unit meet the standards and 
procedures for identification of non-hazardous secondary materials that 
are not solid wastes. Owners or operators of commercial or industrial 
facilities that combust materials that are not traditional fuels are 
directed to the CAA section 112 regulations for boilers, and the CAA 
section 129 regulations for commercial and industrial incinerators, to 
determine the recordkeeping provisions related to the definition of 
solid waste that may apply to them. These records and notifications 
under the CAA regulations provide assurance that facilities will apply 
the legitimacy criteria, and that requiring notification under this 
rule is not necessary.

E. Non-Hazardous Secondary Materials Used as Ingredients

1. Scope and Applicability
    Non-hazardous secondary materials used as ingredients in combustion 
units would not be solid wastes provided they satisfy the legitimacy 
criteria discussed in Sec.  241.3(d)(2). We are not differentiating 
between ingredients that are used within the control of the generator 
from those that are not since the use of non-hazardous secondary 
materials as ingredients is more integral or akin to use in a 
commercial manufacturing process and thus, these non-hazardous 
secondary materials should not be considered discarded provided they 
satisfy the legitimacy criteria. However, non-hazardous secondary 
materials that are used as ingredients, but have been discarded in the 
first instance (e.g., landfilled) would be considered a solid waste 
unless processed into a new ingredient product.
    The Agency received comments on the proposed rule that ingredients 
should not be included in this rule since ingredients are not 
``combusted,'' but rather, are incorporated into the product. As 
explained in the response to comments in Section V.A, this issue is not 
relevant to this regulation, which determines whether non-hazardous 
secondary materials are a solid waste, or not under RCRA. EPA has clear 
authority to interpret RCRA to decide whether non-hazardous secondary 
materials are solid wastes or not. Whether EPA may cover ingredients 
used in combustors under section 129 of the CAA is a matter for 
regulations under that statute.
    The proposal identified a number of non-hazardous secondary 
materials that are currently being used as ingredients in combustion 
processes that would not be considered solid waste, provided they meet 
the legitimacy criteria for ingredients and were not discarded in the 
first instance (e.g., blast furnace slag; CKD; the coal combustion 
residual group (fly ash, bottom ash, and boiler slag); and foundry 
sand). For example, coal fly ash can be added to the raw material feed 
in clinker manufacturing to contribute specific required elements, such 
as silica, alumina, and calcium, in the final composition of cement, 
with such levels of key metals needing to be carefully calibrated with 
other ingredients to ensure that the final cement product has the 
correct mineral and metal content. There is every incentive for the 
company to ensure that the metals content are within specifications to 
ensure that the clinker product meets specifications. In clinker 
manufacture, coal fly ash partially offsets the need for raw materials, 
such as silica, iron, and alumina sources. This reduction of raw 
feedstock materials can result in reduced emissions of certain 
pollutants.\162\
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    \162\ For more detailed information on the benefits of using 
coal fly ash and other recovered mineral components in manufacturing 
processes, please see: ``Study on Increasing the Usage of Recovered 
Mineral Components in Federally Funded Projects Involving 
Procurement of Cement or Concrete to Address the Safe, Accountable, 
Flexible, Efficient Transportation Equity Act: A Legacy for Users.'' 
June 23, 2008. (EPA530-R-08-007)
---------------------------------------------------------------------------

    Another non-hazardous secondary material used as an ingredient, 
CKD, can be directly reused in a closed-loop process back into the 
cement kiln for clinker manufacture. In fact, the cement industry is 
estimated to recycle more than 75 percent of its CKD each year. 
Significant increases in U.S. clinker capacity are expected over the 
2008 to 2012 period resulting in an anticipated increase in CKD 
production and usage. In clinker manufacture, CKD partially offsets the 
need for raw material feed, such as limestone and natural constituents 
(rock), thus avoiding the energy usage and emissions related to their 
extraction and processing.
2. Restrictions and Requirements
a. Legitimate Use
    Under this rule, non-hazardous secondary materials used as 
ingredients in combustion units cannot be discarded in the first 
instance and must meet the legitimacy criteria in Sec.  241.3(d)(2) to 
be considered a non-waste ingredient. To satisfy the legitimacy 
criteria, the non-hazardous secondary material (non-waste) ingredient 
must: be managed as a valuable commodity, provide a useful contribution 
to the production or manufacturing process, used to produce a valuable 
product, and result in products that contain contaminants at 
concentrations comparable to or lower than those found in traditional 
products

[[Page 15537]]

manufactured without the non-hazardous secondary material.
b. Notification
    We are not requiring facilities that use non-hazardous secondary 
materials as ingredients to notify EPA under this rule. This notice 
would be duplicative of the notification and recordkeeping requirements 
being promulgated for boilers and process heaters at major sources of 
air toxics. That is, the CAA section 112 rule requires notifications 
and recordkeeping, including documentation as to how the non-hazardous 
secondary material meets the legitimacy criteria, and satisfies the 
definition of processing and/or the requirements for the petition 
process. (40 CFR 63.7530 and 63.7555). Specific recordkeeping 
requirements for area source boilers using non-hazardous secondary 
materials as ingredients are also found at 40 CFR 63.11225(c)(2)(ii) 
under the CAA section 112 rule for area source boilers.
    Additionally, regulations at 40 CFR 60.2175(v) promulgated for 
commercial and industrial solid waste incinerators under CAA section 
129 requires basic recordkeeping to establish whether materials 
combusted in a commercial or industrial unit meet the standards and 
procedures for identification of non-hazardous secondary materials that 
are not solid wastes. Owners or operators of commercial or industrial 
facilities that combust non-hazardous secondary materials that are not 
traditional fuels are directed to the CAA section 112 regulations for 
boilers, and the CAA section 129 regulations for commercial and 
industrial incinerators, to determine the recordkeeping provisions 
related to the definition of solid waste that may apply to them. These 
records and notifications under the CAA regulations provide assurance 
that facilities will apply the legitimacy criteria, and that requiring 
notification under this rule is not necessary.

F. Discarded Non-Hazardous Secondary Materials That Have Undergone 
Processing To Produce Legitimate Fuel or Ingredient Products

1. Scope and Applicability
    Fuel or ingredient products that result from the processing of 
discarded non-hazardous secondary materials and that meet the 
legitimacy criteria as discussed below are not solid wastes. Because 
the resulting fuel/ingredient products are, in effect, reclaimed or 
extracted products from a recycling process, EPA considers such 
materials to be ``new'' products that have not been discarded and 
therefore are not solid wastes. Until the non-hazardous secondary 
materials have been processed into a non-waste fuel or ingredient 
product meeting the legitimacy criteria, the discarded non-hazardous 
secondary material are generally assumed to be solid wastes.
    As discussed in the proposed rule, the basic principle that must be 
satisfied is that the discarded non-hazardous secondary material must 
undergo a sufficient level of processing that produces either a new 
fuel or ingredient product (the definition of processing is codified in 
Sec.  241.2). Specifically, processing includes, but is not limited to, 
operations that: remove or destroy contaminants; significantly improves 
the fuel characteristics of the material, e.g., sizing or drying the 
material in combination with other operations, chemically improve the 
as-fired energy content, or improve the ingredient characteristics. On 
the other hand, processing operations that are minimal, such as 
operations that result only in modifying the size of the non-hazardous 
secondary material, would not constitute processing for purposes of 
today's rule. In addition, the new product must have properties that 
provide the end user the assurance that the fuel or ingredient product 
consistently satisfies the legitimacy criteria based on the type of 
combustion unit the non-hazardous secondary material is used in (e.g., 
as a fuel in a boiler or as an ingredient in a cement kiln).
    <bullet> The principle that products can be produced from a waste 
is common to industrial processes and commercial recycling markets. 
Newspaper and aluminum cans discarded by consumers are then collected, 
sorted and processed into new recycled paper and aluminum products that 
are not considered solid waste. Collected plastic is generally sent to 
a reclaimer, who will sort, grind, and clean the plastic. The cleaned 
and sorted plastic is sent to a manufacturer who will use it as 
feedstock. These are clear examples where discarded materials are 
processed into legitimate non-waste products.
    Recycled fuel products are no different from recycled paper and 
aluminum cans with respect to discard. If non-hazardous secondary 
materials that are discarded by being abandoned, disposed of or thrown 
away, but are later collected, segregated, and processed into a 
homogenous fuel product that is marketed and sold as a valuable 
commodity and is no different from traditional fuels used today, then 
they should no longer be considered solid waste, just as recycled paper 
is not a solid waste.
    There are other examples beyond consumer recycled materials where 
discarded secondary materials are processed into new products. These 
examples include specific exclusions from the hazardous waste 
regulations, which provide insight into how secondary materials can be 
processed into valuable products. For instance, discarded spent 
solvents are commonly recycled via distillation into legitimate, newly 
usable solvents. These regenerated solvents are clearly considered to 
be products, not wastes. See 50 FR 634, January 4, 1985.
    Another example is scrap tires retrieved from waste tire piles that 
have been shredded/chipped into TDF with the wire removed. In this 
instance, the scrap tires have been sufficiently processed and thus, 
the TDF would not be considered a solid waste when burned as a fuel. On 
the other hand, scrap tires from waste tire piles that have been 
shredded/chipped without the metal wire removed, would not be 
considered to have been sufficiently processed, and any TDF that is 
generated in such a fashion would be considered a waste-derived fuel. 
For a full discussion of processing of scrap tires, see Section V.B.5, 
which discusses the comments received on this issue, as well as EPA's 
responses.
    Coal refuse generated from legacy piles is another example of a 
discarded material that has been processed into a fuel product, 
although, as discussed in Section V.B.8, the nature of the material 
results in a somewhat different processing scenario. Specifically, coal 
refuse that has been discarded in waste piles is unique since it was a 
material generated during the fuel production process and then thrown 
away (discarded). Over time, combustion technology changes allowed this 
raw material to be ``re-mined'' as raw material coal. The level of 
processing that occurs for this ''re-mined'' coal refuse is no 
different than the level of processing that occurs for raw material 
coal today. In fact, this same material is generated in current-day 
coal mining operations and processed into a fuel product today.
    In that sense, we do not consider coal refuse to fit within what we 
would normally consider to be a ``secondary material'' (i.e., material 
that is not the primary product of a manufacturing or commercial 
process), since the primary product of coal mining operations is in 
fact fuel As a result, raw materials that are generated in the fuel 
production process that have been discarded, but that are then 
subsequently processed no differently from raw materials processed into 
fuels today, would be considered to

[[Page 15538]]

undergo an adequate level of processing to render it a non-waste. This 
would not apply to other discarded materials, such as scrap tires, 
since they are truly secondary materials whose ultimate use as a fuel 
is in fact ``secondary in nature.'' Off-spec used oil is another 
example of a secondary material which we believe is discarded, but can 
be processed into a non-waste product (see Section V.B.7). Once the 
used oil is determined to be on-spec, we do not view it to be a solid 
waste since it is no longer regulated under the used oil management 
standards of 40 CFR part 279 and can be managed as an alternative fuel.
    Synthesis gas (or syngas as it is commonly referred) produced from 
the gasification of solid waste is another material that can also meet 
the requirements of a fuel product produced from the processing of 
discarded non-hazardous secondary materials, provided the syngas has 
been adequately processed to remove contaminants. Gasification is a 
chemical production process that converts carbonaceous material into a 
synthesis gas that can be used for energy production (or as a building 
block for other chemical manufacturing processes). In general, 
gasification systems are designed to react carbon-containing materials 
and steam at high temperatures to produce a synthesis gas composed 
mainly of carbon monoxide and hydrogen.
    Gasification systems include two basic components. The first is the 
reactor or gasifier and the second is a gas cleanup or polishing system 
used to remove various contaminants from the raw (un-polished) 
synthesis gas. At a minimum, syngas cleanup generally includes removal 
of sulfur and metals. These two components work together producing a 
synthesis gas that can be used as a fuel in a combustion turbine.
    Coal fines, biomass, and other materials can be mixed and processed 
into pellets (or other forms) that have the consistency and handling 
characteristics of coal. For example, the K-Fuel process employs heat 
and pressure to transform coal into a cleaner, more efficient fuel by 
removing water and polluting impurities, thus increasing combustion 
efficiency. When applied to different lower-rank sub-bituminous and 
lignite coals, the K-Fuel process removes, on average, almost 70 
percent of the coal's elemental mercury.\163\ As discussed in Section 
V.B.2, manure that has been sufficiently processed (for example, by 
anaerobic digesters) would also be considered a legitimate non-waste 
fuel that has been processed from a non-hazardous secondary material 
provided processed material meets the legitimacy criteria.
---------------------------------------------------------------------------

    \163\ Evergreen Energy Company Web site. http://www.evgenergy.com/k_fuel.php.
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2. Restrictions and Requirements
a. Legitimate Use
    Discarded non-hazardous secondary materials that are sufficiently 
processed to produce legitimate fuel or ingredient products must still 
pass the applicable legitimacy criteria to be considered a non-waste 
fuel or ingredient product. To be considered a legitimate fuel, the 
fuel product must meet the criteria identified in Sec.  241.3(d)(1), 
while to be considered a legitimate ingredient, the ingredient product 
must meet the criteria in Sec.  241.3(d)(2).
b. Notification
    We are not requiring facilities that use discarded non-hazardous 
secondary materials that are sufficiently processed to produce 
legitimate fuel or ingredient products to notify EPA under this rule. 
This notice would be duplicative of the notifications and recordkeeping 
requirements being promulgated for boilers and process heaters at major 
sources of air toxics. That is, the CAA section 112 rule requires 
notifications and recordkeeping, including documentation as to how the 
non-hazardous secondary material meets the legitimacy criteria, and 
satisfies the definition of processing and/or the requirements for the 
petition process. (40 CFR 63.7530 and 63.7555). Specific recordkeeping 
requirements for area source boilers using non-hazardous secondary 
materials as ingredients are also found at 40 CFR 63.11225(c)(2)(ii) 
under the CAA section 112 rule for area source boilers.
    Additionally, regulations at 40 CFR 60.2175(v) promulgated for 
commercial and industrial solid waste incinerators under CAA section 
129 require basic recordkeeping to establish whether materials 
combusted in a commercial or industrial unit meet the standards and 
procedures for identification of non-hazardous secondary materials that 
are not solid wastes. Owners or operators of commercial or industrial 
facilities that combust materials that are not traditional fuels are 
directed to the CAA section 112 regulations for boilers, and the CAA 
section 129 regulations for commercial and industrial incinerators, to 
determine the recordkeeping provisions related to the definition of 
solid waste that may apply to them. The Agency believes that these 
records and notifications under the CAA regulations provide assurance 
that facilities will apply the legitimacy criteria, and that requiring 
notification under this rule is not necessary.

G. Non-Waste Determination Petitions

1. Description of the Petition Criteria for the Non-Waste Determination
    The final rule establishes a non-waste determination petition 
process that provides persons with an administrative process for 
receiving a formal determination from the EPA Regional Administrator 
that non-hazardous secondary materials that are burned as a fuel and 
have not been managed within the control of the generator, have not 
been discarded, and is indistinguishable in all relevant aspects from a 
fuel product is not a solid waste when used as a legitimate fuel in a 
combustion unit. For example, a facility combusting non-hazardous 
secondary materials that is not affiliated or within the control of the 
generator of the non-hazardous secondary material (and thus is 
``outside the control of the generator'') can petition EPA that such 
non-hazardous secondary materials they burn as fuel is not a solid 
waste pursuant to the various criteria.
    This petition process is voluntary. That is, facilities may choose 
to petition EPA to receive a case-specific non-waste determination. 
However, any petition that is submitted to EPA that requests a non-
waste determination must demonstrate that the non-hazardous secondary 
material has not been previously discarded and that it satisfies the 
five criteria outlined in today's rule at Sec.  241.3(c). In addition, 
the petitioner must also demonstrate that the non-hazardous secondary 
material meets the legitimacy criteria in 241.3(d)(1).
    To demonstrate that the non-hazardous secondary material that is to 
be burned as a fuel has not been discarded in the first instance, the 
petitioner would need to demonstrate that it was not initially 
abandoned or thrown away by the generator of the non-hazardous 
secondary material. After demonstrating that the non-hazardous 
secondary material has not been discarded in the first instance, the 
petitioner must then demonstrate that the material is indistinguishable 
in all relevant aspects from a fuel product by showing that it 
satisfies all of the following five criteria: (1) Whether market 
participants handle the non-hazardous secondary material as a fuel 
rather than a waste; (2) whether the chemical and physical identify of 
the non-hazardous secondary material is comparable to a commercial 
fuel; (3) whether the capacity of the market would use the non-
hazardous secondary

[[Page 15539]]

material in a reasonable time frame; (4) whether the constituents in 
the non-hazardous secondary material are released to the air, water or 
land from the point of generation to the point just prior to combustion 
of the non-hazardous secondary material at levels comparable to what 
would otherwise be released from traditional fuels; and (5) other 
relevant factors. These five criteria are listed in today's rule at 
Sec.  241.3(c)(1).
    Specifically, the first criterion for a non-waste determination is 
whether market participants treat the non-hazardous secondary material 
as a fuel rather than a solid waste. This would include consideration 
of likely markets for the non-hazardous secondary material (e.g., based 
on the current positive value of the secondary material, stability of 
demand, and any contractual arrangements). This evaluation of market 
participation is a key element for determining whether companies view 
these non-hazardous secondary materials like fuels rather than as 
negatively-valued wastes.
    The second criterion for a non-waste determination is the chemical 
and physical identity of the non-hazardous secondary material and 
whether it is comparable to commercial fuels. This ``identity 
principle'' is a key factor that the Court of Appeals for the DC 
Circuit cited in Safe Food in determining whether a non-hazardous 
secondary material is indistinguishable from a product. It is important 
to note that the identity of a material can be comparable to a fuel 
product without being identical. However, to qualify for a non-waste 
determination, any differences between the non-hazardous secondary 
material in question and the commercial fuel contaminants should be 
within a small acceptable range. In addition, the comparison must be of 
the secondary material itself to the commercial fuels and not of the 
emissions from the combustion unit. The Agency also recognizes, 
however, that emissions data may be used to augment data from the 
material in cases where such emissions data is useful in making 
legitimacy determinations and demonstrating that constituents in the 
material are being used in energy recovery and not disposed of through 
sham recycling.
    The third criterion for making a non-waste determination is the 
capacity of the market to use the non-hazardous secondary material as a 
fuel in combustion units in a reasonable time frame and ensure that it 
will not be abandoned. For the non-waste determination, a person must 
provide sufficient information about the non-hazardous secondary 
material and the market demand for it to demonstrate that such non-
hazardous secondary materials will in fact be used as a fuel in 
combustion units in a reasonable time frame. EPA is not explicitly 
defining ``reasonable time frame'' because such time frames could vary 
according to the non-hazardous secondary material and the industry 
involved, and therefore determining this time frame should be made on a 
case-specific basis.
    The fourth criterion for a non-waste determination is whether the 
constituents in the non-hazardous secondary material fuels that could 
be considered contaminants are at concentrations comparable to what 
would otherwise be released from traditional fuels from the point of 
generation of the non-hazardous secondary material, its management and 
storage prior to combustion. The Agency believes that the release to 
the environment of contaminants contained in the non-hazardous 
secondary material is a possible indicator of risk and discard. The 
Agency recognizes that combustion using traditional fuels also result 
in a certain level of release and, in evaluating this criterion, would 
not deny a non-waste determination if such release is comparable to 
those traditional fuel releases. However, when relatively high levels 
of the contaminants are released to the environment from the point of 
generation to the point just prior to combustion then that may be an 
indication that the non-hazardous secondary material is not being 
handled as a commercial fuel.
    The fifth and final criterion for a non-waste determination 
includes any other relevant factors that demonstrate that the non-
hazardous secondary material is not discarded and thus is not a solid 
waste. This catch-all criterion is intended to allow the petitioner to 
provide any case-specific information considered important and relevant 
in making the case that its non-hazardous secondary material used as a 
fuel in a combustion unit is not a solid waste.
    Any non-hazardous secondary material used as a fuel must also 
satisfy the legitimacy criteria (Sec.  241.3(d)(1)) in order to be 
considered a non-waste fuel. We note that there may be some overlap 
between the legitimacy criteria and the five petition criteria 
discussed above. Thus, the same rationale used to demonstrate that the 
non-hazardous secondary material contains contaminants at levels 
comparable to (or lower than) traditional fuels in combination with the 
argument that such non-hazardous secondary material contains meaningful 
heating value can be used to satisfy the petition criterion number two 
above.
2. Non-Waste Determination Petition Process
    In order to obtain a non-waste determination, a facility must apply 
to the Regional Administrator for the EPA Region where the facility 
combusting the non-hazardous secondary material is located per the 
procedures described in today's rule at Sec.  241.3(c). The application 
must address the relevant criteria discussed above. The Regional 
Administrator will evaluate the application and issue a draft notice 
tentatively granting or denying the application. Notification of this 
tentative decision will be provided by newspaper advertisement or radio 
broadcast in the locality where the combustion unit is located. The 
Regional Administrator will accept public comment on the tentative 
decision for at least 30 days, and may also hold a public hearing upon 
request or at his discretion. The Regional Administrator will issue a 
final decision after consideration of comments and after the hearing 
(if any). The Regional Administrator may draw upon the states expertise 
as discussed below.
    After a formal non-waste determination has been granted, if a 
change occurs that affects how the non-hazardous secondary material 
meets the relevant criteria contained in today's rule at Sec.  
241.3(c)(1), or affects its meeting the legitimacy criteria in Sec.  
241.3(d)(1), persons must re-apply to the Regional Administrator for 
another formal determination that the non-hazardous secondary material 
continues to meet the relevant criteria and is not discarded and 
therefore, not a solid waste. The same criteria and procedures 
described above would be used for any re-application of the non-
hazardous secondary material.
    As petition decisions are made by the Agency, they will be made 
available on an Agency Web site so the petition can be referenced when 
similar requests are submitted. This will support national consistency 
and minimize redundant efforts.
3. Petition Decisions Utilizing State Environmental Agency Program's 
Input
    When analyzing a non-waste determination petition request, the EPA 
Regional Administrator may request or rely on information generated 
through a state's beneficial use program that certain non-hazardous 
secondary materials are or are not solid waste. The state beneficial 
use programs have been developed to encourage a variety of uses for 
many non-hazardous secondary

[[Page 15540]]

materials. The process ensures that non-hazardous secondary materials 
do not endanger human health and the environment, and that they are 
managed in accordance with the conditions of the determination. 
Generally, when a beneficial use determination has been granted (thus, 
no longer considered a solid waste under a state's laws or 
regulations), it would document that the chemical and physical 
properties are similar to the raw material it is replacing or, when 
incorporated into another product, would be beneficial to the final 
product.
    State Agencies may also submit a non-waste determination request on 
behalf of the regulated applicant for EPA to evaluate under the non-
waste determination criteria in today's rule at Sec.  241.3(c)(1). 
States may petition for a whole category of non-hazardous secondary 
materials in their state for a particular type of combustor, or for 
specific individual combustors.

H. Legitimacy Criteria

1. Legitimacy Criteria for Fuels
    Non-hazardous secondary materials used as non-waste fuels in 
combustion units must meet the legitimacy criteria specified in Sec.  
241.3(d)(1). To meet the legitimacy criteria, the non-hazardous 
secondary material must be managed as a valuable commodity, have a 
meaningful heating value and be used as a fuel in a combustion unit 
that recovers energy, and contain contaminants at concentrations 
comparable to (or lower than) those in traditional fuels which the 
combustion unit is designed to burn.
    In applying the legitimacy criteria, we would note that there are 
two overall questions that the Agency needs to answer: (1) Whether or 
not the non-hazardous secondary material is a fuel product or 
ingredient product, or whether the material has been discarded and is 
therefore a solid waste, which includes waste-derived fuels or 
ingredients; and (2) whether the non-hazardous secondary material is 
being legitimately and beneficially used or recycled.
    With respect to the legitimacy question, EPA believes it important 
and crucial to apply a set of legitimacy criteria to make sure that the 
fuel product is being legitimately and beneficially used and not simply 
being discarded via sham recycling. The definition of legitimate 
recycling developed for the subtitle C hazardous secondary materials 
carefully considered the history surrounding the uses of these 
secondary materials, as well as the applicable case law with respect to 
the meaning of discard. Likewise, those same principles are pertinent 
to how a non-hazardous secondary material is determined not to be a 
solid waste. Therefore, we are codifying general legitimacy criteria 
that use the same basic framework that has been established for the 
subtitle C hazardous waste regulations, but that are also tailored 
specifically for application to non-hazardous secondary materials that 
are used as fuels in combustion units. See 40 CFR 241.3(d) for the 
proposed regulatory text of the legitimacy criteria and, for 
comparison, see 40 CFR 260.43 in final regulations for the DSW 
hazardous waste legitimacy provisions.
    Specific legitimacy criteria for fuels are discussed below:
a. Manage as a Valuable Commodity
    Non-hazardous secondary materials used as fuels must be managed as 
valuable commodities, including being stored for a reasonable time 
frame. See Sec.  241.3(d)(1)(i). Where there is an analogous fuel, the 
non-hazardous secondary material must be managed in a manner consistent 
with the management of the analogous fuel or otherwise be adequately 
contained so as to prevent releases to the environment. Where there is 
no analogous fuel, the non-hazardous secondary material must be 
adequately contained so as to prevent releases to the environment. An 
``analogous fuel'' is a traditional fuel for which the non-hazardous 
secondary material substitutes and which serves the same function and 
has similar physical and chemical properties as the non-hazardous 
secondary material.
    With respect to how long a non-hazardous secondary material can be 
stored before the material is not considered to be ``managed as a 
valuable commodity,'' we are requiring that the non-hazardous secondary 
material be stored for a reasonable time frame. While EPA took comment 
on whether it should provide a specific time-frame (e.g., one-year) as 
opposed to the general standard of ``reasonable time frame,'' based on 
comments submitted, the Agency has decided not to specifically define 
``reasonable time frame,'' primarily because such time frames could and 
will vary according to the non-hazardous secondary material and 
industry involved. (See Section V. D.1 for a discussion of the comments 
received and EPA's response.)
    This legitimacy factor applies to the non-hazardous secondary 
materials burned under the generator-controlled exclusion, to 
legitimate fuel products that have been produced from discarded non-
hazardous secondary materials that have been sufficiently processed to 
produce a non-waste fuel, and to the non-hazardous secondary materials 
used as fuel that have not been discarded when used outside control of 
the generator (i.e., scrap tires under tire collection programs and 
resinated wood residuals). For the generator-controlled provision and 
for those non-hazardous secondary materials that are used as a fuel 
that have not been discarded when used outside the control of the 
generator (i.e., scrap tires under tire collection programs and 
resinated wood residuals), the non-hazardous secondary material must be 
managed as a valuable commodity upon generation through its end use as 
a fuel--that is, from the initial point of generation of the non-
hazardous secondary material to the time it is actually burned as a 
fuel. For discarded non-hazardous secondary materials that are 
processed to produce a non-waste fuel, the fuel must be managed as a 
valuable product from the point that it is first produced as a non-
waste fuel through the time that it is actually burned. As noted 
previously, before the non-waste fuel product is produced from 
discarded non-hazardous secondary materials, the non-hazardous 
secondary material is a solid waste, and must comply with any federal, 
state, or local requirements.
    This criterion requires that the non-hazardous secondary material 
be managed appropriately before its end use as a fuel. In EPA's view, a 
company will value non-hazardous secondary materials used as non-waste 
fuels that provide an important contribution and, therefore, will 
manage those secondary materials in a manner consistent with how it 
manages traditional fuels. If, on the other hand, a company does not 
manage the non-hazardous secondary material as it would a traditional 
fuel, that behavior may indicate that the non-hazardous secondary 
material is being discarded.
    This factor addresses the management of non-hazardous secondary 
materials used as fuels in two distinct situations. The first situation 
is when the non-hazardous secondary material is analogous to a 
traditional fuel that otherwise could be burned. In this case, the non-
hazardous secondary material must be managed prior to use as a fuel in 
a similar manner to how traditional fuels are managed or otherwise must 
be ``contained'' so as to prevent releases to the environment. For 
example, for liquid non-hazardous secondary materials that are used as 
a non-waste fuel that are similar to liquid fossil fuels, the Agency 
would expect that such non-hazardous secondary materials would be 
managed in tanks or similar type devices that are structurally

[[Page 15541]]

sound to control the release of the non-hazardous secondary materials. 
The Agency would also expect that the types of controls that would 
typically be part of a tank or similar type device for liquid fossil 
fuels would also be part of any tank system that is used to manage the 
non-hazardous secondary material. For example, if liquid fossil fuels 
are stored in tanks with covers or they provide for secondary 
containment, the Agency would expect that the non-hazardous secondary 
material would also be stored in tanks with covers, with secondary 
containment so as to prevent releases to the environment.
    The second situation addresses the case where there is no analogous 
traditional fuel that otherwise could be burned. This could be either 
because the process is designed around a particular non-hazardous 
secondary material fuel, such as resinated wood residuals, or because 
physical or chemical differences between the non-hazardous secondary 
material and the traditional fuel are too significant for them to be 
considered ``analogous.'' Non-hazardous secondary materials that have 
significantly different physical or chemical properties when compared 
to traditional fuels would not be considered analogous even if they 
serve the same function because it may not be appropriate to manage 
them in the same way. In this situation, the non-hazardous secondary 
material would have to be ``contained'' so as to prevent releases to 
the environment for this criterion to be met. A non-hazardous secondary 
material is ``contained'' if it is stored in a manner that both 
adequately prevents releases or other hazards to human health and the 
environment, considering the nature and toxicity of the non-hazardous 
secondary material.\164\
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    \164\ Examples of materials that are adequately contained would 
include liquid fuels stored in a tank.
---------------------------------------------------------------------------

b. Meaningful Heating Value and Use as a Fuel
    Non-hazardous secondary materials must have a meaningful heating 
value and be used as a fuel in a combustion unit that recovers energy. 
See Sec.  241.3(d)(1)(ii). That is, since this legitimacy criterion is 
intended to apply only to non-hazardous secondary materials that have a 
specific end use (in this case, use as a fuel in an energy recovery 
device), we believe it appropriate to highlight that point by adding 
that restriction directly to the legitimacy criterion. Thus, non-
hazardous secondary materials having a meaningful heating value must 
also be burned in a combustion device specifically to recover energy; 
otherwise the unit that combusts such secondary materials are 
considered incinerators and thus, are solid wastes.\165\ We recognize 
that incinerators and similar type units may accept non-hazardous 
secondary materials with a meaningful heating value and use that fuel 
value to limit the other types of fuels it needs to burn. However, the 
intent of an incinerator, and similar type units, is to destroy wastes, 
and thus, non-hazardous secondary materials that are burned in such 
units are considered discarded, and thus, solid waste.
---------------------------------------------------------------------------

    \165\ We note that incinerators that burn waste for purposes of 
destruction that have a waste heat recovery boiler would not be 
considered a combustion unit that satisfies this legitimacy 
criterion.
---------------------------------------------------------------------------

    With respect to the requirement that the non-hazardous secondary 
material have a meaningful heating value, in the context of the RCRA 
subtitle C hazardous waste regulations, EPA addressed this concept--
that is, whether a hazardous secondary material has a meaningful 
heating value, in the ``comparable fuels'' rule (63 FR 33781) by 
defining it with a benchmark Btu content of 5,000 Btu/lb. EPA has also 
previously stated that industrial furnaces (e.g., cement kilns and 
industrial boilers) burning hazardous wastes with an energy value 
greater than 5,000 Btu/lb may generally be considered to be burning for 
energy recovery; however, we have also indicated that hazardous wastes 
with a lower Btu content could conceivably be burned for energy 
recovery due to the devices' general efficiency of combustion. ``Thus, 
the 5,000 Btu level is not an absolute bright line measure of burning 
for energy recovery * * *'' (see 62 FR 24251, May 2, 1997).
    These same concepts are also appropriate in determining whether a 
non-hazardous secondary material has a meaningful heating value since 
traditional fuels in general have a range of heating values from 4,000 
to 23,000 Btu/lb. However, we also recognize that new technologies may 
be developed in the future that can cost-effectively produce energy 
from such non-hazardous secondary materials with lower energy content. 
As a result, for purposes of meeting this legitimacy criterion, we 
would consider non-hazardous secondary materials with an energy value 
greater than 5,000 Btu/lb, as-fired, to have a meaningful heating 
value. In addition, for facilities with energy recovery units that use 
a non-hazardous secondary material as a fuel with an energy content 
lower than 5,000 Btu/lb, as-fired, a person may demonstrate \166\ that 
a meaningful heating value is derived from the non-hazardous secondary 
material if the energy recovery unit can cost-effectively recover 
meaningful energy from the non-hazardous secondary material used as a 
fuel. Factors that are important in determining whether an energy 
recovery unit can cost-effectively recover energy from the non-
hazardous secondary material include, but are not limited to, whether 
the facility encounters a cost savings due to not having to purchase 
significant amounts of traditional fuels they otherwise would need, 
whether they are purchasing the non-hazardous secondary material to use 
as a fuel, whether the non-hazardous secondary material they are 
burning can self-sustain combustion, and whether their operation 
produces energy that is sold for a profit (e.g., a utility boiler that 
is dedicated to burning a specific type of non-hazardous secondary 
material that is below 5,000 Btu/lb, but can show that their operation 
produces electricity that is sold for a profit).
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    \166\ Such demonstration would be included in the recordkeeping 
and reporting requirements for boiler units combusting materials 
considered to be non-wastes in accordance with 40 CFR 241.3 as 
specified in 40 CFR 63.7530(a) and 63.7555. See Section VII.I in 
today's rule for a further discussion of these reporting and 
recordkeeping requirements.
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    While not specifically included in Sec.  241.3(d)(1), EPA views 
this legitimacy criterion to encompass the concept of the ``useful 
contribution and valuable product'' legitimacy factors used to evaluate 
hazardous secondary materials in the 2008 DSW final rule. In that rule, 
with respect to useful contribution, EPA said that legitimate recycling 
must involve a hazardous secondary material that provides a useful 
contribution to the recycling process or to a product of the recycling 
process. See Sec.  260.43(b)(1). In today's final rule, this criterion 
expresses the principle that non-hazardous secondary materials should 
contribute value to the manufacturing process--legitimate use is not 
occurring if the secondary materials being used do not add anything to 
the process. This criterion is intended to prevent the practice of 
using non-hazardous secondary materials in a manufacturing operation 
simply as a means of disposing or discarding them.
    With respect to the legitimacy criterion of producing a valuable 
product or intermediate, the product or intermediate is valuable if it 
is (i) sold to a third party or (ii) used by the recycler or the 
generator as an effective substitute for a commercial product or as an 
ingredient or intermediate in an industrial process. See Sec.  
260.43(b)(2). In today's final rule, this criterion

[[Page 15542]]

expresses the principle that the non-hazardous secondary material 
should be a material of value, as demonstrated by someone purchasing 
the material, or using it as an effective substitute for a commercial 
product that it would otherwise have to buy or obtain for its 
industrial process. We believe non-hazardous secondary materials that 
have meaningful heating value that are used as non-waste fuels in 
combustion units provide a useful contribution and are valuable 
products since they are replacing traditional fuels that otherwise 
would have to be burned.
c. Contaminant Levels
    Today's rule includes a legitimacy criterion under which non-
hazardous secondary materials used as non-waste fuels in combustion 
units must contain contaminants at levels that are comparable to (or 
lower than) those in traditional fuel products which the combustion 
unit is designed to burn (e.g., cellulosic biomass, fossil fuels and 
their derivatives, as identified elsewhere in this preamble). See Sec.  
241.3(d)(1)(iii). This criterion is important to ensure that a non-
hazardous secondary material being used as a fuel is not being 
combusted or otherwise released to the environment wholly or in part 
for the purpose of disposing of or discarding of unwanted materials. 
The combustion of non-hazardous secondary materials with elevated 
levels of contaminants results in the contaminants being discarded 
either through incineration, or by being released to the environment. 
We also believe that requiring that the non-hazardous secondary 
material have contaminants at concentrations that are comparable to or 
lower than traditional fuels would ensure that the burning of any non-
hazardous secondary material in combustion units will not result in 
increased releases to the environment that could impact the health and 
environment of the local community. Thus, ensuring that the level of 
contaminants in the non-hazardous secondary material is comparable to 
(or lower than) those in traditional fuels which the combustion unit is 
designed to burn would be at least as protective of human health and 
the environment as burning traditional fuels.
    The Agency took comment on a criterion where such contaminants 
could not be significantly higher in concentration than contaminants in 
traditional fuels, as this is the standard that is in the 2008 DSW 
Final Rule regarding the reclamation of hazardous secondary materials. 
However, we have decided not to adopt that standard in this rule 
because we are concerned that contaminants that are ``not significantly 
higher'' in non-hazardous secondary materials could be seen as 
``discarding'' such contaminants, even if the non-hazardous secondary 
material, when combusted, did not present a risk to human health and 
the environment. (See Section V.D.3 for a discussion of the comments 
received and EPA's response regarding the level at which contaminants 
should be present in such non-hazardous secondary materials.)
    The term ``contaminants,'' as proposed, was defined to mean the HAP 
listed under section 112(b) of the CAA, as well as the nine pollutants 
required to be regulated under section 129(a)(4) of the CAA. We believe 
that this was reasonable because this legitimacy criterion is intended 
to ensure that such non-hazardous secondary materials are not being 
combusted as a means of disposing of them, so the health and 
environmental impacts of concern will be those resulting from the air 
emissions of concern identified in the CAA, including the listed HAP, 
as well as the section 129 pollutants. (See Section V.D.3 for a 
discussion of the comments received and EPA's response regarding the 
meaning of ``contaminants.'')
    In determining which traditional fuel(s) the owner or operator of 
the boiler unit would make a comparison to with respect to contaminant 
levels, the Agency will allow any traditional fuel(s) that can be or is 
burned in the particular type of boiler. For example, if the boiler 
burns fuel oil, the level of contaminants to be compared would be the 
level of contaminants in fuel oil or other liquid traditional fuels 
that is or can be burned in such unit. For gas-fired boilers, the level 
of contaminants in the non-hazardous secondary material fuels would be 
compared to natural gas or other gaseous traditional fuels. The Agency 
believes that this approach is most appropriate since the non-hazardous 
secondary material would be replacing the use of a particular type(s) 
of fuel. In addition, as discussed in the preamble to the boiler MACT, 
boilers designed to combust different types of fuels (e.g., coal vs. 
oil) cannot easily be modified to burn another fuel. Therefore we have 
determined that any comparison of the contaminants in a non-hazardous 
secondary material should be to the type(s) of fuel that are (or can 
be) used in the boiler.
    EPA is not establishing specific numerical maximum contaminant 
levels that a non-hazardous secondary material would have to meet, but 
rather the rule allows the owner or operator to make the comparison 
based on information he has or can acquire regarding the level of 
contaminants found in the traditional fuels he burns or could burn. The 
assessment of whether the non-hazardous secondary material has 
contaminants comparable to (or lower than) traditional fuel products is 
to be made by directly comparing the numerical contaminant levels in 
the non-hazardous secondary material to the contaminant levels in 
traditional fuels.
    The legitimacy criterion is tailored specifically to the use of 
these non-hazardous secondary materials as fuels in combustion units. 
As a result, we believe that contaminant levels in non-hazardous 
secondary materials must be comparable in concentration to (or lower 
than) those levels in traditional fuels to be legitimately used as a 
non-waste fuel product. While the Agency did solicit comment on whether 
or not it should establish a bright line level or establish a set of 
levels in the final rule in defining comparable, the Agency has 
concluded that establishing such levels would be difficult since the 
level of any contaminant in a particular type of fossil fuel or other 
traditional fuels can vary quite a bit. Thus, the Agency is defining 
``comparable to or lower than'' to mean any contaminants present in the 
non-hazardous secondary materials that are within a small acceptable 
range of the concentrations found in traditional fuels. See Section 
V.D.3 for a discussion of the comments received and EPA's response 
regarding establishing specific levels in defining a comparable fuel.
2. Legitimacy Criteria for Ingredients
    Non-hazardous secondary materials used as ingredients in combustion 
units must meet the legitimacy criteria specified in 40 CFR 
241.3(d)(2). As discussed for the legitimate fuels criteria, EPA 
believes it important and crucial to apply a set of legitimacy criteria 
to make sure that the ingredient products are being legitimately and 
beneficially used and not simply being discarded via sham recycling. 
Specifically, a non-hazardous secondary material used as an ingredient 
in a combustion unit must be managed as a valuable commodity, provide a 
useful contribution, be used to produce a valuable product or 
intermediate, and must result in products that contain contaminants at 
levels that are comparable in concentration to (or lower than) those 
found in traditional products that are manufactured without the non-
hazardous secondary material. Our reasoning for establishing the 
particular criteria is discussed below.
a. Managed as Valuable Commodities
    Non-hazardous secondary materials used as ingredients must be 
managed as

[[Page 15543]]

valuable commodities, including being stored for a reasonable time 
frame. See Sec.  241.3(d)(2)(i). Where there is an analogous 
ingredient, the non-hazardous secondary material must be managed in a 
manner consistent with the management of the analogous ingredient or 
otherwise be adequately contained so as to prevent releases to the 
environment. Where there is no analogous ingredient, the non-hazardous 
secondary material must be adequately contained so as to prevent 
releases to the environment. An ``analogous ingredient'' is an 
ingredient for which the non-hazardous secondary material substitutes 
and which serves the same function and has similar physical and 
chemical properties as the non-hazardous secondary material.
    With respect to how long a non-hazardous secondary material can be 
stored before the material is not considered to be ``managed as a 
valuable commodity,'' we are requiring that the non-hazardous secondary 
material be stored for a reasonable time frame. While EPA took comment 
on whether it should provide a specific time frame (e.g., one-year) as 
opposed to the general standard of ``reasonable time frame,'' based on 
comments submitted, the Agency has decided not to specifically define 
``reasonable time frame,'' primarily because such time frames could and 
will vary according to the non-hazardous secondary material and 
industry involved. (See Section V.D.1 for a discussion of the comments 
received and EPA's response.)
    For discarded non-hazardous secondary materials that are processed 
to produce a non-waste ingredient, the ingredient product must be 
managed as a valuable product from the point that it is first produced 
as a non-waste through its use in the combustion unit. As noted 
previously, before the non-waste product is produced, the non-hazardous 
secondary material is a solid waste, and must comply with any federal, 
state, or local requirements.
    This criterion requires that the non-hazardous secondary material 
be managed appropriately before its end use as an ingredient. In EPA's 
view, a company will value non-hazardous secondary materials used as 
ingredients that provide an important contribution and, therefore, will 
manage those non-hazardous secondary materials in a manner consistent 
with how it manages traditional ingredients. If, on the other hand, a 
company does not manage the non-hazardous secondary material as it 
would traditional ingredients, that behavior may indicate that the non-
hazardous secondary material is being discarded.
    This factor addresses the management of non-hazardous secondary 
materials used as ingredients in two distinct situations. The first 
situation is when the non-hazardous secondary material is analogous to 
a traditional ingredient that otherwise could be burned. In this case, 
the non-hazardous secondary material must be managed prior to use as an 
ingredient in a similar manner to how traditional ingredients are 
managed or otherwise must be ``contained'' so as to prevent releases to 
the environment. For example, for liquid non-hazardous secondary 
materials that are used as a non-waste ingredient that are similar to 
traditional ingredients, the Agency would expect that such non-
hazardous secondary materials would be managed in tanks or similar type 
devices that are structurally sound to control the release of the non-
hazardous secondary materials. The Agency would also expect that the 
types of controls that would typically be part of a tank or similar 
type device for traditional ingredients would also be part of any tank 
system that is used to manage the non-hazardous secondary material. For 
example, if traditional ingredients are stored in tanks with covers or 
they provide for secondary containment, the Agency would expect that 
the non-hazardous secondary material would also be stored in tanks with 
covers, with secondary containment so as to prevent releases to the 
environment.
    The second situation addresses the case where there is no analogous 
traditional ingredient that otherwise could be burned. This could be 
either because the process is designed around a particular non-
hazardous secondary material ingredient, or because physical or 
chemical differences between the non-hazardous secondary material and 
the traditional ingredient are too significant for them to be 
considered ``analogous.'' Non-hazardous secondary materials that have 
significantly different physical or chemical properties when compared 
to traditional ingredients would not be considered analogous even if 
they serve the same function because it may not be appropriate to 
manage them in the same way. In this situation, the non-hazardous 
secondary material would have to be ``contained'' so as to prevent 
releases to the environment for this criterion to be met. A non-
hazardous secondary material is ``contained'' if it is stored in a 
manner that both adequately prevents releases or other hazards to human 
health and the environment, considering the nature and toxicity of the 
non-hazardous secondary material.\167\
---------------------------------------------------------------------------

    \167\ Examples of materials that are adequately contained would 
include liquids stored in a tank.
---------------------------------------------------------------------------

b. Useful Contribution
    We are requiring that non-hazardous secondary materials used as 
ingredients in combustion units provide a useful contribution to the 
production/manufacturing process. See Sec.  241.3(d)(2)(ii). A non-
hazardous secondary material used as an ingredient in combustion 
systems provides a useful contribution if it contributes valuable 
ingredients to the production/manufacturing process or to the product 
or intermediate of the production/manufacturing process. This criterion 
is an essential component in the determination of legitimacy because 
legitimate use is not occurring if the non-hazardous secondary material 
doesn't add anything to the process, such that the non-hazardous 
secondary material is basically being disposed of or discarded. This 
criterion is intended to prevent the practice of ``sham'' recycling by 
adding non-hazardous secondary materials to a manufacturing operation 
simply as a means of disposing of them.
    For purposes of satisfying this criterion, not every constituent or 
component of the non-hazardous secondary material has to make a 
contribution to the production/manufacturing activity. For example, 
non-hazardous secondary materials used as ingredients may contain some 
constituents that are needed in the manufacturing process, such as, for 
example, zinc in non-hazardous secondary materials that are used to 
produce zinc-containing micronutrient fertilizers, while other 
constituents in the non-hazardous secondary material, such as lead, do 
not provide a useful contribution. Provided the zinc is at levels that 
provides a useful contribution, we believe the non-hazardous secondary 
material would satisfy this criterion, although we would note that the 
constituents not directly contributing to the manufacturing process 
could still result in the non-hazardous secondary material not meeting 
the contaminant part of the legitimacy criteria. The Agency is not 
quantitatively defining how much of the non-hazardous secondary 
material needs to provide a useful contribution for this criterion to 
be met, since we believe that defining such a level would be difficult 
and is likely to be different, depending on the non-hazardous secondary 
material. The Agency recognizes that this could be an issue if

[[Page 15544]]

persons argue that a non-hazardous secondary material is being 
legitimately used as an ingredient, but in fact, only a small amount or 
percentage of the non-hazardous secondary material is used. Because of 
the differences in the emissions standards that the non-hazardous 
secondary material would be subject to--between CAA sections 112 and 
129, persons may argue that such non-hazardous secondary materials are 
not wastes, when in fact, the operation is really discard, and 
therefore, sham recycling. Thus, as part of the recordkeeping 
requirements under the CAA, persons need to provide the basis or 
rationale on why the particular non-hazardous secondary material meets 
the legitimacy criteria, including how the secondary material provides 
a useful contribution.
c. Valuable Product
    We are requiring that non-hazardous secondary materials used as 
ingredients in combustion units must be used to produce a valuable 
product or intermediate. See Sec.  241.3(d)(2)(iii). The product or 
intermediate is valuable if it is (i) sold to a third party or (ii) 
used as an effective substitute for a commercial product or as an 
ingredient or intermediate in an industrial process.
    This criterion expresses the principle that the product or 
intermediate of the manufacturing/production process should be a 
material of value, either to a third party who buys it from the 
manufacturer, or to the same manufacturer that subsequently uses it as 
a substitute for another material that it would otherwise have to buy 
or obtain for its industrial process. This criterion is an essential 
component of the concept of legitimacy because legitimate use cannot be 
occurring if the product or intermediate is not of use to anyone and, 
therefore, has no real value. This criterion is intended to prevent the 
practice of introducing a non-hazardous secondary material through an 
industrial process to make something just for the purpose of avoiding 
the costs of disposal. Such a practice would be sham recycling.
    One way that the use of the non-hazardous secondary material as an 
ingredient in the production/manufacturing process can be shown to 
produce a valuable product would be to have documentation on the sale 
of the product to a third party. Such documentation could be in the 
form of receipts or contracts and agreements that establish the terms 
of the sale or transaction. This transaction could include money 
changing hands or, in other circumstances, may involve trade or barter. 
A manufacturer that has not yet arranged for the sale of its product to 
a third party could also establish value by demonstrating that it can 
replace another product or intermediate that is available in the 
marketplace.
    Production/manufacturing processes that use non-hazardous secondary 
materials as ingredients may produce outputs that are not sold to 
another party, but are instead used by the same manufacturer. These 
products or intermediates may be used as a feedstock in a manufacturing 
process, but have no established monetary value in the marketplace. 
Such products or intermediates would be considered to have intrinsic 
value, though demonstrating intrinsic value may be less straightforward 
than demonstrating value for products that are sold in the marketplace. 
Demonstrations of intrinsic value could involve showing that the 
product or intermediate of the production/manufacturing process 
replaces another material that would otherwise have to be purchased or 
could involve a showing that the non-hazardous secondary material meets 
specific product specifications or specific industry standards. Another 
approach could be to compare the non-hazardous secondary material's 
physical and chemical properties or efficacy for certain uses with 
those of comparable products or intermediates made from raw materials.
    Some production/manufacturing processes that use non-hazardous 
secondary materials as ingredients may consist of multiple steps that 
may occur at separate facilities. In some cases, each processing step 
will yield a valuable product or intermediate. When each step in the 
process yields a valuable product or intermediate that is salable or 
usable in that form, the activity would conform to this criterion.
d. Contaminant Levels
    We are requiring that non-hazardous secondary materials used as an 
ingredient must result in products that contain contaminants at levels 
that are comparable in concentration to (or lower than) those found in 
traditional products that are manufactured without the non-hazardous 
secondary material. See Sec.  241.3(d)(2)(iv). The term 
``contaminants'' refers to constituents in non-hazardous secondary 
materials that will result in emissions of the air pollutants 
identified as HAP listed under CAA section 112(b), the nine pollutants 
listed under CAA section 129(a)(4).
    The assessment of whether the products produced from the use of 
non-hazardous secondary materials that have contaminants that are 
comparable to (or lower) in concentration can be made by a comparison 
of contaminant levels in the ingredients themselves to the traditional 
ingredients they are replacing, or by comparing the contaminant levels 
in the product itself with and without the use of the non-hazardous 
secondary material. In determining which traditional ingredient(s) the 
owner or operator of the unit would make a comparison to with respect 
to contaminant levels, the Agency believes that any traditional 
ingredient that can be or is used in the particular type of unit is 
appropriate. For example, for cement kilns, if the ingredient is CKD, 
the level of contaminants to be compared would be the level of 
contaminants in limestone or other ingredients that can be used in such 
unit. Alternatively, a product comparison can be made. See Section V.E 
for a further discussion of the comments received regarding the 
legitimacy criteria for ingredients, as well as our responses to those 
comments.

I. Determining That Non-Hazardous Secondary Materials Meet the 
Legitimacy Criteria

    Owners and operators of affected facilities combusting non-
hazardous secondary materials that are not considered solid wastes must 
ensure that the non-hazardous secondary materials meet the legitimacy 
criteria in Sec.  241.3(d) (and continue to meet those criteria) when 
combusted. Non-hazardous secondary materials that no longer meet these 
legitimacy criteria would be considered solid wastes and the units 
combusting those non-hazardous secondary materials would be considered 
a commercial or industrial solid waste incineration (CISWI) unit (see 
40 CFR 60.2875).
    The CAA section 112 rule requires notifications and recordkeeping, 
including documentation as to how the non-hazardous secondary material 
meets the legitimacy criteria, and satisfies the definition of 
processing and/or the requirements for the petition process. (40 CFR 
63.7530 and 63.7555). Specific recordkeeping requirements for area 
source boilers combusting non-hazardous secondary materials are found 
at 40 CFR 63.11225(c)(2)(ii) under the CAA section 112 rule for area 
source boilers. Additionally, regulations at 40 CFR 60.2175(v) 
promulgated for commercial and industrial solid waste incinerators 
under CAA section 129 require basic recordkeeping to establish whether 
materials combusted in a commercial or industrial unit meet the 
standards and procedures for identification of non-hazardous

[[Page 15545]]

secondary materials that are not solid wastes. Owners or operators of 
commercial or industrial facilities that combust materials that are not 
traditional fuels are directed to the CAA section 112 regulations for 
boilers and process heaters, and the CAA section 129 regulations for 
commercial and industrial incinerators, to determine the recordkeeping 
provisions related to the definition of solid waste that may apply to 
them. The Agency believes that these records and notifications under 
the CAA regulations provide assurance that facilities will apply the 
legitimacy criteria.

VIII. Effect of Today's Final Rule on Other Programs

    The construct of this rule is to determine which non-hazardous 
secondary materials are solid wastes when combusted either as a fuel or 
ingredient in order to determine CAA section 129 applicability. Thus, 
this rules applicability is to the universe of combustion facilities 
using non-hazardous secondary materials as fuels or ingredients.

A. Clean Air Act

    The definition of solid waste incineration unit in CAA section 
129(g)(6) states that the term ``solid waste'' will have the meaning 
established by the Administrator of EPA under RCRA. Today's rule would 
establish under RCRA which non-hazardous secondary materials constitute 
``solid waste'' when used as a fuel or an ingredient. This definition 
of ``solid waste'' is being used by EPA to establish CAA emissions 
standards for CISWI units (under CAA section 129) and boilers and 
process heaters (under CAA section 112). Any unit combusting ``solid 
waste'' is subject to the emission standards for ``solid waste 
incineration units'' under CAA section 129. The waste determinations in 
this rule do not subject combustion units to the CAA section 129 
standards if the units are exempt under CAA section 129(g)(1).\168\
---------------------------------------------------------------------------

    \168\ CAA 129 (g)(1).
    ``(1) * * * The term ``solid waste incineration unit'' does not 
include
    (A) materials recovery facilities (including primary or 
secondary smelters) which combust waste for the primary purpose of 
recovering metals,
    (B) qualifying small power production facilities, as defined in 
section 796 (17)(C) of title 16, or qualifying cogeneration 
facilities, as defined in section 796 (18)(B) of title 16, which 
burn homogeneous waste (such as units which burn tires or used oil, 
but not including refuse-derived fuel) for the production of 
electric energy or in the case of qualifying cogeneration facilities 
which burn homogeneous waste for the production of electric energy 
and steam or forms of useful energy (such as heat) which are used 
for industrial, commercial, heating or cooling purposes, or
    (C) air curtain incinerators provided that such incinerators 
only burn wood wastes, yard wastes and clean lumber and that such 
air curtain incinerators comply with opacity limitations to be 
established by the Administrator by rule. * * *''
---------------------------------------------------------------------------

B. Renewable Energy

    This rule may impact how some non-hazardous secondary materials 
could be used to help supply renewable energy to the U.S. and through 
state programs. Congress has passed several laws, such as the Energy 
Independence and Security Act of 2007 (Pub. L. 110-140), that supports 
the development and use of renewable sources of energy, both for power 
generation and for the production of transportation fuels. Qualified 
sources would include wind, solar, and geothermal power, but could also 
include power generated by the combustion of biogenic materials, which 
may include some non-hazardous secondary materials burned for energy 
recovery. Biogenic materials are materials that result from the 
activity of living organisms. A number of non-hazardous secondary 
materials are partially or completely biogenic. For example, woody 
biomass contains recoverable energy and would be considered biogenic in 
origin. Energy from biogenic sources is generally preferable to fossil 
fuels.
    In addition to these federal programs that may be impacted, 
Renewable Portfolio Standards (RPS) currently provide states with a 
mechanism to increase renewable energy generation using renewable 
energy sources (including biofuels) and a cost-effective, market-based 
approach. An RPS requires electric utilities and other retail electric 
providers to supply a specified minimum amount of customer load with 
electricity from eligible renewable energy sources. The goal of an RPS 
is to stimulate market and technology development so that, ultimately, 
renewable energy will be economically competitive with conventional 
forms of electric power. States create RPS programs because of the 
energy, environmental, and economic benefits of renewable energy and 
sometimes other clean energy approaches, such as energy efficiency and 
combined heat and power.
    If these renewable energy sources or biogenic fuels qualify as 
clean cellulosic biomass, they are an alternative fuel (see the full 
definition in today's rule at Sec.  241.2) and are not subject to the 
section 129 CAA standards, but rather, would be subject to the section 
112 CAA standards.

C. Subtitle C Hazardous Waste Program

    The result of this rule will have no effect on the RCRA subtitle C 
hazardous waste program because it does not address hazardous waste. 
The RCRA subtitle C hazardous waste federal program has a long 
regulatory history in defining ``solid waste'' for purposes of the 
hazardous waste regulations. However, the 40 CFR 261.2 definition of 
solid waste explicitly applies only to wastes that also are hazardous 
for purposes of the subtitle C regulations (see 40 CFR 261.1(b)(1)). 
CAA section 129 also specifically excludes subtitle C combustion units 
from coverage under that section.
    RCRA section 7003 gives EPA the authority to compel actions to 
abate conditions that may present an ``imminent and substantial 
endangerment'' involving both solid and hazardous wastes. EPA uses this 
authority on a case-by-case basis. The Agency can determine in a 
specific factual context whether a non-hazardous secondary material 
which causes an endangerment is discarded. RCRA sections 3007 and 3008 
establish EPA's inspection and Federal enforcement authority to address 
violations of the subtitle C hazardous waste regulations. Nothing in 
this rule shall impact EPA's ability to act pursuant to RCRA sections 
3007, 3008 and 7003. The rule also does not limit or otherwise affect 
EPA's ability to pursue potentially responsible persons under section 
107 of CERCLA for releases or threatened releases of hazardous 
substances.
    Finally, we would note that on October 30, 2008, EPA issued a final 
rule excluding certain hazardous secondary materials from the 
definition of solid waste issued under the hazardous waste provisions 
found in RCRA subtitle C (73 FR 64688). EPA is currently re-examining 
these exclusions, and as part of a settlement agreement with Sierra 
Club, EPA will issue a proposed rule by June 2011. This proposal will 
address, at minimum, issues raised in an administrative petition filed 
by the Sierra Club, including the four issues discussed in a public 
meeting, which was announced in a Federal Register notice (74 FR 25200, 
May 27, 2009). The four issues are (1) the definition of ``contained,'' 
(2) notification before operating under the exclusion (3) the 
definition of ``legitimacy'' and (4) the transfer-based exclusion. Many 
of the issues to be addressed in the upcoming subtitle C definition of 
solid waste proposal are similar to the issues addressed in today's 
final rule. However, there are

[[Page 15546]]

significant differences between today's final rule and the scope of the 
planned June 2011 subtitle C definition of solid waste proposal. The 
planned proposal will only address the regulation of hazardous 
secondary materials (not non-hazardous secondary materials) going to 
reclamation (not burning for energy recovery) under RCRA subtitle C 
(not subtitle D). In developing the planned subtitle C proposal, EPA 
will carefully consider the difference in scope between the two 
rulemakings and address it as appropriate.

IX. State Authority

    Subtitle D of RCRA establishes a framework for state, federal, and 
local government cooperation in controlling the management of non-
hazardous solid waste. The federal role in this arrangement is to 
establish the overall regulatory direction, by providing minimum 
nationwide standards for protecting human health and the environment, 
and to provide technical assistance to states for planning and 
developing their own solid waste management practices. The actual 
planning and direct implementation of solid waste programs under RCRA 
subtitle D, however, remains largely a state and local function, and 
states have authority to devise programs to deal with state specific 
conditions and needs.
    EPA has not promulgated detailed regulations of what is included in 
the definition of solid waste for the RCRA subtitle D (non-hazardous 
waste) programs. State environmental agencies have promulgated their 
own laws and regulations as to what constitutes a solid waste and have 
interpreted those laws and regulations to determine what types of non-
hazardous secondary material activities involve the management of a 
solid waste for the purposes of their authorities. Many states have a 
process or promulgated regulations to determine when these materials 
are wastes, and when they can be used beneficially and safely in 
products in commerce.
    Through this rulemaking, EPA is articulating a definition of which 
non-hazardous secondary materials are or are not solid waste when used 
as a fuel for energy recovery in combustion units or as an ingredient 
in combustion units. We are not imposing solid waste requirements for 
determining other possible secondary material end uses nor does this 
rulemaking apply to general materials management in state programs.

A. Applicability of State Solid Waste Definitions and Beneficial Use 
Determinations

    CAA section 129 states that the term ``solid waste'' shall have the 
meaning ``established by the Administrator pursuant to the Solid Waste 
Disposal Act'' Id. at 7429(g)(6). Accordingly, the states' definition 
of solid waste would not be applicable in determining whether the CAA 
section 129 standards apply. Specifically, state determinations 
regarding a material's beneficial use that may exempt a non-hazardous 
secondary material from the state solid waste standards would not 
necessarily impact the status of such non-hazardous secondary materials 
under EPA's solid waste definition as it relates to which combustion 
units are subject to the CAA section 129 standards. Likewise, 
combustion units that use non-hazardous secondary materials as fuels or 
ingredients that are not solid waste under today's rule would not be 
subject to the solid waste incineration standards under CAA section 
129, even though the state standards may define the same material as 
solid wastes for their recycling and waste management programs.
    If a non-waste determination is sought by petition at a combustion 
unit, the Agency (EPA Regional Administrator or delegate) will make the 
decision to grant or deny the petition. The Agency can, however, 
utilize the information and contaminant data from state beneficial use 
determinations if it is applicable to the non-hazardous secondary 
material when used as a fuel or as an ingredient. These state 
beneficial use programs have been developed to encourage recycling and 
reuse, provided that such use maintains the specified state's 
acceptable level of risk and are managed in accordance with the 
conditions of the determination. Generally, when a beneficial use 
determination has been granted, it would have chemical and physical 
properties that are comparable to the raw material it is replacing or, 
when incorporated into another product, its use would be beneficial to 
the final product. If the data to support the beneficial use 
determination was available, it could help support the research on 
contaminant concentrations for the legitimacy criteria in order to make 
the petition decision.
    A discussion on state program involvement in the petition process 
and on states submitting petitions in lieu of a regulated applicant is 
described in Section V.F. Implementation and enforcement issues related 
to state programs are covered in Section VII.I.

B. State Adoption of the Rulemaking

    No federal approval procedures for state adoption of today's rule 
are included in this rule under RCRA subtitle D. Although EPA does 
promulgate criteria for solid waste landfills and approves state 
municipal solid waste landfill permitting programs, RCRA does not 
provide EPA with authority to approve state programs beyond municipal 
solid waste landfill permitting programs. While states are not required 
to adopt today's rule, some states incorporate federal regulations by 
reference or have specific state statutory requirements that their 
state program can be no more stringent than the federal regulations. In 
those cases, EPA anticipates that, if required by state law, the 
changes in today's rule will be incorporated (or possibly adopted by 
authorized state air programs) consistent with the state's laws and 
administrative procedures.

C. Clarifications on the Relationship to State Programs

    State Agencies that responded to the proposal requested further 
clarification in the final rule. Specifically, the Federal rule applies 
only to the RCRA subtitle D definition of solid waste for determining 
use as a fuel or ingredient in combustion units (as regulated by the 
CAA). Today's rule does not preempt a State's statutory or regulatory 
definition of solid waste, and only applies for purposes of determining 
which facilities must comply with the CAA section 129 standards.
    Non-hazardous secondary materials may be simultaneously regulated 
as a non-waste fuel or ingredient for use in combustion units under 
Sec.  241.3, but as a solid waste by the State's solid waste programs 
for management purposes. Also, see the discussion in the beginning of 
this Section (IX. State Authority). Combustors using non-hazardous 
secondary materials that are designated as a non-waste when used as a 
fuel or ingredient, would not be subject to the CAA section 129 
standards, even though the state standards may define the non-hazardous 
secondary material as a solid waste.
    Finally, owners and operators of affected facilities combusting 
non-hazardous secondary materials considered to be non-wastes based on 
the non-waste determination petition process, and the application of 
the criteria outlined in Sec.  241.3(c) must ensure that the non-
hazardous secondary materials continue to meet those provisions when 
combusted. Non-hazardous secondary materials that no longer meet those 
criteria, even though

[[Page 15547]]

they may be in compliance with state recycling and management 
requirements, would require the combustor to re-apply for the non-waste 
determination (per Sec.  241.3(c)(2)(iv)) through the EPA Regional 
Administrator (otherwise they would be considered solid wastes and the 
units combusting those non-hazardous secondary materials would be 
subject to the commercial or industrial solid waste incineration 
(CISWI) regulations (see 40 CFR 60.2875)).

X. Cost and Benefits of the Final Rule

    The value of any regulatory action is traditionally measured by the 
net change in social welfare that it generates. This final rule alone 
does not directly invoke any costs \169\ or benefits. This rule is 
published as part of a four-rule package that includes the Boiler MACT 
and CISWI rules.\170\ Costs to the regulated community and 
corresponding benefits to human health and the environment are captured 
under those rules. As such, the Agency has not prepared a separate 
economic assessment in support of this final rule.
---------------------------------------------------------------------------

    \169\ Excluding minor administrative burden/cost (e.g., rule 
familiarization) and costs related to submitting a voluntary 
petition.
    \170\ National Emission Standards for Hazardous Air Pollutants 
for Area Sources: Industrial, Commercial, and Institutional Boilers; 
National Emission Standards for Hazardous Air Pollutants for 
Industrial/Commercial/Institutional Boilers and Process Heaters; and 
Standards of Performance for New Stationary Sources and Emission 
Guidelines for Existing Sources: Commercial and Industrial Solid 
Waste Incineration (CISWI) Units.
---------------------------------------------------------------------------

    The costs and benefits indirectly associated with this action are 
the corresponding impacts assessed in the regulatory impact analyses 
prepared in support of the Boiler MACT and CISWI rules. These 
independent regulatory impact analyses measure, among other factors, 
the estimated net change in social welfare associated with these 
actions. In the development of these analyses, EPA worked to ensure 
that the methodologies and data applied in these assessments captured 
appropriate RCRA related costs (e.g., secondary material diversions). 
These assessments were designed to adhere to EPA and Office of 
Management and Budget guidelines and procedures. These documents are 
available in the docket established for this action.

XI. Statutory and Executive Order Reviews

A. Executive Orders 12866 and 13563: Improving Regulatory Planning and 
Review

    Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), 
and EO 13563 (76 FR 3821, January 21, 2011), this action is a 
``significant regulatory action.'' Pursuant to the terms of the Orders, 
the Agency, in conjunction with the Office of Management and Budget 
(OMB), has determined that this rule is a significant regulatory action 
because it contains novel policy issues, as defined under part 3(f)(4) 
of EO 12866. Accordingly, EPA submitted this action to OMB for review. 
Any changes made in response to OMB recommendations have been 
documented in the docket for this action.

B. Paperwork Reduction Act

    The information collection requirements in this rule have been 
submitted for approval to OMB under the Paperwork Reduction Act, 44 
U.S.C. 3501 et seq. The information collection requirements are not 
enforceable until OMB approves them.
    This rule establishes a voluntary non-waste determination petition 
process for non-hazardous secondary materials identified as solid 
wastes. Facilities claiming this solid waste exclusion are required to 
seek approval from the Agency through the submission of a petition 
prior to operating under this exclusion. Sufficient information about 
the non-hazardous secondary material and the market demand for this 
material will be necessary to demonstrate that the non-hazardous 
secondary material in fact has not been discarded and is a legitimate 
non-waste fuel or ingredient in the combustion process. Specifically, 
the petition will need to contain information to assess the following 
criteria: (1) Whether market participants handle the non-hazardous 
secondary material as a fuel rather than a waste; (2) whether the 
chemical and physical identities of the non-hazardous secondary 
material is comparable to a commercial fuel; (3) whether the capacity 
of the market would use the non-hazardous secondary material in a 
reasonable time frame; (4) whether the constituents in the non-
hazardous secondary material are not discarded to the air, water or 
land from the point of generation to the point just prior to combustion 
of the non-hazardous secondary material at levels comparable to what 
would otherwise be released from traditional fuels; and (5) other 
relevant factors.
    The facility-level burden associated with this voluntary petition 
option is estimated to have an average total burden of each non-waste 
determination petition of approximately 149 hours per facility, with a 
total cost per facility of approximately $10,100. The total number of 
facilities likely to take advantage of this option is undetermined, but 
we would expect that only a limited number of facilities may submit 
such a petition. 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 unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations are listed in 40 CFR part 9. EPA is amending the table in 
40 CFR part 9 of currently approved OMB control numbers for various 
regulations to list the regulatory citations for the information 
requirements contained in this final rule.

C. Regulatory Flexibility Act

    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 final rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. No small 
entities are directly regulated by this final rule (see discussion 
above under costs and benefits). Any potential impacts to small 
entities in these or any other potentially affected sectors are 
addressed in the regulatory flexibility analyses prepared in support of 
the CAA rules that are linked to this action.\171\
---------------------------------------------------------------------------

    \171\ National Emission Standards for Hazardous Air Pollutants 
for Area Sources: Industrial, Commercial, and Institutional Boilers; 
National Emission Standards for Hazardous Air Pollutants for 
Industrial/Commercial/Institutional Boilers and Process Heaters; and 
Standards of Performance for New Stationary Sources and Emission 
Guidelines for Existing Sources: Commercial and Industrial Solid 
Waste Incineration (CISWI) Units.
---------------------------------------------------------------------------

    Although this final rule will not have a significant economic 
impact on a

[[Page 15548]]

substantial number of small entities, EPA, nonetheless, has tried to 
reduce the impact of this rule on small entities through the careful 
and targeted identification of which non-hazardous secondary materials 
are solid wastes. In addition, we have established a voluntary petition 
process that allows for material-specific non-waste determinations.

D. Unfunded Mandates Reform Act

    This final rule does not contain a Federal mandate that may result 
in expenditures of $100 million or more for State, local, and tribal 
governments, in the aggregate, or the private sector in any one year. 
Because this action is linked to the CAA rules, this rule alone will 
not result in significant economic impacts on States, local and tribal 
governments, in the aggregate, or the private sector in any one year. 
Thus, this rule is not subject to the requirements of sections 202 or 
205 of UMRA.
    This rule 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. As described above, 
this action alone does not result in unique effects, or significant 
economic impacts.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132. This final rule, independent of the 
CAA rules, will not result in substantial direct effects on the states. 
Furthermore, this rule will not preempt state laws related to the 
affected non-hazardous secondary materials. States will remain free to 
manage these non-hazardous secondary materials, as appropriate under 
their existing regulatory programs, including their solid waste 
programs. Thus, Executive Order 13132 does not apply to this action.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and State and local 
governments, EPA specifically solicited comment on the proposed action 
from State and local officials.

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

    Subject to the Executive Order 13175 (65 FR 67249, November 9, 
2000), EPA may not issue a regulation that has tribal implications, 
that imposes substantial direct compliance costs, and that is not 
required by statute, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by tribal 
governments, or EPA consults with tribal officials early in the process 
of developing the proposed regulation and develops a tribal summary 
impact statement.
    EPA has concluded that this action may have tribal implications. 
However, it will neither impose substantial direct compliance costs on 
tribal governments, nor preempt Tribal law. The rule may have minor 
indirect tribal implications to the extent that entities generating or 
burning solid wastes on tribal lands could be affected in response to 
the corresponding CAA rules.\172\ EPA consulted with tribal officials 
early in the process of developing this regulation to permit them to 
have meaningful and timely input into its development.
---------------------------------------------------------------------------

    \172\ National Emission Standards for Hazardous Air Pollutants 
for Area Sources: Industrial, Commercial, and Institutional Boilers; 
National Emission Standards for Hazardous Air Pollutants for 
Industrial/Commercial/Institutional Boilers and Process Heaters; and 
Standards of Performance for New Stationary Sources and Emission 
Guidelines for Existing Sources: Commercial and Industrial Solid 
Waste Incineration (CISWI) Units.
---------------------------------------------------------------------------

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

    This action is not subject to Executive Order 13045 (62 FR 19885, 
April 23, 1997) because it is not economically significant as defined 
in Executive Order 12866, and because the Agency does not believe the 
environmental health or safety risks addressed by this action present a 
disproportionate risk to children. This action's health and risk 
assessments are contained in support documents prepared for the CAA 
section 129 CISWI and section 112 Boiler MACT rules.

H. Executive Order 13211: Actions that Significantly Affect Energy 
Supply, Distribution or Usage

    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, independent of the CAA 
rules,\173\ is not expected to directly affect energy use or use 
patterns. The purpose of this rule is to determine which non-hazardous 
secondary materials are solid waste when combusted. On its own, this 
rule will not lead to direct changes in the ability of facilities to 
use non-hazardous secondary materials as a source of energy. However, 
the Agency acknowledges that interactions between this rule and the 
section 112 and section 129 CAA emission standards rules being 
promulgated today may affect the use of non-hazardous secondary 
materials as a source of energy. We refer persons to the dockets for 
those rules for information on these energy impacts.
---------------------------------------------------------------------------

    \173\ National Emission Standards for Hazardous Air Pollutants 
for Area Sources: Industrial, Commercial, and Institutional Boilers; 
National Emission Standards for Hazardous Air Pollutants for 
Industrial/Commercial/Institutional Boilers and Process Heaters; and 
Standards of Performance for New Stationary Sources and Emission 
Guidelines for Existing Sources: Commercial and Industrial Solid 
Waste Incineration (CISWI) Units.
---------------------------------------------------------------------------

I. National Technology Transfer 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 action does not involve technical standards. Therefore, EPA 
did not consider 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.

[[Page 15549]]

    EPA has determined that this final rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations. The four-rule package 
that consists of this rule plus the three CAA rules \174\ will 
generally result in an improved level of environmental protection. No 
disproportionately high and adverse human health or environmental 
effects on any population, including any minority or low-income 
population is expected.
---------------------------------------------------------------------------

    \174\ National Emission Standards for Hazardous Air Pollutants 
for Area Sources: Industrial, Commercial, and Institutional Boilers; 
National Emission Standards for Hazardous Air Pollutants for 
Industrial/Commercial/Institutional Boilers and Process Heaters; 
and, Standards of Performance for New Stationary Sources and 
Emission Guidelines for Existing Sources: Commercial and Industrial 
Solid Waste Incineration (CISWI) Units
---------------------------------------------------------------------------

    Because the four rules are fully interdependent, isolating the 
environmental justice impacts of each of the four rules individually 
may result in a distorted assessment. For example, the emissions 
standards established in the three air rules depend on which non-
hazardous secondary materials are considered solid wastes. As a result, 
any changes in the way that combustion units manage non hazardous 
secondary materials (i.e. switching to an alternative fuel) will depend 
upon the costs of implementing the various emissions standards. 
Furthermore, the demographic characteristics of areas experiencing 
changes in environmental effects will determine whether the rules 
result in adverse and disproportionate impacts to low-income and 
minority populations.
    We have developed a broad environmental justice assessment, looking 
at the four rules together, that accounts for the combined impacts on 
minority and low income communities. Any environmental justice impacts 
that may result from these four interdependent rules are likely to 
include one or more of the following: (1) Changes in emissions from 
regulated combustion units, (2) changes in emissions from the potential 
diversion of non hazardous secondary materials away from combustion 
units to alternative recycling or landfills, and, (3) other impacts 
related to material diversion (e.g., noise, aesthetics, water 
pollution, etc.). Based on our assessment of the emissions changes and 
other environmental impacts of the rules, and the demographics of 
populations near affected combustion units and waste management 
facilities, our main conclusions with respect to the environmental 
justice impacts of the four rules indicate the following:
    1. Emissions changes from affected combustion units are unlikely to 
lead to adverse and disproportionate impacts on low-income and minority 
populations. Following implementation of the CISWI, Boiler MACT, and 
Area Source rules, emissions from affected facilities are likely to 
decline. As a result, populations near these facilities, overall, are 
likely to experience positive impacts (e.g., reduced incidence of 
adverse health effects). The demographic data for the Census blocks 
near the Boiler MACT and CISWI facilities \175\ suggest that the 
percentages of low-income and minority populations are generally higher 
than the national average in these areas.
---------------------------------------------------------------------------

    \175\ The CISWI facility list contains combustors projected to 
combust waste after the rules are finalized (some were not regulated 
as CISWIs prior to these rules). The demographic assessment does not 
include area source facilities.
---------------------------------------------------------------------------

    2. Low-income and minority populations located near non combustion 
waste management facilities (e.g., recyclers, landfills) are higher, 
proportionally, than the national average. Our analysis of the 
demographic characteristics of populations living within three miles of 
these facilities suggests that they are located in areas with high low-
income and minority populations. Therefore, to the extent that non 
hazardous secondary materials diverted to alternative recycling or 
landfills may lead to adverse environmental impacts, low-income and 
minority populations could be adversely affected. However, we believe 
that any such increases would be negligible relative to the reductions 
achieved due to the Boiler MACT and CISWI controls. Furthermore, 
considering the low quantity of materials potentially diverted,\176\ 
the extent of any negative impacts is expected to be minimal, and will 
likely vary significantly by material and facility type.
---------------------------------------------------------------------------

    \176\ Review of Costs, Benefits, Economic Impacts, Environmental 
Justice, and Other Impacts for the Following Interrelated Proposed 
Rules: Standards of Performance for New Stationary Sources and 
Emission Guidelines for Existing Sources: Commercial and Industrial 
Solid Waste Incineration Units; RIN 2060-AO12, National Emission 
Standards for Hazardous Air Pollutants for Area Sources: Industrial, 
Commercial, and Institutional Boilers; RIN 2060-AM44, National 
Emission Standards for Hazardous Air Pollutants for Major Sources: 
Industrial, Commercial and Institutional Boilers and Process 
Heaters; RIN 2060-AG69, Identification of Non-hazardous Secondary 
Materials That Are Solid Waste RIN 2050-AG44. April 29, 2010. (See 
Exhibit 14).
---------------------------------------------------------------------------

    A comprehensive discussion of these findings is presented in the 
document: ``Summary of Environmental Justice Impacts for the Non-
Hazardous Secondary Material (NHSM) Rule, the 2010 Commercial and 
Industrial Solid Waste Incinerator (CISWI) Standards, the 2010 Major 
Source Boiler NESHAP, and the 2010 Area Source Boiler NESHAP.'' This 
document is available in the Docket established for today's action.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A Major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective on May 20, 2011.

List of Subjects in 40 CFR Part 241

    Environmental protection, Air pollution control, Waste treatment 
and disposal.

    Dated: February 21, 2011.
Lisa P. Jackson,
Administrator.

    For the reasons stated in the preamble, title 40, chapter I of the 
Code of Federal Regulations, is amended by adding part 241 to read as 
follows:

PART 241--SOLID WASTES USED AS FUELS OR INGREDIENTS IN COMBUSTION 
UNITS

Subpart A--General
Sec.
241.1 Purpose.
241.2 Definitions.
Subpart B--Identification of Non-Hazardous Secondary Materials That Are 
Solid Wastes When Used as Fuels or Ingredients In Combustion Units
Sec.
241.3 Standards and procedures for identification of non-hazardous 
secondary materials that are solid wastes when used as fuels or 
ingredients in combustion units.

    Authority: 42 U.S.C. 6903, 6912, 7429.

Subpart A--General


Sec.  241.1  Purpose.

    This part identifies the requirements and procedures for the 
identification of

[[Page 15550]]

solid wastes used as fuels or ingredients in combustion units under 
section 1004 of the Resource Conservation and Recovery Act and section 
129 of the Clean Air Act.


Sec.  241.2  Definitions.

    For the purposes of this subpart:
    Clean cellulosic biomass means those residuals that are akin to 
traditional cellulosic biomass such as forest-derived biomass (e.g., 
green wood, forest thinnings, clean and unadulterated bark, sawdust, 
trim, and tree harvesting residuals from logging and sawmill 
materials), corn stover and other biomass crops used specifically for 
energy production (e.g., energy cane, other fast growing grasses), 
bagasse and other crop residues (e.g., peanut shells), wood collected 
from forest fire clearance activities, trees and clean wood found in 
disaster debris, clean biomass from land clearing operations, and clean 
construction and demolition wood. These fuels are not secondary 
materials or solid wastes unless discarded. Clean biomass is biomass 
that does not contain contaminants at concentrations not normally 
associated with virgin biomass materials.
    Contaminants means any constituent in non-hazardous secondary 
materials that will result in emissions of the air pollutants 
identified in Clean Air Act section 112(b) or the nine pollutants 
listed under Clean Air Act section 129(a)(4)) when such non-hazardous 
secondary materials are burned as a fuel or used as an ingredient, 
including those constituents that could generate products of incomplete 
combustion.
    Contained means the non-hazardous secondary material is stored in a 
manner that adequately prevents releases or other hazards to human 
health and the environment considering the nature and toxicity of the 
non-hazardous secondary material.
    Control means the power to direct the policies of the facility, 
whether by the ownership of stock, voting rights, or otherwise, except 
that contractors who operate facilities on behalf of a different person 
as defined in this section shall not be deemed to ``control'' such 
facilities.
    Established tire collection program means a comprehensive 
collection system that ensures scrap tires are not discarded and are 
handled as valuable commodities in accordance with section 
241.3(b)(2)(i) from the point of removal from the vehicle through 
arrival at the combustion facility.
    Generating facility means all contiguous property owned, leased, or 
otherwise controlled by the non-hazardous secondary material generator.
    Ingredient means a non-hazardous secondary material that is a 
component in a compound, process or product.
    Non-hazardous secondary material means a secondary material that, 
when discarded, would not be identified as a hazardous waste under Part 
261 of this chapter.
    Person is defined as an individual, trust, firm, joint stock 
company, Federal agency, corporation (including government 
corporation), partnership, association, State, municipality, 
commission, political subdivision of a state, or any interstate body.
    Processing means any operations that transform discarded non-
hazardous secondary material into a non-waste fuel or non-waste 
ingredient product. Processing includes, but is not limited to, 
operations necessary to: Remove or destroy contaminants; significantly 
improve the fuel characteristics of the material, e.g., sizing or 
drying the material in combination with other operations; chemically 
improve the as-fired energy content; or improve the ingredient 
characteristics. Minimal operations that result only in modifying the 
size of the material by shredding do not constitute processing for 
purposes of this definition.
    Resinated wood means wood products (containing resin adhesives) 
derived from primary and secondary wood products manufacturing and 
comprised of such items as board trim, sander dust, and panel trim.
    Secondary material means any material that is not the primary 
product of a manufacturing or commercial process, and can include post-
consumer material, off-specification commercial chemical products or 
manufacturing chemical intermediates, post-industrial material, and 
scrap.
    Solid waste means the term solid waste as defined in 40 CFR 258.2.
    Traditional fuels means materials that are produced as fuels and 
are unused products that have not been discarded and therefore, are not 
solid wastes, including: (1) Fuels that have been historically managed 
as valuable fuel products rather than being managed as waste materials, 
including fossil fuels (e.g., coal, oil and natural gas), their 
derivatives (e.g., petroleum coke, bituminous coke, coal tar oil, 
refinery gas, synthetic fuel, heavy recycle, asphalts, blast furnace 
gas, recovered gaseous butane, and coke oven gas) and cellulosic 
biomass (virgin wood); and (2) alternative fuels developed from virgin 
materials that can now be used as fuel products, including used oil 
which meets the specifications outlined in 40 CFR 279.11, currently 
mined coal refuse that previously had not been usable as coal, and 
clean cellulosic biomass. These fuels are not secondary materials or 
solid wastes unless discarded.
    Within control of the generator means that the non-hazardous 
secondary material is generated and burned in combustion units at the 
generating facility; or that such material is generated and burned in 
combustion units at different facilities, provided the facility 
combusting the non-hazardous secondary material is controlled by the 
generator; or both the generating facility and the facility combusting 
the non-hazardous secondary material are under the control of the same 
person as defined in this section.

Subpart B--Identification of Non-Hazardous Secondary Materials That 
Are Solid Wastes When Used as Fuels or Ingredients in Combustion 
Units


Sec.  241.3  Standards and procedures for identification of non-
hazardous secondary materials that are solid wastes when used as fuels 
or ingredients in combustion units.

    (a) Except as provided in paragraph (b) of this section, non-
hazardous secondary materials that are combusted are solid wastes, 
unless a petition is submitted to, and a determination granted by, the 
Regional Administrator pursuant to paragraph (c) of this section. The 
criteria to be addressed in the petition, as well as the process for 
making the non-waste determination, are specified in paragraph (c) of 
this section.
    (b) The following non-hazardous secondary materials are not solid 
wastes when combusted:
    (1) Non-hazardous secondary materials used as a fuel in a 
combustion unit that remain within the control of the generator and 
that meet the legitimacy criteria specified in paragraph (d)(1) of this 
section.
    (2) The following non-hazardous secondary materials that have not 
been discarded and meet the legitimacy criteria specified in paragraph 
(d)(1) of this section when used in a combustion unit (by the generator 
or outside the control of the generator):
    (i) Scrap tires used in a combustion unit that are removed from 
vehicles and managed under the oversight of established tire collection 
programs.
    (ii) Resinated wood used in a combustion unit.
    (3) Non-hazardous secondary materials used as an ingredient in a 
combustion unit that meet the legitimacy criteria specified in 
paragraph (d)(2) of this section.
    (4) Fuel or ingredient products that are used in a combustion unit, 
and are produced from the processing of

[[Page 15551]]

discarded non-hazardous secondary materials and that meet the 
legitimacy criteria specified in paragraph (d)(1) of this section, with 
respect to fuels, and paragraph (d)(2) of this section, with respect to 
ingredients. The legitimacy criteria apply after the non-hazardous 
secondary material is processed to produce a fuel or ingredient 
product. Until the discarded non-hazardous secondary material is 
processed to produce a non-waste fuel or ingredient, the discarded non-
hazardous secondary material is considered a solid waste and would be 
subject to all appropriate federal, state, and local requirements.
    (c) The Regional Administrator may grant a non-waste determination 
that a non-hazardous secondary material that is used as a fuel, which 
is not managed within the control of the generator, is not discarded 
and is not a solid waste when combusted. The criteria and process for 
making such non-waste determinations includes the following:
    (1) Submittal of an application to the Regional Administrator for 
the EPA Region where the facility combusting the non-hazardous 
secondary material is located for a determination that the non-
hazardous secondary material, even though it has been transferred to a 
third party, has not been discarded and is indistinguishable in all 
relevant aspects from a product fuel. The determination will be based 
on whether the non-hazardous secondary material that has been 
discarded, is a legitimate fuel as specified in paragraph (d)(1) of 
this section and on the following criteria:
    (i) Whether market participants treat the non-hazardous secondary 
material as a product rather than as a solid waste;
    (ii) Whether the chemical and physical identity of the non-
hazardous secondary material is comparable to commercial fuels;
    (iii) Whether the non-hazardous secondary material will be used in 
a reasonable time frame given the state of the market;
    (iv) Whether the constituents in the non-hazardous secondary 
material are released to the air, water or land from the point of 
generation to the point just prior to combustion of the secondary 
material at levels comparable to what would otherwise be released from 
traditional fuels; and
    (v) Other relevant factors.
    (2) The Regional Administrator will evaluate the application 
pursuant to the following procedures:
    (i) The applicant must submit an application for the non-waste 
determination addressing the legitimacy criteria in paragraph (d)(1) of 
this section and the relevant criteria in paragraphs (c)(1)(i) through 
(v) of this section. In addition, the applicant must also show that the 
non-hazardous secondary material has not been discarded in the first 
instance.
    (ii) The Regional Administrator will evaluate the application and 
issue a draft notice tentatively granting or denying the application. 
Notification of this tentative decision will be published in a 
newspaper advertisement or radio broadcast in the locality where the 
facility combusting the non-hazardous secondary material is located, 
and be made available on EPA's Web site.
    (iii) The Regional Administrator will accept public comments on the 
tentative decision for at least 30 days, and may also hold a public 
hearing upon request or at his discretion. The Regional Administrator 
will issue a final decision after receipt of comments and after the 
hearing (if any).
    (iv) If a change occurs that affects how a non-hazardous secondary 
material meets the relevant criteria contained in this paragraph after 
a formal non-waste determination has been granted, the applicant must 
re-apply to the Regional Administrator for a formal determination that 
the non-hazardous secondary material continues to meet the relevant 
criteria and, thus is not a solid waste.
    (d) Legitimacy criteria for non-hazardous secondary materials.
    (1) Legitimacy criteria for non-hazardous secondary materials used 
as a fuel in combustion units include the following:
    (i) The non-hazardous secondary material must be managed as a 
valuable commodity based on the following factors:
    (A) The storage of the non-hazardous secondary material prior to 
use must not exceed reasonable time frames;
    (B) Where there is an analogous fuel, the non-hazardous secondary 
material must be managed in a manner consistent with the analogous fuel 
or otherwise be adequately contained to prevent releases to the 
environment;
    (C) If there is no analogous fuel, the non-hazardous secondary 
material must be adequately contained so as to prevent releases to the 
environment;
    (ii) The non-hazardous secondary material must have a meaningful 
heating value and be used as a fuel in a combustion unit that recovers 
energy.
    (iii) The non-hazardous secondary material must contain 
contaminants at levels comparable in concentration to or lower than 
those in traditional fuels which the combustion unit is designed to 
burn. Such comparison is to be based on a direct comparison of the 
contaminant levels in the non-hazardous secondary material to the 
traditional fuel itself.
    (2) Legitimacy criteria for non-hazardous secondary materials used 
as an ingredient in combustion units include the following:
    (i) The non-hazardous secondary material must be managed as a 
valuable commodity based on the following factors:
    (A) The storage of the non-hazardous secondary material prior to 
use must not exceed reasonable time frames;
    (B) Where there is an analogous ingredient, the non-hazardous 
secondary material must be managed in a manner consistent with the 
analogous ingredient or otherwise be adequately contained to prevent 
releases to the environment;
    (C) If there is no analogous ingredient, the non-hazardous 
secondary material must be adequately contained to prevent releases to 
the environment;
    (ii) The non-hazardous secondary material must provide a useful 
contribution to the production or manufacturing process. The non-
hazardous secondary material provides a useful contribution if it 
contributes a valuable ingredient to the product or intermediate or is 
an effective substitute for a commercial product.
    (iii) The non-hazardous secondary material must be used to produce 
a valuable product or intermediate. The product or intermediate is 
valuable if:
    (A) The non-hazardous secondary material is sold to a third party, 
or
    (B) The non-hazardous secondary material is used as an effective 
substitute for a commercial product or as an ingredient or intermediate 
in an industrial process.
    (iv) The non-hazardous secondary material must result in products 
that contain contaminants at levels that are comparable in 
concentration to or lower than those found in traditional products that 
are manufactured without the non-hazardous secondary material.

[FR Doc. 2011-4492 Filed 3-18-11; 8:45 am]
BILLING CODE 6560-50-P


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