15456 Federal Register / Vol. 76, No. 54 / Monday, March 21, 2011 / Rules and Regulations 

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. 

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: 

faison.george@epa.gov. 

SUPPLEMENTARY INFORMATION: 

A. Does this action apply to me? 

Categories and entities potentially 

affected by this action include: 

Generators Users 

Major generator category NAICS* Major boiler type and 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 Manufacturing .................. 331 

Horses and Other Equine Production ...... 112920 Fabricated Metal Manufacturing ............. 332 

Logging .................................................... 113310 Other Manufacturing ............................... 313, 339, 321, 333, 336, 511, 326, 316, 

327 

Support Activities for Crop Production .... 11511 

Bituminous Coal and Lignite Surface 

Mining.

212111 Commercial Boilers: 

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 Manufacturing.312 Office ....................................................... 813, 541, 921 

Sawmills and Wood Preservation ............ 32111 Other ....................................................... 922140, others 

Veneer, Plywood, and Engineered Wood 

Product Manufacturing.

32121 

Engineered Wood Member Manufacturing.321213 Common Non-Manufacturing Boilers: 

Pulp, Paper, and Paperboard Mills .......... 3221 Agriculture (crop & livestock production) 111, 112, 115 

Solvents Made in Petroleum Refineries .. 324110 All Mining ................................................ 212 

Solvent Dyes Manufacturing .................... 325132 Construction ............................................ 236 

Plastic Manufacturers .............................. 325211 

All Other Miscellaneous Chemical Product and Preparation Manufacturing.325998 Other Boilers: 

Packaging ................................................ 32611 Electric Utility Boilers .............................. 2211 

Other Rubber Product Manufacturing ...... 32629 Non-Hazardous Waste Burning Cement 

Kilns.

327310 


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Federal Register / Vol. 76, No. 54 / Monday, March 21, 2011 / Rules and Regulations 15457 

Generators Users 

Major generator category NAICS* Major boiler type and primary industry 

category NAICS* 

Glass and Glass Product Manufacturing 3272 .................................................................

Cement Manufacturing ............................. 327310 .................................................................

Iron and Steel Mills .................................. 331111 .................................................................

Electrometallurgical Ferroalloy Product 

Manufacturing.

331112 .................................................................

Metal-Casting Industry ............................. 331522 .................................................................

Recyclable Material Wholesalers ............. 423930 .................................................................

Landscaping Services .............................. 561730 .................................................................

Solid Waste Collection and Solid Waste 

Landfill.

562111, 

562212 

.................................................................

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: NonHazardous 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 


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15458 Federal Register / Vol. 76, No. 54 / Monday, March 21, 2011 / Rules and Regulations 

1For 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. 

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, offspecification commercial chemical 

products or manufacturing chemical 

intermediates, post-industrial material, 

and scrap (codified in § 241.2).1 ‘‘Nonhazardous secondary material’’ is a 

secondary material that, when 

discarded, would not be identified as a 

hazardous waste under 40 CFR part 261 

(codified in § 241.2). 

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 


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

in combustion units are defined as solid 

wastes under RCRA. However, this rule 

provides exceptions to that 

determination. The following nonhazardous 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 

§ 241.3(b)(1)); 

(2) Scrap tires managed by established 

tire collection programs and used as fuel 

(discussed further below—codified in 

§ 241.3(b)(2)(i)); 

(3) Resinated wood used as fuel 

(discussed further below—codified in 

§ 241.3(b)(2)(ii)); 

(4) Those that are used as ingredients 

(discussed further below—codified in 

§ 241.3(b)(3)); 

(5) Discards that have undergone 

processing to produce fuel or ingredient 

products (discussed further below— 

codified in § 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 § 241.3(c)). 

Materials are considered legitimate 

fuels or ingredients if they conform to 

the criteria codified in § 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 nonhazardous 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 § 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 § 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. Nonhazardous 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 § 241.2); or 

(2) They are generated and burned in 

combustion units at different facilities, 

if the facility combusting the nonhazardous secondary material is 

controlled (as codified in § 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 § 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 § 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 

§ 241.2) means a comprehensive 

collection system that ensures scrap 

tires are not discarded and are handled 

as valuable commodities in accordance 

with § 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 § 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 § 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 nonhazardous 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 

§ 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 


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15460 Federal Register / Vol. 76, No. 54 / Monday, March 21, 2011 / Rules and Regulations 

2As 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 nonhazardous secondary materials in addition to scrap 

tires and resinated wood that can be used as a nonwaste fuel both by the generator and outside the 

control of the generator. 

codified in § 241.3(d)(2)) for nonhazardous 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 

§ 241.3(d)(1) for fuels and (d)(2) for 

ingredients). Processing (as codified in 

§ 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: NonHazardous 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 nonhazardous 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 § 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 § 241.3(d)(1)), and satisfies the 

following five criteria: (1) Whether 

market participants treat the nonhazardous 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 nonhazardous secondary material are 

released to the air, water or land from 

the point of generation to the point just 

prior to combustion of the nonhazardous secondary material at levels 

comparable to what would otherwise be 

released from traditional fuels; and (5) 

other relevant factors. These criteria are 

codified in § 241.3(c)(1). 

The process for receiving a non-waste 

determination is codified in 

§ 241.3(c)(2). In order to obtain a nonwaste 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 § 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, nonhazardous secondary materials used as 

a fuel in combustion units must meet 

the legitimacy criteria codified in 

§ 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 

§ 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 nonhazardous 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 


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3CAA 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 SO2. Of these 

nine pollutants, cadmium, dioxins/furans, 

hydrogen chloride, lead, and mercury are also 

regulated HAP pursuant to CAA section 112. 

4The Solid Waste Disposal Act, as amended, is 

commonly referred to the Resource Conservation 

and Recovery Act or RCRA. 

5A secondary material is any material that is not 

the primary product of a manufacturing or 

commercial process, and can include postconsumer 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 nonhazardous 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. 

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. 

§ 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

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 (NOX), 

particulate matter (PM), sulfur dioxide 

(SO2), 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 nonhazardous 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 


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6For 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). 

7See ‘‘Revisions to the Definition of Solid Waste,’’ 

Final Rule, October 30, 2008, at 73 FR 64667. 8A 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. 

9The 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. 

10A 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. 

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. 

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 nonhazardous 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 nonhazardous 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 nonhazardous 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. 

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. 

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 


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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 nonhazardous 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. 


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15464 Federal Register / Vol. 76, No. 54 / Monday, March 21, 2011 / Rules and Regulations 

11On January 9, 2009, the Office of Solid Waste 

was renamed the Office of Resource Conservation 

and Recovery. 

12The 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. 

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. 

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 nonhazardous 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) nonhazardous 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 nonhazardous secondary materials are 

combusted would be considered ‘‘solid 

wastes’’ and subject to CAA section 129. 

Specifically: 

• 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. 

• 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 nonVerDate Mar<15>2010 18:01 Mar 18, 2011 Jkt 223001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR3.SGM 21MRR3

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13A 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. 

14A 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. 

15 Industry representatives suggested that nonhazardous 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. 

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. 

• 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 nonhazardous 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). 

• Non-Hazardous Secondary 

Materials Used as Ingredients: In 

addition to legitimate fuel products, the 

ANPRM also recognized that nonhazardous 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. 

• 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. 

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.) 

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 


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16As 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. 

17The 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. 

18Full cost accounting is an accounting system 

that incorporates economic, environmental, health, 

and social costs of a product, action, or decision. 

19RCRA 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. 

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 nonhazardous 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 nonhazardous 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 nonhazardous 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 nonhazardous 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 nonhazardous 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 nonwaste determination petition process to 

not have been discarded and to be 

indistinguishable in all relevant aspects 

from a fuel product. 

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 


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20For example, the GHG emissions rate 

associated with the combustion of scrap tires is 

approximately 0.081metric tons of carbon dioxide 

equivalents (MTCO2E) per million metric British 

thermal units (MMBtu) of scrap tires combusted, 

while the GHG emissions rate for coal is 

approximately 0.094 MTCO2E per MMBtu. 

Combined with the avoided extraction and 

processing emissions 0.006 MTCO2E/MMBtu for 

coal, the total avoided GHG is 0.019 MTCO2E 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. 

21For purposes of this action, we define byproduct 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. 

22Opportunities 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.’’ 

23On 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 

Continued 

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 energycontaining secondary materials, is 

expected to play an important role in 

future resource conservation efforts. 

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. 

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. 

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 nonhazardous secondary fuels and 

ingredients discussed in this series of 

Materials Characterization Papers 

account for the vast majority of all nonhazardous 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 nonhazardous 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 caseby-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 nonhazardous 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 nonwaste. 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 nonhazardous secondary materials burned 

for energy recovery or used as an 

ingredient are considered discarded, 

and therefore, solid wastes.23 This 


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between CAA sections 112 and 129 and argues 

against an overly narrow definition of solid waste. 

section discusses the comments that 

EPA received, as well as our response to 

those comments. 

A. Proposed Approach 

1. Definition of the Term Discard 

Under the proposed rule, nonhazardous 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 nonhazardous 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 


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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, rerefined 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 nonhazardous 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 ‘‘refusederived’’ 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 nonhazardous solid waste, which, as 

specified by CAA section 129(g)(6), 

governs the meaning of ‘‘solid waste’’ 

under section 129. Because Congress 


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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 ‘‘refusederived 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 nonhazardous 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 nonhazardous 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 nonhazardous 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 


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statutory definition of discard and the 

case law to consider that a nonhazardous 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 commoditylike 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-tofirm 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. 


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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 onsite (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 tirederived 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 nonwaste 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 nonhazardous 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 nonhazardous 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 nonwaste 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 

§ 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 


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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, nonhazardous 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 


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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 nonhazardous 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 nonhazardous 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 nonhazardous 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 


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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 nonhazardous 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 nonwaste 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 nonhazardous 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 


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24As 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. 

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 nonhazardous 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. 

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, nonhazardous secondary materials that are 

wastes and are used as a fuel/ingredient 

in a combustion unit must be used in 

section 129 units, whereas nonhazardous 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 nonhazardous 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 


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25Traditional 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. 

26The 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. 

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

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 noncellulosic 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). 

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 nonhalogenated 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 forestderived 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 onspecification 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 


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15478 Federal Register / Vol. 76, No. 54 / Monday, March 21, 2011 / Rules and Regulations 

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 

(§ 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 (§ 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 


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27 Gurian-Sherman, Doug, CAFOs Uncovered: The 

Untold Costs of Confined Animal Feeding 

Operations, Union of Concerned Scientists (April 

2008). 

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 § 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 


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15480 Federal Register / Vol. 76, No. 54 / Monday, March 21, 2011 / Rules and Regulations 

28This 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. 

29USDA, 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. 

30Animal 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/. 

31Some 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%. 

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. 

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 ‘‘delumper’’ 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. 

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 onfarm 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. 

A Tribe requested that EPA finalize 

legitimacy criteria that does not 

discourage the development of biogas 

technology since it is a clean carbonneutral 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). 

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 


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32As 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. 

33Processing (as it relates to fuels) means any 

operations that transform the discarded nonhazardous 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. 

34As noted previously, one commenter described 

their operation and noted that ‘‘the mixed biomass 

fuel is lightly processed (e.g., processed in a ‘‘delumper’’ followed by a disc screen) to break down 

clumps of material and remove incidental noncombustible 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. 

35A 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 

Continued 

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 costeffectively 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. 

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: 

• 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. 

• 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. 

• 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 nonwaste 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 nonhazardous 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 nonhazardous 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 

plan35 is in no way discarded. 


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to be grown, while minimizing the loss of nutrients 

to surface and ground water. 36 75 FR 31861–31863. 

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 nonhazardous 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 § 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 noncellulosic 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 


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Federal Register / Vol. 76, No. 54 / Monday, March 21, 2011 / Rules and Regulations 15483 

37 75 FR 31863. 

38See document EPA–HQ–RCRA–2008–0329– 

0875.1. 

39See document EPA–HQ–RCRA–2008–0329– 

0767.1. 

40Holtzman, 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. 

41Freeman, 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 

42Smith, S.T., 1996. ‘‘Stack Testing Report, 

Koppers Industries, Inc., Grenada Plant, Tie Plant, 

MS,’’ Submitted to the Mississippi Department of 

Environmental Quality, May 6. 

43See 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. 

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. 

Comment: Since creosote is a 

derivative of coal, itself a traditional 

fuel, the comments argued that creosotetreated 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

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 (SO2), 78–100 ppm of 

oxides of nitrogen (NOX), 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

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 § 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 nonhazardous 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 creosotetreated lumber suggests that creosotetreated 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. 

In regards to wood treated with 

pentachlorophenol, no additional 


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15484 Federal Register / Vol. 76, No. 54 / Monday, March 21, 2011 / Rules and Regulations 

44 75 FR 31863. 45See document EPA–HQ–RCRA–2008–0329– 

1569. 46 75 FR 31863. 47 75 FR 31863. 

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 pentachlorophenoltreated 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 nonwaste 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. 

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. 

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 treatedwood 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 nonhazardous 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 nonhazardous 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 nonhazardous 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. 

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&Dderived wood meets the legitimacy 

criterion for having a meaningful 

heating value. They stated that C&Dderived 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&Dderived 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. 


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48Source: 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&Dderived 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). 

49U.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 LifeCycle Assessment of C&D Derived Biomass/Wood 

Waste Management,’’ University of New Hampshire, 

Durham, NH, December 5. 51EPA–HQ–RCRA–2008–0329–0461.21. 

TABLE 1—COMPARISON OF CONTAMINANT CONCENTRATIONS IN SAMPLES OF COAL AND C&D-DERIVED WOOD48

Material 

Coal 

(unknown 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 

# of non-detects ............................................................................................................................ 0 0 

Hg: 

(lb/billion Btu) ................................................................................................................................. 0.00622 0.0046 

(ppm) ............................................................................................................................................. 0.05287–0.08708 0.03772 

# of non-detects ............................................................................................................................ 0 0 

Pb: 

(lb/billion Btu) ................................................................................................................................. 0.374 0.488 

(ppm) ............................................................................................................................................. 3.18–5.24 4.00 

# of non-detects ............................................................................................................................ 0 0 

Cd: 

(lb/billion Btu) ................................................................................................................................. 0.00465 0.0218 

(ppm) ............................................................................................................................................. 0.03923–0.06510 0.17876 

# 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 

NOX, 2,300 tons/yr less of SOX, 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 

NOX, 485 tons/yr less of SOX, and 69 

tons/yr less of CO.50

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&Dderived 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. 

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 


srobinson on DSKHWCL6B1PROD with RULES3
15486 Federal Register / Vol. 76, No. 54 / Monday, March 21, 2011 / Rules and Regulations 

52Source: 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). 

53Source: EPA–HQ–RCRA–2008–0329–0871.1. 

54Source: EPA–HQ–RCRA–2008–0329–0774.1. 

55National 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. 

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

Material 

Coal 

(unknown 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 

# of non-detects ............................................................................................................................ 0 0 

Hg: 

(lb/billion Btu) ................................................................................................................................. 0.00622 0.00324 

(ppm, estimated) ........................................................................................................................... 0.05287–0.08708 0.01199 

# of non-detects ............................................................................................................................ 0 0 

Pb:.

(lb/billion Btu) ................................................................................................................................. 0.374 0.281 

(ppm, estimated) ........................................................................................................................... 3.18–5.24 1.04 

# of non-detects ............................................................................................................................ 0 1 

Cd: 

(lb/billion Btu) ................................................................................................................................. 0.00465 0.00558 

(ppm, estimated) ........................................................................................................................... 0.03923–0.06510 0.02065 

# of non-detects ............................................................................................................................ 7 2 

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 comingled 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

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), SO2, NOX, CO, 

and HCl. The results found that burning 

OCC rejects did not result in increased 

emissions of TPM, SO2, NOX, or CO, but 

occasionally resulted in a small increase 

in HCl emissions.55

EPA’s Response: We do not agree with 

the commenters that OCC rejects should 

be considered a traditional fuel or 

alternative fuel since this nonhazardous 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 


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Federal Register / Vol. 76, No. 54 / Monday, March 21, 2011 / Rules and Regulations 15487 

56Pulp 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. 

57 75 FR 31862–63. 

58Thacker, W., 2007. ‘‘Recycling Paper Mill Byproducts 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. 

59Someshwar, 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 Byproducts 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. 

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 nonwaste, if and after it is sufficiently 

processed. That is, such limited 

information would appear to suggest 

that when OCC rejects are shipped offsite, 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 nonwaste 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. 

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

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. 

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 nonwaste 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 


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15488 Federal Register / Vol. 76, No. 54 / Monday, March 21, 2011 / Rules and Regulations 

60See document EPA–HQ–RCRA–2008–0329– 

0871. 

61See the discussion on dewatering of sewage 

sludge in Section VII.F of the proposed rule, 75 FR 

31878. 

62 75 FR 31878. 

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. 

64See 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). 

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. 

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. 

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. 

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 reusing 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 nonhazardous 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 subbituminous 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. 

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 


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65 Ibid. 

66The 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. 

67National 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. 

68The 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. 

69The 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. 

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. 

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

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 nonhazardous 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 nonhazardous 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 nonhazardous 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. 

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. 


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70As described elsewhere, these tires do not need 

processing (as described in § 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. 

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. 

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 nonwaste 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 nonwaste 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 

§ 241.2) are non-waste fuels 70 when 

burned as a fuel in a combustion unit. 

See details at § 241.3(b)(2)(i). 

(2) Scrap tires that undergo a 

sufficient level of processing (as 

codified at § 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 

§ 241.3(b)(4). 

All other scrap tires are considered a 

waste when combusted, unless a nonwaste determination petition is granted 

per the requirements in § 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 nonhazardous 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 nonhazardous 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 


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71The 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. 

72The 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. 

73The 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.’’ 

74See EPA’s statement in the proposal at 75 FR 

31844, page 31875. 

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. 

• 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. 

• 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. 

• 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). 

• 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. 

• 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 nonwaste 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 


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75For 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. 

77A few states allow tires cut up in smaller pieces 

to be landfilled, while fewer states still allow whole 

tires in landfills. 

78Note, 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. 

79The 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. 

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 

§ 241.3(d)(1)(i). 

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 

§ 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 § 241.3(d)(1)(iii) for the nonhazardous 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. 

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 § 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. 

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 tirederived 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 


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80ASTM (American Society for Testing and 

Materials) or ASTM International, is a globally 

recognized leader in the development and delivery 

of international voluntary consensus standards. 

81This 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. 

82Refer to the Materials Characterization Papers 

for traditional fuels in the docket for today’s rule. 

83 If this is present from the steel wire, it is not 

expected to be released during typical boiler 

combustion. 

84 If this is present from the steel wire, it is not 

expected to be released during typical boiler 

combustion. 

85The 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. 

86See the comment on cement kilns for more 

information relative to cement kiln usage. 

87Commenters 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 NOX emissions. 

88Refer to the Materials Characterization Papers 

for a detailed summary of the contaminant data for 

TDF, including data provided by commenters. 

89The ‘‘contaminants’’ are the nine CAA section 

129(a)(4) pollutants and the 187 HAP listed in CAA 

section 112(b). 

90The 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. 

91While 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. 

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. 

Specifically, commenters provided 

the following TDF concentrations for 

CAA section 112(b) HAP (some are also 

CAA 129 pollutants): 81 82

• Cadmium—less than 5 up to 6 ppm 

(also on the CAA 129 pollutant list); 

• Calcium—3,780 ppm (although 

listed as ‘‘calcium cyanamide’’ in the 

HAP list); 

• Chlorine—non-detect to 1,490 ppm 

(also listed in the CAA 129 pollutant list 

as ‘‘hydrogen chloride’’); 

• Chromium—less than 5 up to 97 

ppm; 83

• Lead—51–65 ppm (also on the CAA 

129 pollutant list); 

• Manganese—less than 100 ppm; 84

and 

• 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 nondetectable 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

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. 

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). 

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. 


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92Metric tons of carbon dioxide equivalent 

(MTCO2E) 

93See, 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 

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 noncombustible 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 MTCO2E 92 per 

million Btu of scrap tires combusted, 

while the GHG emissions rate for coal 

is approximately 0.094 MTCO2E per 

million Btu. Combined with the avoided 

extraction and processing emissions 

0.006 MTCO2 E/million Btu for coal, the 

total avoided greenhouse gas is 0.019 

MTCO2 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. 

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-toenergy (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.) 

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 ‘‘wastelike’’ 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 nonwaste 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 


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94These 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/. 

not subject to the section 129 CAA 

standards, could be subject to the state 

standards that identify the same nonhazardous 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 nonhazardous 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 nonhazardous 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 byproduct 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 noncombustion 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). 

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 nonhazardous 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 nonhazardous 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 


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95EPA’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). 

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. 

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 


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Federal Register / Vol. 76, No. 54 / Monday, March 21, 2011 / Rules and Regulations 15497 

96Although we recognize that some states have 

systems in place where materials lose the waste 

status if beneficially used according to the state’s 

standards. 

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 nonwaste. 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. 

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 twoinch minus, 90%+ wire free standard 

that has been standard in the industry 


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15498 Federal Register / Vol. 76, No. 54 / Monday, March 21, 2011 / Rules and Regulations 

97ASTM 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. 

98With 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. 

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 § 241.3(b)(2)(i)). 

We disagree with those commenters 

who addressed the level of processing 

needed before TDF is considered a nonwaste 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 nonhazardous 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, nonwood 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 § 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 (postcombustion) 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. 

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 TireDerived 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 


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Federal Register / Vol. 76, No. 54 / Monday, March 21, 2011 / Rules and Regulations 15499 

99Since 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 § 241.2). 

However, other scrap tires, e.g., those that are 

removed from tire piles would need to be processed 

(as codified in § 241.2) in order to be burned as a 

non-waste fuel. 

100We 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). 

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.’’ 

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. 

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 nonhazardous 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 nonwaste 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 nonwaste, 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 


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101Weigl, 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. 

102Cohen, 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. 

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. Intercompany 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

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 


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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 halogencontaining 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 NOX 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 NOX

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 NOX. 

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 


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103 75 FR 31862. 

104See 74 FR at 58. 

105See 75 FR 31855, 31861, 31864. 

106 75 FR 31865, 31877. 

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 nonhazardous 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. 

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 onspec 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

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 offspecification 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. 

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 ‘‘doit-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 offspec 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 


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107See Used Oil Final Rule, 50 FR 49181 

(November 29, 1985). 

108Once 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. 

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

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 onspecification used oil in much of the 

argument, but we have dealt with onspecification 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 offspecification 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 offspecification 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. Onspecification 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. 


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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 onspecification 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 offspecification 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 offspec 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 offspec. 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 nonhazardous 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

Material U.S. 

study 1 109

U.S. 

study 2 110

Canadian 

study 111

Fuel oil 

No. 

1,2,4,6 112

Coal 113

# 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 


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109Source: EPA–HQ–RCRA–2008–0329–0799.2 

110Source: EPA–HQ–RCRA–2008–0329–1273.1 

Attachment B 

111Source: EPA–HQ–RCRA–2008–0329–0799.4 

112Source: EPA–HQ–RCRA–2008–0329–0799.2, 

EPA–HQ–RCRA–2008–0329–1273.1, Attachment B 

113 Ibid. 

TABLE 4—CONTAMINANT CONCENTRATIONS IN OFF-SPEC USED OIL AND TRADITIONAL FUELS—Continued 

Material U.S. 

study 1 109

U.S. 

study 2 110

Canadian 

study 111

Fuel oil 

No. 

1,2,4,6 112

Coal 113

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. 

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 


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15506 Federal Register / Vol. 76, No. 54 / Monday, March 21, 2011 / Rules and Regulations 

114A copy of this letter can be found in the 

docket to today’s rule. 

115See documents EPA–HQ–RCRA–2008–0329– 

0799; EPA–HQ–RCRA–2008–0329–1273.1; EPA– 

HQ–RCRA–2008–0329–1686. 

116The 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). 

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. 

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 onspec 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 onspecification 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

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 nonwaste 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-ityourselfers, 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 onspec 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

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 


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Federal Register / Vol. 76, No. 54 / Monday, March 21, 2011 / Rules and Regulations 15507 

117See 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. 

118Referenced citation can be found at 75 FR 

31856. 

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

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. 

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 


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15508 Federal Register / Vol. 76, No. 54 / Monday, March 21, 2011 / Rules and Regulations 

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. 

120See 40 CFR 60.41. 

121See 40 CFR 60.41b. 

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. 

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 nonhazardous 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 ‘‘wasteproducts 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 ‘‘wasteproduct’’ 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. 

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 


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122CFBs 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 NOX emissions; and (3) CFB boilers often add 

limestone to their feed to control SO2 emissions, 

which results in greater fixation to the ash. 

123Coal 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). 

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 

Continued 

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 

§ 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 asfired 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 nonhazardous 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: 

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, Indiana, 

and Somerset 

Counties, PA123.

No. Samples ............. 244 244 244 244 244 244 244 244 244 244 244 244 

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 


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ppm. The proposed rule noted that chromium 

levels of coal refuse can be up to four times higher 

than virgin coal. 

125See 75 FR 31865. 

126See our Materials Characterization Paper on 

Coal Refuse, located in the docket for today’s final 

rule. 

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. 

128For a discussion of CCRs used as ingredients, 

see Section V.C.2 of this final rule. 

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. 

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

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 nonhazardous 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 127 128

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 


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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 lowcarbon 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 highcarbon 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 reburning 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 


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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 nonhazardous 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 onsite (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 nonhazardous 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 § 241.2. For the purposes of 

today’s final rule, ‘‘within the control of 

the generator’’ means that the nonhazardous 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 nonhazardous 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 § 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. 


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Federal Register / Vol. 76, No. 54 / Monday, March 21, 2011 / Rules and Regulations 15513 

129See ‘‘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. 

130We 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. 

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 § 241.2.130

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 


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15514 Federal Register / Vol. 76, No. 54 / Monday, March 21, 2011 / Rules and Regulations 

131CAA 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. § 1281 et seq.] not later than 5 years 

after November 15, 1990.’’ 

132See 45 FR 33102 (May 19, 1980). 

133See 55 FR 46364 (November 2, 1990) (Footnote 

14). 

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. * * *’’ 

136We 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.’’ 

137See 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. 

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. 

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

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

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. 

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 reevaluate 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. 

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 


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Federal Register / Vol. 76, No. 54 / Monday, March 21, 2011 / Rules and Regulations 15515 

138The 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. 

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: 

TABLE 6—COMPARISON OF TOXICS OF MUNICIPAL WASTEWATER TREATMENT SLUDGES TO TRADITIONAL FUELS

Element 40 City study 

(1982) 

National sewage sludge 

survey 

(1988) 

Targeted national sewage 

sludge survey 

(TNSSS) 

Coal 

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 sitespecific 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 noncomparable 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, codisposal 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. 


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15516 Federal Register / Vol. 76, No. 54 / Monday, March 21, 2011 / Rules and Regulations 

139See 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. 

140See 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. 

141See 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. 

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. 

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 nonhazardous 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 nonhazardous secondary materials, after 

being processed, as a non-waste fuel. 

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. 


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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. 

143For a discussion of CCRs used as fuels in 

combustion units, see Section V.B.9 of this final 

rule. 

144For 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. 

145See ‘‘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. 

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 nonhazardous 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

CCRs are formed during the coalburning 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. 

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 nonwaste 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 nonhazardous 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

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 NOX, 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 


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15518 Federal Register / Vol. 76, No. 54 / Monday, March 21, 2011 / Rules and Regulations 

147See ‘‘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. 

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., lowcarbon 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 reburned, 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 nonhazardous 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 highcarbon 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 § 241.2. 

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, predetermined beneficial use determination 

for coal fly ash as an ingredient in 


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Federal Register / Vol. 76, No. 54 / Monday, March 21, 2011 / Rules and Regulations 15519 

148A 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 MultiPollutant 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). 

149We also note that CCRs used as fuels must also 

meet the contaminant legitimacy criterion in order 

not to be considered a solid waste. 

150March 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. 

151For 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. 

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

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. 

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

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 


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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 nonhazardous secondary material as a nonwaste 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 

§ 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, nonhazardous 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 nonhazardous 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 nonhazardous 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 nonhazardous 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 


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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.’’ 

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 nonhazardous 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 nonhazardous 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 nonhazardous 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 nonhazardous 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 nonhazardous 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 nonhazardous 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

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 nonhazardous 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 nonhazardous 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 nonhazardous 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. 


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153See 51 FR 21054, June 10, 1986. 

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 overaccumulation 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. 

As discussed previously, given the 

nature of this legitimacy criterion and 

the need to apply it to a variety of nonhazardous 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 nonhazardous 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 brightline 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, nonhazardous 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 nonhazardous 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 


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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 NonHazardous 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 selfsustain 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, nonhazardous 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 nonhazardous 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 nonhazardous 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 lowimpact 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 nonhazardous 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 


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15524 Federal Register / Vol. 76, No. 54 / Monday, March 21, 2011 / Rules and Regulations 

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. 

• 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 nonhazardous secondary material was being 

burned to dispose of the material and 

that the activity is sham recycling. 

• 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 nonhazardous 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 nonhazardous 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 nonhazardous secondary material, should 

have any bearing on the legitimacy 

determination for a given nonhazardous 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 nonhazardous 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 


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considered in determining whether nonhazardous 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 nonhazardous 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 nonwaste 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 nonhazardous 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 nonhazardous 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 nonhazardous 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 nonhazardous 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 brightline 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 


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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-bycase 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 nonhazardous 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 nonhazardous 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 nonhazardous 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 nonhazardous 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 nonhazardous 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 nonhazardous 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 


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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 nonhazardous 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 nonhazardous 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 nonhazardous 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 nonhazardous 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 


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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 nonhazardous secondary materials that are 

used as ingredients for quick reference 

and develop guidance to assess nonhazardous 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 nonhazardous 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 nonhazardous 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 nonhazardous 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 nonwaste 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 


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indistinguishable in all relevant aspects 

from a fuel product are not solid wastes. 

This assumes all the criteria for the nonwaste determination at § 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 nonhazardous 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 § 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 nonhazardous 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 nonhazardous 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 


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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 nonwaste 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 nonhazardous secondary material nonwaste 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 nonhazardous 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 nonhazardous 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 § 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 nonhazardous 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 nonhazardous 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 nonhazardous 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 nonhazardous 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 


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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 nonhazardous secondary material to be 

burned as other than a waste. 

Regarding industry comments which 

opposed the alternative approach 

because its characterization that all nonhazardous 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, 

• 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. 

• 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. 

• 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. 

• 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 § 241.2. The new 

definition of traditional fuel also 


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154Traditional fuels are not secondary materials 

or solid waste, unless discarded. 

155While 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. 

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

• 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; 

• 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): 

Æ Scrap tires removed from vehicles 

under the oversight of established tire 

collection programs; 

Æ Resinated wood; 

• 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; 

• The discarded non-hazardous 

secondary material is sufficiently 

processed to produce legitimate fuel or 

ingredient products and it meets the 

legitimacy criteria; 

• 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 caseby-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

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 forestderived 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 onspecification 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 nonhazardous 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 § 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 § 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 


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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 nonhazardous secondary materials that are 

recycled as a fuel within a continuous 

process. EPA, however, acknowledges 

that this may capture certain nonhazardous 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 nonhazardous 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 § 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 nonhazardous 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 nonwaste 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 § 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 § 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 § 241.3(d)(1) to be 

considered a non-waste fuel. To satisfy 

the legitimacy criteria, the nonhazardous secondary material (nonwaste) 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 nonhazardous 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 nonhazardous 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 nonhazardous 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. 


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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. 

157A few states allow tires cut up in smaller 

pieces to be landfilled, while fewer still allow 

whole tires in landfills. 

158Note, 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. 

159There 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. 

160The 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 

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 nonwaste when legitimately used as a fuel 

in combustion units. These collection 

programs (codified in § 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 (§ 241.3(d)(1)(i)). 

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. 

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 § 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 nonhazardous 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). 

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


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waste when used as fuel, unless they are 

sufficiently processed. 

161A few states allow tires cut up in smaller 

pieces to be landfilled, while fewer states still allow 

whole tires in landfills. 

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 noncombustible 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. 

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 

§ 241.3(d)(1) to be considered a nonwaste fuel under this rule. Specifically: 

• 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 nonwaste (processed or petitioned) are not 

managed as a valuable commodity, they 

would become a solid waste. See 

§ 241.3(d)(1)(i). 

• 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 § 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. 

• 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 

§ 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 nonhazardous 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 nonhazardous 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 nonhazardous secondary materials that are 

not solid wastes. Under the provisions 

of § 60.2175(w), for combustors burning 

scrap tires, a certification must be 

maintained stating that the scrap tires 

combusted under § 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 (§ 241.3(d)(1)). 

The definition of ‘‘resinated wood’’ 

has been codified in § 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 


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15536 Federal Register / Vol. 76, No. 54 / Monday, March 21, 2011 / Rules and Regulations 

162For 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) 

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 nonhazardous 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 nonhazardous 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 nonhazardous 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 § 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

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 

§ 241.3(d)(2) to be considered a nonwaste 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 


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Federal Register / Vol. 76, No. 54 / Monday, March 21, 2011 / Rules and Regulations 15537 

manufactured without the nonhazardous 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 nonhazardous 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 nonhazardous 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 nonhazardous 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 nonhazardous 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 § 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). 

• 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 


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163Evergreen Energy Company Web site. http:// 

www.evgenergy.com/k_fuel.php. 

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 nonhazardous 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 carboncontaining 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 subbituminous 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 nonhazardous secondary material provided 

processed material meets the legitimacy 

criteria. 

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 § 241.3(d)(1), while to be 

considered a legitimate ingredient, the 

ingredient product must meet the 

criteria in § 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 nonhazardous 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 nonhazardous 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 nonhazardous secondary material (and thus 

is ‘‘outside the control of the generator’’) 

can petition EPA that such nonhazardous 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 § 241.3(c). In addition, the petitioner 

must also demonstrate that the nonhazardous secondary material meets the 

legitimacy criteria in 241.3(d)(1). 

To demonstrate that the nonhazardous 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 nonhazardous 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 nonhazardous 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 


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material in a reasonable time frame; (4) 

whether the constituents in the nonhazardous secondary material are 

released to the air, water or land from 

the point of generation to the point just 

prior to combustion of the nonhazardous 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 § 241.3(c)(1). 

Specifically, the first criterion for a 

non-waste determination is whether 

market participants treat the nonhazardous 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 nonwaste 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 nonwaste 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 nonhazardous 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 casespecific 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 nonwaste 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 (§ 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 § 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 nonhazardous secondary material meets the 

relevant criteria contained in today’s 

rule at § 241.3(c)(1), or affects its 

meeting the legitimacy criteria in 

§ 241.3(d)(1), persons must re-apply to 

the Regional Administrator for another 

formal determination that the nonhazardous 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 


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materials. The process ensures that nonhazardous 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 nonwaste determination request on behalf 

of the regulated applicant for EPA to 

evaluate under the non-waste 

determination criteria in today’s rule at 

§ 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 § 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 nonhazardous 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 nonhazardous 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 

§ 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 nonhazardous 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 nonhazardous 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 nonwaste fuel through the time that it is 

actually burned. As noted previously, 

before the non-waste fuel product is 

produced from discarded nonhazardous secondary materials, the nonhazardous secondary material is a solid 

waste, and must comply with any 

federal, state, or local requirements. 

This criterion requires that the nonhazardous 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 nonhazardous 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 nonhazardous 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 


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164Examples of materials that are adequately 

contained would include liquid fuels stored in a 

tank. 

165We 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. 

166Such demonstration would be included in the 

recordkeeping and reporting requirements for boiler 

units combusting materials considered to be nonwastes 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. 

sound to control the release of the nonhazardous 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 nonhazardous 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 nonhazardous 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

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 

§ 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, nonhazardous 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. 

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 nonhazardous secondary materials with 

lower energy content. As a result, for 

purposes of meeting this legitimacy 

criterion, we would consider nonhazardous 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 nonhazardous 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 nonhazardous 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 selfsustain 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). 

While not specifically included in 

§ 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 § 260.43(b)(1). 

In today’s final rule, this criterion 

expresses the principle that nonhazardous 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 § 260.43(b)(2). In 

today’s final rule, this criterion 


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expresses the principle that the nonhazardous 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 nonhazardous 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 § 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 nonhazardous 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 nonhazardous 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 nonhazardous 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 nonhazardous 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 nonhazardous 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 nonhazardous secondary materials as fuels 

in combustion units. As a result, we 

believe that contaminant levels in nonhazardous secondary materials must be 

comparable in concentration to (or 

lower than) those levels in traditional 

fuels to be legitimately used as a nonwaste 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 


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167Examples of materials that are adequately 

contained would include liquids stored in a tank. 

valuable commodities, including being 

stored for a reasonable time frame. See 

§ 241.3(d)(2)(i). Where there is an 

analogous ingredient, the nonhazardous 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 nonhazardous 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 nonhazardous 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 nonwaste product is produced, the nonhazardous secondary material is a solid 

waste, and must comply with any 

federal, state, or local requirements. 

This criterion requires that the nonhazardous 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 nonhazardous 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 nonhazardous 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 nonhazardous 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 nonhazardous 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

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 

§ 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 nonhazardous 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 nonhazardous 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 


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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 nonhazardous 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 nonhazardous 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 § 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 nonhazardous 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 nonhazardous secondary material meets 

specific product specifications or 

specific industry standards. Another 

approach could be to compare the nonhazardous 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 § 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 nonhazardous 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 nonhazardous 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 

§ 241.3(d) (and continue to meet those 

criteria) when combusted. Nonhazardous secondary materials that no 

longer meet these legitimacy criteria 

would be considered solid wastes and 

the units combusting those nonhazardous 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 nonhazardous 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 


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168CAA 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. * * *’’ 

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 nonhazardous 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 nonhazardous 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

B. Renewable Energy 

This rule may impact how some nonhazardous 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 nonhazardous 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 

§ 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 nonhazardous 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 


srobinson on DSKHWCL6B1PROD with RULES3
15546 Federal Register / Vol. 76, No. 54 / Monday, March 21, 2011 / Rules and Regulations 

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 nonhazardous 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 nonhazardous 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 nonhazardous 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 § 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 nonhazardous 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 nonhazardous secondary materials 

considered to be non-wastes based on 

the non-waste determination petition 

process, and the application of the 

criteria outlined in § 241.3(c) must 

ensure that the non-hazardous 

secondary materials continue to meet 

those provisions when combusted. Nonhazardous secondary materials that no 

longer meet those criteria, even though 


srobinson on DSKHWCL6B1PROD with RULES3
Federal Register / Vol. 76, No. 54 / Monday, March 21, 2011 / Rules and Regulations 15547 

169Excluding minor administrative burden/cost 

(e.g., rule familiarization) and costs related to 

submitting a voluntary petition. 170National 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. 

171National 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. 

they may be in compliance with state 

recycling and management 

requirements, would require the 

combustor to re-apply for the non-waste 

determination (per § 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 fourrule 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. 

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 nonwaste 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 notfor-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

Although this final rule will not have 

a significant economic impact on a 


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15548 Federal Register / Vol. 76, No. 54 / Monday, March 21, 2011 / Rules and Regulations 

172National 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. 

173National 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. 

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. 

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. 

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. 


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Federal Register / Vol. 76, No. 54 / Monday, March 21, 2011 / Rules and Regulations 15549 

174National 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 

175The 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. 

176Review 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). 

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. 

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 nonhazardous 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. 

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, lowincome 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. 

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 

§ 241.1 Purpose. 

This part identifies the requirements 

and procedures for the identification of 


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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. 

§ 241.2 Definitions. 

For the purposes of this subpart: 

Clean cellulosic biomass means those 

residuals that are akin to traditional 

cellulosic biomass such as forestderived 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 nonhazardous 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 asfired 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 nonhazardous secondary material are under 

the control of the same person as 

defined in this section. 

Subpart B—Identification of NonHazardous Secondary Materials That 

Are Solid Wastes When Used as Fuels 

or Ingredients in Combustion Units 

§ 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 


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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 nonhazardous 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 nonhazardous 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 nonhazardous secondary materials. 

(1) Legitimacy criteria for nonhazardous 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 nonhazardous secondary material to the 

traditional fuel itself. 

(2) Legitimacy criteria for nonhazardous 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 nonhazardous 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 nonhazardous secondary material. 

[FR Doc. 2011–4492 Filed 3–18–11; 8:45 am] 

BILLING CODE 6560–50–P 


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