Attachment C Issues That Are Not Addressed by the Conceptual Approach A. Ingredients 1. How does EPA’s conceptual approach apply to ingredients? 2. EPA still needs to correct its assumptions about when combust io n takes place. The NHSM Rule only addresses secondary m aterials that are combusted. According to OSWER, the definit io n of co mbust io n is le ftto the Ai r Office. However, the preamble makes assumpt io n that combust io n is taking place in ci rcumstances when it i s not (i .e. use of secondary mater ia ls in cement kilns to make clinker). B. Foundry Sand. The preamble asserts for the first time that if a secondary material requi

res thermal reclamat io n then i

t is always a waste, even though the D.C. Circuit has held that, notwithstanding reclamat io n, and even storage before reclamat io n, material that i s dest ined fo r reuse as part of a continuous industrial process is not abandoned or thrown away and therefore i s not di scarded. ABR, 208 F.3d 1047, 1056 (D.C. Cir. 2000). We also note that with this pre amble language EPA is placing facilit ies in a Catch

- 22 si

tuation. If a facilit y thermally processes i

ts material , i

t can destroy contaminants and return the material to the productio n process as a non - waste. This act ivit y meets EPA’s definit io n of proces sing and the material itself is never di scarded. However, EPA also is saying that such processing turns the material int o a waste. EPA should disavow its preamble language on thermal treatment of foundry sand at the same time i

t rewri tes i ts interpreta

tion of the rest of the final rule. C. Factory Scrap Tires. The rule language states that scrap tires used in a combust io n uni t that are removed from

vehicles and managed under the oversight of established tire collect io n programs are not solid wastes when combusted if they meet the legit imacy criteria. But, tire collect io n programs also collect unused tires from factori es that were never placed on a vehicle because they did not meet the com pany’s standards for sale as a tire. Only a rule change can

f ix this problem because the rule language is so specific.2

D. Off
- specification Used Oil. Off

- specification used oil also is not discarded and is collected in programs similar to those used to manage TDF. E. Treated Wood. Certain t ypes of treat ed wood (e.g., railroad ties), are not discarded and is collected in programs similar to those used to manage TDF. F. Definition of Contained Gaseous Material The NHSM Rule ident ifies when a non

- hazardous secondary m aterial i s a so lid waste when combus ted f

or the purpose of determining the applicabilit y of sect io n 129 if the Clean Air Act. The 2000 CISIW Rule had previously had i ts own definit io n o f solid waste as well as a definit io n of contained gaseous material. The 2011 CISWI Rule deleted both of these definit io ns. The NHSM Rule does not include a definit io n of contained gaseous material. Moreover, the response to comments on the NHSM Rule calls into question the definit io n of contained gaseous material

that previously

existed in the CISWI Rule. A letter from EPA states that no change in po licy was intended. However, the regulatory history (the prom ulgation and then the delet io n of a definit io n and the failure to repromulgate the definit io n in the successor rule) plus the response to comments l anguage, leaves the question o f the regulatory status of gases in pipes st ill open to question, notwi th standing the EPA letter. To provide firm regulatory grounds for i

ts posi tion that gases in pipelines are not solid wastes, EPA should repromulgate the d efinit io n o f contained gaseous material as part of the NHSM Rule. Because this definit io n was previously in rule language, only a rule change can address this issue. G. Definition of Contaminants. Rule language: Contaminants means any constituent i n non - hazardous secondary materials that wi ll result in emissionso

f the air pollutants identified in Clean Air Act section 112(b) or the nine pollutants listed under Clean Air Act section 129(a)(4)) wh en such non - hazardous secondary materials are burned a s a fuel or used as an ingredient, including those constituents that could generate products of incomplete combustion. 40 C.F.R. 241.2. Preamble language: On the one hand, some language in the preamble agrees with the rule language that emissio ns de termine whether a material is a contaminant:3

EPA is defining the term ‘‘contaminant,’’ as constituents that wi ll result in emissionsof the air pollutants identified in CAA section 112(b) and the nine pollutants listed under CAA section 129(a)(4) w

hen suc h 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 thi s criterion because these are the contaminants identified in the CAA that are to be considered by EPA in evaluating w hich contaminants to establish emission standards

. 76 Fed. Reg. at 15524. We believe that ‘‘comparable’’ is protective because it ensuresthat 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 appro ach 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 low er than) the concentrations found in traditional fuels that the combustion unit is designed to burn. 7 6 Fed. Reg. at 15524. On the other hand, other parts of the preamble disagree with the rule language that a constituent is only

a contaminant if it results in emissio ns: [W]e disagree wi th 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 n on - wa ste fuel, it must be similar in composition, wh ereas 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 se condary material is that is being burned. 76 Fed. Reg. at 15525. The preamble also is inconsistent on how to determine if a const ituent is a contaminant: The metal wire in tires is 98.5 percent iron, but it is a small component of the TDF w hen process ed. 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. Rathe r, the wire ends up in the bottom ash such that, according to one commenter, the metal can be recovered. 76 Fed. Reg. at 15493. These inconsistencies raise the fo llo wing issues and questions: 1. In the preamble, the Agency stresses that contaminant lev els are based on the com posi tion of a material and not on emissio ns, but con taminants are defined based on emissio ns. However, if a const ituent is present in a secondary material but the combust io n of that material will not result in emissio ns of that con sti tuent, the constituent does not meet the definit io n of a contaminant and should not be considered when making a legit imacy determinat io n. EPA must revise its4 di scussio n of emissio ns in the preamble, which are inconsistent with the rule language. Or, if

EPA has a different intent, it must amend the definit io n of contaminant. 2. In the preamble discussio n of TDF, the Agency appears to say that the metal constituents of TDF are irrelevant to the legit imacy determinat io n because the metal s will

end up in the bottom

ash, and will not be released to the air. EPA makes the same point in its materials characterizat ion paper for TDF. While this is consistent with the definit io n of contaminant, it is inconsistent with the di scussio n of emissio ns elsewhere in the preamble. How does this analysis apply to other secondary

m aterials, such as the metals in coal refuse? EPA must revise it s discussio n of emissions fro m mat eri al other than TDF to be consi stent wi th the TDF di scussio n and with the definit io n of contaminantin the rule language. H. Processing Rule Language: Processing means any operations that transform discarded non - hazardous secondary material into a non

- waste fuel or non

- wa ste ingredient product. Processing includes, but is not limited to, operat ions necessary to: Remove or destroy contaminants; significantly improve the fuel characteristics of the material, e.g., sizing or drying the material in combination with other operations; chemically improve the as fired energy content; or improve the ingredient characteristics. Minimal operations that result only in modifying the size of the material by shredding do not constitute processing for purposes of this definition. Preamble Language: With respect to the technical question of how much wire mus t 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 o f Scrap Tire

-Derived Fuel’’ 97 describes the process for ‘‘dewired’’ and has a helpful guideline on the appropriate amount of wi re removal for different unit types under the topic titled ‘‘Handling Considerations Conveying, Grate and Ash.’’ However, the AS TM standard is concerned with proper dewiring and not whether the resultant material is a waste or non

- waste fuel. 76 Fed. Reg. at 15498. In summary, EPA considers that previously discarded tires that have been made into TDF (shredded/chipped, sized, sorted, and wi th a significant portion of the metal belts or wi re removed, at a level appropriate for the unit), meets the definition of ‘‘sufficient processing.’’76 Fed. Reg. at 15499. For TDF EPA is requiring facilit ies to remove the same material (metal) as part of processing a material into a non

- waste that elsewhere EPA says is not a contaminant5

because the metal ends up in the bottom ash and not in emissio ns. EPA must resolve this inconsistency.

I. Third
- party transfers. EPA has no record to s upport a specific determinatio n that the thi rd

- part y transfer o f non hazardous secondary

m aterial consti

tutes discard. We cont inue to believe that EPA has no authori

ty t o mak e the generic determination that allt hird

- part y transfers const itute di scard. T his posi

tion was rejected by th e court in Safe Food and Fertilizer v. EPA, 3 50 F.3d. 1263.