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 combustion takes place. 

The NHSM Rule only addresses secondary materials that are combusted. 

According to OSWER, the definition of combustion is left to the Air Office. 

However, the preamble makes assumption that combustion is taking place in 

circumstances when it is not (i.e. use of secondary materials in cement kilns to 

make clinker). 

B. Foundry Sand.

The preamble asserts for the first time that if a secondary material requires 

thermal reclamation then it is always a waste, even though the D.C. Circuit has 

held that, notwithstanding reclamation, and even storage before reclamation, 

material that is destined for reuse as part of a continuous industrial process is not 

abandoned or thrown away and therefore is not discarded. ABR, 208 F.3d 1047, 

1056 (D.C. Cir. 2000).

We also note that with this preamble language EPA is placing facilities in a 

Catch-22 situation. If a facility thermally processes its material, it can destroy

contaminants and return the material to the production process as a non-waste. 

This activity meets EPA’s definition of processing and the material itself is never 

discarded. However, EPA also is saying that such processing turns the material 

into a waste. 

EPA should disavow its preamble language on thermal treatment of foundry sand 

at the same time it rewrites its interpretation of the rest of the final rule. 

C. Factory Scrap Tires.

The rule language states that scrap tires used in a combustion unit that are 

removed from vehicles and managed under the oversight of established tire 

collection programs are not solid wastes when combusted if they meet the 

legitimacy criteria. But, tire collection programs also collect unused tires from 

factories that were never placed on a vehicle because they did not meet the 

company’s standards for sale as a tire. 

Only a rule change can fix this problem because the rule language is so specific. 
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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 types of treated 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 identifies when a non-hazardous secondary material is a solid 

waste when combusted for the purpose of determining the applicability of section 

129 if the Clean Air Act. The 2000 CISIW Rule had previously had its own 

definition of solid waste as well as a definition of contained gaseous material. 

The 2011 CISWI Rule deleted both of these definitions. The NHSM Rule does 

not include a definition of contained gaseous material. Moreover, the response to 

comments on the NHSM Rule calls into question the definition of contained 

gaseous material that previously existed in the CISWI Rule. A letter from EPA 

states that no change in policy was intended. However, the regulatory history (the 

promulgation and then the deletion of a definition and the failure to repromulgate 

the definition in the successor rule) plus the response to comments language, 

leaves the question of the regulatory status of gases in pipes still open to question, 

notwithstanding the EPA letter. To provide firm regulatory grounds for its 

position that gases in pipelines are not solid wastes, EPA should repromulgate the 

definition of contained gaseous material as part of the NHSM Rule. 

Because this definition was previously in rule language, only a rule change can 

address this issue. 

G. Definition of Contaminants.

Rule language: 

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. 40 C.F.R. 241.2. 

Preamble language: 

On the one hand, some language in the preamble agrees with the rule language that 

emissions determine whether a material is a contaminant:
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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. 76 Fed. Reg. at 15524. 

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. 76 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 emissions:

[W]e 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. 76 Fed. Reg. at 15525.

The preamble also is inconsistent on how to determine if a constituent is a contaminant: 

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. 76 Fed. Reg. at 15493. 

These inconsistencies raise the following issues and questions: 

1. In the preamble, the Agency stresses that contaminant levels are based on the 

composition of a material and not on emissions, but contaminants are defined 

based on emissions. However, if a constituent is present in a secondary material 

but the combustion of that material will not result in emissions of that constituent, 

the constituent does not meet the definition of a contaminant and should not be 

considered when making a legitimacy determination. EPA must revise its 
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discussion of emissions in the preamble, which are inconsistent with the rule 

language. Or, if EPA has a different intent, it must amend the definition of 

contaminant. 

2. In the preamble discussion of TDF, the Agency appears to say that the metal 

constituents of TDF are irrelevant to the legitimacy determination because the 

metals will end up in the bottom ash, and will not be released to the air. EPA 

makes the same point in its materials characterization paper for TDF. While this 

is consistent with the definition of contaminant, it is inconsistent with the 

discussion of emissions elsewhere in the preamble. How does this analysis apply 

to other secondary materials, such as the metals in coal refuse? EPA must revise 

its discussion of emissions from material other than TDF to be consistent with the 

TDF discussion and with the definition of contaminant in 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-waste ingredient product. Processing includes, but 

is not limited to, operations necessary to: Remove or destroy contaminants; significantly 

improve the fuel characteristics of the material, e.g., sizing or drying the material in 

combination with other operations; chemically improve the as fired energy content; or 

improve the ingredient characteristics. Minimal operations that result only in modifying 

the size of the material by shredding do not constitute processing for purposes of this 

definition. 

Preamble Language: 

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. 

76 Fed. Reg. at 15498.

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.’’ 76 Fed. Reg. at 15499.

For TDF EPA is requiring facilities to remove the same material (metal) as part of 

processing a material into a non-waste that elsewhere EPA says is not a contaminant 
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because the metal ends up in the bottom ash and not in emissions. EPA must resolve this 

inconsistency. 

I. Third-party transfers. 

EPA has no record to support a specific determination that the third-party transfer of nonhazardous secondary material constitutes discard. We continue to believe that EPA has 

no authority to make the generic determination that all third-party transfers constitute 

discard. This position was rejected by the court in Safe Food and Fertilizer v. EPA, 350 

F.3d. 1263.