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RESPONSES TO COMMENTS DOCUMENT FOR THE IDENTIFICATION OF NONHAZARDOUS SECONDARY MATERIALS THAT ARE SOLID WASTE RULEMAKING

Docket ID Number: EPA-HQ-RCRA-2008-0329

FEBRUARY 2011 
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INDEX 

PART 1: Introduction

 Page 4 

PART 2: Commenters

Page 5 

PART 3a: Comments on the Proposed Rule and EPA Responses 

 Page 32 

 (This is also in Section V of the preamble to the final 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 

 
Response to Comments Document -NHSM Rule 

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PART 3b: Other Comments on the Proposed Rule and EPA Responses

Page 164 

A. Proposed Approach 

B. Comments on Specific Materials Used as Fuel 

1. Traditional Fuels 

2. Manure 

3. Other Biomass 

4. Scrap Tires 

5. Used Oil 

6. Coal Refuse 

7. Sewage Sludge 

C. Comments on Specific Materials Used as Ingredients 

D. Comments on Legitimacy Criteria for Fuels 

E. Comments on Legitimacy Criteria for Ingredients 

F. Comments on Non-Waste Determination Petitions 

G. Comments on Implementation of the Rule 

H. Comments on Economic and Environmental Impacts 

I. Comments on Materials not Specifically Identified in the Preamble 

J. Miscellaneous Comments 

PART 3c: Major Comments Received on the Advance Notice of Proposed Rulemaking 

(ANPRM) as Responded to in the Proposed Rule 

Page 218 

A. Comments from State Agencies 

B. Meaning of Discard 

C. General Approach 

D. Level of Processing Needed to Produce a Non-Waste Product 

E. Comments on Specific Materials Used as a Fuel 

F. Comments on Specific Materials Used as Ingredients 

G. Legitimacy Criteria 

PART 4: Comment Crosswalk

 Page 254 
PART 1: Introduction 

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PART 1: Introduction 

This document presents EPA’s responses to public comments received by the Agency on 

the proposed rule for the identification of non-hazardous materials that are solid waste (the 

NHSM rule). Published on June 4, 2010, the proposed NHSM Rule (75 FR 31844) identifies 

which NHSM used as fuels or ingredients in combustion units are solid wastes under the 

Resource Conservation and Recovery Act. Following the publication of the proposed rule, EPA 

accepted public comments for a 60-day period ending August 3, 2010. The Agency received 

over one thousand unique comments from a range of interested parties, including individuals, 

businesses, state and local government agencies, and various non-governmental organizations. 

The comments addressed several topics, including, but not limited to, the waste status for the 

non-hazardous secondary materials described in the proposed rule, the rule’s impact on the 

markets for different non-hazardous secondary materials, potential interactions between the 

proposed rule and existing Federal and State programs, and the environmental impacts of the 

rule. 

EPA considered all comments on the proposed rule in formulating the final rule. 

Comments received on the proposal that address issues where the Agency specifically requested 

comment, and as well as other significant issues raised by commenters, were included in Section 

V of the preamble to the final rule. Those comments and responses contained in the preamble 

are repeated here, in Section 3a, verbatim. Other unique comments received on the proposed 

rule that were not included in the preamble, generally from one commenter, together with the 

responses to those comments, are outlined in Section 3b. 

Prior to issuance of the proposed rule, an Advance Notice of Proposed Rulemaking on 

the identification of non-hazardous secondary materials that are solid waste was issued January 

2, 2009. Major comments received on the ANPRM, and the responses to those comments, were 

included in Section VII.C of the preamble to the proposed rule. Those major ANPRM comments 

contained in the proposed rule preamble are repeated verbatim in Section 3c. These responses do 

not reflect changes that were made from proposal to the final rule; see Sections 3a and 3b for 

those changes. 

 
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PART 2: Commenters 

The table below provides the document ID and name of each commenter who submitted 

comments to the docket in response to either the Advanced Notice of Proposed Rulemaking or 

the Proposed Rule. All of these comments were considered in the rulemaking process. 

Document ID and Commenter Name for Each Comment on the ANPRM and the Proposed Rule 

Document ID Commenter Name (includes person that submitted on behalf of an organization) 

EPA-HQ-RCRA-2008-0329-0326 D. Williams 

EPA-HQ-RCRA-2008-0329-0328 Terese Colling and Fran McPoland, Washington Representatives, Paper Recycling Coalition 

(PRC) 

EPA-HQ-RCRA-2008-0329-0329 Michael A. Sorcher, President, M.A. Associates, Inc. 

EPA-HQ-RCRA-2008-0329-0330 David B. Haldeman, Administrator, Waste Management Division, Nebraska Department of 

Environmental Quality 

EPA-HQ-RCRA-2008-0329-0331 Katherine Fry, SierraPine 

EPA-HQ-RCRA-2008-0329-0332 David A. Webb, Creosote Council III 

EPA-HQ-RCRA-2008-0329-0333 James C. Gauntt, Executive Director, Railway Tie Association (RTA) 

EPA-HQ-RCRA-2008-0329-0334 Mark Wight, Assistant Counsel, Bureau of Land, Illinois Environmental Protection Agency 

EPA-HQ-RCRA-2008-0329-0335 Jeffrey T. Miller, President and Executive Director, Treated Wood Council (TWC) 

EPA-HQ-RCRA-2008-0329-0336 Rich Raiders, Senior Lead Environmental Engineer and Lew Buchanan, Principal 

Environmental Engineer, Arkema Inc. 

EPA-HQ-RCRA-2008-0329-0337 Lin Longshore, Vice President of Environmental Compliance, Safety-Kleen Systems, Inc. 

EPA-HQ-RCRA-2008-0329-0338 Mark A. Dupuis, President and CEO, International Paper Products Corporation (IPP) 

EPA-HQ-RCRA-2008-0329-0339 Thomas W. Purcell, Science Advisor, Regulatory and Scientific Affairs, American 

Petroleum Institute (API) 

EPA-HQ-RCRA-2008-0329-0340 Michael L. Rodburg, Lowenstein Sandler PC on behalf of Schnitzer Steel Industries, Inc. 

(Schnitzer) 

EPA-HQ-RCRA-2008-0329-0341 Jessica M. Werber, Attorney, Environmental Integrity Project (EIP) and Hannah Connor, 

Staff Attorney, Waterkeeper Alliance 

EPA-HQ-RCRA-2008-0329-0342 Filipa Rio, Manager, Environmental Affairs, Alliance of Automobile Manufacturers 

EPA-HQ-RCRA-2008-0329-0343 Charles G. Johnson, Unit Leader, Solid Waste and Material Management Unit, Colorado 

Department of Public Health and Environment 

EPA-HQ-RCRA-2008-0329-0344 F. Scott Reed, on behalf of Pamela F. Faggert, Vice President and Chief Environmental 

Officer, Dominion 

EPA-HQ-RCRA-2008-0329-0345 Scott Thompson, Oklahoma Department of Environmental Quality 

EPA-HQ-RCRA-2008-0329-0346 Robert D. Bessette, President, Council of Industrial Boiler Owners (CIBO) 

EPA-HQ-RCRA-2008-0329-0347 Gary Elliott, Regional Environmental Manager, Lafarge North America, Inc. (Lafarge) 

EPA-HQ-RCRA-2008-0329-0348 Robert F. Wilkinson, Husch Blackwell Sanders LLP on behalf of Monsanto Company 

EPA-HQ-RCRA-2008-0329-0349 Debra J. Jezouit, Megan H. Berge, Baker Botts L.L.P. on behalf of The Class of '85 

Regulatory Response Group 

EPA-HQ-RCRA-2008-0329-0350 James R. Roewer, Executive Director, Utility Solid Waste Activities Group (USWAG) 

EPA-HQ-RCRA-2008-0329-0351 Tyrone P. Wilson, Director, Regulatory Affairs, Energy and Environment, Portland Cement 

Association (PCA) 

EPA-HQ-RCRA-2008-0329-0352 Tyrone P. Wilson, Director, Regulatory Affairs, Energy and Environment, Portland Cement 

Association (PCA) 

EPA-HQ-RCRA-2008-0329-0353 Tracey J. Norberg, Senior Vice President and Corporate Counsel, Rubber Manufacturers 

Association (RMA) 

EPA-HQ-RCRA-2008-0329-0354 Anders J. Rydaker, President, Ever-Green Energy, LLC 

EPA-HQ-RCRA-2008-0329-0355 John K. Keppler, Chief Executive Officer, Intrinergy, LLC (Intrinergy) 

EPA-HQ-RCRA-2008-0329-0356 Pat Kast on behalf of Douglas J. Craig, Director of Plant Operations, Central Contra Costa 

Sanitary District (CCCSD) 

EPA-HQ-RCRA-2008-0329-0357 Gerald Swensen, President, Auburndale Recycling Center, Inc. 

EPA-HQ-RCRA-2008-0329-0358 Jess McCluer, Director of Regulatory Affairs, National Grain and Feed Association (NGFA) 

EPA-HQ-RCRA-2008-0329-0359 Tawny A. Bridgeford, Associate General Counsel, National Mining Association (NMA) 

EPA-HQ-RCRA-2008-0329-0360 Kenneth S. Komoroski, K&L Gates LLP on behalf of Koppers Inc. (Koppers) 

EPA-HQ-RCRA-2008-0329-0361 Jerry Call, Executive Vice President, American Foundry Society (AFS) 
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Document ID and Commenter Name for Each Comment on the ANPRM and the Proposed Rule 

Document ID Commenter Name (includes person that submitted on behalf of an organization) 

EPA-HQ-RCRA-2008-0329-0362 John W. Norton, Norton Engineering, LLC 

EPA-HQ-RCRA-2008-0329-0363 Christina Dunsmore on behalf of Chris Hornback, Senior Director, Regulatory Affairs, 

National Association of Clean Water Agencies (NACWA) 

EPA-HQ-RCRA-2008-0329-0364 William Turley, Executive Director, Construction Materials Recycling Association (CMRA) 

EPA-HQ-RCRA-2008-0329-0365 Clayt D. Lauter, Senior Environmental Specialist, FPL Environmental Services 

EPA-HQ-RCRA-2008-0329-0366 Fred Goodson, Waste Program Coordinator, Shell Chemical and Motiva Enterprises 

EPA-HQ-RCRA-2008-0329-0367 Craig E. Pearson on behalf of Shirley M. Ruffin, Corporate Environmental Services 

Department, SCANA Corporation 

EPA-HQ-RCRA-2008-0329-0368 Shirley M. Ruffin, Corporate Environmental Services Department, SCANA Corporation 

EPA-HQ-RCRA-2008-0329-0369 Roopa Nemi, Latham & Watkins LLP on behalf of Chinook Energy LLC 

EPA-HQ-RCRA-2008-0329-0370 John Bradfield, Director of Environmental Affairs, Composite Panel Association (CPA) 

EPA-HQ-RCRA-2008-0329-0371 George F. Gilbert, Environmental Engineer Consultant, Kentucky Division of Waste 

Management, Department for Environmental Protection 

EPA-HQ-RCRA-2008-0329-0372 Greg Kester, Biosolids Program Manager, California Association of Sanitation Agencies 

(CASA) 

EPA-HQ-RCRA-2008-0329-0373 David R. Case, Executive Director, Environmental Technology Council (ETC) 

EPA-HQ-RCRA-2008-0329-0374 Timothy G. Hunt, Senior Director, Air Quality Programs, American Forest & Paper 

Association (AF&PA) 

EPA-HQ-RCRA-2008-0329-0375 Jocelyne Matias Modine on behalf of Brent Erickson, Executive Vice President, Industrial 

and Environmental Section, Biotechnology Industry Organization (BIO) 

EPA-HQ-RCRA-2008-0329-0376 Tamra S. Van Til, Consultant Representing, Michigan Biomass 

EPA-HQ-RCRA-2008-0329-0377 Lisa I. Cooper, Senior Vice President, PMI Ash Technologies, LLC (PMI) 

EPA-HQ-RCRA-2008-0329-0378 David Goss, Executive Director, American Coal Ash Association (ACAA) 

EPA-HQ-RCRA-2008-0329-0379 Jeffrey S. Lang, Counsel, Health, Safety and Environment, Rhodia Inc. (Rhodia) 

EPA-HQ-RCRA-2008-0329-0380 Steven E. Sliver, Chief, Storage Tank and Solid Waste Section, Waste and Hazardous 

Materials Division, Michigan Department of Environmental Quality (MDEQ) 

EPA-HQ-RCRA-2008-0329-0381 Sean M. O'Keefe, Director, Environmental Affairs, Alexander & Baldwin, Inc. (AB) on 

behalf of Hawaiian Commercial and Sugar Company (HC&S) 

EPA-HQ-RCRA-2008-0329-0382 Chris S. Leason, Gallagher & Kennedy, P.A. on behalf of William C. Herz, Vice President, 

Scientific Programs, The Fertilizer Institute (TFI) 

EPA-HQ-RCRA-2008-0329-0383 Kay Parker, Environmental Principal, Corporate Sustainability, Health, Safety and 

Environmental Advocacy, Eastman Chemical Company (Eastman) 

EPA-HQ-RCRA-2008-0329-0384 John L. Wittenborn, Kelley Drye & Warren LLP on behalf of Steel Manufacturers 

Association (SMA), Specialty Steel Industry of North America (SSINA), and American Iron 

and Steel Institute (AISI) 

EPA-HQ-RCRA-2008-0329-0385 Lee B. Zeugin, Hunton & Williams LLP on behalf of Utility Air Regulatory Group (UARG) 

EPA-HQ-RCRA-2008-0329-0386 Terry E. Coss, Waste and Remediation Director, Environmental Services Department, Xcel 

Energy 

EPA-HQ-RCRA-2008-0329-0387 Kim L. Harvey and Bob Elam, EH&S and Sustainability, Operations Regulatory 

Management, The Dow Chemical Company (Dow) 

EPA-HQ-RCRA-2008-0329-0388 H. M. Rollins, H. M. Rollins Company, Inc. on behalf of Coastal Forest Resources 

Company, et al. 

EPA-HQ-RCRA-2008-0329-0389 Jim Griffin, Senior Director, American Chemistry Council (ACC) 

EPA-HQ-RCRA-2008-0329-0390 Michael Conolly, Tube City IMS on behalf of Karen Kiggins, President, National Slag 

Association (NSA) 

EPA-HQ-RCRA-2008-0329-0391 Mark Feltner, Environmental Scientist, Hampton Roads Sanitation District (HRSD) 

EPA-HQ-RCRA-2008-0329-0392 Sueann Murphy on behalf of Steven Sliver, Chief, Storage Tank and Solid Waste Section, 

Waste and Hazardous Materials Division, Michigan Department of Environmental Quality 

(MDEQ) 

EPA-HQ-RCRA-2008-0329-0393 Al Shea, Administrator, Division of Air and Waste, Wisconsin Department of Natural 

Resources 

EPA-HQ-RCRA-2008-0329-0394 Christopher Harris, General Counsel, NORA, An Association of Responsible Recyclers 

EPA-HQ-RCRA-2008-0329-0395 Kerry Callahan. Staff Associate, on behalf of Brian Tormey, Chair, Solid Waste 

Subcommittee, Association of State and Territorial Solid Waste Management Officials 

(ASTSWMO) 

EPA-HQ-RCRA-2008-0329-0396 Necy Sumait, Director and Executive Vice President, BlueFire Ethanol Fuels, Inc. 

EPA-HQ-RCRA-2008-0329-0397 Bruno Morabito, Managing Director, Technical Services, on behalf of F. Reed Wills, 
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Document ID and Commenter Name for Each Comment on the ANPRM and the Proposed Rule 

Document ID Commenter Name (includes person that submitted on behalf of an organization) 

President, ADAGE 

EPA-HQ-RCRA-2008-0329-0398 David L. Wagger, Director of Environmental Management, on behalf of Scott J. Horne, Vice 

President, Governmental Affairs and General Counsel, Institute of Scrap Recycling 

Industries, Inc. (ISRI) 

EPA-HQ-RCRA-2008-0329-0399 David A. Buff, P.E., Q.E.P., Principal Engineer, Golder Associates, Inc., on behalf of 

Florida Sugar Industry (FSI) 

EPA-HQ-RCRA-2008-0329-0400 David A. Buff, P.E., Q.E.P., Principal Engineer, Golder Associates Inc. on behalf of New 

Hope Power Partnership (NHPP) 

EPA-HQ-RCRA-2008-0329-0401 Ronald B. Carlson, Chief Operating Officer, Liberty Tire Services, LLC 

EPA-HQ-RCRA-2008-0329-0402 Sean M. O'Keefe, Director, Environmental Affairs, Alexander & Baldwin, Inc. 

EPA-HQ-RCRA-2008-0329-0403 Frank Kohlash, Section Manager, Air Assessment and Environmental Data Management, 

Minnesota Pollution Control Agency (MPCA) 

EPA-HQ-RCRA-2008-0329-0404 Carmen Fells, Division of Regulatory Support, Office of Surface Mining, United States 

Department of the Interior 

EPA-HQ-RCRA-2008-0329-0405 David L. Roberson, Chairman, Alabama Scrap Tire Commission 

EPA-HQ-RCRA-2008-0329-0410 James S. Pew, Staff Attorney, Earthjustice and Sierra Club 

EPA-HQ-RCRA-2008-0329-0535 Gary Elliott, Regional Environmental Manager, Lafarge North America 

EPA-HQ-RCRA-2008-0329-0538 L. Whisenhant 

EPA-HQ-RCRA-2008-0329-0539 Pat Gallagher, Sierra Club; John D. Walke, Natural Resources Defense Council; James T.B. 

Tripp, Environmental Defense Fund; and James S. Pew, Earthjustice 

EPA-HQ-RCRA-2008-0329-0540 John Tiernan, President, AFS Technology 

EPA-HQ-RCRA-2008-0329-0541 Firestone Complete Auto Care 

EPA-HQ-RCRA-2008-0329-0542 David Coleman, Bridgestone Retail Operations, LLC 

EPA-HQ-RCRA-2008-0329-0543 Bill Castle, Firestone Tire and Service Center 328509 

EPA-HQ-RCRA-2008-0329-0544 Anonymous public comment 

EPA-HQ-RCRA-2008-0329-0545 Mass Email Comment Campaign sponsoring organization unknown (18,588) 

EPA-HQ-RCRA-2008-0329-0546 Anonymous public comment 

EPA-HQ-RCRA-2008-0329-0547 Anonymous public comment 

EPA-HQ-RCRA-2008-0329-0548 Anonymous public comment 

EPA-HQ-RCRA-2008-0329-0549 Comment John Williams, President, Maine Pulp & Paper Association (MPPA) 

EPA-HQ-RCRA-2008-0329-0550 Anonymous public comment 

EPA-HQ-RCRA-2008-0329-0551 Anonymous public comment 

EPA-HQ-RCRA-2008-0329-0552 Mass comment campaignsponsored by United Steelworkers (USW) (440 signatures) 

EPA-HQ-RCRA-2008-0329-0553 Mass Comment Campaignsponsoring organization unknown (85) 

EPA-HQ-RCRA-2008-0329-0555 Mass comment campaignsponsored by United Steelworkers (97) 

EPA-HQ-RCRA-2008-0329-0556 Debby Rexroad on behalf of Larry Magee, Chairman, CEO and President, Bridgestone 

Retail Operations, LLC 

EPA-HQ-RCRA-2008-0329-0557 Dan Yurko, Assistant District Manager, Bridgestone Retail Operations 

EPA-HQ-RCRA-2008-0329-0558 J. D. Butts, Oklahoma District Manager, Firestone 

EPA-HQ-RCRA-2008-0329-0559 Jessica Pierson, Recruiting and Retention Manager, BSRO, LLC-Western Zone 

EPA-HQ-RCRA-2008-0329-0560 Terry Davenport, Hibdon Tires Plus 

EPA-HQ-RCRA-2008-0329-0561 Debra Hamlin, Senior Environmental Engineer, Bridgestone Retail Operations, LLC 

EPA-HQ-RCRA-2008-0329-0562 Paul Vanderburg, Manley Tire & Oil 

EPA-HQ-RCRA-2008-0329-0563 Paul Vanderburg, Manley Tire & Oil 

EPA-HQ-RCRA-2008-0329-0564 Viraj Patel, Tires Plus 

EPA-HQ-RCRA-2008-0329-0565 Donna Soave-Clark, Bridgestone Retail Operations 

EPA-HQ-RCRA-2008-0329-0566 J Michael Jones, Formula 1 Firestone 

EPA-HQ-RCRA-2008-0329-0567 George Ranieri, District Manager, Team San Antonio, Bridgestone Retail Operations, LLC 

EPA-HQ-RCRA-2008-0329-0568 John O'Bomsawin, Store Manager, Firestone Complete Auto Care 

EPA-HQ-RCRA-2008-0329-0569 Dora Johnston, Manager, Expert Tire 

EPA-HQ-RCRA-2008-0329-0570 Tim Barber, Assistant District Manager, Firestone Complete Auto Care 

EPA-HQ-RCRA-2008-0329-0571 John Sheerin, Environmental Director, Bridgestone Retail Operations 

EPA-HQ-RCRA-2008-0329-0572 C. Longnecker 

EPA-HQ-RCRA-2008-0329-0573 Robert Amenta, President, Modern Enterprises, Inc. 

EPA-HQ-RCRA-2008-0329-0574 James S. Downing, Vice President, General Counsel & Secretary, Bridgestone Retail 

Operations, LLC 

EPA-HQ-RCRA-2008-0329-0575 Chuck Williams, TWW 
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Document ID and Commenter Name for Each Comment on the ANPRM and the Proposed Rule 

Document ID Commenter Name (includes person that submitted on behalf of an organization) 

EPA-HQ-RCRA-2008-0329-0576 Randy and Tammy Martin, Martin Automotive 

EPA-HQ-RCRA-2008-0329-0578 Roger Sloan, Owner, Parkway Tire & Service West, Inc. 

EPA-HQ-RCRA-2008-0329-0579 Bridget Bartels on behalf of Gregory M. Adams, Assistant Departmental Engineer, Air 

Quality Engineering, Technical Services Department, Sanitation Districts of Los Angeles 

County 

EPA-HQ-RCRA-2008-0329-0580 Mass Email Comment Campaign sponsoring organization unknown (18,588) 

EPA-HQ-RCRA-2008-0329-0581 Joann Helton, Bridgestone Retail Operations, LLC 

EPA-HQ-RCRA-2008-0329-0582 J. Schmitt 

EPA-HQ-RCRA-2008-0329-0583 R. Levy 

EPA-HQ-RCRA-2008-0329-0584 Daniel R. Adams on behalf of Kristine M. Krause, Vice President Environmental, We 

Energies 

EPA-HQ-RCRA-2008-0329-0585 G. Kingman 

EPA-HQ-RCRA-2008-0329-0586 Roger Sloan, Parkway Tire & Service, Inc. 

EPA-HQ-RCRA-2008-0329-0587 J. Anhorn 

EPA-HQ-RCRA-2008-0329-0588 Kathryn Scott, Paralegal, Environmental Law Department, Bridgestone Retail Operations, 

LLC 

EPA-HQ-RCRA-2008-0329-0589 S. Nord 

EPA-HQ-RCRA-2008-0329-0590 Michael Welly, Bridgestone Retail Operations, LLC 

EPA-HQ-RCRA-2008-0329-0591 John C. Klimowski, Environmental Specialist, Bridgestone Retail Operations, LLC 

EPA-HQ-RCRA-2008-0329-0592 Jennifer Cullerton, Sr. Specialist, HR Operations and Support, Bridgestone Retail 

Operations, LLC 

EPA-HQ-RCRA-2008-0329-0593 Susan Robbins, Instructional Designer, Education Department, Bridgestone Retail 

Operations, LLC 

EPA-HQ-RCRA-2008-0329-0594 Sarah S. Markham, Environmental Engineer, Research & Environmental Affairs, Southern 

Company 

EPA-HQ-RCRA-2008-0329-0596 Caroline Quinn, Project Manager, Delta Diablo Sanitation District-Coalition Lead Agency 

on behalf of the San Francisco Bay Area Biosolids to Energy Coalition 

EPA-HQ-RCRA-2008-0329-0597 Bill Carden, Manager, Best Buy Tire & Auto, Inc. 

EPA-HQ-RCRA-2008-0329-0598 Mark Wight, Assistant Counsel, Bureau of Land, Illinois Environmental Protection Agency 

(Illinois EPA) 

EPA-HQ-RCRA-2008-0329-0601 Catherine Elizee on behalf of Tim Manning, Vice President, Health, Safety & 

Environmental, HOVENSA, LLC's (HOVENSA) 

EPA-HQ-RCRA-2008-0329-0602 J. Miller 

EPA-HQ-RCRA-2008-0329-0603 Michael Connolly on behalf of Karen Kiggins, President, National Slag Association (NSA) 

EPA-HQ-RCRA-2008-0329-0604 Eric L. Hiser, Jorden Bischoff & Hiser, PLC on behalf of Nucor Corporation 

EPA-HQ-RCRA-2008-0329-0605 J. Miller 

EPA-HQ-RCRA-2008-0329-0606 Thomas P, Greene, III., Vice President, Utility Sales, Atlantic Wood Industries, Inc. 

EPA-HQ-RCRA-2008-0329-0607 Gavin Adams on behalf of Phillip D. Davis, Chief, Solid Waste Branch, Alabama 

Department of Environmental Management (ADEM) 

EPA-HQ-RCRA-2008-0329-0608 John Miller, STIS 

EPA-HQ-RCRA-2008-0329-0609 Lloyd Vassar, Fisher Chevrolet GMC Buick Inc. 

EPA-HQ-RCRA-2008-0329-0610 Tom Franklin, Service Director, McCombs Ford West 

EPA-HQ-RCRA-2008-0329-0611 Gregory M. Adams, Assistant Departmental Engineer, Air Quality Engineering, Technical 

Services Department, Sanitation Districts of Los Angeles County (Sanitation Districts) 

EPA-HQ-RCRA-2008-0329-0612 Stephen L. Hershner, Utilities Environmental Manager, Cedar Rapids Water Pollution 

Control Facilities (Cedar Rapids) 

EPA-HQ-RCRA-2008-0329-0613 Doug LaCroix, Fixed Operations Director, McCombs Enterprises 

EPA-HQ-RCRA-2008-0329-0614 Tom Franklin, Service Director, McCombs Ford West 

EPA-HQ-RCRA-2008-0329-0615 Wendy White on behalf of Eileen A. Sottile, Vice President, Government Affairs, LKQ 

Corporation 

EPA-HQ-RCRA-2008-0329-0616 John A. Ackiewicz, Senior EHS Manager, Corporate EHS, Armstrong World Industries, Inc. 

EPA-HQ-RCRA-2008-0329-0617 P. Lambert 

EPA-HQ-RCRA-2008-0329-0618 Win W. Maynard Sr., President, Powerlube, Inc. 

EPA-HQ-RCRA-2008-0329-0619 Megan Briggs on behalf of Curtis W. Swanson, Provisional Director of Plant Operations, 

Central Contra Costa Sanitary District (CCCSD) 

EPA-HQ-RCRA-2008-0329-0620 J. Teinert 

EPA-HQ-RCRA-2008-0329-0621 Richard Merriman, Rick's Advantech Automotive Center LLC 
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Document ID and Commenter Name for Each Comment on the ANPRM and the Proposed Rule 

Document ID Commenter Name (includes person that submitted on behalf of an organization) 

EPA-HQ-RCRA-2008-0329-0622 Stephen Taylor, Owner, Einstein's Oilery 

EPA-HQ-RCRA-2008-0329-0623 Thomas Kraemer, Kraemer Farms, LLC 

EPA-HQ-RCRA-2008-0329-0624 Dennis W. Palmer, Executive Director/Chief Engineer, The Landis Sewerage Authority 

(LSA) 

EPA-HQ-RCRA-2008-0329-0625 Travis Wright, Nebraskaland/Kansasland/Coloradoland Tire Group 

EPA-HQ-RCRA-2008-0329-0626 S. Futrell 

EPA-HQ-RCRA-2008-0329-0627 D. Winslow 

EPA-HQ-RCRA-2008-0329-0628 Jeff Hoback, Branch/Service Manager, Motor Trucks, Inc. 

EPA-HQ-RCRA-2008-0329-0629 Kim L. Harvey and Darryl Sanderson, The Dow Chemical Company (DOW) 

EPA-HQ-RCRA-2008-0329-0630 Ronald G. Holen, General Manager, Yakama Forest Products 

EPA-HQ-RCRA-2008-0329-0631 Tad Forman, Pacific Topsoils, Inc. 

EPA-HQ-RCRA-2008-0329-0632 R. Yarnell 

EPA-HQ-RCRA-2008-0329-0633 K. Russell 

EPA-HQ-RCRA-2008-0329-0634 B. Murphy 

EPA-HQ-RCRA-2008-0329-0635 D. Wilson 

EPA-HQ-RCRA-2008-0329-0636 R. Mutchnik 

EPA-HQ-RCRA-2008-0329-0638 C. Davies 

EPA-HQ-RCRA-2008-0329-0639 M. Shimizu 

EPA-HQ-RCRA-2008-0329-0640 R. McBane 

EPA-HQ-RCRA-2008-0329-0641 D. Millett 

EPA-HQ-RCRA-2008-0329-0642 V. Binchi 

EPA-HQ-RCRA-2008-0329-0643 J. Wainwright 

EPA-HQ-RCRA-2008-0329-0644 C. Speas 

EPA-HQ-RCRA-2008-0329-0645 C. Boulanger 

EPA-HQ-RCRA-2008-0329-0646 J. Miller, et. al. 

EPA-HQ-RCRA-2008-0329-0647 J. Stoelzel 

EPA-HQ-RCRA-2008-0329-0648 R. Caputo 

EPA-HQ-RCRA-2008-0329-0649 J. Bergeron 

EPA-HQ-RCRA-2008-0329-0650 C. Arnold 

EPA-HQ-RCRA-2008-0329-0651 J. Knobloch 

EPA-HQ-RCRA-2008-0329-0652 L. Duke 

EPA-HQ-RCRA-2008-0329-0653 L. Bagley 

EPA-HQ-RCRA-2008-0329-0654 R. Fusinato 

EPA-HQ-RCRA-2008-0329-0655 C. Ehrhardt 

EPA-HQ-RCRA-2008-0329-0656 J. Leith 

EPA-HQ-RCRA-2008-0329-0657 H. Putera 

EPA-HQ-RCRA-2008-0329-0658 J. Stewart 

EPA-HQ-RCRA-2008-0329-0659 P. Abbott 

EPA-HQ-RCRA-2008-0329-0660 J. Voss 

EPA-HQ-RCRA-2008-0329-0661 A. Gayler 

EPA-HQ-RCRA-2008-0329-0662 P. Gelinas 

EPA-HQ-RCRA-2008-0329-0663 R. Sieman 

EPA-HQ-RCRA-2008-0329-0664 M. Bartleman 

EPA-HQ-RCRA-2008-0329-0665 R. Verhaeghe 

EPA-HQ-RCRA-2008-0329-0666 H. Carr 

EPA-HQ-RCRA-2008-0329-0667 T. and N. Small 

EPA-HQ-RCRA-2008-0329-0668 C. Harris 

EPA-HQ-RCRA-2008-0329-0669 S. Yates 

EPA-HQ-RCRA-2008-0329-0670 M. Gargiulo 

EPA-HQ-RCRA-2008-0329-0671 F. Friesen 

EPA-HQ-RCRA-2008-0329-0672 T. Warren 

EPA-HQ-RCRA-2008-0329-0674 Kevin Bolin, President and CEO, EnerTech Environmental, Inc. (EnerTech) 

EPA-HQ-RCRA-2008-0329-0675 Carl Johnson, Executive Director, Southern Pressure Treaters' Association (SPTA) 

EPA-HQ-RCRA-2008-0329-0676 Anne Jackson on behalf of Gary Pulford, Manager, Policy, Local Government Assistance 

and Solid Waste Section, Municipal Division, Minnesota Pollution Control Agency 

EPA-HQ-RCRA-2008-0329-0677 A. Bartczak 
PART 2: Commenters 

Response to Comments Document -NHSM Rule 

10 of 275 

Document ID and Commenter Name for Each Comment on the ANPRM and the Proposed Rule 

Document ID Commenter Name (includes person that submitted on behalf of an organization) 

EPA-HQ-RCRA-2008-0329-0678 K. Crose 

EPA-HQ-RCRA-2008-0329-0679 J. Etter 

EPA-HQ-RCRA-2008-0329-0680 D. Morphis 

EPA-HQ-RCRA-2008-0329-0681 M. Athene 

EPA-HQ-RCRA-2008-0329-0682 S. Monteiro 

EPA-HQ-RCRA-2008-0329-0683 B. Pratt 

EPA-HQ-RCRA-2008-0329-0684 Charles Logue, Director of Technical Services, Renewable Water Resources (ReWa) 

EPA-HQ-RCRA-2008-0329-0685 A. Cheng 

EPA-HQ-RCRA-2008-0329-0686 A. Daniels-Grefelt 

EPA-HQ-RCRA-2008-0329-0687 A. Schmidt 

EPA-HQ-RCRA-2008-0329-0688 A. Warfield 

EPA-HQ-RCRA-2008-0329-0689 AJ Averett 

EPA-HQ-RCRA-2008-0329-0690 B. Brewster 

EPA-HQ-RCRA-2008-0329-0691 B. Krasner 

EPA-HQ-RCRA-2008-0329-0692 B. Smith 

EPA-HQ-RCRA-2008-0329-0693 Bill Perdue, Vice President, American Home Furnishings Alliance (AHFA) 

EPA-HQ-RCRA-2008-0329-0694 C. MacGregor 

EPA-HQ-RCRA-2008-0329-0695 C. Mullins 

EPA-HQ-RCRA-2008-0329-0696 C. Nazor 

EPA-HQ-RCRA-2008-0329-0697 C. Venable 

EPA-HQ-RCRA-2008-0329-0698 D. Artley 

EPA-HQ-RCRA-2008-0329-0699 D. Graham 

EPA-HQ-RCRA-2008-0329-0700 D. Payne 

EPA-HQ-RCRA-2008-0329-0701 D. Rawlings 

EPA-HQ-RCRA-2008-0329-0702 D. Robinson 

EPA-HQ-RCRA-2008-0329-0703 D. Simmer 

EPA-HQ-RCRA-2008-0329-0704 D. Speck-Bartynski 

EPA-HQ-RCRA-2008-0329-0705 D. Walker 

EPA-HQ-RCRA-2008-0329-0706 David L. Meeker, Senior Vice President, Scientific Services, National Renderers Association 

(NRA) 

EPA-HQ-RCRA-2008-0329-0707 E. and E. Hazard 

EPA-HQ-RCRA-2008-0329-0708 F. Schilling 

EPA-HQ-RCRA-2008-0329-0709 G. and L. Clark 

EPA-HQ-RCRA-2008-0329-0710 S. Miller 

EPA-HQ-RCRA-2008-0329-0711 S. Norton 

EPA-HQ-RCRA-2008-0329-0712 Scott Thompson, Director, Land Protection Division, Oklahoma Department of 

Environmental Quality 

EPA-HQ-RCRA-2008-0329-0713 Steve Pearlman, Director of Environmental Services, Metro Wastewater Reclamation 

District 

EPA-HQ-RCRA-2008-0329-0714 Sue Engle, Controller on behalf of Bill Briggs, Oil Re-refining Company, Inc. 

EPA-HQ-RCRA-2008-0329-0715 Terry Gillis, General Manager, Recovery 1, Inc. 

EPA-HQ-RCRA-2008-0329-0716 Tom Julia, President, Composite Panel Association (CPA) 

EPA-HQ-RCRA-2008-0329-0717 Trina L. Vielhauer, Chief, Bureau of Air Regulation, Division of Air Resource Management, 

Florida Department of Environmental Protection 

EPA-HQ-RCRA-2008-0329-0718 M. Guest 

EPA-HQ-RCRA-2008-0329-0719 M. Haugen 

EPA-HQ-RCRA-2008-0329-0720 M. Henderson 

EPA-HQ-RCRA-2008-0329-0721 M. Miller 

EPA-HQ-RCRA-2008-0329-0722 M. Pearson 

EPA-HQ-RCRA-2008-0329-0723 M. Volkman 

EPA-HQ-RCRA-2008-0329-0724 M. Walton 

EPA-HQ-RCRA-2008-0329-0725 Marilyn Wetter on behalf of David P. Comerford, General Manager, Buffalo Sewer 

Authority 

EPA-HQ-RCRA-2008-0329-0726 Mary Gail on behalf of William G. Moore, General Manager, Environmental Services, 

Metropolitan Council 

EPA-HQ-RCRA-2008-0329-0727 Michelle Huey on behalf of Michael L. McGlinchy, Public Utilities Bureau Manager, City of 
PART 2: Commenters 

Response to Comments Document -NHSM Rule 

11 of 275 

Document ID and Commenter Name for Each Comment on the ANPRM and the Proposed Rule 

Document ID Commenter Name (includes person that submitted on behalf of an organization) 

Akron 

EPA-HQ-RCRA-2008-0329-0728 Mitchell H. Bernstein, Van Ness Feldman on behalf of BMW Group, General Motors 

Company, and Toyota 

EPA-HQ-RCRA-2008-0329-0729 Myra H. Glover, Director, Environmental, Health and Safety, Entergy Services, Inc. 

(Entergy) 

EPA-HQ-RCRA-2008-0329-0730 P. Lowe 

EPA-HQ-RCRA-2008-0329-0731 R. Christensen 

EPA-HQ-RCRA-2008-0329-0732 R. Jenkinson 

EPA-HQ-RCRA-2008-0329-0733 R. Kofler 

EPA-HQ-RCRA-2008-0329-0734 R. Leibowitz 

EPA-HQ-RCRA-2008-0329-0735 R. Ridge 

EPA-HQ-RCRA-2008-0329-0736 R. Valdez 

EPA-HQ-RCRA-2008-0329-0737 Raffaella Cristanetti, DuPont Applied BioSciences 

EPA-HQ-RCRA-2008-0329-0738 Richard J. Lyons, Executive Director, Albany County Sewer District 

EPA-HQ-RCRA-2008-0329-0739 Robert R. Scott, Director, Air Resources Division, New Hampshire Department of 

Environmental Services (NHDES) 

EPA-HQ-RCRA-2008-0329-0740 Robert R. Scott, Director, Air Resources Division, New Hampshire Department of 

Environmental Services (NHDES) 

EPA-HQ-RCRA-2008-0329-0741 Ron Foskey, Manager, Used-Oil-Fired Heating Products, Thomas & Betts - HVAC Division 

(REZNOR) 

EPA-HQ-RCRA-2008-0329-0742 S. Forbes 

EPA-HQ-RCRA-2008-0329-0743 G. Anderson 

EPA-HQ-RCRA-2008-0329-0744 G. Crouse 

EPA-HQ-RCRA-2008-0329-0745 G. PatrÃ3n Mederos 

EPA-HQ-RCRA-2008-0329-0746 G. Williams 

EPA-HQ-RCRA-2008-0329-0747 Gideon Gradman on behalf of Bill Davis, President and CEO, Ze-gen, Inc. 

EPA-HQ-RCRA-2008-0329-0748 H. Gwiazda 

EPA-HQ-RCRA-2008-0329-0749 H. Lazzarini 

EPA-HQ-RCRA-2008-0329-0750 I. Casillas 

EPA-HQ-RCRA-2008-0329-0751 J. Franklin 

EPA-HQ-RCRA-2008-0329-0752 J. Weills 

EPA-HQ-RCRA-2008-0329-0753 Jeanie Grandstaff on behalf of Mark A. Haley, Director, City of Hopewell - Hopewell 

Regional Wastewater Treatment Facility 

EPA-HQ-RCRA-2008-0329-0754 Jim J. Pletl, Chief, Technical Services Division, Hampton Roads Sanitation District (HRSD) 

EPA-HQ-RCRA-2008-0329-0755 K. Lozaw 

EPA-HQ-RCRA-2008-0329-0756 Karisa Oquendo on behalf of Margo Reid Brown, Director, California Department of 

Resources Recycling and Recovery 

EPA-HQ-RCRA-2008-0329-0757 L. Slovenski 

EPA-HQ-RCRA-2008-0329-0758 L. Stranaghan 

EPA-HQ-RCRA-2008-0329-0759 Rhonda L. Bowen, President, Virginia Biosolids Council 

EPA-HQ-RCRA-2008-0329-0760 T. and B. Ferguson 

EPA-HQ-RCRA-2008-0329-0761 B. Lovejoy 

EPA-HQ-RCRA-2008-0329-0762 B. LeBeau 

EPA-HQ-RCRA-2008-0329-0763 V. Katz 

EPA-HQ-RCRA-2008-0329-0764 L. McCracken 

EPA-HQ-RCRA-2008-0329-0765 B. Moser 

EPA-HQ-RCRA-2008-0329-0766 Thomas E. Cilimburg, President, Heatech Cleaning Systems and Equipment, Inc. (Heatech) 

EPA-HQ-RCRA-2008-0329-0767 Stephen T. Smith on behalf of David A. Webb, Executive Director, Creosote Council 

EPA-HQ-RCRA-2008-0329-0768 C. Lish 

EPA-HQ-RCRA-2008-0329-0769 Gloria Griffith, Vice Chair, Tennessee Chapter Sierra Club 

EPA-HQ-RCRA-2008-0329-0770 Michael P. Brady, Technical Services Supervisor, Environmental Services Department, 

Colorado Springs Utilities 

EPA-HQ-RCRA-2008-0329-0771 Gerald F. Smith, Jr., President, Valley Proteins, Inc. 

EPA-HQ-RCRA-2008-0329-0772 Jeffrey T. Miller, President and Executive Director, Treated Wood Council (TWC) 

EPA-HQ-RCRA-2008-0329-0773 J. Lee 

EPA-HQ-RCRA-2008-0329-0774 Traylor Champion, Vice President, Environmental Affairs, Georgia-Pacific, LLC (GP) 

EPA-HQ-RCRA-2008-0329-0775 Thomas K. Walsh, Engineer - Director/Treasurer, Upper Blackstone Water Pollution 
PART 2: Commenters 

Response to Comments Document -NHSM Rule 

12 of 275 

Document ID and Commenter Name for Each Comment on the ANPRM and the Proposed Rule 

Document ID Commenter Name (includes person that submitted on behalf of an organization) 

Abatement District 

EPA-HQ-RCRA-2008-0329-0776 Kathleen Wheeler, Resident Manager, Graphic Packaging International, Inc. (GPI) 

EPA-HQ-RCRA-2008-0329-0777 Barry A. Brandt, Lanair Products, LLC (Lanair) 

EPA-HQ-RCRA-2008-0329-0778 Bradley C. Lambert, Deputy Director, Virginia Department of Mines Minerals and Energy 

(DMME) 

EPA-HQ-RCRA-2008-0329-0779 C. Kolpitcke 

EPA-HQ-RCRA-2008-0329-0780 Craig T. Kenworthy, Executive Director, Puget Sound Clean Air Agency 

EPA-HQ-RCRA-2008-0329-0781 Dale M. Timmons, Principal, ARI Technologies, Inc. 

EPA-HQ-RCRA-2008-0329-0782 Deb Hawkinson, Hardwood Federation 

EPA-HQ-RCRA-2008-0329-0783 Derek D. Swick, Policy Advisor, Regulatory and Scientific Affairs, American Petroleum 

Institute (API) 

EPA-HQ-RCRA-2008-0329-0784 Louis Hengen, Fibrek, Inc. 

EPA-HQ-RCRA-2008-0329-0785 Richard Malesich, Waste Oil Heater Sales Manager, A. & I. Distributors 

EPA-HQ-RCRA-2008-0329-0786 Tomey Tuttle, NextEra Energy, Inc. (NEE) 

EPA-HQ-RCRA-2008-0329-0787 William Turley, Executive Director, Construction Materials Recycling Association (CMRA) 

EPA-HQ-RCRA-2008-0329-0788 Yvonne Bolton, Board of Directors, Northeast Waste Management Officials' Association 

(NEWMOA) on behalf of the Solid Waste Programs in the states of Connecticut, Maine, 

Massachusetts, New Hampshire, New Jersey, New York, Rhode Island, and Vermont 

EPA-HQ-RCRA-2008-0329-0790 L. Schermer 

EPA-HQ-RCRA-2008-0329-0791 C. Jacobs 

EPA-HQ-RCRA-2008-0329-0792 D. Torney 

EPA-HQ-RCRA-2008-0329-0793 B. Pilcher 

EPA-HQ-RCRA-2008-0329-0794 E. Omalley 

EPA-HQ-RCRA-2008-0329-0795 J. Capozzelli 

EPA-HQ-RCRA-2008-0329-0796 M. A. Sircely 

EPA-HQ-RCRA-2008-0329-0797 W. Ebersberger 

EPA-HQ-RCRA-2008-0329-0798 J. Davidson 

EPA-HQ-RCRA-2008-0329-0799 Susan Parker Bodine, Barnes & Thornburg LLP on behalf of Used Oil Management 

Association (UOMA) 

EPA-HQ-RCRA-2008-0329-0800 Jeffery A. Steers, Director, Waste Division, Virginia Department of Environmental Quality 

(DEQ) 

EPA-HQ-RCRA-2008-0329-0801 D. Potter 

EPA-HQ-RCRA-2008-0329-0802 G. Cadieux 

EPA-HQ-RCRA-2008-0329-0803 S. Rekdal 

EPA-HQ-RCRA-2008-0329-0804 G. Falsetta 

EPA-HQ-RCRA-2008-0329-0805 R. Vosburg 

EPA-HQ-RCRA-2008-0329-0806 D. Moore 

EPA-HQ-RCRA-2008-0329-0807 P. Martin 

EPA-HQ-RCRA-2008-0329-0808 W. L. Boucher 

EPA-HQ-RCRA-2008-0329-0809 B. Vigars 

EPA-HQ-RCRA-2008-0329-0810 D. Champagne 

EPA-HQ-RCRA-2008-0329-0811 N. Charlton 

EPA-HQ-RCRA-2008-0329-0812 J. Jordan 

EPA-HQ-RCRA-2008-0329-0813 C. Mullen 

EPA-HQ-RCRA-2008-0329-0814 N. Echols 

EPA-HQ-RCRA-2008-0329-0815 M. Castaline 

EPA-HQ-RCRA-2008-0329-0816 M. A. Dobler 

EPA-HQ-RCRA-2008-0329-0817 S. Small 

EPA-HQ-RCRA-2008-0329-0818 D. Weise 

EPA-HQ-RCRA-2008-0329-0819 M. Howells 

EPA-HQ-RCRA-2008-0329-0820 K. Floyd 

EPA-HQ-RCRA-2008-0329-0821 R. Philbrick 

EPA-HQ-RCRA-2008-0329-0822 J. Phillips 

EPA-HQ-RCRA-2008-0329-0823 M. Weimer 

EPA-HQ-RCRA-2008-0329-0824 E. Bogle 

EPA-HQ-RCRA-2008-0329-0825 C. Langlois 
PART 2: Commenters 

Response to Comments Document -NHSM Rule 

13 of 275 

Document ID and Commenter Name for Each Comment on the ANPRM and the Proposed Rule 

Document ID Commenter Name (includes person that submitted on behalf of an organization) 

EPA-HQ-RCRA-2008-0329-0826 J. Lang 

EPA-HQ-RCRA-2008-0329-0827 F. Carr 

EPA-HQ-RCRA-2008-0329-0828 P. Crouser 

EPA-HQ-RCRA-2008-0329-0829 D. Armor 

EPA-HQ-RCRA-2008-0329-0830 K. Vasko 

EPA-HQ-RCRA-2008-0329-0831 S. Quirarte 

EPA-HQ-RCRA-2008-0329-0832 J. Cooper 

EPA-HQ-RCRA-2008-0329-0833 C. Fletcher 

EPA-HQ-RCRA-2008-0329-0834 H. N. Hanna 

EPA-HQ-RCRA-2008-0329-0835 B. Dennie 

EPA-HQ-RCRA-2008-0329-0836 M. Fitzgerald 

EPA-HQ-RCRA-2008-0329-0837 J. Tuber 

EPA-HQ-RCRA-2008-0329-0838 A. Faraldo 

EPA-HQ-RCRA-2008-0329-0839 S. Lowen 

EPA-HQ-RCRA-2008-0329-0840 A. Stevenson 

EPA-HQ-RCRA-2008-0329-0841 Gregory E. Conrad, Executive Director, Interstate Mining Compact Commission and 

Michael P. Garner, President, National Association of Abandoned Mine Land Programs 

EPA-HQ-RCRA-2008-0329-0842 Dirk J. Krouskop, Vice President, Safety, Health and Environment, MeadWestvaco 

Corporation (MWV) 

EPA-HQ-RCRA-2008-0329-0843 Andre Dight, Poultry Implementations Manager, Biomass Heating Solutions Ltd (BHSL) 

EPA-HQ-RCRA-2008-0329-0844 David W. Hacker, Attorney-Environmental, Law Department, United States Steel 

Corporation (USS) 

EPA-HQ-RCRA-2008-0329-0845 V. Nguyen 

EPA-HQ-RCRA-2008-0329-0846 T. Dukes 

EPA-HQ-RCRA-2008-0329-0847 I. Lillien 

EPA-HQ-RCRA-2008-0329-0848 J. Guinnessey 

EPA-HQ-RCRA-2008-0329-0849 T. Duffy 

EPA-HQ-RCRA-2008-0329-0850 B. McLaughlin 

EPA-HQ-RCRA-2008-0329-0851 R. Waller 

EPA-HQ-RCRA-2008-0329-0852 J. Pence 

EPA-HQ-RCRA-2008-0329-0853 J. Carlsen 

EPA-HQ-RCRA-2008-0329-0854 E. Medeiros 

EPA-HQ-RCRA-2008-0329-0855 T. Walker 

EPA-HQ-RCRA-2008-0329-0856 S. Gallucci 

EPA-HQ-RCRA-2008-0329-0857 L. Miller 

EPA-HQ-RCRA-2008-0329-0858 L. Bryant 

EPA-HQ-RCRA-2008-0329-0859 P. Thomas 

EPA-HQ-RCRA-2008-0329-0860 C. Sayre 

EPA-HQ-RCRA-2008-0329-0861 Anonymous public comment 

EPA-HQ-RCRA-2008-0329-0862 Chris Reynolds on behalf of Anthony Colosimo, CEO, Phoenix Renewable Resources 

(Phoenix) 

EPA-HQ-RCRA-2008-0329-0863 Bruce J. Parker, President and CEO, National Solid Wastes Management Association 

(NSWMA) 

EPA-HQ-RCRA-2008-0329-0864 Jim Moran, FWD Power 

EPA-HQ-RCRA-2008-0329-0865 Craig S. Campbell, Vice President, Environment and Government Affairs, Lafarge North 

America â€“ Cement Division (Lafarge) 

EPA-HQ-RCRA-2008-0329-0866 John J. Petchul, Staff Environmental Engineer, Greif Packaging LLC 

EPA-HQ-RCRA-2008-0329-0867 L. Inman 

EPA-HQ-RCRA-2008-0329-0868 Morris Mantey, Clean Burn Inc 

EPA-HQ-RCRA-2008-0329-0869 Randy Thurman, Executive Director, Arkansas Environmental Federation (AEF) 

EPA-HQ-RCRA-2008-0329-0870 Kent O. Freeman, President, Innovative Resources, Inc. 

EPA-HQ-RCRA-2008-0329-0871 Paul Noe, Vice President, Public Policy, American Forest & Paper Association (AF&PA) 

EPA-HQ-RCRA-2008-0329-0872 Robert W. Glowinski, President, American Wood Council (AWC) 

EPA-HQ-RCRA-2008-0329-0873 Charles R. Weber, Director, Engineering and Water Reclamation, Prince William County 

Service Authority (PWCSA) 

EPA-HQ-RCRA-2008-0329-0874 Jeffrey R. Klieve, Director, Environmental Affairs, Monsanto Company (Monsanto) 
PART 2: Commenters 

Response to Comments Document -NHSM Rule 

14 of 275 

Document ID and Commenter Name for Each Comment on the ANPRM and the Proposed Rule 

Document ID Commenter Name (includes person that submitted on behalf of an organization) 

EPA-HQ-RCRA-2008-0329-0875 Michael J. Rush and Louis P. Warchot, Counsel, Association of American Railroads (AAR) 

EPA-HQ-RCRA-2008-0329-0876 B. Gudac 

EPA-HQ-RCRA-2008-0329-0877 D. Boothe 

EPA-HQ-RCRA-2008-0329-0878 B. and J. Epstein 

EPA-HQ-RCRA-2008-0329-0879 B. Gardner 

EPA-HQ-RCRA-2008-0329-0880 L. Adams 

EPA-HQ-RCRA-2008-0329-0881 L. May 

EPA-HQ-RCRA-2008-0329-0882 K. Brecka 

EPA-HQ-RCRA-2008-0329-0883 A. Castro 

EPA-HQ-RCRA-2008-0329-0884 J. Cassidy 

EPA-HQ-RCRA-2008-0329-0885 M. Brunt 

EPA-HQ-RCRA-2008-0329-0886 D. Statland 

EPA-HQ-RCRA-2008-0329-0887 P. Gordon 

EPA-HQ-RCRA-2008-0329-0888 K. Brush 

EPA-HQ-RCRA-2008-0329-0889 J. Hartman 

EPA-HQ-RCRA-2008-0329-0890 P. Quillian 

EPA-HQ-RCRA-2008-0329-0891 J. Wagner 

EPA-HQ-RCRA-2008-0329-0892 L. Rossi 

EPA-HQ-RCRA-2008-0329-0893 K. Jackson 

EPA-HQ-RCRA-2008-0329-0894 J. Epstein 

EPA-HQ-RCRA-2008-0329-0895 E. D'Urso 

EPA-HQ-RCRA-2008-0329-0896 J. K. Hadcroft 

EPA-HQ-RCRA-2008-0329-0897 J. Mucci 

EPA-HQ-RCRA-2008-0329-0898 J. Raven 

EPA-HQ-RCRA-2008-0329-0899 J. Curtis 

EPA-HQ-RCRA-2008-0329-0900 C. Appenzeller 

EPA-HQ-RCRA-2008-0329-0901 K. Kula 

EPA-HQ-RCRA-2008-0329-0902 S. Heffernon 

EPA-HQ-RCRA-2008-0329-0903 J. Scheidt 

EPA-HQ-RCRA-2008-0329-0904 P. Brown 

EPA-HQ-RCRA-2008-0329-0905 T. White-Henry 

EPA-HQ-RCRA-2008-0329-0906 A. Eppler 

EPA-HQ-RCRA-2008-0329-0907 F. Hill 

EPA-HQ-RCRA-2008-0329-0908 B. Arana 

EPA-HQ-RCRA-2008-0329-0909 Ron Barmore, Managing Partner, Energy Launch Developments, LLC 

EPA-HQ-RCRA-2008-0329-0910 Richard Gertler, General Manager, Heating Alternatives, Inc. 

EPA-HQ-RCRA-2008-0329-0911 John W. Carroll, Pepper Hamilton LLP on behalf of Verallia 

EPA-HQ-RCRA-2008-0329-0912 Robert L. Kohnen, Vice President, Symbiotic Energy, LLC 

EPA-HQ-RCRA-2008-0329-0913 B. Breckenridge 

EPA-HQ-RCRA-2008-0329-0914 P. Lanni 

EPA-HQ-RCRA-2008-0329-0915 L. Steele 

EPA-HQ-RCRA-2008-0329-0916 W. Foote 

EPA-HQ-RCRA-2008-0329-0917 A. J. Melman 

EPA-HQ-RCRA-2008-0329-0918 L. Leckie 

EPA-HQ-RCRA-2008-0329-0919 D. M. Brouse 

EPA-HQ-RCRA-2008-0329-0920 D. Burns 

EPA-HQ-RCRA-2008-0329-0921 P. Baker 

EPA-HQ-RCRA-2008-0329-0922 A. Mcgarry 

EPA-HQ-RCRA-2008-0329-0923 C. Easterling 

EPA-HQ-RCRA-2008-0329-0924 P. Daniels 

EPA-HQ-RCRA-2008-0329-0925 B. Davis 

EPA-HQ-RCRA-2008-0329-0926 J. W. McManus 

EPA-HQ-RCRA-2008-0329-0927 B. Coulson 

EPA-HQ-RCRA-2008-0329-0928 J. Marsh 

EPA-HQ-RCRA-2008-0329-0929 F. Montgomery 

EPA-HQ-RCRA-2008-0329-0930 D. Duda 
PART 2: Commenters 

Response to Comments Document -NHSM Rule 

15 of 275 

Document ID and Commenter Name for Each Comment on the ANPRM and the Proposed Rule 

Document ID Commenter Name (includes person that submitted on behalf of an organization) 

EPA-HQ-RCRA-2008-0329-0931 P. Brownlee 

EPA-HQ-RCRA-2008-0329-0932 C. Hemingway 

EPA-HQ-RCRA-2008-0329-0933 V. Faulkner 

EPA-HQ-RCRA-2008-0329-0934 M. Leven 

EPA-HQ-RCRA-2008-0329-0935 J. Hamann 

EPA-HQ-RCRA-2008-0329-0936 M. A. McDonald 

EPA-HQ-RCRA-2008-0329-0937 C. Swimsaway 

EPA-HQ-RCRA-2008-0329-0938 C. Ibata 

EPA-HQ-RCRA-2008-0329-0939 T. Jackson 

EPA-HQ-RCRA-2008-0329-0940 W. and P. Talbert 

EPA-HQ-RCRA-2008-0329-0941 J. Lynch 

EPA-HQ-RCRA-2008-0329-0942 T. L. Hamzy 

EPA-HQ-RCRA-2008-0329-0943 M. Kohn 

EPA-HQ-RCRA-2008-0329-0944 C. Garcia 

EPA-HQ-RCRA-2008-0329-0945 C. Vallone 

EPA-HQ-RCRA-2008-0329-0946 J. McCarthy 

EPA-HQ-RCRA-2008-0329-0947 M. Hein 

EPA-HQ-RCRA-2008-0329-0948 S. Gaskins 

EPA-HQ-RCRA-2008-0329-0949 J. Christy 

EPA-HQ-RCRA-2008-0329-0950 E. O'Dea 

EPA-HQ-RCRA-2008-0329-0951 Robert Bennett, President, Eco Heating Systems, Inc. 

EPA-HQ-RCRA-2008-0329-0952 Robert C. Steidel, President, Virginia Association of Municipal Wastewater Agencies, Inc. 

(VAMWA) 

EPA-HQ-RCRA-2008-0329-0953 J. P. Maultsby, General Manager, Florida Plywoods, Inc. 

EPA-HQ-RCRA-2008-0329-0954 Susan J. Miller, Vice President, Environment, Health and Safety, The Brick Industry 

Association (BIA) 

EPA-HQ-RCRA-2008-0329-0955 Jeffrey A. Crawford, Attorney General, Forest County Potawatomi Community 

EPA-HQ-RCRA-2008-0329-0956 Nick Harbert, Cedar Grove Composting 

EPA-HQ-RCRA-2008-0329-0957 James R. Roewer, Executive Director, Utility Solid Waste Activities Group (USWAG) 

EPA-HQ-RCRA-2008-0329-0958 Alan B. Rubin, Principal, Envirostrategies, LLC 

EPA-HQ-RCRA-2008-0329-0959 Carroll L. Missimer, Global Director-Environmental Affairs, P. H. Glatfelter Company 

(Glatfelter) 

EPA-HQ-RCRA-2008-0329-0960 Jeff White, Director of Environmental Stewardship, North American Operations, Newmont 

Mining Corporation (Newmont) 

EPA-HQ-RCRA-2008-0329-0961 Lee Zeugin, Counsel, Hunton & Williams LLP on behalf of Utility Air Regulatory Group 

(UARG) 

EPA-HQ-RCRA-2008-0329-0962 Jeffery S. Hannapel, The Policy Group, National Association for Surface Finishing (NASF) 

EPA-HQ-RCRA-2008-0329-0963 Jerry Call, Executive Vice President, American Foundry Society (AFS) 

EPA-HQ-RCRA-2008-0329-0964 R. Fuchs 

EPA-HQ-RCRA-2008-0329-0965 J. Taylor 

EPA-HQ-RCRA-2008-0329-0966 P. Willis 

EPA-HQ-RCRA-2008-0329-0967 R. Parris 

EPA-HQ-RCRA-2008-0329-0968 F. Devlin 

EPA-HQ-RCRA-2008-0329-0969 J. and L. Wingard 

EPA-HQ-RCRA-2008-0329-0970 A. Myrick 

EPA-HQ-RCRA-2008-0329-0971 M. Hauck 

EPA-HQ-RCRA-2008-0329-0972 E. Norris 

EPA-HQ-RCRA-2008-0329-0973 J. Cunningham 

EPA-HQ-RCRA-2008-0329-0974 K. De Vier 

EPA-HQ-RCRA-2008-0329-0975 J. Sideman 

EPA-HQ-RCRA-2008-0329-0976 K. Dodge 

EPA-HQ-RCRA-2008-0329-0977 R. Placone 

EPA-HQ-RCRA-2008-0329-0978 J. Blair 

EPA-HQ-RCRA-2008-0329-0979 N. Schick 

EPA-HQ-RCRA-2008-0329-0980 R. Gordon 

EPA-HQ-RCRA-2008-0329-0981 B. Trypaluk 
PART 2: Commenters 

Response to Comments Document -NHSM Rule 

16 of 275 

Document ID and Commenter Name for Each Comment on the ANPRM and the Proposed Rule 

Document ID Commenter Name (includes person that submitted on behalf of an organization) 

EPA-HQ-RCRA-2008-0329-0982 L. Young 

EPA-HQ-RCRA-2008-0329-0983 J. Ehrlich 

EPA-HQ-RCRA-2008-0329-0984 A. Ambler 

EPA-HQ-RCRA-2008-0329-0985 P. Morello 

EPA-HQ-RCRA-2008-0329-0986 S. Leone 

EPA-HQ-RCRA-2008-0329-0987 E. Kernaghan 

EPA-HQ-RCRA-2008-0329-0988 E. Claman 

EPA-HQ-RCRA-2008-0329-0989 J. Kneidl 

EPA-HQ-RCRA-2008-0329-0990 Pamela F. Faggert, Vice President and Chief Environmental Officer, Dominion Resources 

Services, Inc. (Dominion) 

EPA-HQ-RCRA-2008-0329-0991 Ross M. Patten, President and Chief Executive Officer, MaxWest Environmental Systems, 

Inc. (MaxWest) 

EPA-HQ-RCRA-2008-0329-0992 Clayton Gingerich, Gingerich Clean Burn, Inc. 

EPA-HQ-RCRA-2008-0329-0993 J. Mahnken 

EPA-HQ-RCRA-2008-0329-0994 M. Vanderhill 

EPA-HQ-RCRA-2008-0329-0995 Y. Autrey-Schell 

EPA-HQ-RCRA-2008-0329-0996 C. Moss 

EPA-HQ-RCRA-2008-0329-0997 W. Jones 

EPA-HQ-RCRA-2008-0329-0998 A. Glennon 

EPA-HQ-RCRA-2008-0329-0999 M. Fogg 

EPA-HQ-RCRA-2008-0329-1000 D. N. Orth 

EPA-HQ-RCRA-2008-0329-1001 S. Wilson 

EPA-HQ-RCRA-2008-0329-1002 E. Bindseil 

EPA-HQ-RCRA-2008-0329-1003 M. Engelman 

EPA-HQ-RCRA-2008-0329-1004 M. Neuendorf 

EPA-HQ-RCRA-2008-0329-1005 M. Anton 

EPA-HQ-RCRA-2008-0329-1006 S. Ransom 

EPA-HQ-RCRA-2008-0329-1007 L. Penney 

EPA-HQ-RCRA-2008-0329-1008 M. Rose 

EPA-HQ-RCRA-2008-0329-1009 E. Craig 

EPA-HQ-RCRA-2008-0329-1010 L. E. Johnson 

EPA-HQ-RCRA-2008-0329-1011 R. Tschudy 

EPA-HQ-RCRA-2008-0329-1012 Sarah Clark, Commissioner, Vermont Department of Forests, Parks and Recreation 

EPA-HQ-RCRA-2008-0329-1013 Mike Blosser, Vice President, Environment, Health and Safety, LP Building Products, LP 

Corporation 

EPA-HQ-RCRA-2008-0329-1014 Julie Pippel, President, Maryland Association of Municipal Wastewater Agencies 

(MAMWA) 

EPA-HQ-RCRA-2008-0329-1015 Jennifer Avellana, Ohio Environmental Protection Agency 

EPA-HQ-RCRA-2008-0329-1016 P. Mumm 

EPA-HQ-RCRA-2008-0329-1017 J. Peterson 

EPA-HQ-RCRA-2008-0329-1018 N. Hartz 

EPA-HQ-RCRA-2008-0329-1019 D. Gustafson 

EPA-HQ-RCRA-2008-0329-1020 J. Kavalunas 

EPA-HQ-RCRA-2008-0329-1021 C. Jackson 

EPA-HQ-RCRA-2008-0329-1022 M. Abell 

EPA-HQ-RCRA-2008-0329-1023 P. Katz 

EPA-HQ-RCRA-2008-0329-1024 J. Williams 

EPA-HQ-RCRA-2008-0329-1025 A. Behnke 

EPA-HQ-RCRA-2008-0329-1026 D. Collings 

EPA-HQ-RCRA-2008-0329-1027 K. McAnnally 

EPA-HQ-RCRA-2008-0329-1028 P. Sims 

EPA-HQ-RCRA-2008-0329-1029 L. Wilson 

EPA-HQ-RCRA-2008-0329-1030 G. R. Miller 

EPA-HQ-RCRA-2008-0329-1031 Kristine M. Krause, Vice President Environmental, We Energies 

EPA-HQ-RCRA-2008-0329-1032 Aaron Lowe, Vice President, Government Affairs, Automotive Aftermarket Industry 

Association (AAIA) 
PART 2: Commenters 

Response to Comments Document -NHSM Rule 

17 of 275 

Document ID and Commenter Name for Each Comment on the ANPRM and the Proposed Rule 

Document ID Commenter Name (includes person that submitted on behalf of an organization) 

EPA-HQ-RCRA-2008-0329-1033 G. Vinson Hellwig, Co-Chair, Air Toxics Committee, Michigan and Robert H. Colby, CoChair, Air Toxics Committee, Tennessee, National Association of Clean Air Agencies 

(NACAA) 

EPA-HQ-RCRA-2008-0329-1034 Michel R. Benoit, Executive Director, Cement Kiln Recycling Coalition (CKRC) 

EPA-HQ-RCRA-2008-0329-1035 Kerry Kelly, Director, Federal Public Affairs, Waste Management (WM) 

EPA-HQ-RCRA-2008-0329-1036 Dell Majure, Air Program Leader, Kimberly-Clark Corporation 

EPA-HQ-RCRA-2008-0329-1037 Martin T. Booher, Dewey & LeBoeuf LLP on behalf of Ethan Allen Interiors, Inc. 

EPA-HQ-RCRA-2008-0329-1038 Mary Sullivan Douglas on behalf of G. Vinson Hellwig and Robert H. Colby, National 

Association of Clean AirAgencies (NACAA), Air Toxics Committee 

EPA-HQ-RCRA-2008-0329-1039 Dave Hoheisel, Director of Door Core Operations, Marshfield Door Systems 

EPA-HQ-RCRA-2008-0329-1040 Gary Melow, Director, Michigan Biomass 

EPA-HQ-RCRA-2008-0329-1041 Jason Morin, Vice President of Environment and Government Affairs, Holcim (US) Inc. 

EPA-HQ-RCRA-2008-0329-1042 Andrew Mangan, Executive Director, United States Business Council for Sustainable 

Development 

EPA-HQ-RCRA-2008-0329-1043 Randy D. Quintrell, Counsel, Georgia Paper & Forest Products Association, Inc. (GPFPA) 

EPA-HQ-RCRA-2008-0329-1044 Rich Raiders, Environment and Sustainable Development Department, Arkema Inc. 

(Arkema) 

EPA-HQ-RCRA-2008-0329-1045 Gary N. Wilcox, President, Connecticut Cleaning & Heating Equipment 

EPA-HQ-RCRA-2008-0329-1046 David P. Tenny, President and CEO, National Alliance of Forest Owners (NAFO) 

EPA-HQ-RCRA-2008-0329-1047 Graham Drayton on behalf of Mary Graham, Senior Vice President, Public Policy/Regional 

Advancement, Charleston Metro Chamber of Commerce (Chamber) 

EPA-HQ-RCRA-2008-0329-1048 F. Elliott 

EPA-HQ-RCRA-2008-0329-1049 A. Palmer 

EPA-HQ-RCRA-2008-0329-1050 S. L. Laplante 

EPA-HQ-RCRA-2008-0329-1051 W. Watts, Jr. 

EPA-HQ-RCRA-2008-0329-1052 J. and P. Hockett 

EPA-HQ-RCRA-2008-0329-1053 A. Johnston 

EPA-HQ-RCRA-2008-0329-1054 A. Gilligan 

EPA-HQ-RCRA-2008-0329-1055 R. and M. Swain 

EPA-HQ-RCRA-2008-0329-1056 S. Chan 

EPA-HQ-RCRA-2008-0329-1057 K. Egan 

EPA-HQ-RCRA-2008-0329-1058 Z. Benjamin 

EPA-HQ-RCRA-2008-0329-1059 L. Weiner 

EPA-HQ-RCRA-2008-0329-1060 M. Ford and R. Marks 

EPA-HQ-RCRA-2008-0329-1061 S. Miller 

EPA-HQ-RCRA-2008-0329-1062 A. Stegehuis 

EPA-HQ-RCRA-2008-0329-1063 A. Ake 

EPA-HQ-RCRA-2008-0329-1064 C. McGraw 

EPA-HQ-RCRA-2008-0329-1065 K. Jones 

EPA-HQ-RCRA-2008-0329-1066 P. Harlow 

EPA-HQ-RCRA-2008-0329-1067 R. Ripp 

EPA-HQ-RCRA-2008-0329-1068 D. Ford 

EPA-HQ-RCRA-2008-0329-1069 S. Burns 

EPA-HQ-RCRA-2008-0329-1070 M. Snowden 

EPA-HQ-RCRA-2008-0329-1071 J. Brown 

EPA-HQ-RCRA-2008-0329-1072 A. Kaufman 

EPA-HQ-RCRA-2008-0329-1073 L. Lithgow 

EPA-HQ-RCRA-2008-0329-1074 R. Schuessler 

EPA-HQ-RCRA-2008-0329-1075 L. Kierig 

EPA-HQ-RCRA-2008-0329-1076 J. Nichols 

EPA-HQ-RCRA-2008-0329-1077 C. Wells 

EPA-HQ-RCRA-2008-0329-1078 M. Graf 

EPA-HQ-RCRA-2008-0329-1079 J. Koss 

EPA-HQ-RCRA-2008-0329-1080 E. Mirabella 

EPA-HQ-RCRA-2008-0329-1081 John P. Shimshock, Senior Air Environmental Specialist, RRI Energy, Inc. 

EPA-HQ-RCRA-2008-0329-1082 S. Elkevizth 
PART 2: Commenters 

Response to Comments Document -NHSM Rule 

18 of 275 

Document ID and Commenter Name for Each Comment on the ANPRM and the Proposed Rule 

Document ID Commenter Name (includes person that submitted on behalf of an organization) 

EPA-HQ-RCRA-2008-0329-1083 N. Neima 

EPA-HQ-RCRA-2008-0329-1084 R. Dickinson 

EPA-HQ-RCRA-2008-0329-1085 D. K. Cinquemani 

EPA-HQ-RCRA-2008-0329-1086 T. Magnani 

EPA-HQ-RCRA-2008-0329-1087 D. Stanko 

EPA-HQ-RCRA-2008-0329-1088 B. Flowers 

EPA-HQ-RCRA-2008-0329-1089 B. Gingras 

EPA-HQ-RCRA-2008-0329-1090 A. Fraser 

EPA-HQ-RCRA-2008-0329-1091 S. Carrico 

EPA-HQ-RCRA-2008-0329-1092 E. Obenaus 

EPA-HQ-RCRA-2008-0329-1093 S. Rego-Ross 

EPA-HQ-RCRA-2008-0329-1094 S. Brownrigg 

EPA-HQ-RCRA-2008-0329-1095 M. Carano 

EPA-HQ-RCRA-2008-0329-1096 J. West 

EPA-HQ-RCRA-2008-0329-1097 D. Filipelli 

EPA-HQ-RCRA-2008-0329-1098 N. and S. Kirschbaum 

EPA-HQ-RCRA-2008-0329-1099 L. Hershey 

EPA-HQ-RCRA-2008-0329-1100 P. G. Dennis 

EPA-HQ-RCRA-2008-0329-1101 M. Britton 

EPA-HQ-RCRA-2008-0329-1102 A. Goodwin 

EPA-HQ-RCRA-2008-0329-1103 J. C. Stockton 

EPA-HQ-RCRA-2008-0329-1104 D. Kleiman 

EPA-HQ-RCRA-2008-0329-1105 S. Hawkins 

EPA-HQ-RCRA-2008-0329-1106 W. Murray 

EPA-HQ-RCRA-2008-0329-1107 R. Mihaly 

EPA-HQ-RCRA-2008-0329-1108 S. and D. Ritchie 

EPA-HQ-RCRA-2008-0329-1109 J. Witte 

EPA-HQ-RCRA-2008-0329-1110 J. Snow 

EPA-HQ-RCRA-2008-0329-1111 J. Holkup 

EPA-HQ-RCRA-2008-0329-1112 M. B. Hardy 

EPA-HQ-RCRA-2008-0329-1113 J. Archuleta 

EPA-HQ-RCRA-2008-0329-1114 J. B. Reid 

EPA-HQ-RCRA-2008-0329-1115 S. C. Spurgeon 

EPA-HQ-RCRA-2008-0329-1116 D. and A. Riley 

EPA-HQ-RCRA-2008-0329-1117 A. Abdalian 

EPA-HQ-RCRA-2008-0329-1118 M. Anderson 

EPA-HQ-RCRA-2008-0329-1119 K. Querner 

EPA-HQ-RCRA-2008-0329-1120 C. Bowsher 

EPA-HQ-RCRA-2008-0329-1121 A. Collins 

EPA-HQ-RCRA-2008-0329-1122 P. M. Williams 

EPA-HQ-RCRA-2008-0329-1123 L. Crandall 

EPA-HQ-RCRA-2008-0329-1124 H. Reading 

EPA-HQ-RCRA-2008-0329-1125 D. Geraghty 

EPA-HQ-RCRA-2008-0329-1126 C. Lewis-Dougherty 

EPA-HQ-RCRA-2008-0329-1127 D. M. Nowacki 

EPA-HQ-RCRA-2008-0329-1128 T. Wilson 

EPA-HQ-RCRA-2008-0329-1129 A. Klein 

EPA-HQ-RCRA-2008-0329-1130 K. G. Gubrud 

EPA-HQ-RCRA-2008-0329-1131 A. Smith 

EPA-HQ-RCRA-2008-0329-1132 T. Fox 

EPA-HQ-RCRA-2008-0329-1133 N. Stecker 

EPA-HQ-RCRA-2008-0329-1134 J. De Guzman 

EPA-HQ-RCRA-2008-0329-1135 S. Holford 

EPA-HQ-RCRA-2008-0329-1136 L. Stanfield 

EPA-HQ-RCRA-2008-0329-1137 RMB Consulting & Research, Inc. 

EPA-HQ-RCRA-2008-0329-1138 Tyrone P. Wilson on behalf of Andrew T. O'Hare, Vice President Regulatory Affairs, 
PART 2: Commenters 

Response to Comments Document -NHSM Rule 

19 of 275 

Document ID and Commenter Name for Each Comment on the ANPRM and the Proposed Rule 

Document ID Commenter Name (includes person that submitted on behalf of an organization) 

Portland Cement Association (PCA) 

EPA-HQ-RCRA-2008-0329-1139 Tyrone P. Wilson on behalf of Andrew T. O'Hare, Vice President Regulatory Affairs, 

Portland Cement Association (PCA) 

EPA-HQ-RCRA-2008-0329-1140 Tyrone P. Wilson on behalf of Andrew T. O'Hare, Vice President Regulatory Affairs, 

Portland Cement Association (PCA) 

EPA-HQ-RCRA-2008-0329-1141 Tyrone P. Wilson on behalf of Andrew T. O'Hare, Vice President Regulatory Affairs, 

Portland Cement Association (PCA) 

EPA-HQ-RCRA-2008-0329-1142 Tyrone P. Wilson on behalf of Andrew T. O'Hare, Vice President Regulatory Affairs, 

Portland Cement Association (PCA) 

EPA-HQ-RCRA-2008-0329-1143 Tyrone P. Wilson on behalf of Andrew T. O'Hare, Vice President Regulatory Affairs, 

Portland Cement Association (PCA) 

EPA-HQ-RCRA-2008-0329-1144 P. Hall 

EPA-HQ-RCRA-2008-0329-1145 M. Howard 

EPA-HQ-RCRA-2008-0329-1146 M. Leach 

EPA-HQ-RCRA-2008-0329-1147 T. Lincoln 

EPA-HQ-RCRA-2008-0329-1148 M. Jusiel 

EPA-HQ-RCRA-2008-0329-1149 N. Hamson 

EPA-HQ-RCRA-2008-0329-1150 J. Kozak 

EPA-HQ-RCRA-2008-0329-1151 S. Gaines 

EPA-HQ-RCRA-2008-0329-1152 JB Wilson 

EPA-HQ-RCRA-2008-0329-1153 K. Stern 

EPA-HQ-RCRA-2008-0329-1154 Jeremy Denton, Executive Director, Filter Manufacturers Council 

EPA-HQ-RCRA-2008-0329-1155 Douglas I. Greenhaus, Director, Environment Health and Safety, National Automobile 

Dealers Association (NADA) 

EPA-HQ-RCRA-2008-0329-1156 Debra J. Jezouit and Megan H. Berge, Baker Botts L.L.P. on behalf of Class of '85 

Regulatory Response Group 

EPA-HQ-RCRA-2008-0329-1157 Gary A. Molchan, Vice President Environmental Affairs, Essroc Cement Corp. (Essroc) 

EPA-HQ-RCRA-2008-0329-1158 Jeff Shumaker on behalf of David M. Kiser, Vice President, Environmental, Health and 

Safety and Sustainability, International Paper Company 

EPA-HQ-RCRA-2008-0329-1159 Stephen E. Woock, EHS&S Federal Regulatory Affairs Manager, Weyerhaeuser Company 

EPA-HQ-RCRA-2008-0329-1160 John L. Wittenborn, Kelley Drye & Warren LLP on behalf of Steel Manufacturers 

Association (SMA), et al. 

EPA-HQ-RCRA-2008-0329-1161 Steven Jarvis, Executive Director, Missouri Forest Products Association (MFPA) 

EPA-HQ-RCRA-2008-0329-1162 Erik Bakken, Manager, Corporate Environmental Services and Land Management, Tucson 

Electric Power Company 

EPA-HQ-RCRA-2008-0329-1163 Brian Haney on behalf of James Devlin, Chief Executive Officer, Thermo Fluids Inc. (TFI) 

EPA-HQ-RCRA-2008-0329-1164 Jim Jakubiak, Environmental Administrator, Schnizer Steel Industries, Inc. 

EPA-HQ-RCRA-2008-0329-1165 Jim Griffin, Senior Director, American Chemistry Council (ACC) 

EPA-HQ-RCRA-2008-0329-1166 Sarah E. Amick, Environmental Counsel, Rubber Manufacturers Association (RMA) 

EPA-HQ-RCRA-2008-0329-1167 Vernice Miller- Travis, Maryland Commission on Environmental Justice and Sustainable 

Communities 

EPA-HQ-RCRA-2008-0329-1168 David A. Buff, Principal Engineer, Golder Associates on behalf of New Hope Power 

Company (NHPC) 

EPA-HQ-RCRA-2008-0329-1169 Eric P. Bock, Law Offices of Eric P. Bock, PLLC on behalf of West Coast Refuse & 

Recycling Coalition (WCRRC) 

EPA-HQ-RCRA-2008-0329-1170 Robert D. Bessette, President, Council of Industrial Boiler Owners (CIBO) 

EPA-HQ-RCRA-2008-0329-1171 David A. Buff, Golder Associates on behalf of Florida Sugar Industry (FSI) 

EPA-HQ-RCRA-2008-0329-1172 Fred Gordon, Senior Environmental Specialist, Herman Miller, Inc. 

EPA-HQ-RCRA-2008-0329-1173 Paul R. Pike, Environmental Science Executive - Environmental Services, Ameren 

Corporation (Ameren) 

EPA-HQ-RCRA-2008-0329-1174 David Mickey, Blue Ridge Environmental Defense League 

EPA-HQ-RCRA-2008-0329-1175 Krishna Parameswaran, Director, Environmental Services and Compliance Assurance, 

Environmental Affairs Department, ASARCO LLC 

EPA-HQ-RCRA-2008-0329-1176 Scott Gardner, Managing Director of US Renewables Group and President of Niagara 

Generation, LLC 

EPA-HQ-RCRA-2008-0329-1177 Scott Gardner, Managing Director of US Renewables Group and President of Niagara 

Generation, LLC 
PART 2: Commenters 

Response to Comments Document -NHSM Rule 

20 of 275 

Document ID and Commenter Name for Each Comment on the ANPRM and the Proposed Rule 

Document ID Commenter Name (includes person that submitted on behalf of an organization) 

EPA-HQ-RCRA-2008-0329-1178 J. Anderson 

EPA-HQ-RCRA-2008-0329-1179 Glen P. Kedzie, Vice President and Environmental Counsel, American Trucking 

Associations, Inc. (ATA) 

EPA-HQ-RCRA-2008-0329-1180 Basil G. Constantelos, Managing Director, Environmental Services, Edison Mission Energy 

(EME) 

EPA-HQ-RCRA-2008-0329-1181 Amanda McGennis, Senior Vice President, Arizona Chapter Associated General Contractors 

(AZAGC) 

EPA-HQ-RCRA-2008-0329-1182 Amy Chastain, Executive Director, Bay Area Clean Water Agencies (BACWA) 

EPA-HQ-RCRA-2008-0329-1183 Rolen E. Ferris, President/CEO, Team Rahal, Inc. dba Bobby Rahal Honda 

EPA-HQ-RCRA-2008-0329-1184 Mylan Williams, Hy-Flo Equipment Co., Inc. 

EPA-HQ-RCRA-2008-0329-1185 Wayne Gieselman, Administrator, Environmental Services Division, Iowa Department of 

Natural Resources (IDNR) 

EPA-HQ-RCRA-2008-0329-1186 David L. Wagger, Ph.D., Director of Environmental Management, Institute of Scrap 

Recycling Industries, Inc (ISRI) 

EPA-HQ-RCRA-2008-0329-1187 Paul Kramer, President, Koda Energy, LLC, Minnesota 

EPA-HQ-RCRA-2008-0329-1188 Anthony R. Hatton, P.G., Director, Division of Waste Management, Kentucky Division of 

Waste Management (KY DWM) 

EPA-HQ-RCRA-2008-0329-1189 Rolen E. Ferris, President/CEO, Team Rahal of Mechanicsburg, Inc. dba Bobby Rahal 

Lexus 

EPA-HQ-RCRA-2008-0329-1190 Eileen A. Sottile, Vice President, Government Affairs, Government Affairs, LKQ 

Corporation 

EPA-HQ-RCRA-2008-0329-1191 John M. Cullen, Director, Health, Safety & Environmental Affairs, Masco Corporation 

(Masco) 

EPA-HQ-RCRA-2008-0329-1192 Ned Beecher, Executive Director, North East Biosolids and Residuals Association (NEBRA) 

EPA-HQ-RCRA-2008-0329-1193 Joe Jackson, President, Power Cleaning Equipment, Inc. 

EPA-HQ-RCRA-2008-0329-1194 Paul Rankin, President, Reusable Industrial Packaging Association, Inc. (RIPA) 

EPA-HQ-RCRA-2008-0329-1195 Paul L. Roy, President, Royco Distributors, Inc. 

EPA-HQ-RCRA-2008-0329-1196 Paul Fiore, Executive Vice President, Service Station Dealers of America and Allied Trades 

(SSDA-AT) 

EPA-HQ-RCRA-2008-0329-1197 Roy Littlefield, Executive Vice President, Tire Industry Association (TIA) 

EPA-HQ-RCRA-2008-0329-1198 Rolen E. Ferris, President/CEO, Team Rahal of Mechanicsburg, Inc. dba Bobby Rahal 

Toyota 

EPA-HQ-RCRA-2008-0329-1199 Logan R. Olds, General Manager, Victor Valley Wastewater Reclamation Authority 

EPA-HQ-RCRA-2008-0329-1200 Suzanne Bangert, Administrator, Air & Waste Division, State of Wisconsin Department of 

Natural Resources 

EPA-HQ-RCRA-2008-0329-1201 M. H. Freeman 

EPA-HQ-RCRA-2008-0329-1202 Louis Zeller, Science Director, Blue Ridge Environmental Defense League 

EPA-HQ-RCRA-2008-0329-1203 Todd A. Tolbert, Environmental Analyst II, Associated Electric Cooperative, Inc. (AECI) 

EPA-HQ-RCRA-2008-0329-1204 Curt Lewis, President, A & A Auto and Truck Parts, Inc. 

EPA-HQ-RCRA-2008-0329-1205 Shelagh Connelly, President, Resource Management, Inc. 

EPA-HQ-RCRA-2008-0329-1206 L. Simpson 

EPA-HQ-RCRA-2008-0329-1207 Kamran Khan, Owner, Lancer Equipment Company 

EPA-HQ-RCRA-2008-0329-1208 Griff Lasley, President and owner, A&I Parts Center, Inc. 

EPA-HQ-RCRA-2008-0329-1209 Madelent Karlositsch, Stony Brook Regional Sewerage Authority 

EPA-HQ-RCRA-2008-0329-1210 Gary Carpenter, Kansas Auto Repair Inc. 

EPA-HQ-RCRA-2008-0329-1211 Howard Marks, Director Environment, Health and Safety 

EPA-HQ-RCRA-2008-0329-1212 Beverly Kerr, A Storybook Farm Christian School 

EPA-HQ-RCRA-2008-0329-1213 B. Wygand 

EPA-HQ-RCRA-2008-0329-1214 B. Sweatt 

EPA-HQ-RCRA-2008-0329-1215 J. Bryson 

EPA-HQ-RCRA-2008-0329-1216 C. L. Moss 

EPA-HQ-RCRA-2008-0329-1217 F. Parks 

EPA-HQ-RCRA-2008-0329-1218 C. M. Poole 

EPA-HQ-RCRA-2008-0329-1219 W. Blackley 

EPA-HQ-RCRA-2008-0329-1220 F. Stanback 

EPA-HQ-RCRA-2008-0329-1221 B. Howell 

EPA-HQ-RCRA-2008-0329-1222 T. Carney 
PART 2: Commenters 

Response to Comments Document -NHSM Rule 

21 of 275 

Document ID and Commenter Name for Each Comment on the ANPRM and the Proposed Rule 

Document ID Commenter Name (includes person that submitted on behalf of an organization) 

EPA-HQ-RCRA-2008-0329-1223 Anonymous public comment 

EPA-HQ-RCRA-2008-0329-1224 Brad Rose, Morris Rose Auto Parts 

EPA-HQ-RCRA-2008-0329-1225 F. Kilgore 

EPA-HQ-RCRA-2008-0329-1226 R. N. Fischer 

EPA-HQ-RCRA-2008-0329-1227 D. Tanner 

EPA-HQ-RCRA-2008-0329-1228 Adam M. Sackenheim, Regulatory Compliance Manager, Butler County (Ohio) Water and 

Sewer Department (BCWS) 

EPA-HQ-RCRA-2008-0329-1229 William Flynt, President, Flyntloc, Inc. 

EPA-HQ-RCRA-2008-0329-1230 Robert F. Stevens, President, Energylogic 

EPA-HQ-RCRA-2008-0329-1232 Seth Voyles, Manager, Government Affairs on behalf of Don Kaiser, Executive Director, 

Pellet Fuels Institute (PFI) 

EPA-HQ-RCRA-2008-0329-1233 J. Ellis, Service Manager, Kenworth Northwest, Inc. 

EPA-HQ-RCRA-2008-0329-1234 Win W. Maynard Sr., President, Powerlube, Inc. 

EPA-HQ-RCRA-2008-0329-1235 Phillip D. Davis, Chief, Solid Waste Branch - Land Division, Alabama Department of 

Environmental Management (ADEM) 

EPA-HQ-RCRA-2008-0329-1236 submitted by Terry G. Hoadley, General Manager, Tire World Inc. 

EPA-HQ-RCRA-2008-0329-1237 submitted by Sean Coffey, Plant Manager, Flakeboard Company Ltd. 

EPA-HQ-RCRA-2008-0329-1238 M.A. Associates, Inc. 

EPA-HQ-RCRA-2008-0329-1239 Dean Carson, Branch Manager, Kenworth Northwest-Aberdeen, Kenworth Northwest, Inc. 

EPA-HQ-RCRA-2008-0329-1240 Peter J. Albrecht, Peters Auto Wrecking 

EPA-HQ-RCRA-2008-0329-1241 Patricia Wirth, President, Automotive Oil Change Association (AOCA) 

EPA-HQ-RCRA-2008-0329-1242 Peter Albrecht, Peters Auto Wrecking 

EPA-HQ-RCRA-2008-0329-1243 Henry Fenimore, Vice President, B & F Towing Co. 

EPA-HQ-RCRA-2008-0329-1244 Larry R. Shaw, President/Owner, Shaw Auto Parts, Inc. 

EPA-HQ-RCRA-2008-0329-1245 Mark Tauschek, Owner, Kewaskum Auto Recyclers 

EPA-HQ-RCRA-2008-0329-1246 Eric E. Boyd, Seyfarth & Shaw Attorneys LLP on behalf of Jeffrey Lang, Rhodia, Inc. 

EPA-HQ-RCRA-2008-0329-1247 Scott Kuhn, Vice President Environmental Compliance, Clean Harbors Environmental 

Services 

EPA-HQ-RCRA-2008-0329-1248 Fadi K. Mourad, Manager of Environmental Affairs, DTE Energy Services 

EPA-HQ-RCRA-2008-0329-1249 Keith McCoy, Vice President, Energy and Resources Policy, National Association of 

Manufacturers 

EPA-HQ-RCRA-2008-0329-1250 Don Gebhardt on behalf of Larry L. Detjen, Senior Vice President, US Installer Channels, 

Valvoline/Ashland, Inc. 

EPA-HQ-RCRA-2008-0329-1251 Bill Wemhoff, Senior Principal, Environmental Policy, National Rural Electric Cooperative 

Association (NRECA) 

EPA-HQ-RCRA-2008-0329-1252 Mike Begin, Sawtooth Lubrication LLC 

EPA-HQ-RCRA-2008-0329-1253 Curtis W. Swanson, Provisional Director, Plant Operations, Central Contra Costa Sanitary 

District (CCCSD) 

EPA-HQ-RCRA-2008-0329-1255 Robert E. Cleaves, President, Biomass Power Association (BPA) 

EPA-HQ-RCRA-2008-0329-1256 Frank B. Schofield, President, BDS Waste Disposal, Inc. 

EPA-HQ-RCRA-2008-0329-1257 David R. Case, Executive Director, Environmental Technology Council (ETC) 

EPA-HQ-RCRA-2008-0329-1258 Terry Walmsley, Fibrowatt LLC 

EPA-HQ-RCRA-2008-0329-1259 Sean M. Oâ€TMKeefe, Director, Environmental Affairs, Alexander & Baldwin, Inc. 

(A&B)/Hawaiian Commercial and Sugar Company (HC&S) 

EPA-HQ-RCRA-2008-0329-1260 James S. Pew, Staff Attorney, Earthjustice on behalf of Sierra Club and Earthjustice 

EPA-HQ-RCRA-2008-0329-1261 Chris Hornback, Senior Director, Regulatory Affairs on behalf of Ken Kirk, Executive 

Director, National Association of Clean Water Agencies (NACWA) 

EPA-HQ-RCRA-2008-0329-1262 D. Shaver 

EPA-HQ-RCRA-2008-0329-1263 Charles Johnson, Chair, Municipal D Waste Task Force, Solid Waste Committee, 

Association of State and Territorial Solid Waste Management Officials (ASTWMO) 

EPA-HQ-RCRA-2008-0329-1264 David Beaty, Oilstop, Chevron 

EPA-HQ-RCRA-2008-0329-1265 Craig J. Anderson, Manager, Environmental Audit, Minnesota Power (MP), (ALLETE) 

EPA-HQ-RCRA-2008-0329-1266 David R. Sherman, Director, City of Indianapolis 

EPA-HQ-RCRA-2008-0329-1267 Russell Strader, Environmental Manager, Boise Cascade, L.L.C. 

EPA-HQ-RCRA-2008-0329-1268 James C. Jackson, Director of Environment, Boise, Inc. 

EPA-HQ-RCRA-2008-0329-1269 Biomass Thermal Energy Council (BTEC) 

EPA-HQ-RCRA-2008-0329-1270 Brad White, Manager, Avis Lube 104 
PART 2: Commenters 

Response to Comments Document -NHSM Rule 

22 of 275 

Document ID and Commenter Name for Each Comment on the ANPRM and the Proposed Rule 

Document ID Commenter Name (includes person that submitted on behalf of an organization) 

EPA-HQ-RCRA-2008-0329-1271 Jerry W. Stewart, Director, Waste Resources Division, Department of Public Works, City of 

Chattanooga 

EPA-HQ-RCRA-2008-0329-1272 Rob Barton and Ralph Roberson, RMB Consulting & Research, Inc. 

EPA-HQ-RCRA-2008-0329-1273 Scott D. Parker on behalf of Christopher Harris, General Counsel, NORA, An Association of 

Responsible Recyclers 

EPA-HQ-RCRA-2008-0329-1274 Tawny A. Bridgeford, Associate General Counsel, National Mining Association (NMA) 

EPA-HQ-RCRA-2008-0329-1275 Steve Schliesser on behalf of Sheila C. Holman, Director, Division of Air Quality, North 

Carolina Division of Air Quality (NC DAQ) 

EPA-HQ-RCRA-2008-0329-1276 William L. Kovacs, Senior Vice President, Environment, Technology & Regulatory Affairs, 

U.S. Department of Commerce 

EPA-HQ-RCRA-2008-0329-1277 David C. Ailor, P.E., Vice President, Regulatory Affairs, National Oilseed Processors 

Association (NOPA) 

EPA-HQ-RCRA-2008-0329-1278 Thomas J. Whetham, P.E., President, New York Water Environment Association, Inc. 

(NYWEA) 

EPA-HQ-RCRA-2008-0329-1279 Jim Strutzenberg, President, Hotsy Cleaning Systems 

EPA-HQ-RCRA-2008-0329-1280 Jason A. Dagle, Safety and Environmental Manager, Wood-Mode, Inc. 

EPA-HQ-RCRA-2008-0329-1281 Eric Schulz, Controller, AAA Auto Salvage, Minnesota 

EPA-HQ-RCRA-2008-0329-1282 Debbie Johnston, Director, U.S. Public Affairs, AbitibiBowater, Inc. 

EPA-HQ-RCRA-2008-0329-1283 Ellen Gulbinsky, Executive Director, Association of Environmental Authorities (AEA) 

EPA-HQ-RCRA-2008-0329-1284 Carol S. Sim, Director, Environmental Affairs, Alaska Airlines 

EPA-HQ-RCRA-2008-0329-1285 Karen Pallansch, Engineer-Director, Alexandria Sanitation Authority (ASA) 

EPA-HQ-RCRA-2008-0329-1286 Matt Tweedy, President, AMB Tools and Equipment 

EPA-HQ-RCRA-2008-0329-1287 Mark Premo, P.E., General Manager, Anchorage Water and Wastewater Utility (AWWU) 

EPA-HQ-RCRA-2008-0329-1288 Robert Androsiglio, Division Superintendent, Water Pollution Control Division, Township 

of Wayne, NJ 

EPA-HQ-RCRA-2008-0329-1289 Stephen Murphy, General Manager, Anthony Forest Products Company (AFP) 

EPA-HQ-RCRA-2008-0329-1290 Tatyana Arsh, P.E., President, Association of Ohio Metropolitan Wastewater Agencies 

(AOMWA) 

EPA-HQ-RCRA-2008-0329-1291 Derek D. Swick, Policy Advisor, American Petroleum Institute (API) 

EPA-HQ-RCRA-2008-0329-1292 Steve Trussell, Executive Director, Arizona Rock Products Association (ARPA) 

EPA-HQ-RCRA-2008-0329-1293 Rodney A. Trahan, President, Arrow Equipment, Inc. 

EPA-HQ-RCRA-2008-0329-1294 Robert P. Seltzer, Instant Lube 

EPA-HQ-RCRA-2008-0329-1295 Jay Brosten, Vice President, Auto Parts City, Inc. 

EPA-HQ-RCRA-2008-0329-1296 B. Goede 

EPA-HQ-RCRA-2008-0329-1297 Richard Beardslee, Superintendent, City of Battle Creek Wastewater Treatment Plant 

EPA-HQ-RCRA-2008-0329-1298 Jim Quinten, President, Automotive Parts and Service Association (APSA) 

EPA-HQ-RCRA-2008-0329-1299 Theresa L. Bennington, Owner, B&B Auto Salvage, Inc. 

EPA-HQ-RCRA-2008-0329-1300 John P. Lacy, Integrated Solid Waste Program Manager, NAVFAC Northwest 

EPA-HQ-RCRA-2008-0329-1301 Keith Brady, Chief, Surface Mining Section, Bureau of Mining and Reclamation, 

Pennsylvania Department of Environmental Protection 

EPA-HQ-RCRA-2008-0329-1302 Mike Swift, Trails End Auto & Truck Salvage, Inc. 

EPA-HQ-RCRA-2008-0329-1303 Edward Bortz, Mill Manager, SP Newsprint Co. LLC 

EPA-HQ-RCRA-2008-0329-1304 Dawn M. Helms, Vice President of Operations, CRM Company 

EPA-HQ-RCRA-2008-0329-1305 Ted Michaels, President, Energy Recovery Council (ERC) 

EPA-HQ-RCRA-2008-0329-1306 Steve Hagle on behalf of Mark R. Vickery, Executive Director, Texas Commission on 

Environmental Quality (TCEQ) 

EPA-HQ-RCRA-2008-0329-1307 James Brooks, Director, Bureau of Air Quality and Paula M. Clark, Director, Division of 

Solid Waste Management, Bureau of Remediation and Waste Management, Main 

Department of Environmental Protection (DEP) 

EPA-HQ-RCRA-2008-0329-1308 S. Lorenz 

EPA-HQ-RCRA-2008-0329-1309 William Freese, Director, Huron Environmental Activist League 

EPA-HQ-RCRA-2008-0329-1310 E. M. T. O'Nan, Director, Protect All Children's Environment 

EPA-HQ-RCRA-2008-0329-1311 S. M. Berkman 

EPA-HQ-RCRA-2008-0329-1312 James C. Gauntt, Executive Director, Railway Tie Association (RTA) 

EPA-HQ-RCRA-2008-0329-1313 Michael Ruffini, Victory Lane Quick Oil Change 

EPA-HQ-RCRA-2008-0329-1314 L. Thornton 

EPA-HQ-RCRA-2008-0329-1315 PMI Ash Technologies, LLC 
PART 2: Commenters 

Response to Comments Document -NHSM Rule 

23 of 275 

Document ID and Commenter Name for Each Comment on the ANPRM and the Proposed Rule 

Document ID Commenter Name (includes person that submitted on behalf of an organization) 

EPA-HQ-RCRA-2008-0329-1316 K. Selock 

EPA-HQ-RCRA-2008-0329-1317 Sally Keating Nyren, Manager of Environmental, Health & Safety, The Metropolitan 

District (MDC) 

EPA-HQ-RCRA-2008-0329-1318 Steven Glenn Barringer and Emily C. Schilling, Holland & Hart LLP on behalf of Precious 

Metals Producers (PMP) 

EPA-HQ-RCRA-2008-0329-1319 Michael E. Wilson, Chief Executive Officer, Automotive Recyclers Association (ARA) 

EPA-HQ-RCRA-2008-0329-1320 Harry N. Monck, Executive Director, Delaware Auto and Truck Recyclers Association 

(DATRA) 

EPA-HQ-RCRA-2008-0329-1321 Steven Hughes, Equipment Distributors 

EPA-HQ-RCRA-2008-0329-1322 Rolen E. Ferris, President/Chief Executive Officer (CEO), Team Rahal of Silver Spring, 

Inc., dba Bobby Rahal Acura 

EPA-HQ-RCRA-2008-0329-1323 Anonymous public comment 

EPA-HQ-RCRA-2008-0329-1324 Dwight Howard Jr., Director, Supplier Relations for APU Solutions 

EPA-HQ-RCRA-2008-0329-1325 Rick Morrow, Vice President, M & M Auto Parts, Incorporated 

EPA-HQ-RCRA-2008-0329-1326 Robert E. Cleaves, President, Biomass Power Association (BPA) 

EPA-HQ-RCRA-2008-0329-1327 S. A. Simpson 

EPA-HQ-RCRA-2008-0329-1328 P. D. Holland 

EPA-HQ-RCRA-2008-0329-1329 L. Cook 

EPA-HQ-RCRA-2008-0329-1330 Rolen E. Ferris, President/Chief Executive Officer (CEO), Team Rahal of South Hills, Inc. 

dba Bobby Rahal BMW of South Hills 

EPA-HQ-RCRA-2008-0329-1331 Greg Kester, Biosolids Program Manager, California Association of Sanitation Agencies 

(CASA) 

EPA-HQ-RCRA-2008-0329-1332 J. Bruce 

EPA-HQ-RCRA-2008-0329-1333 Lori Jondron, CPA, RoadRunner Body and Paint 

EPA-HQ-RCRA-2008-0329-1334 Nancy Cave, Coastal Conservation League 

EPA-HQ-RCRA-2008-0329-1335 Jackie Kepke, P.E., Program Manager, California Wastewater Climate Change Group 

(CWCCG) 

EPA-HQ-RCRA-2008-0329-1336 Frank J. Pinnisi Jr., President, Quick Change Inc. 

EPA-HQ-RCRA-2008-0329-1337 C. Roberts 

EPA-HQ-RCRA-2008-0329-1338 Shannon Binns, Executive Director, Sustain Charlotte 

EPA-HQ-RCRA-2008-0329-1339 L. Johnson 

EPA-HQ-RCRA-2008-0329-1340 J.R., Jus 10 Time Mobile Lube 

EPA-HQ-RCRA-2008-0329-1341 Larry Bush, Larry Bush's Riverside Tire 

EPA-HQ-RCRA-2008-0329-1342 William Gupton, Chair, Central Piedmont Group of the NC Chapter of the Sierra Club 

EPA-HQ-RCRA-2008-0329-1343 Ross Thomas, Owner, Cold Spring Automotive Services, LLC 

EPA-HQ-RCRA-2008-0329-1344 Joe Malizia, Bel Air Fast Lube, LLC 

EPA-HQ-RCRA-2008-0329-1345 Nancy Thomas-Finn, Greenstate Services 

EPA-HQ-RCRA-2008-0329-1346 Margo Reid Brown, Director, California Department of Resources Recycling and Recovery 

(CalRecycle) 

EPA-HQ-RCRA-2008-0329-1347 Spencer Whitney, General Manager, Capital City Auto Recyclers 

EPA-HQ-RCRA-2008-0329-1348 Thomas D. Stapleton, Service Director, Carter Motors, Inc. dba Carter Volkswagen, Carter 

Subaru, Carter Subaru Ballard 

EPA-HQ-RCRA-2008-0329-1349 Greg Kester, Biosolids Program Manager, California Association of Sanitation Agencies 

(CASA) 

EPA-HQ-RCRA-2008-0329-1350 Barry J. Johnson, President and Owner, Cass County Heating, Inc. 

EPA-HQ-RCRA-2008-0329-1351 David Z. Skolasinski, District Manager, Environmental Regulatory Planning/ Analysis, 

Cliffs Natural Resources Inc. (Cliffs) 

EPA-HQ-RCRA-2008-0329-1352 Kevin F. Cochran, Modal Marketing, Inc. 

EPA-HQ-RCRA-2008-0329-1353 R. Wade Mosby, Senior Vice President, Collins Companies 

EPA-HQ-RCRA-2008-0329-1354 Charles G. Johnson, Unit Leader, Solid Waste and Material Management Unit, Hazardous 

Materials and Waste Management Program, Colorado Department of Public Health and 

Environment 

EPA-HQ-RCRA-2008-0329-1355 David Wagman, Vice President, Bridgewater Recycling Inc. 

EPA-HQ-RCRA-2008-0329-1356 Ann Timberlake, Executive Director, Conservation Voter of South Carolina (CVSC) 

EPA-HQ-RCRA-2008-0329-1357 Dillard Cosner, Cosner Brothers Used Auto Parts Inc. 

EPA-HQ-RCRA-2008-0329-1358 Thomas A Julia, President, Composite Panel Association 

EPA-HQ-RCRA-2008-0329-1359 Gary W. Darling, General Manager, Delta Diablo Sanitation District 
PART 2: Commenters 

Response to Comments Document -NHSM Rule 

24 of 275 

Document ID and Commenter Name for Each Comment on the ANPRM and the Proposed Rule 

Document ID Commenter Name (includes person that submitted on behalf of an organization) 

EPA-HQ-RCRA-2008-0329-1360 Guy R. Martin, Director, Environment Sustainability Group, Domtar Corporation 

EPA-HQ-RCRA-2008-0329-1361 Doris Lambert, Bill's Quick Lube 

EPA-HQ-RCRA-2008-0329-1362 Dennis A. Werblow, Director Corporate Environmental Affairs, Decorative Panels 

International, Inc. (DPI) 

EPA-HQ-RCRA-2008-0329-1363 Stephen R. Gossett, Senior Environmental Associate, Eastman Chemical Company 

(Eastman) 

EPA-HQ-RCRA-2008-0329-1364 Andrew S. Freeman, President, Ecological Solutions 

EPA-HQ-RCRA-2008-0329-1365 Paul Glauser, Vice President, Sustainability and Environment, Staker Parson Companies 

EPA-HQ-RCRA-2008-0329-1366 Tom Harnsberger, General Manager, Exeter Energy Limited Partnership 

EPA-HQ-RCRA-2008-0329-1367 Robert and Cheryl Millham, Owners, Express Care of Grove City 

EPA-HQ-RCRA-2008-0329-1368 Jeff Jones, President, Express Lubes of Southeast Georgia, Inc. 

EPA-HQ-RCRA-2008-0329-1369 H. Smith 

EPA-HQ-RCRA-2008-0329-1370 Michael E. Wilson, Chief Executive Officer, Automotive Recyclers Association (ARA) 

EPA-HQ-RCRA-2008-0329-1371 Tom Sholders, Manager of Operations, Gloucester County Utilities Authority (GCUA) 

EPA-HQ-RCRA-2008-0329-1372 Kwik Kar Owner's Association 

EPA-HQ-RCRA-2008-0329-1373 Thomas W. Sigmund, Executive Director, Green Bay Metropolitan Sewerage District 

(GBMSD) 

EPA-HQ-RCRA-2008-0329-1374 Martha E. Groome, NPDES Compliance Officer/Laboratory and Industrial Waste Section 

Supervisor, City of Greensboro Water Resources Department 

EPA-HQ-RCRA-2008-0329-1375 John Williams, President, Holston Environmental Services, Inc. (Holston) 

EPA-HQ-RCRA-2008-0329-1376 Scott Klingemann, Vice President, Hotsy Equipment Co. 

EPA-HQ-RCRA-2008-0329-1377 Robert J. Perkins, President, Intermountain Equipment Sales Company 

EPA-HQ-RCRA-2008-0329-1378 Charles R. Cary, Principal, Biomass Combustion Systems, Inc. 

EPA-HQ-RCRA-2008-0329-1379 John Clariday, President, Chaparral Auto Parts, Inc. 

EPA-HQ-RCRA-2008-0329-1380 John Piotrowski, Corporate Environmental Operations Manager, Packing Corporation of 

America (PCA) 

EPA-HQ-RCRA-2008-0329-1381 William L. Bider, Director, Bureau of Waste Management, Kansas Department of Health 

and Environment 

EPA-HQ-RCRA-2008-0329-1382 C. Richard Titus, Executive Vice President, Kitchen Cabinet Manufacturers Association 

(KCMA) 

EPA-HQ-RCRA-2008-0329-1383 Frank P. Stanch, Operations Manager, Kleen Machines, Div. 

EPA-HQ-RCRA-2008-0329-1384 Douglas Kochel, President, Kochel Equipment Company Inc. 

EPA-HQ-RCRA-2008-0329-1385 Lance McKinzie, General Partner, EXE Operations LLC 

EPA-HQ-RCRA-2008-0329-1386 Keith Brasuell, LCAR of Ruston, Inc., Chevron Fast Lube 

EPA-HQ-RCRA-2008-0329-1387 Eileen A. Sottile, Vice President, Government Affairs, LKQ Corporation 

EPA-HQ-RCRA-2008-0329-1388 Barbara Ann Cepko, Manager, Lower Perkiomen Valley Regional Sewer Authority 

(LPVRSA) 

EPA-HQ-RCRA-2008-0329-1389 Michael R. Wardell, Executive Director, Board of Trustees of the Mid-Atlantic Biosolids 

Association (MABA) 

EPA-HQ-RCRA-2008-0329-1390 Comment John Williams, President, Maine Pulp & Paper Association (MPPA) 

EPA-HQ-RCRA-2008-0329-1391 Mark Gandy, Executive Sales Manager, MRO Sales Inc. 

EPA-HQ-RCRA-2008-0329-1392 M. H., Southwest Atlanta E.O.C., Inc. 

EPA-HQ-RCRA-2008-0329-1393 Mary S. Booth, Massachusetts Environmental Energy Alliance 

EPA-HQ-RCRA-2008-0329-1394 Kevin Ford, Commercial Development Manager, Merichem Company (Merichem) 

EPA-HQ-RCRA-2008-0329-1395 Steven R. Sliver, Chief, Solid Waste and Land Application Section, Environmental Resource 

Management Division, Michigan Department of Natural Resources and Environment 

(DNRE) 

EPA-HQ-RCRA-2008-0329-1396 Anonymous public comment 

EPA-HQ-RCRA-2008-0329-1397 Mike Morris, President, Morris Distributing, Inc. 

EPA-HQ-RCRA-2008-0329-1398 Jeffery S. Hannapel, The Policy Group on behalf of National Association for Surface 

Finishing (NASF) 

EPA-HQ-RCRA-2008-0329-1399 Gregory E. Conrad, Executive Director, Interstate Mining Compact Commission and 

Michael P. Garner, President, National Association of Abandoned Mine Land Programs 

EPA-HQ-RCRA-2008-0329-1400 Julius Ciaccia, Executive Director, Northeast Ohio Regional Sewer District (NEORSD) 

EPA-HQ-RCRA-2008-0329-1401 David Bonistall, Vice President Environmental, Health and Safety, NewPage Corporation 

(NewPage) 

EPA-HQ-RCRA-2008-0329-1402 Fibrek, Inc., (FIBREK) 
PART 2: Commenters 

Response to Comments Document -NHSM Rule 

25 of 275 

Document ID and Commenter Name for Each Comment on the ANPRM and the Proposed Rule 

Document ID Commenter Name (includes person that submitted on behalf of an organization) 

EPA-HQ-RCRA-2008-0329-1403 Nick M. Vuko, General Manager, Quick Nick's Snappy Lube 

EPA-HQ-RCRA-2008-0329-1404 Shannon Nordstrom, Vice President/General Manager, Nordstrom's Automotive, Inc. 

EPA-HQ-RCRA-2008-0329-1405 William F. Edgerton, President, North Central Hydro Wash, Inc. 

EPA-HQ-RCRA-2008-0329-1406 Howard Hurwitz, Executive Director, Northwest Bergen County Utilities Authority 

(NBCUA) 

EPA-HQ-RCRA-2008-0329-1407 Bruce J. Parker, President and CEO, National Solid Wastes Management Association 

(NSWMA) 

EPA-HQ-RCRA-2008-0329-1408 Nicholas A. Smith, Oil Exchange 

EPA-HQ-RCRA-2008-0329-1409 Edward M. Torres, Director of Technical Services, Orange County Sanitation District 

(OCSD) 

EPA-HQ-RCRA-2008-0329-1410 James Allen, Manager, Water Quality Control Plant and Phil Bobel, Manager, 

Environmental Compliance, City of Palo Alto 

EPA-HQ-RCRA-2008-0329-1411 David Haldeman, Waste Management Division Administrator and Shelley Schneider, Air 

Quality Division Administrator, Nebraska Department of Environmental Quality (NDEQ) 

EPA-HQ-RCRA-2008-0329-1412 Scott Hastings, Vice President, Peninsula Pressure Systems 

EPA-HQ-RCRA-2008-0329-1413 Michael Pinkerton, Pinkerton Mobile Oil LLC. 

EPA-HQ-RCRA-2008-0329-1414 Richard Lulay, Lulay Timber Co. Inc. 

EPA-HQ-RCRA-2008-0329-1415 James Brooks, Director, Bureau of Air Quality and Paula M. Clark, Director, Division of 

Solid Waste Management, Bureau of Remediation and Waste Management, Maine 

Department of Environmental Protection (DEP) 

EPA-HQ-RCRA-2008-0329-1416 Wendy Roy on behalf of Arthur N. Marin, Executive Director, Northeast States for 

Coordinated Air Use Management (NESCAUM) 

EPA-HQ-RCRA-2008-0329-1417 A. Preston Howard, Jr., President, Manufacturers and Chemical Industry Council of North 

Carolina (MCIC) 

EPA-HQ-RCRA-2008-0329-1418 Jeffrey L. Leiter, Independent Lubricant Manufacturers Association 

EPA-HQ-RCRA-2008-0329-1419 D. Kornegay 

EPA-HQ-RCRA-2008-0329-1420 Gregg M. Peters, Oil Can Henry's 13 - STAYTON dba OCH Stayton, LLC 

EPA-HQ-RCRA-2008-0329-1421 Scott Morrison, City Garage 

EPA-HQ-RCRA-2008-0329-1422 C. R. Holland 

EPA-HQ-RCRA-2008-0329-1423 D. Kornegay 

EPA-HQ-RCRA-2008-0329-1424 T. Lux 

EPA-HQ-RCRA-2008-0329-1425 D. Charles 

EPA-HQ-RCRA-2008-0329-1426 Sue Schauls, Sue Schauls Consulting 

EPA-HQ-RCRA-2008-0329-1427 C. Kenyon 

EPA-HQ-RCRA-2008-0329-1428 R. Fugle 

EPA-HQ-RCRA-2008-0329-1429 Vernice Miller-Travis, Consultant, Earthjustice 

EPA-HQ-RCRA-2008-0329-1430 D. Faircloth 

EPA-HQ-RCRA-2008-0329-1431 Tyrone P. Wilson, Director, Regulatory Affairs, Energy & Environment, Portland Cement 

Association (PCA) 

EPA-HQ-RCRA-2008-0329-1432 Caroline Choi, Executive Director, Environmental Services and Strategy, Progress Energy 

EPA-HQ-RCRA-2008-0329-1433 Susan B. Maples, Director of Operations, RBM Company 

EPA-HQ-RCRA-2008-0329-1434 Bill Turner, Turner Hydraulics, Inc. 

EPA-HQ-RCRA-2008-0329-1435 Ron Smith, Environmental Compliance Manager, Universal Lubricants, LLC 

EPA-HQ-RCRA-2008-0329-1436 Lin Longshore, Vice President of Environmental Compliance, Oil And Recycling 

Operations, Safety-Kleen Systems, Inc. (Safety-Kleen) 

EPA-HQ-RCRA-2008-0329-1437 Susan M. Walthall, Acting Chief Counsel for Advocacy and Keith W. Holman, Assistant 

Chief Counsel for Environmental Policy, Office of Advocacy of the U.S. Small Business 

Administration (Advocacy) 

EPA-HQ-RCRA-2008-0329-1438 Renee Lesjak Bashel, Chair, National Steering Committee 

EPA-HQ-RCRA-2008-0329-1439 John Pastore, Executive Director, Southern California Alliance of Publicly Owned 

Treatment Works (SCAP) 

EPA-HQ-RCRA-2008-0329-1440 Colin A. Kelly, Government Relations Manager, Schnitzer Northeast 

EPA-HQ-RCRA-2008-0329-1441 Aaron Scott Cromer, Owner, Waste Oil Furnace Repair & Service, Inc. 

EPA-HQ-RCRA-2008-0329-1442 Cathy Carnessali, Vice President of Business Services, Oil Distributing Company 

EPA-HQ-RCRA-2008-0329-1443 Gregory J. Merrill, Director, Montgomery County Environmental Services 

EPA-HQ-RCRA-2008-0329-1444 Glen D. Petrauski, Executive Director, Somerset Raritan Valley Sewerage Authority 

EPA-HQ-RCRA-2008-0329-1445 Cris Chirumbolo, Southwest Petroleum Waste Management 
PART 2: Commenters 

Response to Comments Document -NHSM Rule 

26 of 275 

Document ID and Commenter Name for Each Comment on the ANPRM and the Proposed Rule 

Document ID Commenter Name (includes person that submitted on behalf of an organization) 

EPA-HQ-RCRA-2008-0329-1446 John Kantorek, Executive Director, Stony Brook Regional Sewerage Authority (SBRSA) 

EPA-HQ-RCRA-2008-0329-1447 N. P. Burrows, Senior Environmental Manager, Syngenta Seeds, Inc. (Syngenta) 

EPA-HQ-RCRA-2008-0329-1448 Anonymous public comment 

EPA-HQ-RCRA-2008-0329-1449 James S. Willis, III., Corporate Environmental Manager, Titan America LLC 

EPA-HQ-RCRA-2008-0329-1450 Union Pacific Railroad Company (UPRR) 

EPA-HQ-RCRA-2008-0329-1451 David W. Hacker, Attorney-Environmental, Law Department, United States Steel 

Corporation (USS) 

EPA-HQ-RCRA-2008-0329-1452 Melissa A. VanTassel, Firestone Complete Auto Care/Expert Tire, Kansas City Districts 

EPA-HQ-RCRA-2008-0329-1453 Tim Williams, Senior Managing Director, Public Policy, Water Environment Federation 

(WEF) 

EPA-HQ-RCRA-2008-0329-1454 Michael T. McEvoy, Executive Director, Wastewater Services, Western Virginia Water 

Authority 

EPA-HQ-RCRA-2008-0329-1455 Richard A. Rosvold, Air Quality Manager, Xcel Energy Services, Inc., Northern States 

Power Company (NSPC) 

EPA-HQ-RCRA-2008-0329-1456 Jerry Call, Executive Vice President, American Foundry Society (AFS) 

EPA-HQ-RCRA-2008-0329-1457 Ron Lugowski, President, DSi Recycling Systems, Inc. 

EPA-HQ-RCRA-2008-0329-1458 Brad Cooley, Director, Environmental Engineering, GDF SUEZ Energy Generation NA, Inc. 

(GSEGNA) 

EPA-HQ-RCRA-2008-0329-1459 Walter B. Crickmer, Manager, Gobco, LLC 

EPA-HQ-RCRA-2008-0329-1460 Edwin E. Dassatti, Director, Division of Solid & Hazardous Material, New York State 

Department of Environmental Conservation 

EPA-HQ-RCRA-2008-0329-1461 Gerald R. DeLuca, Executive Director, Automotive Recyclers Association of New York 

(ARANY) 

EPA-HQ-RCRA-2008-0329-1462 Buffy C. Santel on behalf of John Lodderhose, Assistant Director of Engineering, 

Environmental Compliance, Metropolitan St. Louis Sewer District 

EPA-HQ-RCRA-2008-0329-1463 Ryan O'Gara, Government Affairs, SKB Recycling LLC 

EPA-HQ-RCRA-2008-0329-1464 AG Diesel Repair 

EPA-HQ-RCRA-2008-0329-1465 Will Yates, Safety and Environmental Supervisor, Lake Union Drydock Company 

EPA-HQ-RCRA-2008-0329-1466 Beth A. Richards, Branch Manager, Future Environmental, Inc. 

EPA-HQ-RCRA-2008-0329-1467 Jeff Carrier, Sustainability and IAQ Program Manager, The Carpet and Rug Institute 

EPA-HQ-RCRA-2008-0329-1468 Scott D. Parker on behalf of Christopher Harris, General Counsel, NORA, An Association of 

Responsible Recyclers (Attachment to EPA-HQ-RCRA-2008-0329-1273) 

EPA-HQ-RCRA-2008-0329-1469 Todd A. Tolbert, Environmental Analyst II, Associated Electric Cooperative, Inc. (AECI) 

EPA-HQ-RCRA-2008-0329-1470 Terry R. Beachler, Beachler's Servicenter 

EPA-HQ-RCRA-2008-0329-1471 L. Thomas 

EPA-HQ-RCRA-2008-0329-1472 S. Simmons 

EPA-HQ-RCRA-2008-0329-1473 M. Mouna 

EPA-HQ-RCRA-2008-0329-1474 M. Lackey 

EPA-HQ-RCRA-2008-0329-1475 D. Turner 

EPA-HQ-RCRA-2008-0329-1476 J. Steiner 

EPA-HQ-RCRA-2008-0329-1477 T. Thompson 

EPA-HQ-RCRA-2008-0329-1478 C. Rendzio 

EPA-HQ-RCRA-2008-0329-1479 S. Llorca 

EPA-HQ-RCRA-2008-0329-1480 D. Pedersen 

EPA-HQ-RCRA-2008-0329-1481 N. York 

EPA-HQ-RCRA-2008-0329-1482 A. Trenholme 

EPA-HQ-RCRA-2008-0329-1483 M. Kissinger 

EPA-HQ-RCRA-2008-0329-1484 T. and E. McCloskey 

EPA-HQ-RCRA-2008-0329-1485 M. Bergman 

EPA-HQ-RCRA-2008-0329-1486 N. Rapp 

EPA-HQ-RCRA-2008-0329-1487 J. Larson 

EPA-HQ-RCRA-2008-0329-1488 G. Watanabe 

EPA-HQ-RCRA-2008-0329-1489 C. Siewert 

EPA-HQ-RCRA-2008-0329-1490 M. Pfund 

EPA-HQ-RCRA-2008-0329-1491 W. Larry McDorman, President, Renewable Steam Alternatives, LLC 

EPA-HQ-RCRA-2008-0329-1492 P. Richards 

EPA-HQ-RCRA-2008-0329-1493 S. K. Snow 
PART 2: Commenters 

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27 of 275 

Document ID and Commenter Name for Each Comment on the ANPRM and the Proposed Rule 

Document ID Commenter Name (includes person that submitted on behalf of an organization) 

EPA-HQ-RCRA-2008-0329-1494 H. Durst 

EPA-HQ-RCRA-2008-0329-1495 W. Silver 

EPA-HQ-RCRA-2008-0329-1496 P. Mann 

EPA-HQ-RCRA-2008-0329-1497 L. Bartell 

EPA-HQ-RCRA-2008-0329-1498 S. Yaffe 

EPA-HQ-RCRA-2008-0329-1499 J. Perez 

EPA-HQ-RCRA-2008-0329-1500 J. Craig 

EPA-HQ-RCRA-2008-0329-1501 C. Franklin 

EPA-HQ-RCRA-2008-0329-1502 L. Bodiford 

EPA-HQ-RCRA-2008-0329-1503 G. R. Stewart 

EPA-HQ-RCRA-2008-0329-1504 L. Capizzi 

EPA-HQ-RCRA-2008-0329-1505 M. Watkins 

EPA-HQ-RCRA-2008-0329-1506 J. Fitzgerald 

EPA-HQ-RCRA-2008-0329-1507 V. T. Morehead 

EPA-HQ-RCRA-2008-0329-1508 K. Webers 

EPA-HQ-RCRA-2008-0329-1509 J. Rampton 

EPA-HQ-RCRA-2008-0329-1510 K. Morris 

EPA-HQ-RCRA-2008-0329-1511 M. Gleason 

EPA-HQ-RCRA-2008-0329-1512 J. Arnold 

EPA-HQ-RCRA-2008-0329-1513 B. O'Brien 

EPA-HQ-RCRA-2008-0329-1514 T. Aldridge 

EPA-HQ-RCRA-2008-0329-1515 J. Engel 

EPA-HQ-RCRA-2008-0329-1516 B. Weimann 

EPA-HQ-RCRA-2008-0329-1517 P. Gampper 

EPA-HQ-RCRA-2008-0329-1518 J. Sockloff 

EPA-HQ-RCRA-2008-0329-1519 S. Hartsfield 

EPA-HQ-RCRA-2008-0329-1520 K. Moore 

EPA-HQ-RCRA-2008-0329-1521 G. Blomberg 

EPA-HQ-RCRA-2008-0329-1522 D. Forshtay 

EPA-HQ-RCRA-2008-0329-1523 M. Goodwin 

EPA-HQ-RCRA-2008-0329-1524 G. Gorden 

EPA-HQ-RCRA-2008-0329-1525 P. Kaiser 

EPA-HQ-RCRA-2008-0329-1526 D. Eagle 

EPA-HQ-RCRA-2008-0329-1527 M. Flanagan 

EPA-HQ-RCRA-2008-0329-1528 P. Blaha 

EPA-HQ-RCRA-2008-0329-1529 T. Mason 

EPA-HQ-RCRA-2008-0329-1530 D. Vines-Sharp 

EPA-HQ-RCRA-2008-0329-1531 M. Hodie 

EPA-HQ-RCRA-2008-0329-1532 B. Bean 

EPA-HQ-RCRA-2008-0329-1533 D. Brandt 

EPA-HQ-RCRA-2008-0329-1534 B. Hutchingson 

EPA-HQ-RCRA-2008-0329-1535 J. Sorrells 

EPA-HQ-RCRA-2008-0329-1536 A. Moore 

EPA-HQ-RCRA-2008-0329-1537 K. Knudsen 

EPA-HQ-RCRA-2008-0329-1538 V. Phillips 

EPA-HQ-RCRA-2008-0329-1539 M. Salvestrin 

EPA-HQ-RCRA-2008-0329-1540 C. Andre 

EPA-HQ-RCRA-2008-0329-1541 R. Ross 

EPA-HQ-RCRA-2008-0329-1542 G. Countryman-Mills 

EPA-HQ-RCRA-2008-0329-1543 J. Viriolic 

EPA-HQ-RCRA-2008-0329-1544 J. Taylor 

EPA-HQ-RCRA-2008-0329-1545 B. Spring 

EPA-HQ-RCRA-2008-0329-1546 T. Hazelleaf 

EPA-HQ-RCRA-2008-0329-1547 J. Thacker 

EPA-HQ-RCRA-2008-0329-1548 C. Lavelle-pahl 

EPA-HQ-RCRA-2008-0329-1549 E. Wong-Drenning 
PART 2: Commenters 

Response to Comments Document -NHSM Rule 

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Document ID and Commenter Name for Each Comment on the ANPRM and the Proposed Rule 

Document ID Commenter Name (includes person that submitted on behalf of an organization) 

EPA-HQ-RCRA-2008-0329-1550 W. Neill 

EPA-HQ-RCRA-2008-0329-1551 J. Kennedy 

EPA-HQ-RCRA-2008-0329-1552 D. Varley 

EPA-HQ-RCRA-2008-0329-1553 C. Holland 

EPA-HQ-RCRA-2008-0329-1554 L. Burlingame 

EPA-HQ-RCRA-2008-0329-1555 C. Lynt 

EPA-HQ-RCRA-2008-0329-1556 V. Terry 

EPA-HQ-RCRA-2008-0329-1557 C. Mead 

EPA-HQ-RCRA-2008-0329-1558 M. Buncik 

EPA-HQ-RCRA-2008-0329-1559 M. Strawn 

EPA-HQ-RCRA-2008-0329-1560 M. Andren 

EPA-HQ-RCRA-2008-0329-1561 S. Flick 

EPA-HQ-RCRA-2008-0329-1562 G. Boyer 

EPA-HQ-RCRA-2008-0329-1563 E. Trauner 

EPA-HQ-RCRA-2008-0329-1564 John Lindsay, Power Lube-Blackfoot Idaho 

EPA-HQ-RCRA-2008-0329-1565 Karen Bassett on behalf of Teresa Marks, Director, Arkansas Department of Environmental 

Quality (ADEQ) 

EPA-HQ-RCRA-2008-0329-1566 Carleen Tate-Little on behalf of Holly R. Hart, Assistant to the International President, 

Legislative Director, United Steelworkers (USW) 

EPA-HQ-RCRA-2008-0329-1567 Steven A. Brink, California Forestry Association (CFA) 

EPA-HQ-RCRA-2008-0329-1568 Joseph J. Knapik, Vice President, International Paper Products Corporation (IPPC) 

EPA-HQ-RCRA-2008-0329-1569 Kevin R. Kutcel, President, KRK Consulting, LLC 

EPA-HQ-RCRA-2008-0329-1570 Margaret Sembos, Kestrel Horizons, LLC on behalf of Curtis Schopp, National Salvage & 

Service Corporation (NSSC) 

EPA-HQ-RCRA-2008-0329-1571 Ray Vintika, Beaver Oil Company, Inc. 

EPA-HQ-RCRA-2008-0329-1572 Michel R. Benoit, Executive Director, Cement Kiln Recycling Coalition (CKRC) 

EPA-HQ-RCRA-2008-0329-1573 Donald E. Lewis, President, Portage Power Wash, Inc 

EPA-HQ-RCRA-2008-0329-1574 Rob Wienert, General Manager, Road & Driveway Co. 

EPA-HQ-RCRA-2008-0329-1575 Dave Comen, Solid Waste Subcommittee Chair, South Carolina Chamber of Commerce 

Environmental Technical Committee (ETC) 

EPA-HQ-RCRA-2008-0329-1576 Leanne Tippett Mosby, Acting Director, State of Missouri Department of Natural Resources 

(Department) 

EPA-HQ-RCRA-2008-0329-1577 Paul J. Allen, Senior Vice President, Corporate Affairs Division, Constellation Energy 

EPA-HQ-RCRA-2008-0329-1578 Richard D. Hyatt, Vice President of Mill Operations, Kapstone Charleston Kraft LLC 

(Kapstone) 

EPA-HQ-RCRA-2008-0329-1579 Jose L. Kofman, Vice President Technical Services, Clarion Boards Inc. & Clarion 

Laminates LLC 

EPA-HQ-RCRA-2008-0329-1580 Peter J. Frey, President/CEO, Take 5 Oil Change 

EPA-HQ-RCRA-2008-0329-1581 Jim Jakubiak, Environmental Administrator, Schnitzer Stell Industries, Inc 

EPA-HQ-RCRA-2008-0329-1582 Chris Korleski, Director, Ohio Environmental Protection Agency (Ohio EPA) 

EPA-HQ-RCRA-2008-0329-1583 Jeffrey Kendall, CEO, Liberty Tire Recycling, LLC 

EPA-HQ-RCRA-2008-0329-1584 Robert V. Trapani, Environmental Engineer, Arizona Department of Transportation 

EPA-HQ-RCRA-2008-0329-1585 Curtis Hall, General Manager, Asphalt Operations, Independence Construction Materials 

EPA-HQ-RCRA-2008-0329-1586 Mark Kable, Chief Executive Officer, Setzer Forest Products Inc. 

EPA-HQ-RCRA-2008-0329-1587 George S. Vorpahl, Vice President of Environmental, Health & Safety, Temple-Inland 

EPA-HQ-RCRA-2008-0329-1588 Colby W. Benton, Environmental, Health, Safety and Technical Manager, CraftMaster 

Manufacturing, Inc. (CMI) 

EPA-HQ-RCRA-2008-0329-1589 Mary Howell, Executive Director, Virginia Automotive Recyclers Association (VARA) 

EPA-HQ-RCRA-2008-0329-1590 Don Weber, Director of Operations, OCH International, Inc. 

EPA-HQ-RCRA-2008-0329-1591 Jay Camarena, President, California Auto Dismantlers & Recyclers Alliance, Inc. (CADRA) 

EPA-HQ-RCRA-2008-0329-1592 Gary Smith, Executive Director, Automotive Recyclers of Washington 

EPA-HQ-RCRA-2008-0329-1593 Larry B. Twitchell, Executive Director, Auto & Truck Recyclers Association of New 

Hampshire 

EPA-HQ-RCRA-2008-0329-1594 Nick Chamberlain, President, Power Clean Systems, Inc. 

EPA-HQ-RCRA-2008-0329-1595 Louis Kollias, Director, Monitoring and Research, Metropolitan Water Reclamation District 

of Greater Chicago 

EPA-HQ-RCRA-2008-0329-1596 Katherine Frey, Director of Environmental Affairs, SierraPine 
PART 2: Commenters 

Response to Comments Document -NHSM Rule 

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Document ID and Commenter Name for Each Comment on the ANPRM and the Proposed Rule 

Document ID Commenter Name (includes person that submitted on behalf of an organization) 

EPA-HQ-RCRA-2008-0329-1597 John D. Reece, Executive Director, Little Blue Valley Sewer District 

EPA-HQ-RCRA-2008-0329-1598 Don Olson, Solid Waste Superintendent, Department of Public Works, Solid Waste 

Division, Cowlitz County, Washington 

EPA-HQ-RCRA-2008-0329-1599 Allyn Ford, President, Roseburg Forest Products 

EPA-HQ-RCRA-2008-0329-1600 Jake Rea, Vice President, Michigan Truck Parts 

EPA-HQ-RCRA-2008-0329-1601 Steven Ransom, Nuera Corporation 

EPA-HQ-RCRA-2008-0329-1602 Constellation Energy 

EPA-HQ-RCRA-2008-0329-1603 Paul J. Allen, Senior Vice President, Corporate Affairs Division, Chief Environmental 

Officer, Constellation Energy 

EPA-HQ-RCRA-2008-0329-1604 Gene Barr, Vice President, Government and Public Affairs, Pennsylvania Chamber of 

Business and Industry 

EPA-HQ-RCRA-2008-0329-1605 Mark Trujillo, General Manager, PSI Systems, Inc. 

EPA-HQ-RCRA-2008-0329-1606 Joseph J. Cattaneo, President, Glass Packing Institute (GPI) 

EPA-HQ-RCRA-2008-0329-1607 Daniel A. Cowart, President and CEO, AARON Oil Company, Inc. 

EPA-HQ-RCRA-2008-0329-1608 John B. Donaldson, President, BlackRock Coal, LLC 

EPA-HQ-RCRA-2008-0329-1609 Wayne Chagnot, President, Connecticut Auto Recyclers Association 

EPA-HQ-RCRA-2008-0329-1610 Jon Fieldman, Vice President, Product Supply-Specialty Products, Kingsford Manufacturing 

Company 

EPA-HQ-RCRA-2008-0329-1611 Steven Fuler on behalf of Leanne Tippett Mosby, Acting Director, Missouri Department of 

Natural Resources 

EPA-HQ-RCRA-2008-0329-1612 Larry R. Thomas, Director, Ypsilanti Community Utilities Authority (YCUA) 

EPA-HQ-RCRA-2008-0329-1613 Daniel C. Thompson, Division Manager, Wastewater Management Operations, City of 

Tacoma, Washington 

EPA-HQ-RCRA-2008-0329-1614 Robert L. Kohnen, Vice President, Symbiotic Energy, LLC 

EPA-HQ-RCRA-2008-0329-1615 Larry B. Brown, Vice President, Jerry Brown Ltd. 

EPA-HQ-RCRA-2008-0329-1616 Lynne Medlin, Secretary, Custom Auto Service 

EPA-HQ-RCRA-2008-0329-1617 Dustin Wheatley, Owner, Landot Used LLC 

EPA-HQ-RCRA-2008-0329-1618 Walter Meinhardt, Jr., Owner, Brandywine Automotive Centers 

EPA-HQ-RCRA-2008-0329-1619 Jeffrey S. Kantor, President, Carworld Used Auto Parts 

EPA-HQ-RCRA-2008-0329-1620 Paul E. Davis, President, A-Plus Parts & Salvage, Inc. 

EPA-HQ-RCRA-2008-0329-1621 Gary Jachter, G H Farms 

EPA-HQ-RCRA-2008-0329-1622 Robert V. Trapani, Environmental Engineer, Arizona Department of Transportation 

EPA-HQ-RCRA-2008-0329-1623 Gary L. King, Director of Safety, Heartland Express, Inc. 

EPA-HQ-RCRA-2008-0329-1624 Phillip D. Coblentz, President, Sidehill Trucking, Inc. 

EPA-HQ-RCRA-2008-0329-1625 Junior Sinn, Junior Sinn Auto Parts, LLC. 

EPA-HQ-RCRA-2008-0329-1626 Shelby Bradburn, Risk Manager, Van Tuyl Group, Inc. 

EPA-HQ-RCRA-2008-0329-1627 Sidley M. West, Sid West 

EPA-HQ-RCRA-2008-0329-1628 JC Oil Company 

EPA-HQ-RCRA-2008-0329-1629 Ed Pitts, Service Manager, Kenworth Northwest, Inc. 

EPA-HQ-RCRA-2008-0329-1630 Tim Hanson, Service Manager, Kenworth Alaska, Inc. 

EPA-HQ-RCRA-2008-0329-1631 Potomac Falls 

EPA-HQ-RCRA-2008-0329-1632 Danielle R. Wilcox, President, Midway Auto Parts, Inc. 

EPA-HQ-RCRA-2008-0329-1633 Bill Ancona, Owner, Bill's Kinik Kar Inc. 

EPA-HQ-RCRA-2008-0329-1634 Mitzi Waterbury, Owner, Sandhill Auto Salvage 

EPA-HQ-RCRA-2008-0329-1635 Henry W. Fenimore, Vice President, B & F Towing Co. 

EPA-HQ-RCRA-2008-0329-1636 Julian C. Shoemyer, JC Auto & Truck Parts 

EPA-HQ-RCRA-2008-0329-1637 Brad Rouse, Vice President, Warford Auto Wreckers 

EPA-HQ-RCRA-2008-0329-1638 Peggy Nicholls, Nick's Quick Oil & Lube 

EPA-HQ-RCRA-2008-0329-1639 Dave Leding, Plant Manager, Flakeboard 

EPA-HQ-RCRA-2008-0329-1640 Ralph C. Manning, Plant Manager, Flakeboard 

EPA-HQ-RCRA-2008-0329-1641 John Piotrowski, Corporate Environmental Operations Manager, Packing Corporation of 

America (PCA) 

EPA-HQ-RCRA-2008-0329-1642 Billy Roberts, President, Roberts Salvage, Inc. 

EPA-HQ-RCRA-2008-0329-1643 Lewis F. Gossett, President & CEO, South Carolina Manufacturers Alliance (SCMA) 

EPA-HQ-RCRA-2008-0329-1644 Jamin Woody, Branch Manager, Motor Trucks, Inc. 

EPA-HQ-RCRA-2008-0329-1645 Sal Palacino, President, Middle County Auto Wreckers, Inc. 
PART 2: Commenters 

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Document ID and Commenter Name for Each Comment on the ANPRM and the Proposed Rule 

Document ID Commenter Name (includes person that submitted on behalf of an organization) 

EPA-HQ-RCRA-2008-0329-1646 Paul F. D'Adamo, President, Bill's Auto Parts 

EPA-HQ-RCRA-2008-0329-1647 James M. Rushforth, President, Company Multi Fuel Heating Inc. 

EPA-HQ-RCRA-2008-0329-1648 Mark G. Bisett, Manager, Environmental Compliance, Williams Gas Pipeline 

EPA-HQ-RCRA-2008-0329-1649 Ric McCoy, Four Seasons Service Company 

EPA-HQ-RCRA-2008-0329-1650 Daniel A. Radonski, Environmental and Project Manager, PAPE Group 

EPA-HQ-RCRA-2008-0329-1651 Richard T. Weber, Director, Government and Environmental Affairs, Flakeboard 

EPA-HQ-RCRA-2008-0329-1652 Brian Burns, President, Progressive Iron & Metal, Inc. 

EPA-HQ-RCRA-2008-0329-1653 Ann Tittle, CFO, Tittle's Auto Wrecking & Recycling, LLC 

EPA-HQ-RCRA-2008-0329-1654 Mostafa Azatullah, President, Nationwide Used Auto Parts, Inc. 

EPA-HQ-RCRA-2008-0329-1655 Tom Koolenga, President, Premier Auto & Truck Parts, Inc. 

EPA-HQ-RCRA-2008-0329-1656 Cevat Karasen, General Manager, Guven Sales, Inc. 

EPA-HQ-RCRA-2008-0329-1657 Elena Day, Steering Committee Chair, People's Alliance for Clean Energy (PACE) 

EPA-HQ-RCRA-2008-0329-1658 Thomas S. Crothers, Director, Department of Public Utilities, City of Toledo 

EPA-HQ-RCRA-2008-0329-1659 Mass comment campaign sponsored by United Steelworkers (USW) (440 signatures) 

EPA-HQ-RCRA-2008-0329-1660 Mass Comment Campaign sponsoring organization unknown (85) 

EPA-HQ-RCRA-2008-0329-1661 Robert Kellogg, President, Warren Tire Service Center 

EPA-HQ-RCRA-2008-0329-1662 Wayne Smith, Area Manager, Health, Safety & Environmental Manager, Westlake Chemical 

Corporation 

EPA-HQ-RCRA-2008-0329-1663 James N. Hogg, President and CEO, Uniboard USA LLC 

EPA-HQ-RCRA-2008-0329-1664 William L. Bider, Director, Bureau of Waste Management, Kansas Department of Health 

and Environment 

EPA-HQ-RCRA-2008-0329-1665 Holly R. Hart, Assistant to the International President, Legislative Director, United 

Steelworkers (USW) 

EPA-HQ-RCRA-2008-0329-1666 Ray Thompson, Owner and President, Oregon Commercial Heating, Inc. 

EPA-HQ-RCRA-2008-0329-1667 V. Schulman 

EPA-HQ-RCRA-2008-0329-1668 Frank Fultz, President, Fultz Enterprises, Inc. 

EPA-HQ-RCRA-2008-0329-1669 Steve Pearlman, Director of Environmental Services, Metro Wastwater Reclamation District 

EPA-HQ-RCRA-2008-0329-1670 Dick Stangel, Stangel Industries LLC 

EPA-HQ-RCRA-2008-0329-1671 Gary Osadchuk, Interstate Energy, Inc. 

EPA-HQ-RCRA-2008-0329-1672 Eveleen Muehlethaler, Vice President, Environmental Affairs, Port Townsend Paper 

Corporation (PTPC) 

EPA-HQ-RCRA-2008-0329-1673 Chris Orsolini, Environmental Administrator, Pick N Pull Auto Dismantlers-A Schnitzer 

Company 

EPA-HQ-RCRA-2008-0329-1674 Mass comment campaignsponsored by United Steelworkers (97) 

EPA-HQ-RCRA-2008-0329-1675 Tire World, Inc. 

EPA-HQ-RCRA-2008-0329-1676 Thomas S. Crothers, Director, Public Utilities for the City of Toledo 

EPA-HQ-RCRA-2008-0329-1677 William L. Bider, Director, Bureau of Waste Management, Kansas Department of Health 

and Environment 

EPA-HQ-RCRA-2008-0329-1678 Dennis K. (surname illegible), President, Northwest Oilers Inc. 

EPA-HQ-RCRA-2008-0329-1679 Edward Bortz, Mill Manager, SP Newsprint Co., LLC 

EPA-HQ-RCRA-2008-0329-1680 Steven Pearlman, Director of Environmental Services, Metro Wastewater Reclamation 

District 

EPA-HQ-RCRA-2008-0329-1681 W. Larry McDorman, President, Renewable Steam Alternatives, LLC 

EPA-HQ-RCRA-2008-0329-1682 Holly R. Hart, Assistant to the International President, Legislative Director on behalf of 

United Steel, Paper & Forestry, Rubber Manufacturing, Energy, Allied Industrial and 

Service Workers International Union (USW) 

EPA-HQ-RCRA-2008-0329-1683 Gary Miller, President, MTD Services, Inc. 

EPA-HQ-RCRA-2008-0329-1684 Andrew T. O'Hare, Vice President, Regulatory Affairs, Portland Cement Association (PCA) 

EPA-HQ-RCRA-2008-0329-1685 Larry Manziek, Executive Director, International Precious Metals Institute (IPMI) 

EPA-HQ-RCRA-2008-0329-1686 Susan Parker Bodine, Used Oil Management Association (UOMA) 

EPA-HQ-RCRA-2008-0329-1696 Marsal Martin, Plant Engineer, Exeter Energy Limited Partnership 

EPA-HQ-RCRA-2008-0329-1712 T. Gray 

EPA-HQ-RCRA-2008-0329-1713 Richard J. Lyons, Executive Director, The Albany County Sewer District 

EPA-HQ-RCRA-2008-0329-1715 Memorandum from Marc Thomas, re: Meeting with Treated Wood Council* 

EPA-HQ-RCRA-2008-0329-1716 Letter to David McIntosh, Associate Administrator for Congressional and Intergovernmental 

Relations, USEPA, from Senator Russell D. Feingold, United States Senate* 

EPA-HQ-RCRA-2008-0329-1717 Letter to Lisa P. Jackson, Administrator, USEPA, from James E. Clyburn, Majority Whip, 
PART 2: Commenters 

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Document ID and Commenter Name for Each Comment on the ANPRM and the Proposed Rule 

Document ID Commenter Name (includes person that submitted on behalf of an organization) 

U.S. House of Representatives* 

EPA-HQ-RCRA-2008-0329-1718 Letter to Lisa P. Jackson, Administrator, USEPA, from Adam M. Sherman, O'keane 

Automotive Services* 

EPA-HQ-RCRA-2008-0329-1719 Letter to Lisa P. Jackson, Administrator, USEPA, from Orlin Loucks, Protective 

Automotive* 

EPA-HQ-RCRA-2008-0329-1720 Letter to Lisa P. Jackson, Administrator, USEPA, from Larry Powell, Durham Tire & Auto 

Center* 

EPA-HQ-RCRA-2008-0329-1721 Letter to Lisa P. Jackson, Administrator, USEPA, from Barbara McMonagle, Oreland Auto 

Service* 

EPA-HQ-RCRA-2008-0329-1722 Letter to Lisa Jackson, Administrator, USEPA, from Steve Cohen, U.S. House of 

Representatives* 

EPA-HQ-RCRA-2008-0329-1723 Letter to Lisa P. Jackson, Administrator, USEPA, from Bill Owens, et al., U.S. House of 

Representatives* 

EPA-HQ-RCRA-2008-0329-1724 Memorandum from Kimberly Cochran, re: Meeting with the Staff of Representative James 

E. Clyburn's Office* 

EPA-HQ-RCRA-2008-0329-1725 Memorandum from Kimberly Cochran, re: Meeting with the Congressional Research 

Service* 

Note: All comments were considered in the development of this final rule, regardless of whether they are characterized in the 

docket as “public submissions” or as "supporting & related materials," including comments submitted after the closure of the 

comment periods. For example, EPA received a number of letters from members of Congress and various stakeholders outside the 

comment period, which the Agency entered into the docket as "supporting and related materials" and considered as comments in 

developing today's final rule. The comments in this index are "public submissions" submitted directly to the docket, except those 

indicated with an asterisk (*). 

 Duplicate and copyrighted comments may not be included. 

* These comments are listed as “supporting & related materials” in the docket. 
PART 3a: Comments on the Proposed Rule and EPA Responses

Response to Comments Document -NHSM Rule 

32 of 275 

PART 3a: Comments on the Proposed Rule and EPA Responses 

(Section V in the preamble to the final rule) 

In order to maintain consistency in regard to responses addressed in the final rule, those 

proposed rule comments and responses as stated in the final rule are copied verbatim below. For 

the references to sections in the final rule which are not in the response to comments section 

(Section V), refer to the appropriate sections in the final rule in the docket. 

The rule (referenced in the comments and responses below) and the original comments 

used for EPA review are in the docket for this final rule under Docket ID No. EPA-HQ-RCRA2008-0329. These public submissions and other documents relating to this rule are available on 

the www.regulations.gov web site. 

 

 

Comments on the Proposed Rule 

(Section V of the final rule. Note: the numbering used in the rule is also retained in this 

section.1) 

Under the approach outlined in the proposed rule, non-hazardous secondary materials 

were defined as a solid waste unless: (1) the non-hazardous secondary material is used as a fuel 

and remains within the control of the generator that meets the legitimacy criteria; (2) the nonhazardous 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 nonwaste fuel or ingredient product that meets the legitimacy criteria; or (4) through a case-by-case 

non-waste determination petition process, EPA has determined that the non-hazardous secondary 

material has not been discarded and is indistinguishable in all relevant aspects from a fuel 

product. 

 The Agency also took comment on two other approaches regarding the combustion of 

non-hazardous secondary materials. Under the first approach, identified in the proposal as the 

“Alternative Approach,” all non-hazardous secondary materials and ingredients that were used in 

combustion facilities that were not within the control of the generator were considered a solid 

waste. Thus, only those non-hazardous secondary materials or ingredients that were used in 

combustion facilities within control of the generator that meet the legitimacy criteria would be 

considered a non-waste. However, like the proposed rule, traditional fuels also would not be 

considered a solid waste, regardless of the generator. 

 The second alternative that EPA took comment on was a broader definition of solid 

waste, in which only traditional fuels are not solid wastes and all non-hazardous secondary 

materials burned for energy recovery or used as an ingredient are considered discarded, and 

therefore, solid wastes.2

 This section discusses the comments that EPA received, as well as our 

 

1

 PART 4 of this document includes tables which provide a crosswalk between the comment responses discussed 

here and individual comment ID numbers. Next to each comment is a code in brackets (for example, [3a-A1-1]) 

which links to the individual comments listed in the crosswalk tables. 

2

 On August 18, 2009, EPA received a letter signed by nearly one hundred community groups and citizens that 

urged for an expansive definition of solid waste for the purposes of combustion and argued against the general 
PART 3a: Comments on the Proposed Rule and EPA Responses

Response to Comments Document -NHSM Rule 

33 of 275 

response to those comments. 

A. Proposed Approach

1. Definition of the Term Discard. 

 Under the proposed rule, non-hazardous secondary materials that are discarded are 

considered to be a solid waste. On the other hand, secondary materials that have not been 

discarded, for example, secondary materials that are managed within the control of the generator 

and meet the specified legitimacy criteria would not be considered a solid waste. Many of the 

comments discussed the definition of the term “discard” and instances in which the term should 

or should not apply. 

 As discussed below, environmental groups argue, generally, that any secondary material 

burned for energy recovery is a solid waste. These commenters object to allowing control by the 

generator to be relevant to rendering material a non-waste, even if burned under the legitimacy 

criteria, claiming that these materials are wastes. 

 Industry commenters, on the other hand, assert that the secondary materials used in their 

operations exhibit value as evidenced by their purchase price, their use as inputs and products, 

their role in ongoing recycling programs, their use as fuels, and/or their use in “routine 

transactions” or processing operations. Based on these characteristics, industry commenters 

maintain that such secondary materials should not be considered discarded. Industry 

commenters also assert that EPA cannot define something as “discarded” when transferred to a 

third party and express concern that the concept of discard is ambiguous or incorrectly 

interpreted by EPA in the proposed rule. 

In addition, while industry commenters favor allowing the generator to burn secondary 

materials as non-wastes, they also argue that materials are not wastes so long as they are 

combusted legitimately even if the material has been discarded in the first instance. They argue 

that the proposed rule effectively makes the act of moving materials from one party to another 

the equivalent of "discard," regardless of intent. These commenters claim that EPA’s definition 

of solid waste is overly restrictive and yields little environmental gain. Certain comments 

maintain that as long as a non-hazardous secondary material meets the legitimacy criteria for use 

as a fuel, and it is combusted as a fuel, it is not a waste. These comments state that secondary 

materials cannot be assumed to be part of the solid waste disposal problem merely because the 

original generator of the materials transfers them to another entity. In fact, depending on the 

nature of the transaction, this transfer may indicate that the company values the material. 

a. Comments from Environmental Groups 

Comment [3a-A1-1]: 

Case law prevents EPA from finding that secondary materials burned for energy recovery 

are not solid wastes. The D.C. 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 

 

approach of the ANPRM. A copy of this letter has been placed in the docket to today’s final rule. The letter 

highlights stakeholder concerns regarding the differences between CAA sections 112 and 129 and argues against an 

overly narrow definition of solid waste. 
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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 [3a-A1-2]: 

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 
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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 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 [3a-A1-3]: 

EPA effectively concedes that the “ordinary everyday” meaning of “discarded material” 

includes “secondary materials” when they are burned – no matter who burns them and regardless 

of whether energy is recovered from the combustion process. The comment cites the preamble 

to the proposed rule in several places where EPA notes that combustion of secondary materials is 

“commonly” associated with disposal. See 75 FR at 31859, 31877. 

 The comment states, further, EPA’s sense of what constitutes discard is not the ordinary 

sense of the term by citing the Agency’s discussion of the benefits of burning secondary 

materials. 75 FR at 31849. In addition, according to the comment, EPA is unlawfully seeking to 

exclude from the definition of solid waste by its discussion of the benefits of burning the 

following materials: pulp and paper residuals, agricultural residues, food scraps, animal manure, 

construction and demolition waste, disaster debris, land clearing debris, scrap plastics, spent 

solvents, coal refuse, waste water treatment sludge and used oil. 75 FR at 31850. 

 EPA’s Response: 

Other responses deal with the legal arguments made by this particular comment on how 

the statute and case law deal with the definition of solid waste. However, the Agency believes it 

necessary to address some of the comment’s specific inaccuracies separately. 

First, EPA in no way “concedes” that all materials burned for energy recovery are 

discarded in the ordinary sense of the term. To the extent that the Agency notes certain public 

perceptions, it plainly states (on the same pages cited in the comment) that these are 

misconceptions because they do not take into account that a secondary material may often be 

used to produce a safe fuel product that is a valuable commodity or that a secondary material that 

is burned in a combustion unit does not necessarily have high levels of contaminants. 75 FR 

31859. 

 In addition, EPA refers to the same misconceptions when it discusses whether product 

fuels may be processed or extracted from materials once discarded. EPA notes that fuel 

processed or extracted from discarded non-hazardous secondary materials should not necessarily 

be considered solid waste, just as recycled newspapers, recycled aluminum, re-refined oil, to 

name but a few, are not considered solid waste. Moreover, the misperception that contaminant 

levels are high in combusted secondary materials affects the perception that there needs to be a 

very high threshold with respect to the level of processing that must take place to render a 

discarded material into a non-waste product. 75 FR 31877. 

 Finally, EPA does not understand the comment’s citation to 75 FR 31849-50 as 
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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 [3a-A1-4]: 

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 [3a-A1-5]: 

 One comment states that “exemptions” in EPA’s rule from the definition of solid waste 

violate the CAA. EPA interprets this comment to mean that the commenter sees violations of the 

CAA for any non-hazardous secondary material the Agency has decided is not a solid waste. 

The comment states the following: “Congress was not concerned either about the ownership of a 

waste material that was being burned or about whether energy was recovered from the 

combustion process; it simply wanted to ensure that all waste combustion units were subject to 

the protective control, monitoring, siting, training, and reporting requirements that it found 

necessary and appropriate for these units.” 

The comment makes four points to support its contention: 

1. The proposed rule is a transparent attempt to exempt facilities that recover energy 

from the section 129 standards and would shrink the population of facilities covered 

to 175, a number far less than Congress intended. 

2. Section 129(g)(1) makes clear that Congress viewed refuse-derived fuel as waste and 

EPA includes “refuse-derived” fuel as a non-waste. 
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3. Section 129(h)(5) shows that Congress viewed the universe of “fuel” to consist of 

“waste” on the one hand and “fossil fuel” on the other. Congress’s definition of 

“municipal waste” expresses the intent that facilities that burn non-fossil fuels and are 

not covered by the express exclusions in section 129(g)(1) must meet the section 129 

incinerator standards. 

4. Because EPA would allow energy recovery facilities controlled by the generator to 

burn non-hazardous secondary materials under section 112, EPA’s regulations would 

improperly allow hospital-owned medical waste incinerators to burn medical and 

infectious wastes and would not be incinerators subject to the section 129 incinerator 

standards. 

 EPA’s response: 

 EPA disagrees that these provisions of the CAA are relevant to this regulation. EPA is 

not creating exemptions to section 129 for facilities that recover energy. Rather, EPA is 

establishing a definition of non-hazardous solid waste, which, as specified by CAA section 

129(g)(6), governs the meaning of “solid waste” under section 129. Because Congress 

specifically directed that “solid waste” have the meaning established by the Administrator under 

RCRA, instead of defining the term under RCRA, the CAA definition of “municipal waste” is 

not relevant to this action. 

 If any or all of the commenter’s contentions are correct, section 129 would not provide 

that the term “solid waste” shall have the meaning promulgated by EPA under RCRA. There 

would simply be no reason for EPA to consider the RCRA definition, since section 129 would 

take care of the issue. Section 129(g)(6) would be meaningless. 

 The commenter further argues that EPA should consider the CAA when defining solid 

waste under RCRA. The CAA does not direct the Agency to consider the language of section 

129 when establishing a RCRA definition. So long as EPA’s rule is consistent with the RCRA 

definition of “solid waste,” it must stand. That is, as long as the definition of solid waste is 

consistent with RCRA, and the Agency issues emissions standards for all units that burn 

commercial and industrial solid waste in the CISWI rule, the standards under section 129 are 

valid. Therefore, we believe the commenter’s general argument is without merit. 

 With respect to each of the supporting points: 

1. Contrary to the commenter’s assertion, EPA is not “exempting” energy recovery 

facilities from the section 129 standards. The Agency is simply interpreting the term 

“solid waste” under RCRA. The number of facilities that are combusting solid waste 

is not relevant to this interpretation. Moreover, there is no indication in the CAA of 

the number of facilities Congress intended to be covered under section 129 of the Act. 

2. The comment is incorrect that section 129, by excluding “refuse-derived fuel” from 

the exclusion in 129(g)(1)(B) was somehow defining the term as being included in 

the term, “solid waste,” under RCRA. Again, if that were the case, section 129(g)(6) 

would be superfluous. Nevertheless, today’s rule identifying which non-hazardous 

secondary materials that are solid wastes when combusted does not include fuel 

derived from municipal waste refuse under 129(g)(5). Some fuels may be processed 

from solid waste, but that determination by the Agency stands or falls based on the 

RCRA statute and case law, not the CAA. EPA is not defining “refuse derived fuel” 
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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 [3a-A1-6]: 

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 D.C. 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 nonhazardous 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 
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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 [3a-A1-7]: 

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 “‘onsite’ problem” renders irrelevant the condition that non-hazardous secondary materials be burned 

at a facility within control of the generator. 

 EPA’s Response: 

EPA disagrees with this comment. If the non-hazardous secondary material remains 

within the control of the generator, it is more likely to be a material that is saved and not thrown 

away or abandoned. The Agency has explained that case law would not allow it to determine 

that secondary materials are wastes if they are recycled as fuels within a continuous industrial 

process. EPA cannot evaluate every non-hazardous secondary material, but believes this 

standard would cover all secondary materials that are recycled as a fuel within a continuous 

process. EPA, however, acknowledges that this may capture non-hazardous secondary materials 

which may be a waste, but this is unlikely. There may also be non-hazardous secondary 

materials transferred to another party that may not be a waste and EPA is attempting to deal with 

those categories of non-hazardous secondary materials on a case-by-case basis. However, EPA 

believes that it is a reasonable interpretation of the statutory definition of discard and the case 

law to consider that a non-hazardous secondary material within the control of its generator that is 

legitimately burned as a fuel is not a solid waste. 

 EPA is careful to note that "legitimacy" is shorthand for referring to non-hazardous 

secondary materials that are not thrown away, are saved and are reused by being burned for their 

value as a fuel. The legitimacy criteria are the factors needed to be examined to make this 

determination. Thus, for example, it is relevant how the non-hazardous secondary materials is 

managed and the extent to which contaminants in the secondary material may indicate that the 

real reason for burning the secondary material is simply its destruction – referred to as “sham” 

recycling. The Agency is not simply "punting" to its legitimacy criteria, but believes they 

provide a valid basis for showing that a non-hazardous secondary material is more commoditylike than waste-like. 

b. Comments from Industry Groups 

Comment [3a-A1-8]:

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 nonhazardous 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 
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commodities or solid waste. One commenter in this general category claims that EPA is 

forbidding economic reuse of such materials by anyone other than the generator without prior 

government permission. 

 Moreover, the commenters claim that EPA cannot make a sweeping and arbitrary 

assumption in categorizing these transferred materials as “discarded” and then place the burden 

on the regulated community to challenge the assumption through submission of a petition to 

declare the material a non-waste. According to the commenters, it is incumbent upon EPA to 

explain why a material is discarded before the Agency can put the burden on companies to 

submit non-waste petitions if the companies want to claim the secondary material is not a waste. 

 The Safe Food case states that firm-to-firm transfers “are hardly good indicia” of discard. 

If a fuel can meet all of the legitimacy criteria (managed as a valuable commodity, have 

meaningful heating value, not contain elevated levels of contaminants), it cannot reasonably be 

said to be discarded just because it is sold or otherwise transferred to an entity separate from the 

generator. Assuming all relevant legitimacy criteria are met, the transfer of secondary materials 

between companies is simply not relevant for determining whether such materials have been 

discarded. In fact, depending on the nature of the transaction, this transfer may be a good 

indicator that a company values the material. 

 EPA cannot support its position by referring to over-accumulation of scrap tires resulting 

in massive piles of discarded tires. Those materials did not meet the legitimacy criteria and 

should be treated as discarded. Such a reference does not rehabilitate EPA’s presumption that 

mere transfer of a non-hazardous secondary material could cause the mismanagement that 

resulted in the tire piles. 

 Nor can EPA support its position that state agencies consider materials wastes when 

transferred to third parties for use as fuels. States can make mistakes, as they did regarding used 

oil, which they classified as a waste, but changed direction after EPA promulgated its used oil 

regulations at 40 CFR Part 279. 

 One comment states, on the basis of case law on abandonment, that to be abandoned 

there must be a clear and unequivocal intent to abandon on the part of the owner and that the 

burden is on whoever alleges abandonment to establish that intent. Of particular significance is 

the principle in the common law that abandonment does not occur where a direct transfer of 

ownership to another party occurs. Where a generator conveys title to a secondary material to a 

third-party, no abandonment occurs, whether there is payment for the material or not. Nor, if the 

material is actually recycled (i.e., used, reused, or reclaimed), would such material ordinarily be 

deemed to be “disposed of” or “thrown away.” Materials legitimately burned for energy 

recovery or used as ingredients in combustion units are neither disposed of nor abandoned and 

do not meet the ‘plain-English meaning’ of . . . ‘discard.’ 

 Merely because one party has relinquished control of a secondary material does not make 

it a waste nor does the fact that a receiving party may not have the same incentives to manage 

them as a useful product. EPA cannot indict all parties that in fact do manage these secondary 

materials as a useful product. Indeed, a generator’s use of a secondary material does not 

guarantee its proper use, yet EPA allows the legitimacy criteria to suffice in situations in which 

the generator retains control of the non-hazardous secondary material and legitimately recycles 

it. 
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 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. 

 Any of EPA’s decisions regarding specific materials, if challenged, must stand or fall 

based on its individual merit. For example, resinated wood residuals are routinely transferred 

between either intra- or inter- company facilities and used as either “furnish” (i.e., raw materials) 

or fuel at the receiving facilities. The material being transferred off-site is used and handled in 

the same manner that resinated wood residuals are used when generated on-site (such that it is 

impossible to distinguish between materials that are being used as a raw material and those that 

are being used as a fuel). Accordingly, these materials are not solid wastes whether used within 

the same company or transferred to another company. See below, at sections V.B.6 for 

discussion of EPA’s response to comments and the Agency rationale for how resinated wood 

should be treated for purposes of this rule. 

 Other materials would be wastes based on the Agency’s analysis of the industry in 

general or, based on a lack of data or knowledge, an effective presumption that recycling 

materials for a fuel is primarily conducted within the control of the generator. For example, use 

of old corrugated cardboard (OCC) rejects (clay, starches, other filler and coating materials, as 

well as fiber) are not discarded when used within the control of the generator, since these 

secondary materials are part of the industrial process. OCC rejects can include, and are usually 
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burned in conjunction with, other fuels (such as bark) at pulp and paper mills that recycle fibers. 

These materials are not generally transferred outside the control of the generator. 

 Still other non-hazardous secondary materials may be processed or extracted from wastes 

to produce fuel commodities. Examples include tire-derived fuel processed from scrap tires 

retrieved from waste tire piles, and coal refuse retrieved from legacy piles that have been 

processed through the use of grizzlies, screens, and blending to improve the quality, remove 

metal objects, and reduce the concentrations of various constituents. To the extent that EPA has 

indicated that particular categories of non-hazardous secondary materials are wastes when 

transferred off-site to a third party, the Agency provides companies with the opportunity to 

petition EPA for a non-waste determination; we believe a petition process is essential because 

many non-hazardous secondary materials are recycled and managed in many different ways, and 

the Agency may lack the specific details in certain cases to know whether or not such 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 F3d 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 
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review the specifics of their cases. Further, the Agency will in the future solicit comment on 

additional non-hazardous secondary materials that can be used as a non-waste fuel both by the 

generator and outside the control of the generator. Under today’s rule, only scrap tires managed 

under established tire collection programs and resinated wood are non-wastes when used both 

within and outside generator control (see §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 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 [3a-A1-9]: 

EPA has no authority under section 129 of the CAA to regulate the use of non-hazardous 

secondary materials as ingredients. EPA’s section 129 authority is limited to “solid waste 

incineration units,” which the statute defines as units that “combust” solid waste. This statutory 

definition does not say EPA can regulate units that “treat” solid waste (as provided in RCRA 

subtitle C). Nor does it say that EPA can regulate units that “use” solid waste. For example, the 

feedstock for clinker that is placed into a Portland Cement kiln is not “combusted” – rather, it is 

incorporated into the clinker product. Similarly, non-hazardous secondary materials that may be 

used as substitutes for mined or virgin feedstock become incorporated into the clinker product 

and are not “combusted.” 

EPA’s Response: 

This comment is not relevant to this regulation, which determines whether a secondary 

material is a solid waste, or not a solid waste as defined by RCRA. Clearly, EPA has the 
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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 [3a-A1-10]: 

 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 
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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 [3a-A1-11]: 

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 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[3a-A1-12]: 

In implementing RCRA, EPA must balance the statute’s two primary goals of (1) 
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protecting human health and the environment and (2) encouraging reuse and recycling. The 

second goal is particularly critical in the RCRA subtitle D context. EPA’s proposal, along with 

the CISWI proposal, draws many lines that would impose major impediments on recycle/reuse. 

Yet EPA never attempts to justify these choices dealing with non-hazardous secondary materials 

on the grounds of protecting human health and the environment. 

EPA’s failure to take both of these factors into account produces results that impede reuse 

and recycling of non-hazardous secondary materials with no benefit to health and the 

environment. The commenters claim this is arbitrary and capricious and a failure of reasoned 

decision making. 

EPA’s Response:

EPA disagrees that these policy goals provide the legal basis for the Agency’s 

determination whether secondary materials are solid wastes – discarded within the ordinary 

meaning of the term. Broad policy goals stated in the statute do not substitute for the substantive 

statutory requirements which the Agency must follow. In the NRDC case, the D.C. 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 [3a-A1-13]:

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. 
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In deciding which non-hazardous secondary materials are in fact wastes, the Agency 

evaluated a number of circumstances and exercised discretion to decide on how the definition of 

solid waste applies in various circumstances. However, EPA cannot decide to develop a 

narrower interpretation of what constitutes a waste simply because it does not want to have the 

non-hazardous secondary materials burned under CAA section129 instead of CAA section 112. 

EPA may not say material is not discarded if, in fact, it is. 

In this case, EPA is determining which non-hazardous secondary materials are solid 

wastes. EPA has no authority to grant waivers simply because it wishes to encourage recycling 

by making the combustion of secondary materials less expensive. 

With respect to RCRA subtitle C regulations, as has been noted throughout this 

proceeding, EPA is not reopening any decisions. Any commenter’s subjective evaluation of 

whether a particular hazardous waste regulation is more stringent than this regulation has no 

relevance to whether a non-hazardous secondary material is discarded for purposes of this 

regulation. 

EPA has stated that secondary materials excluded from the definition of solid waste 

under the subtitle C regulations will remain non-wastes under this rule. We are not reopening 

the RCRA subtitle C rules. EPA also notes that some comments have argued that the legitimacy 

criteria do not apply to the subtitle C rules and, therefore, should not apply to this rule. EPA 

disagrees with that concept. In fact, the legitimacy criteria in some form apply to all recycling, 

regardless of how it is formulated, even if there is a specific exclusion under RCRA subtitle C. 

2. Processing Requirements. 

Under the proposal, fuels or ingredients that are produced from the processing of 

discarded non-hazardous secondary materials are not a solid waste provided they meet the 

specified legitimacy criteria. Comments from environmental groups rejected in its entirety any 

processing requirement at all. According to these comments, a discarded material remains a 

waste and cannot be rehabilitated to become a commodity fuel. Any fuel derived from a waste 

must be combusted under section 129 of the CAA. 

On the other hand, industry commenters in general found the proposed definitions of 

“processing” and “sufficient processing” unclear and the processing requirements generally too 

restrictive. Several comments requested that EPA offer further explanation as to why processing 

is necessary in the first instance. In particular, they claimed that the degree of processing 

required by the proposed rule is inappropriate and illogical, arguing that there is no reason to 

impose an artificial and arbitrary requirement that materials first be "transformed” into 

something different. 

 Other commenters argued that secondary materials suitable for use as a fuel or ingredient 

without processing are not solid wastes when combusted, even if they have been previously 

discarded. In other words, if previously discarded, non-hazardous secondary materials can be 

used as is, as fuels or as ingredients, then such non-hazardous 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 
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Comment [3a-A2-1]:

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 D.C. 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 D.C. 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 nonhazardous 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 D.C. 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 
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commercially and did not opine as to whether the ingots were wastes. EPA argues that the ingots 

were not wastes, since they were processed into valuable commodities. 

 In Owen Steel, the court found that slag from steel production was a waste and the area 

where the slag was processed was a waste treatment facility. The cured slag was sold for various 

commercial processes, including roadbed construction. The court was not asked to opine, nor 

did it, on whether the roadbed material was a waste. Again, EPA argues that the cured slag 

could be a product produced from the waste, even though the processing activity involved waste 

treatment. 

 EPA does admit that the cases are not directly on point regarding the Agency’s 

determination that discarded materials may be processed into legitimate product fuels. The cases 

do seem to recognize, however, that products made from wastes may be products and not wastes. 

 More importantly, the cases do not refute EPA’s essential logic that fuel or ingredients 

processed or extracted from discarded secondary material is analogous to many products that are 

processed or extracted from non-hazardous wastes, such as aluminum cans or recycled paper 

made from recycled secondary materials. The cases indicate that the same logic could apply to 

fuel processed from used oil, lead ingots made from battery lead plates, or roadbed construction 

material made from steel slag. This applies even though the processing or extraction activities 

involve waste treatment. EPA believes that, at a minimum, there are circumstances in which the 

resulting materials are not wastes. 

 EPA’s task in the current rule is to decide when such processing results in a product or a 

waste. To resolve the issue, EPA has identified conditions on the extent of processing that has 

been conducted. That is, the processed discarded material may become a non-waste fuel or 

ingredient if certain conditions are met—that is sufficient processing has occurred. If so, and if 

the material meets the legitimacy criteria, the fuel or ingredient product would be considered a 

non-waste material. 

b. Comments from Industry Groups 

Comment [3a-A2-2]: 

 A number of industry commenters object to the processing requirement for discarded 

non-hazardous secondary materials to become non-waste fuels or ingredients. These comments 

contrast with the argument of environmental groups that no processing would transform 

discarded non-hazardous secondary materials into non-waste fuels or ingredients, a contention to 

which the Agency responds to earlier in this preamble. 

 Industry commenters argue that the legitimacy criteria are sufficient and that there should 

be no processing requirement for non-hazardous secondary materials that were discarded and 

could now be used as fuels or ingredients. The general argument is that the very act of retrieving 

a previously discarded material for use as a fuel or an ingredient proves that the material is once 

again wanted by the consumer, regardless of the type or extent of processing which the 

secondary material must undergo. According to these comments, the mere act of removing the 

previously discarded material from the environment for use “conclusively” demonstrates that the 

non-hazardous secondary material has value as a product or intermediate – otherwise, no one 

would invest the significant costs associated with the recovery of these materials. 
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 Various activities were specifically mentioned – recovery of coal combustion byproducts 

from landfills, extraction of coal refuse from mine sites and used whole tires retrieved from tire 

piles. With respect to these non-hazardous secondary materials, commenters argue that the 

excessive threshold level of processing makes no sense and that EPA should allow only a 

minimal amount of processing to convert a waste into a product fuel or ingredient. 

 In particular, the comments argue that normal processing of coal refuse (mining rejects) 

should be sufficient to constitute processing needed to convert previously discarded materials to 

legitimate fuels/ingredients. The same material mined to be used in today’s combustion 

technology is processed in that way and there is no difference between the mined materials.3

 

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 it decision on the policy, but must evaluate whether a secondary material is a solid 

waste under RCRA. Specifically, the D.C. Circuit in NRDC would not allow EPA to establish a 

policy basis for determining whether section 112 or 129 applies. Thus, non-hazardous secondary 

materials that are wastes and are used as a fuel/ingredient in a combustion unit must be used in 

section 129 units, whereas non-hazardous secondary materials that are not wastes and are used as 

a fuel/ingredient in a combustion unit may be used in section 112 units. The court stated that 

“the distinction EPA draws may well be reasonable” referring to EPA’s distinguishing between 

 

3

 As discussed later in this preamble, the Agency has changed its view regarding coal refuse that was previously 

abandoned, such that if the discarded coal refuse is processed in the same way as coal is today, the Agency would 

not consider the processed coal refuse a solid waste. 
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section 112 combustors designed to recover energy and section 129 incinerators meant to destroy 

materials. NRDC at 1260. The court, however, was very clear that this is not the line drawn by 

Congress, which intends that any waste material, even if burned for energy recovery, must be 

burned in section 129 combustion units. 

 The Agency, however, believes that the case law would not prohibit the processing or 

extracting of products from non-hazardous secondary materials that were once wastes. This 

latter view is controversial as evidenced by the comments from environmental groups, which 

claim that no amount of processing can convert a waste into a legitimate fuel or ingredient 

product. EPA, however, does not believe it may interpret the statute or the case law to allow a 

clearly discarded secondary material to become a non-waste solely because it has value. 

 EPA sympathizes with the commenters’ concern that the processing requirement could 

have the effect of applying different standards to identical materials, such as scrap tires. The 

Agency, however, is constrained by the statute and case law. If the non-hazardous secondary 

material is not discarded in the first instance and is legitimately recycled—that is, meets the 

legitimacy criteria, it is not discarded. Once the material has been discarded – thrown into waste 

piles or on stacks – there is no choice. Something other than mere recycling must happen to the 

material before it may lose its waste designation. The mere fact that secondary materials may 

have value after being discarded is not sufficient to rehabilitate it. 

 Accordingly, EPA is not making any changes to the processing requirements for 

discarded scrap tires, although the Agency is providing that tires harvested from vehicles do not 

need to be processed if they are harvested off of the vehicles and are managed under the 

oversight of an established tire collection program and are legitimately used as a fuel in a 

combustion unit (refer to Section V.B.5 Scrap Tires) to be considered a non-waste fuel. 

For coal refuse, however, EPA has decided that for the final rule, to make some 

modifications to its determinations regarding sufficient processing. In the proposal, EPA was 

still considering that the coal refuse that was abandoned would require additional processing, 

even though they were the same material as coal refuse currently generated and used in fluidized 

bed combustors as traditional mined coal. EPA has modified its view to provide that the 

discarded coal refuse that is processed in the same way as coal is today would not be considered 

a waste when combusted. For more information on the rationale for this decision, see Section 

V.B.8 for a discussion of the comments received on coal refuse and our response to those 

comments.

 Finally, in response to the point that minimal processing is permitted to exclude scrap 

metal from the definition of solid waste in EPA’s hazardous waste regulation, the Agency first 

states that it is not reopening the hazardous waste regulations, including the reasoning in those 

regulations. Besides, the reference to scrap metal in the hazardous waste regulation was only 

used in the preamble to note the fact that the extent of processing in general depends on the 

nature of the material, as we have noted elsewhere in the preamble to today’s rule. Any 

comparison, other than the very general one that processing depends on the material, is not being 

considered by EPA. Whatever the reasoning provided in those regulations, EPA did not cite the 

scrap metal regulation as support for the processing definition. The Agency also points out that 

the scrap metal is not combusted. 

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1. Traditional Fuels.

4

 The following discussion describes how EPA has analyzed what is a traditional fuel in 

the ANPRM and the proposal. Next, the Agency shows how it considered various comments on 

the concept of traditional fuels. Section VII.A, based on these analyses and all information in the 

rulemaking record, explains the Agency’s decision on what constitutes a traditional fuel. 

EPA does wish to clarify, however, that it is using the term, “traditional,” more in the 

sense that we have a product that is created for its use as a fuel. Some traditional fuels have been 

used for a long time, while others are “traditional” only in the sense that they are created in the 

“traditional” way that a product is created (or mined), even though they may be newly developed 

fuels. For example, coal refuse that was formerly not able to be used as a fuel may now be used 

in fluidized bed systems. Perhaps, more obvious is the fact that petroleum, itself, would not have 

been considered a traditional fuel in the early 1800s, nor would uranium. 

The ANPRM categorized as traditional fuels cellulosic biomass (e.g., wood) and fossil 

fuels (e.g., coal, oil, natural gas), as well as fossil fuel derivatives (e.g., petroleum coke, 

bituminous coke, coal tar oil, refinery gas, synthetic fuel, heavy recycle, asphalts, blast furnace 

gas, recovered gaseous butane, and coke oven gas). Traditional fuels are those that have been 

burned historically as fuels and have been managed as valuable products. They are unused 

products that have not been discarded. The ANPRM also stated that unadulterated or clean wood 

collected from forest fire clearance activities and trees and such wood found in disaster debris, 

likewise, constitute traditional fuels. This basic concept of traditional fuels was discussed at 74 

FR 53. 

The ANPRM also discussed other legitimate "alternative" fuels that have not been 

previously discarded generally noting that what constitutes a new "fuel" reflects the availability 

of the fuel materials generally, the demand for the fuel, and technology developments. Thus, 

there is a category of materials that are legitimate alternative fuels that may not have been 

historically used as fuels, but that are nonetheless legitimate fuels today because of changes in 

technology and in the energy market. In cases where these legitimate alternative fuels have not 

been discarded, EPA said that it would not consider them to be solid wastes. This is explained in 

the ANPRM at 74 FR 56. 

The ANPRM stated that much of the biomass currently used as alternative fuels are not 

solid waste since they have not been discarded in the first instance and are legitimate fuel 

products. It noted that biomass can include a wide range of alternative fuels, and can be broken 

down into two different categories--cellulosic biomass and non-cellulosic biomass. Cellulosic 

biomass was described to include forest-derived biomass (e.g., green wood, forest thinnings, 

clean and unadulterated bark, sawdust, trim, and tree harvesting residuals from logging and 

sawmill materials), food scraps, pulp and paper mill wood residuals (e.g., hog fuel, such as clean 

and unadulterated bark, sawdust, trim screenings; and residuals from tree harvesting)5

, and 

 

4

 Traditional fuels are not considered secondary materials and therefore, are not considered a solid waste unless they 

themselves have been discarded. However, because the Agency received comments regarding “traditional fuels,” 

including whether certain materials should be considered a traditional fuel, the Agency is addressing those 

comments in this section. 

5

 The ANPRM description of cellulosic biomass inadvertently repeated the same material - - .“tree harvesting 

residuals from logging” and “residuals from tree harvesting.” Descriptions of cellulosic biomass in the proposed 

rule and this final rule deleted the second reference to residuals from tree harvesting. 
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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 non-halogenated solvents 

and lubricants, and wastewater treatment sludge)(74 FR 56). 

The ANPRM also described secondary materials EPA considered to be questionable as to 

whether they are legitimate fuels because they lack adequate heating value (wet biomass), or 

because they may contain contaminants that are significantly higher in concentration than those 

in traditional fuel products to the degree that sham recycling is indicated. The secondary 

materials that were described in the ANPRM that could fall into this category include polyvinyl 

chloride (PVC), halogenated plastics, chromated copper arsenate (CCA) lumber, creosote 

lumber, copper-based treated lumber, lead-based treated lumber, and secondary mill residues, 

such as board, trim and breakage from the manufacture of reconstituted wood/panel products. 

The proposed rule continued to recognize that traditional fuels, as noted above, are not 

solid wastes, but added to that group clean cellulosic biomass and on-specification used oil (75 

FR 31856). Specifically, in the proposal, "clean" biomass material was defined as a nonhazardous secondary material that has not been altered (either chemically or through some type 

of production process), such that it contains contaminants at concentrations normally associated 

with virgin biomass materials (the description of “clean” is being modified slightly for today’s 

rule, see discussion below). Clean cellulosic biomass was described to include forest-derived 

biomass (e.g., green wood, forest thinnings, clean and unadulterated bark, sawdust, trim, and tree 

harvesting residuals from logging and sawmill materials), corn stover and other biomass crops 

used specifically for energy production (e.g., energy cane, other fast growing grasses), bagasse 

and other crop residues (e.g., peanut shells), wood collected from forest fire clearance activities, 

trees and clean wood found in disaster debris, and clean biomass from land clearing operations 

(75 FR 31856). Essentially, “clean” biomass was that biomass material that was simply picked 

up from its environment and burned for fuel. EPA requested comment on whether other types of 

cellulosic biomass should be designated as clean biomass, and thus a traditional fuel (75 FR 

31856). 

EPA also proposed to add on-specification used oil to the list of “traditional” fuels based 

on the argument that it meets the Agency’s view of fuels that have been managed as valuable 

fuel products rather than being managed as waste materials. 75 FR 31864. The Agency stated 

that under 40 CFR part 279, once used oil is determined to be on-spec, it is no longer regulated 

under the used oil management standards. This means that once the marketer complies with the 

requirements for analysis and record retention, notification, and record tracking shipment to on-
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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 [3a-B1-1]: 
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 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 [3a-B1-2]: 

 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 onspecification 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 [3a-B1-3]:

 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 
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“traditional.” EPA provides no basis at all for assuming that none of the fuels 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 [3a-B1-4]: 

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 
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rulemaking. In addition to the specific changes requested, the petition would also need to 

include a justification and rationale for the change. 

Comments [3a-B1-5]: 

“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 [3a-B2-1]: 

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 
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power plants. Another commenter referenced a 2008 report that described the risks associated 

with CAFOs.6

 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 development of antibiotic 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.7 Another commenter described how their company collects poultry litter from 

growers for use as a fuel in dedicated (off-site) biomass power plants. The commenter asserts 

that the poultry litter satisfies all the legitimacy criteria. Specifically, this commenter describes 

operations (and argues) that the poultry litter is managed as a valuable product by the poultry 

litter generators and transporters, as well as by the power plants. The commenter describes 

poultry litter generators as collecting the litter on a continual basis and storing it in enclosed 

poultry barns. The poultry litter is then transported in completely covered trucks to the power 

plant where it is unloaded in a fully enclosed fuel hall and is tested for fuel quality to ensure 

contractual obligations are being met by the growers. After sampling, the trucks dump the litter 

into a concrete reception pit within the fuel hall. Then, before being combusted, the commenter 

indicates that the biomass fuel is processed (e.g., processed in a “de-lumper” followed by a disc 

screen) to breakdown the clumps of material and remove incidental non-combustible tramp 

materials. The commenter also asserts that poultry litter satisfies the contaminant legitimacy 

criterion, but only provided data on sulfur and chlorine levels, noting the reported chlorine levels 

averaged 0.7 percent (on a dry basis). They also provided data on the heating values of poultry 

litter that ranged from 3-4,000 Btu/lb, explaining that this material is a self-sustaining fuel 

(requiring no supplemental fuel), although they also note in their comments that the poultry litter 

is mixed with other biomass before being used as a fuel. The developer of this plant has 

indicated that they have proposals to build similar type plants in North Carolina, Virginia, and 

Georgia, but has not received approval from local authorities. Another firm has a proposal for a 

plant in Connecticut, designed to run on litter from an egg farm, but funding for this plant dried 

up as a result of the U.S. financial crisis. Additionally, two power plants (one in Texas and one 

in California), each currently mothballed, but scheduled to reopen in 2011, would use cattle 

manure as feedstock. 

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, 

 

6

 Gurian-Sherman, Doug, CAFOs Uncovered: The Untold Costs of Confined Animal Feeding Operations, Union of 

Concerned Scientists (April 2008). 

7

 This commenter reported poultry litter as having sulfur, chlorine, and nitrogen levels of 0.35%, 0.16%, and 3.3%, 

respectively, and a net heating value of 4,900 Btu/lb. 
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one state referenced a June 2009 Report to Congress8

 that reviewed the current commercial use 

of manure to energy systems, and found that few exist, and that it is unlikely in the near term 

future for more to be developed due to technological and economic barriers. Another state 

commented that they were aware of one gasification system that has been built on a pilot scale 

that uses chicken and poultry litter as a feedstock. Another commenter stated that about 120 

dairy farms and 30 hog farms use manure as a feedstock for anaerobic digesters which are 

designed to capture the methane gas in manure. Most farms then burn the gas as a feedstock for 

on-farm electrical generation, which can be used to off-set the farm’s purchases and to sell 

electricity to the power grid. This commenter also noted that one very large farm in the Phoenix 

area further cleans the methane and sells it to a natural gas company whose pipeline runs next to 

the farm. 

A Tribe requested that EPA finalize legitimacy criteria that does not discourage the 

development of biogas technology since it is a clean carbon-neutral fuel needed to help address 

climate change. This Tribe explained that its renewable energy plans focus, in part, on 

production of biogas from animal, cheese, and other organic material, and requested that EPA 

either exempt biogas from the contaminant legitimacy criterion or require that, overall, 

contaminants in gaseous fuels not be “significantly higher” in concentration than contaminants 

found in traditional fuel products that the combustion unit is designed to burn. The Tribe is 

concerned that a direct numerical comparison of contaminant levels of biogas to natural gas that 

requires all contaminants in biogas to be equivalent or below the concentrations found in natural 

gas would discourage the development of biogas technology. 

 EPA’s Response: 

First, based on the information provided to us, we could not make a blanket 

determination that all manure is a traditional fuel or that it is a solid waste. However, upon 

reviewing the few comments and data received, we conclude that animal manure that is used as a 

fuel “as generated” does not satisfy the legitimacy criteria, and thus, if combusted “as 

generated,” is a solid waste. However, as we discuss in other parts of today’s preamble, there are 

circumstances where manure would not be considered a solid waste when burned as a fuel for 

energy recovery. We discuss these circumstances below. In addition, we recognize that manure 

can have other beneficial uses and emphasize that we are not making a solid waste determination 

on those other uses through this rulemaking. 

Specifically, we find that the levels of certain pollutants, such as nitrogen and chlorine, in 

certain types of manure, as generated, may not be comparable to those levels found in traditional 

fuels that otherwise would be burned. This is based on limited data found in a North Carolina 

State University9

 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.10 Regarding the commenter’s reference to pathogens, pathogens are not 

 

8

 USDA, June 2009. Manure Use for Fertilizer and for Energy Report to Congress. Economic Research Service. 

June 2009, pp. 32-39. http://www.ers.usda.gov/publications/ap/ap037/ap037.pdf. 9

 Animal and Poultry Manure Production & Characterization. North Carolina State University Cooperative 

Extension Service. Raleigh, NC. 

http://www.bae.ncsu.edu/programs/extension/manure/awm/program/barker/a&pmp&c/ 10 Some manures were listed as having the following mean levels for chlorine and nitrogen: Cl- 1% by weight and 

N – 3.5% by weight reported as total Kjeldahl nitrogen as N. By comparison, coal contains chlorine levels ranging 

from as low as 0.01% to as high as 0.74 percent and nitrogen levels ranging from 0.6% to 1.9%. 
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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 considered to have fuel value, that it typically should have a moisture 

content of less than 25 percent, and manure, as generated, typically has a higher moisture 

content. We also note that to satisfy the legitimacy criteria, today’s final rule requires that 

facilities that burn non-hazardous secondary materials with a heating value of less than 5,000 

Btus/lb would need to demonstrate that such non-hazardous secondary materials have 

meaningful heating values by describing whether the energy recovery unit can cost-effectively 

recover meaningful energy from the manure (see Section V.D.2).11 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”12 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 

 

11 As we note elsewhere in today’s preamble, this demonstration would be self-implementing and would not require 

a petition to EPA, but the person would be required to keep appropriate records as to the basis for this 

demonstration.. 

12 Processing (as it relates to fuels) means any operations that transform the discarded non-hazardous secondary 

material into a legitimate fuel product, and includes, but is not limited to, operations that remove or destroy 

contaminants, operations that significantly improve the fuel characteristics of the material, e.g., sizing or drying the 

material in combination with other operations, and operations that chemically improve the as-fired energy content of 

the material. Minimal operations that result only in modifying the size of the material do not constitute processing 

for the purposes of this definition. 
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criteria, the processed manure would not be a solid waste when burned as a fuel for 

energy recovery.13 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 non-waste determination from EPA would not be considered a solid waste. 

This provision establishes a case-by-case process that provides persons an administrative 

process for receiving a formal determination from EPA that, in this case, manure, as 

generated, that has not been discarded in the first instance and is indistinguishable in all 

relevant aspects from a fuel product, is not a solid waste. Any petition submitted to EPA 

requesting a non-waste determination would need to demonstrate that the manure has not 

been discarded in the first instance, satisfies the legitimacy criteria for fuels, and satisfies 

the following criteria: (1) whether market participants treat the manure as a fuel rather 

than a solid waste; (2) whether the chemical and physical identity of the manure is 

comparable to commercial fuels; (3) whether the manure will be used in a reasonable 

time frame given the state of the market; (4) whether the constituents in the manure are 

released to the air, water or land from the point of generation to the point just prior to 

combustion of the manure are released at levels that are comparable to what would 

otherwise be released from traditional fuels; and (5) other relevant factors. 

 We partially agree with the commenter that was concerned about the legitimacy criterion 

that would require contaminants in biofuels to either be equivalent to, or lower than, levels found 

in natural gas. While we believe it is beneficial to promote the use of clean burning fuels, such 

as biofuels, non-waste fuels produced from secondary materials should have comparable or 

lower levels of contaminants relative to traditional fuels used today, since gaseous fuels that are 

produced from secondary materials have the potential to have elevated levels of contaminants 

(such as sulfur). As a result, we believe it is appropriate to require, as proposed, that 

contaminants be comparable, or lower than, those levels found in traditional fuels. However, as 

discussed in Section V.D.3, we are not defining comparable to mean “equivalent to or lower 

than” or “no higher than” the level of the contaminant in the traditional fuel. Rather, EPA is 

generally defining “comparable to or lower than” to mean contaminants can be present in 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 non-hazardous 

secondary materials can have contaminants that are somewhat higher than the traditional fuel 

that otherwise would be burned and still qualify as being comparable, and would not be 

considered a solid waste. 

 

13 As noted previously, one commenter described their operation and noted that “the mixed biomass fuel is lightly 

processed (e.g., processed in a “de-lumper” followed by a disc screen) to break down clumps of material and remove 

incidental non-combustible tramp materials.” This comment does not contain enough information to determine 

whether or not this would meet the regulatory definition of processing in today’s rule. That is, processing is 

designed to produce or extract a product from a waste—not just to chop the waste up. However, to the extent that 

this level of processing is considered sufficient, the processed manure would not be a solid waste when burned in a 

combustion unit as a fuel for energy recovery. 
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 Comment [3a-B2-2]: 

Manure used as a fuel that would otherwise be applied to the land covered under a 

nutrient management plan14 is in no way discarded. 

 EPA’s Response: 

 We recognize that manure may also be beneficially used in other end uses, such as a 

fertilizer. As we have noted elsewhere in the preamble to today’s rule, EPA is not making any 

determination whether non-hazardous secondary materials are or are not solid wastes for other 

possible beneficial end uses. Such beneficial use determinations are generally made by the states 

for these other beneficial uses, and EPA will continue to look to the states to make such 

determinations. 

Comment [3a-B2-3]: 

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 [3a-B2-4]: 

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 

 

14 A nutrient management plan is defined in the U.S. Department of Agriculture Natural Resources Conservation 

Service (NRCS) Standard (590) as, “Managing the amount, source, placement, form and timing of the application of 

nutrients and soil amendments.” The NRCS nutrient management standard (590) is the guidance provided to NRCS 

field staff and other planners when providing technical assistance to producers participating in voluntary programs. 

The purpose of the 590 standard is to meet the nutrient needs of the crop to be grown, while minimizing the loss of 

nutrients to surface and ground water. 
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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 [3a-B2-5]: 

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 [3a-B2-6]: 

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 
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must have at least 5,000 Btu/lb, as fired (accounting for moisture), since the as-fired energy 

content is the relevant parameter that must be assessed to determine if it is being discarded 

rather than used as a fuel for energy recovery. See Section VII.H.1. As previously discussed, 

the data available to EPA on an “as fired” basis would suggest that much of the manure, as 

generated, would have heating value levels of less than 5,000 Btu/lb. If the non-hazardous 

secondary material has a [meaningful] heating value of less than 5,000 Btu/lb, “as fired,” the 

secondary material may still be considered to have a “meaningful heating value,” but the source 

must demonstrate that a meaningful heating value is derived from the manure, and appropriate 

records kept. 

3. Other Biomass. 

The proposed rule preamble discussed many different forms of biomass, including 

cellulosic and non-cellulosic biomass.15 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 

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).16 We received comments on 

construction and demolition (C&D)-derived wood, treated wood, and OCC rejects. 

Comment [3a-B3-1]: 

Since creosote is a derivative of coal, itself a traditional fuel, the comments argued that 

creosote-treated wood should also be considered a traditional fuel. They suggested that this 

material is treated as a valuable commodity and has been used as a fuel for over a decade. One 

commenter provided data that showed that the mobility of contaminants indicates that p-cresol 

leaches at 75 percent of the hazardous waste toxicity characteristic leaching procedure (TCLP) 

levels in new ties, but that this is reduced to less than 10 percent in ties that are over 10 years old. 

Another commenter provided the average results from 605 TCLP tests and 605 totals analyses 

for metals on creosote-treated wood. These results were below TCLP limits for all of the 

contaminants it contains (i.e., cresol, m,p-cresol, o-cresol leached an average of 1.23 mg/L, 0.90 

mg/L, 0.35 mg/L, respectively), although two compounds, 2,4-dinitrotoluene and 

hexachlorobenzene, leached at levels close to the toxicity characteristic (TC) regulatory level 

(both leached at 0.09 mg/L with a standard deviation of 0.03).17 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 

 

15 75 FR 31861 – 31863 

16 75 FR 31863 

17 See document EPA-HQ-RCRA-2008-0329-0875.1 
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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.18 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).19

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 (SOx), 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. 20 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.21

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 non-hazardous solid waste. 

Leaching data is not relevant to determine whether or not the treated wood is being discarded. 

 

18 See document EPA-HQ-RCRA-2008-0329-0767.1 

19 Holtzman, M.I. and R.S. Atkins, 1995. “Emissions from Combustion of Treated Wood Fuel and Tires in Industrial 

Boilers,” Presented to the Air and Waste Management Association’s Annual Meeting, June 18-23, 1995. 

20 Freeman, M.C., W.J. O’Dowd, T.D. Brown, R.A. Hargis, Jr., R.A. James, S.I. Plasynski, G.F. Walbert, A.F. 

Lowe, and J.J. Battista, Jr. “Pilot-Scale Air Toxics R&D Assessment of Creosote-Treated and PCP-Treated Wood 

Co-firing for Pulverized Coal Utility Boiler Applications.” U.S. Department of Energy’s National Energy 

Technology Laboratory. 

http://www.netl.doe.gov/technologies/coalpower/cctc/cctdp/bibliography/misc/pdfs/haps/2002-710.pdf 21 Smith, S.T., 1996. “Stack Testing Report, Koppers Industries, Inc., Grenada Plant, Tie Plant, MS,” Submitted to 

the Mississippi Department of Environmental Quality, May 6. 
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We do note that the average values and standard deviations provided for 2,4-dinitrotoluene and 

hexachlorobenzene suggest that a few samples actually failed the TCLP test and would be 

classified as a hazardous waste. Creosote-treated wood that is classified as a hazardous waste 

must be managed as a hazardous waste, which is outside the scope of this rulemaking. Even 

though most creosote-treated wood is non-hazardous, the presence of hexachlorobenze, a CAA 

112 HAP, as well as the other HAPs, in creosote-treated lumber suggests that creosote-treated 

wood include contaminants at levels that are not comparable to those found in wood or coal, the 

fuel that creosote-treated wood would replace.22 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 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.23 While 

some commenters pointed to data that indicates that pentachlorophenol-treated wood (as well as 

creosote-treated wood) would have similar or lower air emissions to non-treated woods, the issue 

to determine whether a material is burned as a waste or a commodity is based on input and 

consequent destruction of contaminants. This is consistent with the legitimacy criteria, under 

which to be considered a non-waste fuel, the non-hazardous secondary material itself must have 

contaminant levels that are comparable to (or less than) those in traditional fuels. Thus, the 

final rule will retain the proposed approach, which considered wood treated with 

pentachlorophenol a solid waste. Of course, this assumes that the pentachlorophenol treatedwood is not classified as a hazardous waste. Hazardous wastes are not covered under the scope 

of this rulemaking. 

Comments [3a-B3-2]: 

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.24 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 

 

22 See Preliminary Characterization Study Prepared In Support of the Proposed Rulemaking –Identification of 

Nonhazardous Secondary Materials That Are Solid Waste: Traditional Fuels and Key Derivatives, EPA-HQRCRA-2008-0329-0461.21 

23 75 FR 31863 

24 See document EPA-HQ-RCRA-2008-0329-1569 
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shows that the levels of contaminants in this material are comparable to those found in 

unadulterated wood for the seven contaminants for which data was presented, we believe that 

such treated-wood meets the legitimacy criterion on the level of contaminants and comparability 

to traditional fuels. Therefore, borate-treated wood could be classified as a non-waste fuel, 

provided they met the other two legitimacy criteria and provided that the contaminant levels for 

any other HAP that may be present in this material are also comparable to or less than those in 

traditional fuels. We would also note that such borate-treated wood would need to be burned as 

a fuel for energy recovery within the control of the generator. Finally, we are aware that some 

borate-treated wood is subsequently treated with other chemicals, such as creosote, to provide an 

insoluble barrier to prevent the borate compounds from leaching out of the wood. We did not 

receive data on the contaminant levels of the resulting material, but data presented on creosote 

treated lumber indicates that this non-hazardous secondary material would likely no longer meet 

the legitimacy criteria and would be considered a solid waste when burned as a fuel. 

We do not have information generally about the transfer of borate-treated wood to other 

companies to make a broad determination about its use as a fuel outside the control of the 

generator. (See Section V.A.1 for a general discussion of the issue concerning use of 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.25 

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.26 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 [3a-B3-3]: 

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 

 

25 75 FR 31863 

26 75 FR 31863 
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path, except that C&D wood is more carefully prepared because of the chemical analysis the 

C&D product undergoes. 

Commenters also stated that C&D-derived wood meets the legitimacy criterion for 

having a meaningful heating value. They stated that C&D-derived wood has a heating value of 

between 7,000 – 8,200 Btu/lb, and thus, should be considered a non-waste fuel. Data from one 

plant that combusts C&D-derived wood found that it had a heating value that ranges from 6,700 

– 9,000 Btu/lb, with an average value of 8,200 Btu/lb. 

One company provided chemical constituent data on C&D-derived wood that is utilized 

at their plant in order to demonstrate that the material meets the legitimacy criterion for 

contaminants. The results of this analysis found that the chemical constituents were comparable 

to or lower to those found in coal (of unknown source or type). See Table 1 below for the results 

of this study. 

Table 1. Comparison of contaminant concentrations in samples of coal and C&D-derived 

wood.27

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

 

27 Source: EPA-HQ-RCRA-2008-0329-0774; Since the legitimacy criterion for contaminants compares 

concentrations per mass of the material (not per the heating value of the material), all concentrations reported in 

pounds per billion Btu (lb/billion Btu) were converted into parts per million (ppm) with the assumption that C&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-HQRCRA-2008-0329-0461.21). 
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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).28 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. 29

EPA’s Response: 

The proposed rule included clean construction wood in the definition of traditional fuels. 

The final rule retains this conclusion, although clarifies the definition of traditional fuels to 

include alternative fuels. Clean cellulosic biomass is an alternative fuel as they are clean 

cellulosic materials that are indistinguishable in composition from wood that is commonly 

burned in combustion units (See the explanation in Section V.A). We note that the final 

definition of traditional fuels clarifies that this category includes clean demolition wood as well. 

On the other hand, C&D-derived wood that is not clean would not be considered a 

traditional fuel, but a solid waste under today’s rule. However, C&D-derived wood can be 

classified as a non-waste fuel if it has been sufficiently processed and meets the legitimacy 

criteria. C&D-derived wood is typically sorted to remove contaminants (e.g., lead-painted wood, 

treated wood, non-wood materials), and size reduced prior to burning, producing material that 

likely meets the processing and legitimacy criteria for contaminants. (We would also note that 

the technology in use today to remove contaminants from C&D-derived wood has increased 

considerably.) The data provided by one company demonstrates that C&D-derived wood can be 

sufficiently processed to meet the legitimacy criterion for four contaminants, even when these 

contaminants are compared to untreated wood concentrations presented in the background 

document, Preliminary Characterization Study Prepared In Support of the Proposed Rulemaking 

–Identification of Nonhazardous Secondary Materials That Are Solid Waste: Traditional Fuels 

and Key Derivatives.

30 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. 

 

28 U.S. EPA, ‘‘Wood Products in the Waste Stream: Characterization and Combustion Emissions, Vol. 1,’’ 

November 1996. 

National Council for Air and Stream Improvement, Inc. Technical Bulletin (TB) 906, ‘‘Alternative Fuels Used in the 

Forest Products Industry: Their Composition and Impact on Emissions.’’ September 2005. 

Larsen, F.S., W.H. McClennen, X. Deng, G.D. Silcox-Person, and K. Allison, 1992. “Hydrocarbon and 

Formaldehyde Emissions from the Combustion of Pulverized Wood Waste.” Combustion Science and Technology, 

85 (1-6) p. 259 – 269. 

29 Jambeck, J., A. Carpenter, K. Gardner, and K. Wietz, 2007. “University of New Hampshire Life-Cycle 

Assessment of C&D Derived Biomass/Wood Waste Management,” University of New Hampshire, Durham, NH, 

December 5. 

30 EPA-HQ-RCRA-2008-0329-0461.21 
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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 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 [3a-B3-4]: 

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 [3a-B3-5]: 

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 nonrecyclable 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.31

 

31 Source: EPA-HQ-RCRA-2008-0329-0774; Since the legitimacy criterion for contaminants compares 

concentrations per mass of the material (not per the heating value of the material), all concentrations reported in 

pounds per billion Btu (lb/billion Btu) were converted into parts per million (ppm) with the assumption that OCC 

rejects have a heating value of 3,700 Btu/lb (as fired) and that sub-bituminous and bituminous coal (the most 

common types of coal to be utilized in combustion units) have a heating value of 8,500 – 14,000 Btu/lb (per 

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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 co-mingled with bark on the bark pile. 

Furthermore, commenters stated that OCC rejects pass the legitimacy criterion for having 

a meaningful heating value. For example, a commenter submitted data that indicated that, on a 

dry basis, OCC rejects have a heating value of 9,100 Btu/lb, while, as fired, they have a heating 

value of 3,700 Btu/lb.32 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.33

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.34

 

Nonhazardous Secondary Materials That Are Solid Waste: Traditional Fuels and Key Derivatives, EPA-HQRCRA-2008-0329-0461.21). 

32 Source: EPA-HQ-RCRA-2008-0329-0871.1 

33 Source: EPA-HQ-RCRA-2008-0329-0774.1 

34 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. 
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EPA’s Response: 

We do not agree with the commenters that OCC rejects should be considered a traditional 

fuel or alternative fuel since this non-hazardous secondary material, consisting of recycled paper 

and paper products, has not historically been managed as a fuel—that is, the recycling of OCC 

and the subsequent use of OCC 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 off-site, which may not happen very often, it is 

treated more like a waste than a non-waste fuel. Therefore, the Agency finds that OCC rejects 

shipped off-site for burning would be considered a solid waste. However, as already noted, if the 

OCC rejects are sufficiently processed to produce a legitimate fuel product, or if a person 

submits and is granted a non-waste determination for such OCC rejects, than such non-hazardous 

secondary material when combusted as a fuel for energy recovery would be considered a nonwaste fuel. 

4. Pulp and Paper Sludge. 

In the proposal, EPA determined that pulp and paper sludge35 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 

 

35 Pulp and paper sludge includes both primary and secondary wastewater treatment sludges. Primary sludges 

consist of wood fiber and inorganic materials, while secondary sludges are primarily microbial biomass. 
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an alternative, that it could consider these sludges to be wastes because of chlorine levels in the 

sludge. 36 

Comment [3a-B4-1]: 

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.37 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.38 Therefore, 

the Agency does not consider pulp and paper sludges a traditional or alternative fuel. 

Comment [3a-B4-2]: 

The proposed approach that pulp and paper sludges burned within the control of the 

generator as a fuel would not be considered a solid waste needs clarification. Specifically, 

clarification is needed to determine if pulp and paper sludges that do not leave the site and have 

not been discarded (1) can be used as a fuel and (2) must pass the legitimacy criteria. 

EPA’s Response: 

The final rule retains the proposed approach, which considered pulp and paper sludges 

that remain within the control of the generator—whether burned at the generating facility, or 

burned in combustion units that the generator controls—are considered a non-waste fuel. 

However, such pulp and paper sludges must pass the legitimacy criteria to demonstrate that these 

non-hazardous secondary materials are “legitimate fuels” in order to be considered a non-waste 

fuel. 

Comment [3a-B4-3]:

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-

 

36 75 FR 31862-63 

37 Thacker, W., 2007. “Recycling Paper Mill By-products on Forest Lands: By-product Composition, Potential 

Applications, and Industry Case Studies.” Presentation to EPA Office of Solid Waste Staff, Washington, DC, 

January 23, http://www.epa.gov/osw/conserve/rrr/imr/irc-meet/03-paper.pdf. 38 Someshwar, A.V. and A.K. Jain, 2006. “Alternative Fuels Used in the Forest Products Industry: Their 

Composition and Impact on Emissions,” Technical Bulletin No. 906, National Council for Air and Stream 

Improvement, Gainesville, Florida. 

Vance, E. 2000. “Recycling Paper Mill By-products on Forest Lands: By-product Composition, Potential 

Applications, and Industry Case Studies” The Forest Alternative: Principles and Practice of Residuals Use. 

University of Washington College of Forest Resources Publication, Seattle, WA, p. 193-207. 
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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 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 [3a-B4-4]: 

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.39 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.40 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)41 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 [3a-B4-5]: 

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 

 

39 See document EPA-HQ-RCRA-2008-0329-0871 

40 See the discussion on dewatering of sewage sludge in Section VII.F of the proposed rule, 75 FR 31878 

41 75 FR 31878 
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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.42 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 re-using 

these materials as a fuel. Materials are chosen for their constituents that are beneficial to the 

combustion or manufacturing process; more often, the materials are chosen for extracting their 

energy value. 

In terms of meeting the legitimacy criteria for a meaningful heating value, comments 

were submitted that pulp and paper sludges have a heating value of between 3,300 – 9,500 

Btu/lb, on a dry basis; no information was submitted on the “as fired” heating value of pulp and 

paper sludges. Commenters also argued that pulp and paper sludges meet the legitimacy 

criterion for being managed as a valuable commodity as they are dewatered to increase their 

energy value, collected on a continual or frequent basis (as produced), further processed and 

consolidated, including the removal of biosolids. One state commenter stated that some mills 

make a dried pellet product from the sludges for use as a fuel. One power plant that utilizes pulp 

and paper sludge generated less than a mile away stated that the material is loaded onto trucks 

for the short haul to the steam boilers, dumped into the wood handling system, conveyed to 

covered storage where it is contained and burned in the boiler all within the span of several 

hours. 

 EPA’s Response: 

The final rule will retain the proposed approach—pulp and paper sludges managed within 

the control of the generator are a non-waste fuel as they would seem to meet all of the legitimacy 

criteria, as discussed below. 

The proposed rule acknowledged a general lack of data regarding contaminant levels in 

pulp and paper sludges and specifically requested data on the issue in order to make a 

determination of whether pulp and paper sludges meets the third criterion of comparable 

contaminant levels to traditional fuels. The information we received indicates that these nonhazardous secondary materials meet the contaminant legitimacy criterion. While commenters 

 

42 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. 
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compared contaminant levels in pulp and paper sludges to those in coal and found lower levels, 

we also found it appropriate to compare the contaminant concentrations to untreated wood since 

wood is also burned in pulp and paper mills. Since levels of chlorine in untreated wood are as 

high as 11,890 ppm, even the high end of the range of chlorine in pulp and paper sludges is 

comparable to that in untreated wood. When comparing to the information that we have 

compiled on coal, we find that chlorine levels in coal are reported to be as high as 7,400 ppm, 

and that average chlorine values for bituminous and sub-bituminous coal are 1,200 ppm and 140 

ppm, respectively. Thus, the average chlorine levels reported in most pulp and paper sludge are 

likely to be comparable with average chlorine levels found in bituminous coal.43 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 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.44 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 2005,45 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 [3a-B4-6]: 

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 

 

43 See the Material Characterization Papers for Pulp and Paper Sludges and for Traditional Fuels that are located in 

the docket for today’s rule (EPA-HQ-RCRA-2008-0329). 44 Ibid. 

45 The Agency removed MEK from the list of HAP because it concluded that the potential exposures to MEK 

emitted from industrial processes may not reasonably be anticipated to cause human health or environmental 

problems. 
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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. 46

EPA’s Response: 

First, we would note that emissions testing results is not the criterion or test for 

determining legitimacy as combustion systems vary greatly and this rule aims to determine what 

is a solid waste. To be considered a legitimate non-waste fuel, the non-hazardous secondary 

material itself must have contaminants at levels that are comparable to (or lower than) than those 

in traditional fuels. From the data available, it shows that chlorine levels in pulp and paper 

sludges, for example, are typically at levels that are lower than those found in coal and wood, as 

noted above. Nevertheless, we also recognize that high chlorine levels are an indicator that the 

combustion of such materials may result in increased emissions of dioxins and furans, such that 

if chlorine levels in pulp and paper sludges are excessively high, it may be an indication that the 

burning of those sludges is more reflective of waste management. Thus, chlorine levels in pulp 

and paper sludges should particularly be monitored and evaluated as part of a plants 

determination that their pulp and paper sludges meet the contaminant legitimacy criterion. 

5. Scrap Tires. 

 In the proposal, EPA stated that whole used tires, including those collected from tire 

dealerships and automotive shops and overseen by a state tire collection oversight program, are 

initially abandoned and thus meet the plain meaning of discard. As a result, whole used tires that 

are not processed into a legitimate fuel or ingredient (e.g., shredded/chipped with steel belts 

removed) were considered a solid waste. EPA acknowledged that whole tires can be legitimately 

burned as a fuel, but because they have been discarded, were considered solid wastes and subject 

to the incinerator requirements in section 129 of the CAA, unless processed into a non-waste fuel 

product, in which case it would be subject to the section 112 requirements of the CAA. 

 However, EPA requested comment in the proposed rule on the discard interpretation 

stated in the ANPRM regarding scrap tires that are managed under the oversight of a state tire 

collection program, such that these non-hazardous secondary materials collected and sent for 

legitimate use as fuels are not discarded and are not solid wastes. EPA also solicited comment 

on the processing requirements for whole tires, as well as fuel contaminant data on whole tires or 

tire-derived fuel (TDF) chips as compared to coal, the replacement fuel. 

 In order to clarify the context of the proposed rule comments, the Agency describes the 

background below in “a. Background; Scrap Tire Approach in ANPRM and Proposal.” The 

comments and EPA’s responses are listed in “b. Scrap Tire Comments.” 

a. Background; Scrap Tire Approach in ANPRM and Proposal. 

 ANPRM Scrap Tire Approach.

47 As part of its discussion regarding non-hazardous 

secondary materials used as legitimate “alternative” fuels that have not been previously 

discarded, the ANPRM noted that scrap tires used as tire-derived fuel, which include whole tires 

 

46 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. 

47 The ANPRM was published in the Federal Register on January 2, 2009 (74 FR 41). This reference can be found 

on page 57 of the FR notice. 
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or tires that have been processed and have not been previously discarded, are legitimate nonwaste 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.48 The proposal took a different approach regarding 

the use of scrap tires when used as a fuel, based on comments received on the ANPRM. 

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 non-waste as described above. We reconsidered that position in the proposed rule 

as follows: “...tires collected under these recycling programs are discarded and are solid wastes. 

EPA proposes this formulation for tires, but is asking for further comment on the ANPRM 

formulation that secondary material collected and sent for legitimate use as fuels are not 

discarded and are not solid wastes.... EPA may issue a final rule containing either set of 

provisions depending on information received in the comment period and other information 

available to the Agency.” 

 The Scrap Tire Approach in the Final Rule. Based on the proposed rule comments and 

all other relevant information in the rulemaking record, EPA has modified its approach for scrap 

tires in this final rule. Under today’s rule, scrap tires are considered a non-waste when used as a 

fuel under the following scenarios: 

 

48 The proposed rule, published on June 4, 2010 in the Federal Register (75 FR 31844) has numerous references to 

scrap tires. The statement described under “Proposed Rule Scrap Tire Approach” can be found on pages 31874 and 

31875 of the proposed rule. 
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 (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 fuels49 

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 non-waste 

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 [3a-B5-1]: 

 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 offsite/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 

 

49 As 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. 
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regulate only transfers where discard is taking place. See 73 FR at 64677-78. In contrast, with 

respect to non-hazardous secondary materials, EPA has no record identifying circumstances 

where discard may occur and yet is proposing to determine that all transferred material is 

discarded. Any definition of solid waste that sweeps so broadly exceeds EPA’s authority under 

RCRA. EPA’s proposed approach also stands in stark contrast to the approach and guiding 

principle outlined in the ANPRM. In the ANPRM, EPA did not assume that all non-hazardous 

secondary material that is transferred outside the control of the generator is discarded. Instead, 

as in its Subtitle C regulations, EPA was guided by the “overall principle ... that materials 

treated as a commodity, rather than as a waste, are not discarded and are not solid wastes so long 

as they are legitimately recycled.” 74 FR at 53. If such an approach is appropriate for hazardous 

substances, a similar or perhaps less demanding determination would be still more appropriate 

for non-hazardous secondary materials. First, the dangers of sham recycling are far less. 

Second, the fact that industrial boilers are similar and are regulated in similar manner from 

industry to industry makes distinctions between industries uniquely hard to justify. EPA offers 

no persuasive evidence to overcome these considerations. As noted earlier, EPA says only that it 

“believes” that such materials have been discarded and that third parties “may not” have the 

same incentive to manage these materials properly as the generator. EPA offers a few off point 

examples but makes no effort to investigate this issue in any detail. Furthermore, EPA’s 

approach ignores the fact that there is an established market infrastructure for the sale and 

purchase of secondary fuels such as TDF. As a result, TDF is subject to 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 material50 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,51

because, in part, hazardous waste are likely to have a relatively negative monetary 

 

50 The comments are in regard to this statement in the proposal: “When non-hazardous secondary material fuels are 

transferred to another party, we generally believe that the material is discarded since the generator has relinquished 

control of the secondary material and the entity receiving such materials may not have the same incentives to 

manage them as a useful product, which results in the materials being discarded.” See EPA’s statement in the 

proposal at 75 FR 31844, page 31875. 

51 The comments are in regard to this statement in the proposal, as well as other references to hazardous waste: 

“This lack of incentive to manage as a useful product has been well documented in the context of hazardous 

secondary material recycling as evidenced by the results of the environmental problems study performed in support 

of the DSW [hazardous waste] final rule. (This scenario does not apply to transfers taking place under the transfer 

based exclusion for hazardous secondary materials that are generated and then transferred to another company for 

the purpose of reclamation.) However, this finding also holds true for non-hazardous secondary materials that are 

used as fuel.” See EPA’s statement in the proposal at 75 FR 31844, page 31875. 
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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 reclaimers52 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 proposal53) 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. 

 

52 The comments are in regard to this statement in the proposal: “As discussed in the DSW final rule, this pattern of 

discard at off-site, third party reclaimers appears to be a result of inherent differences between commercial recycling 

and normal manufacturing. As opposed to manufacturing, where the cost of raw materials or intermediates (or 

inputs) is greater than zero and revenue is generated primarily from the sale of the output, secondary materials 

recycling, including when used as a fuel, can involve generating revenue primarily from receipt of the secondary 

materials. Recyclers of secondary materials in this situation may thus respond differently than traditional 

manufacturers to economic forces and incentives, accumulating more inputs (secondary materials) than can be 

processed and generating stockpiles with sometimes little incentive to perform actual recycling.” 53 See EPA’s statement in the proposal at 75 FR 31844, page 31875. 
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 Between these broad parameters, EPA has examined a number of specific materials, 

recycled on-site and transferred to third parties for recycling, and determined whether they would 

be appropriately placed within the waste or non-waste categories. EPA would consider 

transferred materials not to be wastes if it could make the appropriate findings for those 

categories. In fact, the Agency does so with respect to scrap tires harvested from vehicles and 

resinated wood residuals. Any of EPA’s decisions regarding specific materials, if challenged, 

must stand or fall based on its individual merit. 

 With respect specifically to how the Agency is dealing with scrap tires in this rule, the 

ANPRM noted that scrap tires that are collected pursuant to tire programs (e.g., scrap tires from 

tire dealerships that are sent to used tire processing facilities) are collected and handled as 

valuable commodities, and, therefore, have not been abandoned, disposed of, or thrown away. 

The ANPRM had indicated that there are instances where non-hazardous secondary materials 

would not be considered discarded even if the original generator sent them to another entity 

outside of its control. 

The proposed rule took an approach that assumed non-hazardous secondary materials that 

are used as fuels and are managed outside the control of the generator are solid wastes, unless 

they were processed into legitimate non-waste fuel products or a non-waste determination 

petition was granted by EPA. However, in the proposed rule, the Agency was open to an 

alternate interpretation and requested further comment on the ANPRM formulation that scrap 

tires collected and sent for legitimate use as fuels are not discarded and are not solid wastes, and 

specifically indicated that the Agency “may issue a final rule containing either set of provisions 

depending on information received in the comment period and other information available to the 

Agency.” 

 After careful consideration of the comments and all the material in the rulemaking record, 

including documents cited in the ANPRM and the preamble to the proposed rule, the Agency 

agrees that a system where scrap tires are removed from vehicles54 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 removal55) 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 nonwastes, 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). 

 

54 For purposes of today’s rule, the term “vehicle” is meant to include any mechanical means of conveyance that 

employs the use of tires. 

55 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. 
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 Scrap tires also meet the requirement specified at §241.3(d)(1)(iii) for the non-hazardous 

secondary materials to have comparable (or lower) levels of contaminants as compared to the 

traditional fuel it is replacing. Refer to the specific response to comments on contaminants. 

 Established tire collection programs promote the collection of scrap tires and coordinate 

with tire dealerships, haulers, processors, and end users. The existing tire collection programs 

form an established collection infrastructure. These established tire collection programs together 

with state bans on landfilling in most states56 effectively result in the beneficial reuse of tires (as 

fuel or used in other scrap tire markets) as the sole57 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 

 

56 A few states allow tires cut up in smaller pieces to be landfilled, while fewer states still allow whole tires in 

landfills. 

57 Note, a commenter has indicated that some states are considering revoking their tire landfill ban if combustors are 

no longer choosing to use tires for fuel based on the outcome of this rule. 
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fuel is more independently sustainable in the free market.58 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 [3a-B5-2]: 

 A number of commenters stated that the concentration of contaminants that are found in 

tire-derived fuel TDF chips (or whole tires) are comparable (or less than) those found in the 

traditional fuels that it would be replacing. In the proposed rule, we requested data on the TDF 

contaminants that are HAP, as listed in section 112(b) of the CAA and the nine pollutants, as 

listed in section 129(a)(4) of the CAA. Some commenters provided independent test results that 

correlated to those contaminants and the results showed a trend that the contaminants were 

generally comparable to or lower than coal, the replacement fuel, (although individual tests and 

comparisons vary). In addition to independent data, some commenters referenced EPA’s 

Materials Characterization Papers (used to support the proposed rule), and the TDF American 

Society for Testing and Materials (ASTM)59 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):60, 61 

• 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); 

 

58 The recovery and management of tires that are removed from tire piles are largely supported or subsidized by 

State Agencies and these whole tires are considered discarded and waste when used as a fuel. This is not the case 

for the tires we are calling non-waste that are annually generated and are collected off the vehicles and sent for use 

as fuel. 

59 ASTM (American Society for Testing and Materials) or ASTM International, is a globally recognized leader in 

the development and delivery of international voluntary consensus standards. 

60 This is the available data for the elements or the compounds (that are among the nine CAA section 129(a)(4) 

pollutants or are on the 187 HAP listed in CAA section 112(b)) that were reported in comments, as well as data from 

the scrap tire Materials Characterization Paper referenced by commenters. Since TDF is usually co-fired with coal, 

the results can include contaminants that originated from the coal. 61 Refer to the Materials Characterization Papers for traditional fuels in the docket for today’s rule. 
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• 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 ppm62; 

• lead—51-65 ppm (also on the CAA 129 pollutant list); 

• manganese—less than 100 ppm63; 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 non-detectable and one commenter mentioned that data available from the USGS 

database showed coal can have much higher concentrations of zinc64 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 postcombustion. 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.65 

 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 TDF66), 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.67 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 

 

62 If this is present from the steel wire, it is not expected to be released during typical boiler combustion. 63 If this is present from the steel wire, it is not expected to be released during typical boiler combustion. 64 The commenter said the coal sample was 51,000 ppm zinc, while coal is usually less than 100 ppm. TDF usually 

has higher concentrations of zinc than the average in coal. 

65 See the comment on cement kilns for more information relative to cement kiln usage. 

66 Commenters often said this is the biggest benefit in using TDF. State regulators are said to suggest the use of 

TDF if a combustor has a problem with NOx emissions. 

67 Refer to the Materials Characterization Papers for a detailed summary of the contaminant data for TDF, including 

data provided by commenters. 
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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.68 While the level of contaminants in TDF or tires vary 

slightly69 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.70 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. If the scrap tires 

were discarded (i.e., recovered from a tire dump), they would need to be processed into TDF 

chips with some removal of the metal wire (per the processing specifications described in a 

response to comments below) in order to be a non-waste fuel. Based on the comments, we 

recognize that this is more important for handling, than for emissions. We would also note that 

the steel wire in the whole tires used in cement kilns is regarded differently since it is needed to 

become part of the cement. That is, if the non-combustible ingredient in feedstocks that are 

necessary (e.g., iron) for clinker production are no longer used, those materials must be replaced. 

 Finally, although we focus on the contaminants in fuel since that is the relevant criterion 

as it relates to the legitimacy criteria, and for deciding whether a material is a waste or a 

commodity, we do recognize the value of the greenhouse gas, as well as other criteria pollutant 

 

68 The “contaminants” are the nine CAA section 129(a)(4) pollutants and the 187 HAP listed in CAA section 112(b). 

69 The elemental constituents in coal vary regionally so the test result comparisons to TDF also vary. For example, 

the relative percentage of some elements is sometimes slightly higher in some tests and lower in others. Overall, we 

find that TDF and coal have a comparable level of contaminants. 70 While zinc has been reported to have higher levels in TDF than in coal, zinc is neither a HAP or one of the nine 

pollutants identified in section 129(a)(4) of the CAA and thus, would not be a contaminant for consideration. 
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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 MTCO2E71 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-to-energy (100% TDF) facility indicate that it is possible to have 

emissions much lower than those produced by existing solid-fuel-fired boilers (on a heat input 

basis) with a specially designed combustor and add-on controls.72 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 [3a-B5-3]: 

 Some industry commenters claimed that the proposed rule would increase the costs for 

facilities that use scrap tires as a fuel due to the imposed costs for unnecessary processing, and 

would negatively affect them and existing tire recycling programs. According to the many 

comments by tire retailers, tires are a material handled as a commodity. Under the third party 

processing requirements in the proposed rule, they estimated substantially increased costs to 

remove the tires they handle from their shops. This would also have the effect of causing the 

tires to be seen as “waste-like” since their monetary value would be reduced. 

 EPA’s Response: 

 As a result of the changes made to the final rule concerning scrap tires that are collected 

as part of an established tire collection program, we anticipate that there will be no or minimal 

 

71 Metric tons of carbon dioxide equivalent (MTCO2E) 72 See, for example, Reisman JI (1997) Air Emissions from Scrap Tire Combustion, Appendix: Emissions Data from Controlled 

Tire Burning. Technical Report prepared for USEPA. Office of Research and Development, Washington, DC EPA 1997 at 

http://www.epa.gov/ttn/catc/dir1/tire_eng.pdf 
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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 [3a-B5-4]: 

 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 noncombustion determinations) and requested clarification on the scope and impact of this rule for 

all non-hazardous secondary materials, including scrap tires. For instance, they asked if the rule 

would affect or interfere with state solid waste regulations, laws, and beneficial use programs. 

They also requested that EPA clarify the implications to a state program if the scrap tires are 

considered non-waste when used as fuel for federal purposes, but are considered waste according 

to the state recycling and waste management programs (until beneficially used or made into a 

non-waste product). 

 EPA’s Response: 

 As discussed, the Agency has decided to identify scrap tires that are removed from 

vehicles and collected as part of an established tire collection program as a non-waste fuel when 

combusted. Thus, we believe that the concerns or impacts on the effective collection and use as 

a tire-derived fuel product should no longer be a concern. However, this approach would not 

address the request from state agencies that we identify scrap tires as a waste until combusted. 

As discussed previously, existing RCRA case law on hazardous wastes would not allow EPA to 

declare that a discarded material ceases to be a waste solely by the fact that it is beneficially 

used. Wastes may be used beneficially. Accordingly, once a non-hazardous secondary material 

(such as scrap tires retrieved from waste tire piles) is identified as a waste, its arrival at a facility 

for combustion would not change its status. EPA has also expressed the belief that case law 

would not prevent wastes from being processed into materials that are no longer wastes. 

However, that would require changing the material sufficiently so that a new fuel product is 

created. 

 In response to the states question concerning conflicting and concurrent interpretations of 

state and federal waste status (when used as fuel), EPA would like to clarify that non-hazardous 

secondary materials may be simultaneously regulated as a non-waste fuel or ingredient for use in 

combustion units under the federal program, but as a solid waste by the state’s solid waste 

programs. That is, non-hazardous secondary materials that are designated as a non-waste by 

today’s rule, while not subject to the section 129 CAA standards, could be subject to the state 

standards that identify the same non-hazardous secondary material as a solid waste. The federal 

rule does not affect the state waste determination in this case. For more information about state 

agency concerns with regulating non-hazardous secondary materials, not just scrap tires, refer to 

Section IX.A, “Applicability of State Solid Waste Definitions and Beneficial Use 

Determinations.” 

 Finally, we would note, and as stated elsewhere in this preamble, this rule only addresses 

those non-hazardous secondary materials that are burned in combustion units as a fuel or 
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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 [3a-B5-5]: 

 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 nonhazardous secondary materials as a fuel, including scrap tires in CAA section 112 regulated 

units, and support the recycling or reuse of scrap tires for other uses instead of combustion. 

 EPA’s Response: 

 The issue that EPA is addressing in this rule is whether the burning of non-hazardous 

secondary materials, including scrap tires (whether whole or as TDF) is considered waste 

management. This is critical since the status of scrap tires—that is, whether they are a waste or 

not, determines which CAA emission standards the non-hazardous secondary material would be 

subject to. With that said, EPA supports the broad use of scrap tires in many different markets 

(e.g., recycled rubber products, use in asphalt, and in civil engineering projects). The Agency 

also believes that the use of scrap tires as a fuel is a valuable use and should remain a component 

in the overall suite of recycling/management options provided the combustion units are subject 

to appropriate standards. In some cases, other recycling markets may not be available if TDF 

was not used a fuel. For example, in the standard process of shredding tires for tire-derived fuel 

(TDF), finer pieces are created as a by-product appropriate for recycled rubber products. In most 

cases, it would be too expensive to process the scrap tires solely for the recycling of this rubber 

(according to sources in the scrap tire program). Comments on the ANPRM and the proposal led 

us to believe that the non-combustion markets for scrap tires could not handle the surplus and 

will reverse the trend in cleaning up tire dumps and will lead to many tires being disposed of in 

scrap tire piles. 

Specifically, in 2007, 89.3% percent of the scrap tires generated in the U.S. by weight 

were collected and consumed in end-use markets. The total volume of scrap tires consumed in 

these end use markets reached approximately 4,105.8 thousand tons of tires out of an estimated 

4,595.7 thousand tons of tires generated in the U.S. By comparison, in 1990, only eleven percent 

of the scrap tires were consumed on a per tire basis.73 Of the scrap tires that are collected 

annually and used in beneficial use end markets, about half are used for their fuel value, while 

the remainder are used in value-added recycling processes as the commenter preferred. We 

recognize that regionally, there are sometimes scrap tire shortages in an area that could support 

more non-combustion uses (as compared to the market demand for scrap tire usages). That is, 

some states are net importers and have very healthy markets using scrap tires as commodities, 

while other states do not have as much demand for scrap tires. The EPA supported scrap tire 

program is described on our website 

(http://www.epa.gov/osw/conserve/materials/tires/index.htm). 

 Comment [3a-B5-6]: 

 

73 These tire figures are compiled by RMA and are developed jointly with state scrap tire programs and listed in 

“U.S. Scrap Tire Markets 2007.” The report can be found at http://www.rma.org/scrap_tires/. 
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 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 [3a-B5-7]: 

 Some commenters regarded the combustion of non-hazardous secondary materials, 

including scrap tires, as waste disposal and therefore the combustion unit that burns these 

secondary materials should be regulated as an incinerator. Another commenter was concerned 

with a combustor accepting fees to accept non-hazardous secondary materials and argued that 

waste-burning boilers can receive a pass-through portion of tipping fees and can also collect fees 

“to dispose of” the material through combustion at “clean energy” projects. The commenter 

went on to say that the fuel at these facilities is in no way sold in the marketplace the way that 

traditional fuels are sold for profit. In fact, the economic model is reversed, so that the 

combustion facility is paid to take the secondary material. 

 EPA’s Response: 

 The question of whether or not a non-hazardous secondary material, including scrap tires 

is or is not a solid waste, depends on whether it has been discarded, and whether it could 

legitimately be considered a fuel-like material, by meeting the legitimacy criteria. As we have 

discussed elsewhere in this preamble, we have determined that scrap tires, when collected as part 

of an 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, 
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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 [3a-B5-8]: 

 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”74). 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: 

 

74 EPA’s “Review of Environmental Justice Impacts” that the commenter referenced, can be found in the docket for 

today’s rule (EPA-HQ-RCRA-2008-0329-0519). Cement kilns and other combustors that use non-hazardous 

secondary materials were included in the CISWI database used for EPA’s demographics (many of the units in the 

CISWI database were not regulated as incinerators). 
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 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 [3a-B5-9]: 

 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 nonhazardous 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 kilns that burn 

hazardous waste fuel carry warning labels because EPA found there was no difference in 
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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 nonhazardous materials beneficially; the commenter went on to argue that a significant flaw in the 

proposal is its failure to recognize the key differences between portland cement kilns as 

compared to incinerators and boilers. 

 EPA’s Response: 

 These comments may express legitimate policy concerns. However, they are essentially 

irrelevant to the decisions that EPA is making in this rulemaking. Tires from tire dumps are 

clearly wastes because they have been disposed for a long time. The tires were clearly 

abandoned if they were left in a tire dump. EPA understands the commenter’s remarks that 

cement kilns are not “boilers” nor were designed to be “incinerators,” but cement kilns are 

clearly “combustors” under the CAA and the Agency needs to decide whether CAA section 112 

or 129 standards would apply. 

With respect to the comments regarding “processing,” EPA’s intention is to provide a 

standard for turning clearly discarded material into a non-waste. EPA acknowledges that there is 

no direct case on point in which a court has opined on how a material may lose its status as a 
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waste.75 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 D.C. 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 [3a-B5-10]: 

The commenters that addressed the specific level of processing for whole scrap tires 

disagreed with EPA on the amount of processing required before TDF should be considered a 

non-waste fuel. In addition, many of the commenters had different interpretations of our 

proposed wire removal requirements and on the term “relatively wire free” (since some 

incorrectly believed that the proposed standard was up to 99% or absolutely no wire). 

Furthermore, many of these same commenters argued that the proposed processing requirements 

for units that use TDF chips were unrealistic and would dramatically increase processing costs, 

while a few commenters cited that many processors could not even achieve the specified level of 

wire removal. These changes would significantly deter facilities from using TDF that they 

regarded as a product. In fact, a number of commenters, including some state agencies, 

questioned the value of requiring unnecessarily costly processing of whole scrap tires that are to 

be used as a fuel in units, such as cement kilns, since the wire in the scrap tires can be beneficial 

due to the properties of the iron oxide resulting from the tire combustion in cement kilns. Other 

commenters noted that the presence of steel in the whole scrap tires or TDF should be irrelevant 

to their waste status since the wire removed is for improvement in handling—that is, the TDF 

needs to have the exposed wire removed so that it is “flowable” like coal within the combustion 

unit, as well as any loose wire removed since it can also cause handling issues in the units, not 

emissions. 

A few commenters claimed that TDF processed to two-inch pieces was seen as the higher 

end TDF product and that this should be our standard. In particular, one commenter that markets 

TDF as a product, “request that the EPA use the widely accepted nominal two-inch minus, 90%+ 

wire free standard that has been standard in the industry for years” since this would accurately 

 

75 Although we recognize that some states have systems in place where materials lose the waste status if 

beneficially used according to the state’s standards. 
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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 non-waste as these commenters are answering a different 

question: how much processing is necessary before whole scrap tires can be burned properly in 

any particular combustion unit? 

However, the question that EPA needs to answer is how much processing is sufficient 

before whole scrap tires are considered a non-waste fuel where the scrap tires are not collected as 

part of a scrap tire collection program? Examples of sufficient processing for other 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, non-wood materials), and sizing it. 

In all these instances, the non-hazardous secondary material is being sufficiently changed, either 

chemically or physically to produce a non-waste product. 

Thus, while insufficiently processed discarded tires can be burned in boilers as a fuel, 

such TDF would still be considered a waste-derived product because the Agency does not 

believe that simply shredding or quartering whole tires, or removing some dirt, is adequate to 

produce a non-waste product for use as fuel according to today’s rule (refer to the processing 

definition in §241.2 Definitions). While the extent of processing that may be required may vary 

for different types of non-hazardous secondary materials, the Agency contends that a sufficient 

amount of processing must occur to produce a non-waste product from secondary materials. 

One commenter mentioned, boiler operators are able to recycle the metal from the wire 

post-combustion (although minimal). This is after it has been cleaned of the rubber particles via 

the combustion process, so this iron can be recovered and recycled (not disposed in emissions). 

However, whether or not the metal from the wire (post-combustion) can be recycled does not go 
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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”76 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 Tire-Derived Fuel ASTM 

Standard D 6700-01,” “wire removed,” “steel belts removed,” and “sufficiently processed”). 

While ASTM was not deciding whether this material would be a waste, or not, EPA in the 

proposal was suggesting that such material would be sufficiently processed to render the new 

material a commodity fuel. Thus, to be considered sufficiently processed, there has to be metal 

removed and, it should be at the level of wire removal that is specific to the combustion unit as 

mentioned above. EPA agrees with the commenter who stated that TDF that has been 

chipped/shredded, sorted and dewired (or at least 90%+ wire free) would be considered 

sufficiently processed. However, this may not be the only standard, to the extent that other unit 

types require different levels of metal removal. 

With respect to the commenter that suggested the removal of free wire as an indicator of 

sufficient processing, we would agree that the removal of free wire (as described by the 

commenter) is a necessary component of processing scrap tires into a non-waste product for the 

purposes of this rule, but that alone, may not be sufficient to meet our definition of processing. It 

could qualify if, according to product specifications appropriate for the particular combustion 

unit, it is processed into TDF chips and enough wire is removed from the TDF and the loose free 

wire is removed (to the degree practical) appropriate to the unit. 

However, we would also note, as is the case for all types of solid fuel, proper 

characterization of the size and composition of TDF are important factors that combustion unit 

operators assess to determine if the TDF is a suitable fuel for their specific combustion unit 

design.77 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 titled “Handling Considerations Conveying, Grate and Ash.” In summary, 

 

76 ASTM Standard D6700-01, 2006, “Standard Practice for Use of Scrap Tire-Derived Fuel," ASTM International, 

West Conshohocken, PA, 2003, DOI: 10.1520/C0033-03, www.astm.org. 

This standard can be obtained through the following website http://www.astm.org/Standards/D6700.htm. 

77 With regard to the legitimacy criteria discussed in Section V.D, the heating value of scrap tires (12,000 Btu/lb to 

16,000 Btu/lb) is the highest of all non-hazardous secondary materials, except used oil (17,800 Btu/lb), and higher 

than typical coal values. Contaminants of potential concern have been measured for both materials: the constituents 

are comparable. 
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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 nonwaste 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.78 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,79 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 nonwaste. If the tires are used in a combustor for which they are not suitable, which can be 

determined through the analysis of the legitimacy criteria, they would be wastes. 

6. Resinated Wood Residuals. 

The proposed rule described resinated wood products as those generated during the 

manufacture of particleboard, medium density fiberboard, and hardboard and includes materials, 

such as board trim, sander dust, and panel trim. The proposal indicated that such resinated wood 

products were considered a non-waste fuel when burned in a combustion unit because this 

secondary material generally meets the legitimacy criteria. We acknowledged, however, that we 

had limited data on the level of contaminants in resinated wood products, but the data we had did 

generally indicate that this non-hazardous secondary material would meet the legitimacy 

criterion for contaminants. In order to gather additional information on which to base our 

decision, we requested comment and data on the contaminant levels contained in these secondary 

materials, as well as the appropriateness of calling them a non-waste. 

Comment [3a-B6-1]: 

The American Mining Congress v. EPA case states that secondary materials beneficially 

used within the generating industry, not within the generating plant, is part of a continuous 

industrial process and thus, not a solid waste. Therefore, transfer of materials within the 

generating industry would have to be considered a non-waste fuel. 

Some commenters contend, however, that any secondary material burned for energy 

recovery is a solid waste, regardless of whether it remains within the control of the generator. 

These commenters object to allowing control by the generator to be relevant to rendering 

secondary material a non-waste, even if burned under the legitimacy criteria, claiming that these 

 

78 Since scrap tires that are harvested from vehicles (as part of an established tire collection program) can be burned 

as whole tires and still be considered a non-waste fuel, the Agency does not believe it appropriate to require such 

tires to meet the level of processing (as codified in §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. 

79 We note that most cement kilns use whole tires as fuels, as opposed to TDF chips, because their process does not 

require the TDF to be in the form of small chips to use it as a fuel, and does not require removal of the metal (since 

they use the metal as an ingredient). 
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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 [3a-B6-2]: 

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 
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like valuable 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 [3a-B6-3]: 

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 [3a-B6-4]: 

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 [3a-B6-5]: 

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, 
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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 No: 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 No. 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,80 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.81 

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 [3a-B6-6]: 

 

80 Weigl, M., R. Wimmer, E. Sykacek, and M. Steinwender, 2009. “Wood-borne formaldehyde varying with 

species, wood grade, and cambial age,” Forest Products Journal 59(1/2) 88-92 

Meyer, B. and C. Boehme, 1997. “Formaldehyde Emission from Solid Wood,” Forest Products Journal 47(5) 45-48. 

Killiam, B. “Background Formaldehyde Emissions for Solid Wood,” Temple-Inland Forest Products Corporation, 

Diboll, TX. 

81 Cohen, H. and U. Green, 2009. “Oxidative decomposition of formaldehyde catalyzed by bituminous coal,” Energy 

Fuels 23(6) 3078 – 3082. 

Nehemia, V., S. Davidi, and H. Cohen, 1999. “Emission of hydrogen gas from weathered steam coal piles via 

formaldehyde as a precursor: I. Oxidative decomposition of formaldehyde catalyzed by coal – batch reactor studies,” 

Fuel, 78(7) 775 – 780. 

Nehemia, V., 1997. “Oxidative decomposition of formaldehyde catalyzed by coal,” Fuel and Energy Abstracts 38(6) 

p. 386. 
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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 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 [3a-B6-7]: 

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. 
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Adhesives are expected to be more combustible than wood, due to their simpler structure and 

lower molecular weights. Conditions which assure the complete combustion of wood are 

adequate to assure the complete combustion of these adhesives. Although it is possible that 

different types of compounds could be produced from the adhesives than from wood and that 

more of certain types of compounds might be produced from one fuel or another, there does not 

appear to be any scientific basis for a presumption that emissions from incompletely combusted 

adhesives are more harmful than emissions from incompletely combusted wood. In fact, the 

results of toxicity studies commissioned by National Forest Products Association in response to 

New York State law which requires manufacturers to provide data on the toxicity of smoke from 

their products indicate that smoke from glued wood products is no more toxic than wood smoke. 

There are a few halogen-containing synthetic polymers, such as polytetrafluorethylene, which 

can produce more hazardous fumes, but they are not normally used in wood products. 

The commenter also submitted data on HCl and 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

Emissions 

(lb/hr) 

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
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% 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%

EPA’s Response: 

We recognize that the studies have shown that there are decreased HAP emissions from 

burning resinated wood residuals. As we have stated previously, however, the criterion or test in 

determining the legitimacy criterion is based on the level of contaminants in the secondary 

material itself, and not by comparing the differences in emissions. We believe that in order for a 

non-hazardous secondary material to be considered a non-waste fuel, it must be similar in 

composition, whereas comparing the emissions profiles between combustion units that burn 

traditional fuels and non-hazardous secondary materials only tells one how well the combustion 

unit is operating, not what the material is that is being burned. Thus, while the Agency 

recognizes that such emissions data can be useful in determining whether or not burning such 

material presents a risk to human health or the environment, we believe it says nothing in terms 

of whether or not the non-hazardous secondary material is a legitimate non-waste fuel (see also 

Section V.D.3 discussion on legitimacy criteria). 

 In response to some of the specific comments made, we would note that none of the 

studies or data provided information on formaldehyde emissions, the HAP that we identified that 

we were most concerned with in the proposal.82 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 No. 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 onspecification (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 279.11.83 However, between the ANPRM 

 

82 75 FR 31862 

83 See 74 FR at 58. 
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and the proposal, EPA modified its view of on-spec used oil and identified it as a traditional fuel 

because the Agency had decided that the on-spec used oil is similar in composition to virgin fuel 

oil and has been historically managed as a valuable fuel product rather than as a waste.84 

While EPA considers on-spec used oil to be an alternative fuel and thus, within our 

definition of traditional fuel (see Section VII.A), the Agency finds that the rationale in the 

ANPRM also provides a valid reason for considering on-spec used oil to be a legitimate product 

fuel and not a solid waste. The proposal also referred to the provisions of 40 CFR Part 279 that 

allows off-specification used oil to be processed into on-specification used oil.85 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 “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 [3a-B7-1]: 

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 

 

84 See 75 FR 31855, 31861, 31864 

85 75 FR 31865, 31877 
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can be burned with energy recovery. Neither RCRA nor any of the case law interpreting RCRA 

lends the slightest support to that notion. 

EPA’s Response: 

We disagree that off-spec used oil should be considered a traditional fuel, or even a nonwaste 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 EPA considers to be comparable to (or less than) 

those in traditional virgin refined fuel oil.86 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.87

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 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 [introduction for off-spec used oil comments]: 

Industry commenters argue that off-specification used oil should not be considered a 

solid waste for a number of reasons relating to the statute and EPA regulations, as well as policy 

preferences. (We elaborate and respond to each of the comments separately, below. The 

comments also refer to on-specification used oil in much of the argument, but we have dealt 

with on-specification used oil above. Thus, the comments and responses below only deal with 

off-specification used oil issues.) 

Comment [3a-B7-2]:

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 

 

86 See Used Oil Final Rule, 50 FR 49181 (November 29, 1985). 

87 Once used oil is claimed to be on-spec and the marketer complies with the requirements for analysis and record 

retention, notification, and record tracking shipment to on-specification burners, it is no longer subject to other 

management standards. We note that today’s rule does not change any of the regulations in place that regulate onspec used oil. 
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recycling under section 3014 of RCRA, which includes recycling of off-specification used oil 

with appropriate environmental safeguards. EPA cannot now reverse this determination without 

a reasoned analysis. 

Another provision of EPA’s hazardous waste regulations, 40 CFR section 261.33, 

supports this position with respect to whether off-specification used oil is a solid waste. Under 

this provision, commercial chemical products and intermediates and off-specification variants 

listed as hazardous wastes in 40 CFR 261.33, as well as some other materials not relevant here, 

are solid wastes when burned for energy recovery unless the commercial chemicals are 

themselves fuels. Commercial chemicals that are themselves fuels are not wastes when burned 

for energy recovery. According to the comments, even off-specification variants of the 

commercial chemical products may be burned as fuels and not be considered solid waste. See 40 

CFR §§ 261.33(a) and (b); 40 CFR 261.2(c)(2)(B)(ii). The argument is that off-specification 

used oil should also be treated as a non-waste when burned for energy recovery. That is, used 

oil, even if off-specification, should be considered a product and not a waste under the rationale 

that used oil is a commercial chemical product. Further, EPA should not treat off-specification 

potentially hazardous wastes different from off-specification non-hazardous wastes. 

EPA’s Response: 

EPA disagrees that this analysis of the statute and regulations shows that off-specification 

used oil is not a solid waste. The Agency agrees that section 3014 of RCRA does not classify 

used oil as either a waste or a commodity. However, section 1004(37), also, does not define 

“recycled oil” as either a waste or a commodity. As EPA has explained elsewhere in this 

preamble, the recycling of secondary materials, per se, does not mean that such materials are 

either wastes or not. Wastes may have value and may be recycled, but they are still wastes. 

Used oil may be recycled by being “burned,” as provided under 1004(37), or may be recycled in 

any number of other ways. The mere fact that the secondary material is recycled is not 

dispositive for determining whether it is a waste. Thus, under the statute, contrary to the 

commenter’s view, “recycling” and “solid waste” are not mutually exclusive. This means that 

EPA must decide whether the secondary material is a waste based on the definition of solid 

waste in RCRA 1004(27) by deciding whether material is “discarded” in the plain meaning of 

the word. 

Similarly, Part 279 does not provide that the terms, “recycling” and “solid waste,” are 

mutually exclusive. Section 279.10(a) does distinguish between materials that are clearly 

“disposed of” by, for example, being thrown into a landfill, but makes no determination as to 

whether recycled secondary material is “discarded” in any other sense. Both ILCO and Owen 

Steel, for example, provide examples of recycling of wastes. As EPA continues to emphasize, 

wastes may be recycled even by being burned for energy recovery, but they are still wastes. 

As mentioned above, based on the information received and the record established for 

this rulemaking, we have concluded that off-spec used oil does not meet the legitimacy criteria. 

EPA has determined that off-specification used oil is a solid waste when burned for energy 

recovery because it has greater contaminant levels than fuel oils and its markets are limited due 

to this contamination. In particular, 40 CFR part 279 restricts the burning of off-specification 

used oil to industrial furnaces, industrial boilers, utility boilers, certain used oil-fired space 

heaters, and hazardous waste incinerators and specifically excludes non-industrial boilers, such 

as those located in apartment and office buildings, schools, and hospitals. For a more detailed 
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discussion of off-spec used oil, see 75 FR 31865. On-specification used oil, on the other hand, is 

not a waste because it has contaminant concentrations similar to fuel oils. Due to this, 40 CFR 

part 279 does not restrict where on-specification used oil can be burned. The definitions cited by 

the commenters in the statute and regulations do not affect these determinations. 

Section 261.33, also, does not affect EPA’s interpretation of the waste status of used oil. 

That provision deals with hazardous wastes and EPA has repeatedly stated that it is not 

reopening its RCRA subtitle C regulations for comment. In any event, however, section 261.33 

provides that chemicals manufactured as a fuel may be burned for energy recovery. It does not 

apply to secondary materials that may later be used as fuels when their original use was different. 

Furthermore, EPA is not making any changes to 40 CFR part 279 by virtue of this rule. 

The Agency is not reversing itself on any part of 40 CFR part 279. Also, 40 CFR part 279 makes 

no determination regarding the nature of the CAA regulations for any facilities that burn used oil 

and EPA is not amending 40 CFR part 279 to state whether any used oil is a waste or not. Based 

on the current provisions of 40 CFR part 279, it is entirely reasonable for the Agency to find that 

on-specification used oil is not a waste, while off-specification used oil is a waste. Also, we 

would note that off-spec used oil may still be burned in the same types of facilities provided in 

40 CFR part 279, but the CAA must determine how they are to be controlled based on the fact 

that the off-spec used oil is a waste. 

Comment [3a-B7-3]:

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 [3a-B7-4]: 

If EPA fails to classify off-specification used oil as a product, it will be in violation of the 

Congressional mandate to promulgate regulations that “do not discourage the recovery or 

recycling of used oil, consistent with the protection of human health and the environment.” 42 

U.S.C. 6935(a). 

EPA’s Response: 
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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 [3a-B7-5]: 

Commenters argued that contaminant concentrations found in “off-spec used oil” is 

comparable to traditional fuels. While commenters submitted studies that looked at both on-spec 

and off-spec used oil to support this assertion, Table 4 only summarizes data presented in the 

comments on the contaminant levels in off-spec used oil as compared to fuel oil and coal. In 

U.S. Study 1, 55 samples were collected “throughout the USA” from facilities that combust used 

oil in space heaters and/or small boilers. Two of the 55 samples were off-spec; one was off-spec 

for total halogens and the other was off-spec for cadmium. The researchers identified the offspec used oil for total halogens was an industrial oil that contains non-hazardous chlorinated 

paraffin and the other was from a military operation. Table 4 presents the data on the two 

samples that were off-spec. In the U.S. Study 2, researchers looked at a database of used oil 

samples maintained by a national commercial laboratory. The database contained over 3,500 

used oil samples from the U.S. and other countries on which over 17,000 analyses were 

performed from 2008 to present. Between 24 and 53 samples in this dataset exceed the 

specification for one of the contaminants – specifically for total halogens and chromium. The 

researchers speculated that the high levels of halogens were due to non-hazardous chlorinated 

paraffin which is used (added to the oil by lubricant manufacturers) in industrial oils designed to 

encounter high pressure. The researchers did not speculate on the reasons for the high levels of 

chromium. Table 4 presents the data on the off-spec samples, only. In the Canadian study, 230 

samples of used oil were collected from various businesses in Ontario, Canada between 2003 and 

2010. Of those samples, four were off-spec for arsenic, but not by significant amounts. The 

commenters did not speculate on the reasons for the high levels of arsenic. Table 4 presents the 

results of the analysis of the four off-spec samples. 

Table 4. Contaminant Concentrations in Off-spec Used Oil and Traditional Fuels 

Material 

U.S. 

Study 

1 88

U.S. 

Study 

2 89

Canadian 

Study90

Fuel Oil 

No. 

1,2,4,6 91 Coal 92

 

88 Source: EPA-HQ-RCRA-2008-0329-0799.2 

89 Source: EPA-HQ-RCRA-2008-0329-1273.1 Attachment B 

90 Source: EPA-HQ-RCRA-2008-0329-0799.4 

91 Source: EPA-HQ-RCRA-2008-0329-0799.2, EPA-HQ-RCRA-2008-0329-1273.1, Attachment B 

92 Ibid. 
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# Samples 2 24 – 53 4 unknown unknown

Year 2010 2010 

2003 - 

2010 unknown unknown

Contaminant 

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

<0.23 1.0 – 120

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. 
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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, offspec 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 [3a-B7-6]: 

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 [3a-B7-7]: 

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 
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loop for mold-making being part of a continuous industrial process.93 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 [3a-B7-8]: 

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, offspec used oil contains more contaminants than traditional fuels, and thus, is not a traditional fuel. 

In addition, as we have stated previously, the regulations at 40 CFR part 279 do not discuss or 

address whether used oil has been discarded, as commenters have claimed, but rather ensure that 

used oil that is recycled is conducted in a manner that protects human health and the 

environment. To that end, we encourage, and the RCRA used oil regulations currently allow, the 

processing of off-spec oil to create on-spec used oil as per 40 CFR 279.50, which states that 

processing “includes, but is not limited to: blending used oil with virgin petroleum products, 

blending used oils to meet the fuel specification, filtration, simple distillation, chemical or 

physical separation and re-refining.” There is nothing in today’s rule that would change this 

requirement. 

We also disagree with commenters that processing of off-spec used oil into on-spec used 

oil still renders it a waste. EPA’s regulations at 40 CFR 279.11 state that, once oil is determined 

to be on-specification in accordance with the regulations in Part 279, the used oil regulations do 

not apply to the material. On-specification used oil is for all intents and purposes the same as oil 

refined as a product fuel in the first instance and the Agency is not reopening its 40 CFR part 279 

regulations. 

Comment [3a-B7-9]: 

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.94 

 

93 A copy of this letter can be found in the docket to today’s rule. 

94 See documents EPA-HQ-RCRA-2008-0329-0799; EPA-HQ-RCRA-2008-0329-1273.1; EPA-HQ-RCRA-2008-

0329-1686 
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EPA’s Response: 

The data provided in the comments indicates that a very small portion of used oil is offspec. Assuming the data is representative of used oil, most used oil will be an alternative fuel 

(within the definition of a traditional fuel). This does not allow us to make a broad classification 

that, because only a small portion of used oil is off-spec, used oil can be generally classified as 

on-spec. On the other hand, the data in the studies submitted by commenters indicate that used 

oil obtained from small, private automobiles serviced by DIYers and auto repair shops will be 

on-spec, which would not be a solid waste. In addition, as we describe elsewhere in today’s 

preamble, persons can submit a non-waste determination petition if they believe that their used 

oil is not a waste. 

Comment [3a-B7-10]: 

Many commenters stated that there are numerous auto repair shops that use used oil to 

fuel their space heaters, which do not (or would not likely) meet the air pollution controls 

required by the CAA section 129 standards. The commenters argue that such auto repair shops 

will no longer be able to use off-spec used oil in their space heaters if off-spec used oil is 

determined to be a solid waste. 

Moreover, commenters assert that auto repair shops will likely not want to take on the 

additional burden of testing the used oil to determine if it is on-spec in order to use some portion 

of the material in their space heaters without having to comply with the CAA section 129 

standards. They further assert that these shops may illegally dispose of used oil if they cannot 

burn it in their space heaters and they are not located near a processor. Commenters expressed 

concerns that they may also stop collecting used oil from individuals who remove their own used 

oil (do-it-yourselfers, or DIYers) as they have no incentive to take the DIYers oil, which may 

lead to DIYers illegally disposing of their used oil. 

EPA’s Response: 

In this rule, EPA determined whether off-specification used oil is a solid waste. 

However, EPA’s regulations promulgated today under CAA 129 do not apply to space heaters. 

Thus, today’s rule would not in any way change the current regulatory scheme or operations for 

burning of used oil in space heaters since the Agency is not promulgating emission standards for 

such units. 

In particular, EPA is specifically clarifying in this final rule that used oil combusted in an 

oil-fired space heater that meets the provisions of 40 CFR 279.23 need not be tested to establish 

whether or not such oil is on or off-spec. This includes used oil generated by small facilities 

such as auto repair shops and machine shops that have such units, and used oil generated by 

homeowners who change their own oil (referred to as “do-it-yourself” or “DIY” oil) that are 

burned in such units. This is because the CISWI regulations promulgated elsewhere in the 

Federal Register today do not establish emissions limits for such units, and therefore the 

concerns of the commenters that such units would have to comply with CAA Section 129 

standards have been addressed for this population of combustion units. 

EPA also points out that anyone wishing to show that the material is on-spec does not 

have to test the used oil, but can use other information besides analyses. Specifically, the 

existing regulation under 40 CFR 279.72 states that used oil fuel can be determined to be on-spec 
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by “performing analyses or obtaining copies of analyses or other information documenting that 

the used oil fuel meets specifications.” 

8. Coal Refuse.

95 

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 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.96 

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 

 

95 The proposed rule differentiated between coal refuse and mined landfill ash. For a discussion regarding the use of 

mined landfilled ash as a fuel, see the coal combustion residuals section for fuels (Section V.B.9); for a discussion 

regarding the use of these non-hazardous secondary materials as ingredients, see the coal combustion residuals 

section for ingredients (Section V.C.2). 

96 See National Research Council of the National Academies (NRC), “Coal Research and Development,” 2007, 

accessed on May 14, 2008 at: http://www.nap.edu/catalog.php?record_id=11977. See generally “Materials 

Characterization Paper on Coal Refuse,” a copy of which is included in the docket for today’s rulemaking. 
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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 [3a-B8-1]: 

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.97 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. 

 

97 Referenced citation can be found at 75 FR 31856. 
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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 

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 [3a-B8-2]: 

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 
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states that “Coal means...coal refuse...”98 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, plainEnglish meaning (i.e., “disposed of,” “thrown away,” or “abandoned”). As coal refuse placed in 

legacy piles have clearly been abandoned, we cannot ignore the fact that these materials have 

been discarded in the first instance and, therefore, do not agree with the contention that this 

construct represents a “false distinction.” The resulting distinction may lead to results that some 

may find illogical, but we are faced with the definition of “discard” and the fact that the mere 

fact that discarded material may have value does not allow the material to lose its waste status. 

Although we recognize that all coal refuse is (and was) generated during the fuel 

production process and are more akin to raw materials, coal refuse that has been abandoned in 

legacy piles have not been historically used and managed as a fuel and therefore cannot be 

considered a traditional fuel. Because the technology did not exist that could effectively make 

use of the fuel value of these materials at the time of their generation, they were managed as 

wastes and abandoned in legacy piles. While we find that currently generated coal refuse should 

now be considered alternative fuels for the reasons stated above, we cannot ignore that coal 

refuse that has been placed in legacy piles have clearly been discarded and, thus, unless these 

materials are “sufficiently processed” and satisfy all legitimacy criteria for fuels, these secondary 

materials would be considered solid wastes when burned as fuels in combustion units. 

 Regarding the comments that argue that EPA has previously defined coal to include 

coal refuse, we note that this information was helpful, but disagree the cited regulatory 

definitions control in this rulemaking. The cited definitions, which are included in the standards 

of performance for new stationary source regulations, were developed pursuant to the CAA and 

do not address the issue of discard. Today’s rulemaking is being promulgated under RCRA, 

which, as mentioned above, hinges on the whether or not the non-hazardous secondary material 

at issue has been discarded. EPA also reemphasizes that the distinction is not between “fuel” 

and “waste,” but between fuel that is a commodity (not a waste because it has not been 

discarded) and waste fuel that has value, but is still a waste. 

In the same CFR sections cited by commenters which define coal as including coal 

refuse, we note that coal refuse is defined as meaning “waste-products of coal mining, cleaning, 

and coal preparation operations (e.g., culm, gob, etc.) containing coal, matrix material, clay, and 

other organic and inorganic material”99 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.”100 These definitions highlight the uniqueness of coal 

 

98 “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. 

99 See 40 CFR 60.41 

100 See 40 CFR 60.41b 
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refuse and in fact support the distinction we are making between coal refuse that is currently 

generated and coal refuse that has been placed in legacy piles. That is, it may be appropriate to 

consider coal refuse to be within the definition of coal because it may now be used as coal, while 

at the same time, it may also be appropriate to consider coal refuse to be a “waste-product” or 

“byproduct” of coal mining operations. EPA’s evaluation that coal refuse that is currently 

generated and used as a fuel has never been discarded and should be considered an alternative 

fuel, while discarded coal refuse should be considered a solid waste, is consistent with these 

regulatory definitions. 

Comment [3a-B8-3]: 

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 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 as-fired energy 

content; or improve the ingredient characteristics. Minimal operations that result only in 

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

definition.” We have determined that this definition encompasses an appropriate level of 

processing necessary to render a discarded material into a non-waste product. 
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As several commenters noted, the processes that are employed to recover coal refuse that 

has been placed in legacy piles in order to be used as fuels are the same as the processes that 

virgin coal is subject to. As discussed above, coal refuse is unique from other non-hazardous 

secondary materials in that it is a byproduct of fuel production processes and is itself a raw 

material that can be used as a fuel. Because coal refuse is essentially raw material coal, which is 

generated in the production of fuel and can be used itself as fuel, we agree with the commenter 

who stated that it would be illogical to require a different level of processing for discarded coal 

refuse than is used for virgin coal. Therefore, coal refuse that is recovered from legacy piles and 

used as fuel that is subjected to the types of operations that are used to process virgin coal, which 

serve to both increase energy values as well as reduce contaminants, would meet our definition 

of processing and would not be considered solid waste, provided these materials satisfy our 

legitimacy criteria, which they do since currently mined coal is certainly a legitimate fuel and is 

the same as those from the legacy piles. 

Comment [3a-B8-4]: 

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.101 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, 

PA102

No. 

Samples 

Minimum 

Maximum 

244 

0.11 

7.80 

244 

0 

200 

244 

0.6 

9.5 

244 

0.01 

1.00 

244 

2 

65 

244 

1.5 

34.0 

244 

0.8 

44.0 

244 

2 

390 

244 

0.00 

2.90 

244 

3.4 

86.0 

244 

22 

3400 

244 

0.68 

20.00 

 

101 CFBs ability to achieve lower emissions levels is due to several factors: (1) CFB boilers are often newer than 

many existing pulverized coal utility boilers and may be equipped with better particulate matter (PM) controls; (2) 

CFBs utilize lower operating temperatures, which result in lower metal and NOX emissions; and (3) CFB boilers 

often add limestone to their feed to control SO2 emissions, which results in greater fixation to the ash. 

102 Coal sample data found in the U.S. Geological Survey—National Coal Resources Data System. For more 

information, see http://energy.er.usgs.gov/coalqual.htm). 
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Samples of 

coal refuse 

from legacy 

piles located in 

Cambria, 

Indiana, and 

Somerset 

Counties, PA 

Sample 1 

Sample 2 

Sample 3 

1.5 

1.7 

1.5 

50.7 

53.4 

47.3 

2.1 

2.1 

2.1 

0.3 

0.3 

0.3 

80.2 

84.5 

84.7 

22.7 

23.8 

22.8 

33.1 

35.2 

33.1 

134 

139 

144 

0.644 

0.748 

0.613 

44.7 

50.5 

47.1 

718 

719 

745 

7.8 

8.6 

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.103 

Therefore, provided 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.104 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.105 

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 

 

103 Data provided by the commenter indicated that the average chromium levels of coal refuse was 83.1 ppm, 

whereas the range of chromium levels for the regional virgin coal samples was between 2-65 ppm. The proposed 

rule noted that chromium levels of coal refuse can be up to four times higher than virgin coal. 

104 See 75 FR 31865. 105 See our Materials Characterization Paper on Coal Refuse, located in the docket for today’s final rule. 
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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 [3a-B8-5]:

Several commenters contended that the management of coal refuse at mining sites is 

already regulated under the Surface Mining Control and Reclamation Act of 1997 (SMCRA) and 

that defining coal refuse as a solid waste would be inconsistent with SMCRA. Specifically, 

some commenters point out that although the term “solid waste” under RCRA includes mining 

waste in the definition, EPA determined, in accordance with section 1006(c) of RCRA that 

provides for the integration of RCRA with SMCRA, that materials and products associated with 

coal mining activities should not be regulated as hazardous wastes. 

EPA’s Response:

RCRA section 1006(c) pertains to hazardous wastes under RCRA subtitle C. As such, it 

is inapplicable for today’s rulemaking, which is solely concerned with non-hazardous secondary 

materials. Thus, we disagree with those commenters who cited section 1006(c) of RCRA and 

argued that regulation of coal refuse found in legacy piles should be deferred to SMCRA. In 

addition, SMCRA is concerned with the management and removal of coal refuse piles at mining 

sites. It does not address the issue of “discard,” which is critical to the definition of solid waste 

under RCRA, and as such, which emission standards coal refuse that is in legacy piles and 

burned in a combustion unit is subject to under the CAA. 

9. Coal Combustion Residuals.

106,107 

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 

 

106 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. 107 For a discussion of CCRs used as ingredients, see Section V.C.2 of this final rule. 
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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 nonwaste 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 [3a-B9-1]: 

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 or combustion in 

carbon burn-out (CBO) units for processing marketable fly ash products. 

One commenter described CBO units, which they explained burn “unwanted carbon” 

from fly ash to produce a low-carbon fly ash that is more suitable for use as an ingredient in 

Portland cement, as being typically integrated with power plants. The CBO unit combusts fly 

ash from the power plant in a fluidized bed, extracts the residual energy content of the fly ash to 

fuel the CBO, and returns useful heat to the power plant. The commenter stated that the major 

equipment that comprises the CBO unit includes a fluidized bed combustor and heat exchanger 

to recover heat from the fly ash combustion. This same commenter described the heat generated 

from the combustion of the carbon in the fly ash as “valuable” and is typically recovered from 

the CBO and used to heat the host plant’s condensate stream, which reduces the amount of 

extraction steam required. In reasoning that this high-carbon fly ash should be considered an 

ingredient, however, the commenter notes that energy generated from burning the secondary 

material is of secondary importance to the production of the valuable low-carbon fly ash to be 

sold to cement kilns. 

EPA’s Response: 

We do not agree with commenters that all CCRs, when used in combustion units, should 

categorically be defined as ingredients. As some commenters acknowledged, some CCRs are 

indeed used for their fuel value as opposed to their ingredient value, especially when re-burned, 

as in the case of their use in combustion units by electric utilities. Therefore, we cannot 

categorically classify CCRs as ingredients when it is clear that, in some cases, these secondary 

materials are being burned for their fuel value and/or to produce a new secondary material (i.e., 

low-carbon fly ash). In cases where the primary purpose of using CCRs is for their fuel value 

and not for the ingredient value (e.g., by electric utilities in utility boilers), the secondary 

materials must meet the requirements for fuels, including the legitimacy criteria, in order to not 
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be considered a solid waste. In other words, to the extent that CCRs are used as fuels, these 

secondary materials must remain within the control of the generator and meet the legitimacy 

criteria for fuels or be sufficiently processed into a new fuel product in order not to be considered 

a solid waste. We note, however, that sources may petition the Agency for a non-waste 

determination for secondary materials managed outside the control of the generator, including 

CCRs. See Section VII.G.

 Regarding CBO units that burn high-carbon fly ash, creating both energy, as well as a 

new marketable ingredient (i.e., low carbon fly ash), this activity would not constitute use of 

these secondary materials as ingredients. When the fly ash goes into a CBO unit, it is clearly not 

being used as an ingredient, but is used to produce an ingredient. It is less clear, however, 

whether this activity represents a legitimate use of these secondary materials as fuels or should 

be considered a type of waste management. The commenter states that burning of this fly ash in 

CBO units provides “valuable heat” and indicates that the energy is used in turn to power the 

CBO or returned to the power plant, which indicates that the burning of the fly ash could 

constitute a legitimate use as a fuel. On the other hand, the same commenter also noted that the 

fuel value is “secondary” to its value as an ingredient and the CBO process as removing 

“unwanted carbon” from the fly ash, which may suggest that the fly ash is being burned as a 

waste activity (i.e., the destruction of the unwanted carbon in order to generate a marketable 

product). 

Unfortunately, from the comments received, we are not able to make a categorical 

determination whether or not the burning of fly ash in these units would constitute “discard,” as 

it is unclear whether the carbon is being destroyed or whether it is actually used for its fuel value. 

In other words, the CBO unit is either "destroying" the carbon, which would make these 

materials a solid waste, or the carbon is being recovered and used as a fuel, in which case these 

materials would not be considered a solid waste provided they meet the legitimacy criteria. 

While the CBO units are burning the ash to create a marketable product, in so doing they 

may also be utilizing the separated carbon for its fuel value. The commenter indicates that use of 

high carbon-fly ash in these CBOs may have more than marginal energy value and can even be a 

source of additional power to an adjoining power plant. While we do not have sufficient 

information to make a categorical determination regarding the use of fly ash as a fuel in these 

CBO units, it is appropriate for these units to consider the legitimacy criteria in order to 

determine whether or not the fly ash is being burned for discard or burned legitimately for its 

fuel value. 

As discussed in Section VII.H, legitimacy criteria are critical to ensuring that nonhazardous 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, 
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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 [3a-B9-2]:

One commenter, a utility, stated that the proposed rule’s setting of minimum energy 

content values for a secondary material to be used as a fuel and not be considered a solid waste 

(i.e., the meaningful heating value legitimacy criterion) is inappropriate for the re-burning of fly 

ash when producing concrete quality fly ash, as the coal ash used for re-burn is selected based on 

its mineral content, combined with the mineralogy of the coal currently being used as a fuel. The 

fuel value of the fly ash is only one technical consideration when introducing coal ash in 

combustion systems for creating concrete quality fly ash and requiring a minimum heating value 

may restrict the use of high quality fly ash for use in concrete and other applications. 

EPA’s Response: 

We appreciate that the fuel value is only one of several considerations made when 

selecting fly ash for re-burn; however, in order for fly ash that is re-burned to not be a solid 

waste under today’s final rule, it would need to either remain within the control of the generator 

and meet the legitimacy criteria for fuels, including the meaningful heating value criterion, or, if 

discarded, be processed into a new, legitimate fuel product. Some 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, asfired, to have a meaningful heating value, and satisfy this legitimacy criterion. However, for 

facilities with energy recovery units that use non-hazardous secondary materials as fuels with an 

energy content lower than 5,000 Btu/lb, as fired, we believe it is also appropriate to allow a 

person to demonstrate that a meaningful heating value is derived from the non-hazardous 

secondary material if the energy recovery unit can cost-effectively recover meaningful energy 

from the non-hazardous secondary materials used as fuels. See Section VII.H.1 for a discussion 

of how non-hazardous secondary materials can satisfy the meaningful heating value criterion for 

fuels. 

Comment [3a-B9-3]: 

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 
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facilities and retrieved from landfills because it is being beneficially used. One of these 

commenters described how one of its power plants re-burns coal ash that it receives from two 

other power plants that it also owns. This same commenter also noted that it re-burns coal ash in 

one of its power plants that it has retrieved from an off-site landfill. 

EPA’s Response: 

As discussed in Section V.A.1, EPA is not making a sweeping arbitrary assumption in 

categorizing transferred secondary materials as discarded. Instead, EPA has evaluated whether 

certain categories of materials are discarded or not. The Agency has not adopted the extremes of 

saying that all burning of secondary material, regardless of ultimate use, is waste treatment or 

that any secondary material that is recycled for legitimate fuel value is a commodity and not a 

waste. Wastes may have value, but are still wastes. 

 Between these broad parameters, EPA has examined a number of specific materials, 

recycled on-site and transferred for recycling, and determined whether they would be 

appropriately placed within the waste or non-waste categories. EPA would consider transferred 

non-hazardous secondary materials not to be wastes if it could make the appropriate findings for 

those categories. In fact, the Agency does so with respect to scrap tires harvested from vehicles 

and resinated wood residuals. 

Commenters discussing scrap tires and resinated wood residuals, however, provided 

specific information regarding how these secondary materials were managed when they no 

longer remained within the control of the generator and the frequency with which these materials 

were collected and transferred off-site. For example, resinated wood residuals are routinely 

transferred between either intra- or inter- company facilities and used as either “furnish” (i.e., 

raw materials) or fuel at the receiving facilities. The material being transferred off-site is used 

and handled in the same manner that resinated wood residuals are used when generated on-site 

(such that it is impossible to distinguish between materials that are being used as a raw material 

and those that are being used as a fuel). 

On the other hand, commenters discussing the use of CCRs as fuels outside the control of 

the generator did so only in general terms. Commenters provided legal arguments that case law 

holds that transfer of such materials between companies were irrelevant for determining whether 

a recycled material was properly viewed as a solid waste. See Section V.A.1 for our response to 

these legal arguments on the issue of “transfer” as it relates to the concept of discard. However, 

these commenters did not specify how the proposed rule’s presumption that non-hazardous 

secondary materials that are used as fuels and are managed outside the control of the generator 

are solid wastes was inappropriate for CCRs. In general, the D.C. Circuit has not accepted such 

presentations in “broad abstraction.” See ABR at 1056. 

Because commenters did not provide sufficient information detailing how CCRs are 

managed when transferred outside the control of the generator, we are unable to determine 

whether such movement of CCRs outside the control of the generator is or is not indicative of 

discard. Thus, such a determination is best left to the non-waste petition process, as finalized in 

today’s rule. As we’ve discussed, we believe this petition process is essential because many 

non-hazardous secondary materials are recycled and managed in many different ways, and the 

Agency may lack the specific details in certain cases to know whether such non-hazardous 

secondary materials are or are not solid wastes. For a discussion of non-waste determination 

petitions, see Section VII.G of today’s rule. 
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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 non-hazardous 

secondary material are under the control of the same person. We have also codified the 

definition of “control” as meaning the power to direct the policies of the facility, whether by the 

ownership of stock, voting rights, or otherwise, except that contractors who operate facilities on 

behalf of a different person as defined in this section shall not be deemed to “control” such 

facilities. See §241.2. As the commenter states that it owns the other two plants, such intracompany 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 [3a-B9-4]: 

 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. 

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. 
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Comment [3a-B9-5]: 

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.108 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 §241.2.109 

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 

 

108 See “Materials Characterization Paper on Coal Combustion Residuals-Coal Fly Ash, Bottom Ash, and Boiler 

Slag.” A copy of this document has been placed in the docket for today’s rule. 

109 We note, however, that burning any secondary material, including CCRs, in a combustion unit would not 

constitute “processing,” as determining whether or not a material is a solid waste must occur prior to its placement 

in the combustion unit. To consider the burning of such materials as “processing” would be circular. 
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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 [3a-B10-1]: 

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 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 [3a-B10-2]: 

Commenters asserted that Congress wrote section 112 of the CAA to regulate sewage 

sludge emissions, stating that section 112(e)(5)110 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. 

 

110 CAA section 112(e)(5) states, “The Administrator shall promulgate standards pursuant to subsection (d) of this 

section applicable to publicly owned treatments works (as defined in Title II of the Federal Water Pollution Control 

Act [33 U.S.C.A. § 1281 et seq.] not later than 5 years after November 15, 1990.” 
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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 [3a-B10-3]: 

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.111 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.”112

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.”113 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.114 

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),115 and does not apply to the 

 

111 See 45 FR 33102 (May 19, 1980). 112 See 55 FR 46364 (November 2, 1990) (Footnote 14). 113 Id at 45 FR 33097. 114 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...”

115 We would note that even though the CWA section 405(d) regulations have been promulgated, EPA never 

exempted sewage sludge from the subtitle C hazardous waste regulations, and thus, sewage sludge that exhibits any 

of the characteristics of hazardous waste must be managed as a hazardous waste. See 45 FR 33102, May 19, 1980 

where it states, “The Agency’s strategy for the development of a comprehensive sewage sludge management 

regulation will eventually result in the establishment of a separate regulation. Once such a regulation is in place, 

sewage sludge will be exempted from coverage under other sets of regulations. . . .Pending promulgation of this 

comprehensive sewage sludge regulation, sewage sludge will not be specifically excluded from Subtitle C.” 
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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 [3a-B10-4]: 

Several commenters stated that sewage sludge has meaningful heating value and that 

EPA should re-evaluate its description of this criterion. Commenters argued that EPA’s 

determination that waste heat boilers do not qualify as combustion units that recover energy is 

arbitrary and does not recognize the significant value of waste heat boilers and their role in 

energy generation. One commenter, a regional sewer district that estimated roughly 93 percent 

of its sewage sludge was “incinerated,” stated that four of its boilers had produced a total of 2.5 

billion pounds of high pressure steam over a twenty-five year span by converting the heat 

generated from burning sewage sludge in multiple hearth incinerators to high pressure steam. 

EPA Response: 

We find that most sewage sludge is burned not for energy recovery, but for destruction. 

Sewage sludge burned in an incinerator for the purposes of destruction would clearly meet the 

meaning of discard, and thus be a solid waste. While we recognize that waste heat boilers are 

useful devices for providing energy in the form of steam for secondary processes, the presence of 

a waste heat boiler does not, by itself, change the fact that the unit combusting the non-hazardous 

secondary material is primarily an incineration unit burning waste for disposal purposes. 

Further, the Agency does not regard waste heat boilers as legitimate energy recovery 

devices because they receive their energy input from the combustion of off-gases via a separate 

combustion chamber. Under the RCRA program, a legitimate energy recovery device is one that 

meets the definition of a boiler or an industrial furnace.116 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 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 [3a-B10-5]: 

 

116 See February 28, 1984 Memorandum from John H. Skinner, Director, Office of Solid Waste, to Thomas W. 

Devine, Director, Air and Waste Management Division, EPA Region IV, entitled, “Guidance on Determining When 

a Hazardous Waste Is a Legitimate Fuel That May Be Burned for Energy Recovery in Boiler or Industrial Furnace.” 

A copy of this memorandum is included in the docket for today’s rule. For definitions of “boiler” and “industrial 

furnace” under RCRA, see 40 CFR 260.10. 
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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.117 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 site-specific data provided by several 

commenters. We agree that in most cases, the specific data provided by commenters indicates 

that contaminant levels for most contaminants is not as high as previously reported in the earlier 

studies. However, we note that the TNSSS data provided by commenters still indicates higher 

levels, and those that EPA would not consider to be “comparable” for most of the contaminants 

found in sewage sludge when compared to coal. Thus, under today’s final rule, sewage sludge 

would not satisfy the contaminant legitimacy criterion because of the presence of noncomparable levels of metals when compared to traditional fuels. Regarding the commenter’s 

 

117 The proposed rule included a table comparing sewage sludge data taken from a 1982 40-city study and a 1988 

National Sewage Sludge Survey, cited in the National Biosolids Partnership’s 2005 “National Manual of Good 

Practices for Biosolids,” and coal data taken from a 1998 U.S. EPA report entitled, “Development of Comparable 

Fuels Specifications.” May 1998. 
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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 [3a-B10-6]: 

Finally, several commenters urged EPA to explicitly limit the scope of the final rule, 

making it clear that this rulemaking would have no regulatory effects or impacts for sewage 

sludge that is not incinerated (e.g., land application). On the other hand, one commenter 

requested that the Agency designate sewage sludge as a solid waste regardless of the manner that 

it is managed for disposal (land application, surface disposal, co-disposal in a municipal solid 

waste landfill, or incineration). 

EPA’s Response: 

We disagree with the one commenter who requested that this rulemaking define sewage 

sludge as a solid waste regardless of its end use (i.e., land application, surface disposal, etc.). In 

this final rule, EPA is articulating a framework for determining whether a non-hazardous 

secondary material is or is not a solid waste when burned as a fuel or ingredient in a combustion 

unit; we are not making solid waste determinations that cover other possible end uses (e.g., land 

application of sewage sludge). It is the Agency’s view that these regulations should not dictate 

to state programs how to characterize and/or regulate this material (as well as any other nonhazardous 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 [3a-B11-1]: 

 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 byproducts, 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. 

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.118 Processed fats, the 

 

118 See document EPA-HQ-RCRA-2008-0329-0706.1 

Adams, T.T., J. Walsh, M. Brown, J. Goodrum, J. Sellers, and K. Das, 2002. “A Demonstration of Fat and Grease as 

an Industrial Boiler Fuel,” University of Georgia, Athens, GA. 
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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 non-hazardous secondary materials contain 

lower concentrations of contaminants than traditional fuels119 and, as such, are being encouraged 

for use instead of fossil fuels.120 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 nonwaste determination petitions would need to be submitted on a case-by-case basis, and would 

have a chilling effect on the development of new customers and markets for processed fats, is not 

the case. Thus, the final rule establishes these non-hazardous secondary materials, after being 

 

119 See the Preliminary Characterization Study Prepared In Support of the Proposed Rulemaking –Identification of 

Nonhazardous Secondary Materials That Are Solid Waste: Traditional Fuels and Key Derivatives, EPA-HQ-RCRA2008-0329-0461.21 

120 See Adams, T.T. J. Walsh, M, Brown, J. Goodrum, J.Sellers, and K. Das, 2002. “A demonstration of Fat and 

Grease as an Industrial Boiler Fuel,” University of Georgia, Athens, GA. 
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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 nonhazardous 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. 

Comment [3a-C1-1]: 

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 nonhazardous secondary material and should not be considered a solid waste. The commenter 
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explains that while CKD may have been previously placed in storage piles or even permitted 

solid waste management units (SWMUs), the technology did not exist previously to reuse the 

material. However, newer kiln systems can now use the CKD that has previously been disposed 

of, and thus, these non-hazardous secondary materials (which are ingredients in the manufacture 

of cement) should not be subject to the CAA section 129 standards. 

 EPA’s Response: 

The commenter acknowledges that even though the CKD has remained on-site, the intent 

or purpose of placing CKD in storage piles or SWMUs was to dispose of them (i.e., discard). 

Additionally, CKD that has been placed in storage piles in this manner would likely not meet the 

legitimacy criterion of “managed as a valuable commodity.” Thus, it would appear in this 

instance that CKD that has been placed in storage piles for the purpose of disposal, even if onsite, 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.121 

CCRs are formed during the coal-burning processes in power plants and industrial 

boilers, and are produced in various forms (i.e., fly ash, bottom ash, and boiler slag) that are 

categorized by the process in which they are generated. The proposed rule indicated that CCRs 

used as ingredients in combustion units would not be considered solid wastes, provided they 

were not discarded in the first instance and satisfy the legitimacy criteria.122 We also noted that 

CCRs can be used both as an ingredient and as a fuel supplement and proposed that 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 non-waste ingredient product and satisfy the legitimacy criteria in 

order not to be considered a solid waste. We also noted that comments were submitted on the 

ANPRM, which described patented processes that remove unwanted carbon from coal fly ash in 

order for these non-hazardous secondary materials to be used as an ingredient. While these 

processes—that is, those that separate carbon from fly ash to produce technically compliant fly 

 

121 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. 122 For a discussion of CCRs used as fuels in combustion units, see Section V.B.9 of this final rule. 
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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.123 Acknowledging that fly ash may 

contain various levels of metals, such as vanadium, zinc, copper, chromium, nickel, lead, arsenic, 

and mercury,124 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.125 

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 [3a-C2-1]: 

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 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). 

 

123 For more information on the different types, or ranks, of coal, please refer to the Materials Characterization Paper 

on Traditional Fuels and Key Derivatives, which is located in the docket of today’s final rule. 

124 See “Technical Background Document for the Report to Congress on Removing Wastes from Fossil Fuel 

Combustion: Waste Characterization.” U.S.EPA. March 15, 1999. 125 “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. 
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Some commenters were also concerned that if cement kilns burned high-carbon content 

fly ash (which has more pronounced fuel content), the provisions of this rule applying to fuels 

would be triggered, even though these secondary materials have nearly identical characteristics, 

is managed in an identical manner, and is combusted in the same unit as the material used 

primarily as an ingredient (i.e., low-carbon content fly ash). 

 EPA’s Response: 

EPA agrees with the commenters that the primary purpose when using CCRs in cement 

kilns is to utilize it as an ingredient. However, we disagree with those commenters that argued 

that all CCRs, when used in combustion units, should be categorically defined as ingredients. As 

some commenters acknowledged (and as we also discussed in Section V.B.9 above), some CCRs 

are indeed used for their fuel value as opposed to their ingredient value, especially when 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 high-carbon fly ash burned in cement kilns, it is not clear the 

extent to which cement kilns burn high-carbon fly ash or rather if commenters were providing a 

hypothetical situation in order to highlight potential issues that could arise for secondary 

materials that could have value as both a fuel and ingredient. It is also unclear whether lowcarbon 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 [3a-C2-2]: 

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 
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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.126 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 [3a-C2-3]: 

 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 [3a-C2-4]: 

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. 

 

126 See “Materials Characterization Paper on Coal Combustion Residuals-Coal Fly Ash, Bottom Ash, and Boiler 

Slag.” A copy of this document has been placed in the docket for today’s rule. 
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One state commenter, however, stated that it expects the mercury content of coal fly ash 

to increase significantly in upcoming years. Consequently, this state commenter described its 

current efforts to remove a generic, pre-determined beneficial use determination for coal fly ash 

as an ingredient in 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.127 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.128 

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 [3a-C3-1]: 

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 

 

127 A series of reports have been and are being developed by U.S. EPA’s Office of Research Development. To date, 

three documents have been finalized, including: (1) “Characterization of Mercury-Enriched Coal Combustion 

Residuals from Electric Utilities Using Enhanced Sorbents for Mercury Control.” EPA-600/R-06/008. Feb. 2006; 

(2) “Characterization of Coal Combustion Residuals from Electric Utilities Using Wet Scrubbers for Multi-Pollutant 

Control.” EPA-600/R-08/077. July 2008; and (3) “Characterization of Coal Combustion Residuals from Electric 

Utilities Using Multi-Pollutant Control Technology – Leaching and Characterization Data.” EPA-600/R-09/151. 

December 2009. Ongoing work to complete this research includes: (1) probabilistic assessment of the leaching 

source term for plausible CCR management scenarios, (2) Leach-XS Lite which is free software providing 

electronic access to data from this research, and (3) test methods for the Leaching Environmental Assessment 

Framework (LEAF). 

128 We also note that CCRs used as fuels must also meet the contaminant legitimacy criterion in order not to be 

considered a solid waste. 
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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.129 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.130

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 nonwaste 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 [3a-C4-1]: 

 

129 March 28, 2001 letter from Elizabeth Cotsworth, Director, EPA’s Office of Solid Waste to Ms. Amy J. 

Blankenbiller, American Foundry Society. A copy of this letter can be found in the docket to today’s rule. 130 For more information on the reuse of foundry sands as molds, see “Revisions to the Definition of Solid Waste” 

Final Rule at 73 FR 64705. October 30, 2010. 
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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 size the aggregate. Some commenters also asserted that because these slags are 

reused as part of a continuous process, the application of the legitimacy criteria are inappropriate. 

 EPA’s Response: 

We agree with the commenters that blast furnace and steel slag that are reused as an 

ingredient, either in the iron and steel making processes or in the manufacturing of glass, are not 

solid wastes provided they have not been discarded in the first instance and meet the legitimacy 

criteria. However, we disagree with the commenters, who argued that because they are reusing 

these slags in a “continuous process,” the application of the legitimacy criteria do not apply. 

EPA has a long-standing policy that the recycling of secondary materials, both hazardous and 

non-hazardous, including as part of a continuous industrial process, must be legitimate. The 

legitimacy provisions in today’s rule are designed to distinguish between real recycling activities 

and “sham” recycling, an activity undertaken by an entity to avoid certain requirements, which in 

this case would be to avoid triggering the section 129 CAA requirements for solid waste 

incinerators. Because of the economic advantages in managing the non-hazardous secondary 

material as a non-waste ingredient as opposed to a solid waste ingredient, there is an incentive 

for some handlers to claim they are recycling, when, in fact, they are conducting waste disposal. 

Therefore, blast furnace and steel slag used as an ingredient in a combustion unit, including as 

part of a continuous industrial process, must satisfy all of the legitimacy criteria in order to not 

be considered a solid waste. 

 Regarding the description provided by the commenter on the extent of processing 

conducted on slags that have been previously discarded, it appears that this level of processing 

would meet our definition of processing, as the processing includes not only rigorous operations 

to extract the slag from the discard environment, but also the concerted removal of constituents 

through magnetic separation. Assuming the processed slag meets the legitimacy criteria for 

ingredients, the slag resulting from the processing operation would constitute a non-waste 

ingredient and would not be considered a solid waste. 

D. Comments on Legitimacy Criteria for Fuels

Non-hazardous secondary materials used as fuels in combustion units must meet the 

legitimacy criteria specified in §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. 
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 Under the proposed rule, non-hazardous secondary materials used as fuels must be 

managed as valuable commodities, including being stored for a reasonable time frame. Where 

there is an analogous fuel, the non-hazardous secondary material used as a fuel must be managed 

in a manner consistent with the management of the analogous fuel or otherwise be adequately 

contained so as to prevent releases to the environment. Where there is no analogous fuel, the 

non-hazardous secondary material must be adequately contained so as to prevent releases to the 

environment. An “analogous fuel” is a traditional fuel for which the non-hazardous secondary 

material substitutes, and which serves the same function and has similar physical and chemical 

properties as the non-hazardous secondary material. In addition to requesting comment on this 

criterion, the Agency solicited comment on whether it should define a specific “reasonable” time 

frame or range of time frames for storage as part of this criterion and on the time period or range 

of time periods that traditional fuels are typically held before they are used as a fuel. Comment 

was also solicited as to whether the “contained” standard, which is a general performance 

standard, provides sufficient direction to the regulated community or whether the Agency should 

include specific technical standards or limit the types of units in which such non-hazardous 

secondary materials may be managed, in order for them to be considered to be “managed as a 

valuable commodity.” 

 Comment [3a-D1-1]: 

Recommendations on a reasonable time frame to determine if a non-hazardous secondary 

material is managed as a valuable commodity brought a range of responses. Many commented 

that a one-rule-fits-all policy for the reasonable time frame of storage of non-hazardous 

secondary materials is impractical and arbitrary, since the definition of what is “reasonable” will 

vary by secondary material, industry, and facility. Instead, they argued that facilities should be 

allowed to determine what constitutes the most reasonable time frame, based on what is most 

economical. The most appropriate time frame will vary depending upon the non-hazardous 

secondary material and the industry and may reflect the rate at which the non-hazardous 

secondary material at issue is generated. If a non-hazardous secondary material is generated 

continuously, then use and storage is predictable and can be kept consistent. However, some 

non-hazardous secondary materials are stored for long periods and may be removed only once or 

twice per year. 

 While many commenters rejected the idea of a specific storage time limit, a limited 

number were supportive of such an approach. For example, one commenter recommended that 

no more than 180 days of inventory using the design process rate be stored at any given time and 

no more than 49 percent of the inventory be in storage for more than 2 years. These time frames 

allow the energy/material recovery facility a reasonable amount of time to make arrangements to 

establish, buy, and sell the non-hazardous secondary material. Other commenters recommended 

a time frame of one year, consistent with the hazardous waste requirements for speculative 

accumulation. 

 EPA’s Response: 

 After further evaluation, EPA agrees with the majority of commenters that “reasonable 

time frame” should not be specifically defined as such time frames vary according to the nonhazardous 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-
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effective. In addition, persons will need to document in their records the “reasonable time 

frame” selected and the basis for such time frames. (See Section VII.I for further discussion on 

documentation of legitimacy decisions.) The Agency did not receive information that such 

flexibility would lead to non-hazardous secondary materials being over-accumulated. 

Comment [3a-D1-2]: 

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 

order for them to be considered to be “managed as a valuable commodity.” 

 Several commenters recommended that the definition of “contained” be clarified and to 

include the concept of maintaining the recyclability of the non-hazardous secondary material. In 

contrast, other commenters stated that the proposed “contained” standard provides sufficient 

direction to the regulated community and that the definition of “contained” in the proposed rule 

adequately describes how and when a non-hazardous secondary material will be considered 

“contained.” They asserted that industry will use this definition as a general guideline for the 

safe handling and storage of non-hazardous secondary materials and that further “specific” 

definitions or other approaches would not be beneficial since the current guidance provides clear 

and sensible direction. 

 Others commented that the “contained” standard is inadequate to determine whether a 

material is “valuable” or discarded. They argue that the standard does not explain what 

adequately contained means nor does it account for differences in the necessary level of 

containment for different materials. 

 EPA’s Response: 

 The Agency recognizes that the “contained” concept can be somewhat difficult to grasp, 

but also notes that the “contained” standard is to be used only in those situations where there is 

not an analogous fuel product. That is, if there is an analogous fuel product to the non-hazardous 

secondary material, then the non-hazardous secondary material must be stored in a similar 

manner and, since it is indeed a valuable material, EPA could reasonably expect it to be 

contained so as not to be lost to the environment. In EPA’s view, a recycler will value 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 nonhazardous secondary materials as it would a valuable fuel, that behavior may indicate that the 

non-hazardous secondary materials may not be burned as fuel, but rather released into the 

environment and discarded. This criterion's primary focus is on storage in a manner consistent 

with the analogous valuable raw material. 

However, EPA realizes that in some processes, there is not a raw material that can be 

called “analogous” and, in order to allow facilities with those processes to evaluate the 

legitimacy of their recycling, EPA added the requirement that the materials be “contained” if 

there is no analogous product to achieve the same relative standard of secondary materials being 

managed as valuable commodities. Furthermore, EPA has explained what it means to be 
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contained in today’s preamble and includes that definition in the regulatory text. Specifically, a 

non-hazardous secondary material is “adequately contained” if it is stored in a manner that 

adequately prevents releases or other hazards to human health and the environment, considering 

the nature and toxicity of the secondary material. Thus, we are finalizing the contained standard, 

as proposed. 

 Nevertheless, the Agency recognizes that providing greater clarity to this definition may 

be useful to the regulated community and the public. To this end, EPA has agreed to issue a 

proposed rule by June 2011 on the definition of solid waste under the hazardous waste provisions 

of RCRA (see Section VIII.C for additional details). One of the issues that EPA will be 

evaluating as part of that proposal is the “contained” standard, as promulgated in that rule.131 

Comment [3a-D1-3]: 

Several commenters expressed uncertainty about the meaning of “valuable commodity,” 

noting that the definition of valuable commodity should be clarified, or requested that EPA 

specify clear criteria for determining whether a non-hazardous secondary material is managed as 

a valuable commodity. 

 EPA’s Response: 

Given the nature of this legitimacy criterion and the need to apply it to a variety of nonhazardous secondary materials that are managed in various ways, we have determined that it is 

not appropriate or practicable for EPA to develop specific technical standards. The Agency is 

using this criterion: materials must be managed as analogous raw materials or, if there are no 

analogous raw materials, the materials must be adequately contained; contained is defined to 

mean “the non-hazardous secondary material is stored in a manner that adequately prevents 

releases or other hazards to human health and the environment considering the nature and 

toxicity of the non-hazardous secondary material.” This definition provides ample direction and 

guidance, as a number of commenters argued, while at the same time provides the flexibility 

needed since this criterion will apply to a large number of non-hazardous secondary materials 

and industries. As an example, resinated wood residuals are adequately contained since they are 

pneumatically transferred through enclosed ducts, stored temporarily in a fuel silo, and then 

utilized in boilers to provide heat to hot presses and dryers (see Section V.B.6). 

Regarding the term “valuable commodity,” EPA’s intent with this criterion is that nonhazardous 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 

 

131 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 transferbased 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.” 
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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 [3a-D1-4]: 

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. 

EPA’s Response: 

We disagree with the commenter that this criterion is irrelevant because we cannot 

determine (nor does our experience suggest) that solid wastes and commodities are always 

managed in a similar manner. Commodities, on the one hand, are handled specifically to prevent 

the loss of material because of its value. Solid wastes, on the other hand, when they are not 

highly regarded for a beneficial reuse, are often not managed in a way that minimizes the release 

of the material itself, but more in a way that protects the surrounding environment from the 

material. However, we also know that solid wastes, if not properly managed, have created 

damages to the environment. For example, the over-accumulation of scrap tires is well known 

and has resulted in massive piles of discarded tires that have contributed to the overall solid 

waste management problem due to the threat of fires, such as the Rhinehart Tire Fire Dump,132

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 non-hazardous secondary materials that are managed in various ways, we 

are not identifying specific standards or practices for managing a material as a valuable 

commodity beyond those examples for resinated wood and scrap tires outlined above. If any 

material, whether a non-hazardous secondary material or a raw material commodity, is mismanaged 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 sitespecific 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. 

 

132 See 51 FR 21054, June 10, 1986. 
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Under the proposed rule, the non-hazardous secondary material must have a meaningful 

heating value and be used as a fuel in a combustion unit that recovers energy. In addition to 

requesting comment on this criterion, the Agency also requested comment on whether it should 

promulgate a bright-line test for determining what is considered a meaningful heating value in an 

effort to provide greater certainty to both the regulated community and regulatory officials. For 

example, the Agency could establish 5,000 Btu/lb or some other value as the bright-line test. In 

addition, EPA requested comment on whether we should identify a Btu/lb cutoff below which 

the Agency would declare that the non-hazardous secondary material is being burned for 

destruction as opposed to energy recovery. Under this approach, non-hazardous secondary 

materials between this lower level and 5,000 Btu/lb (assuming there is a difference) could pass 

this criterion provided the facility demonstrates the energy recovery unit can cost-effectively 

recover meaningful energy from the non-hazardous secondary materials used as fuels; below this 

lower level, all non-hazardous secondary materials that are burned in a combustion unit would be 

considered to be burned for destruction and thus a solid waste if combusted. 

 Comment [3a-D2-1]: 

 Many comments related to the establishment of a Btu threshold claimed that any heating 

value is “meaningful.” Other commenters expressed opposition to the imposition of a bright-line 

test, with one commenter arguing that inflexible Btu/lb cutoffs, as well as "benchmark" values 

could prevent utilities and other industries from using alternative fuels to recover energy. 

Another commenter echoed opposition to a bright-line test since the use of a non-hazardous 

secondary material with any heating value reduces the use of fossil fuels, indicating that any 

value for the bright line test would be arbitrary and would result in costly impacts to current 

production systems and would stifle technological advancements in combustion unit designs. 

 Other commenters stated that a minimum heating value, below which the non-hazardous 

secondary material would not be considered to have a meaningful heating value will restrict the 

marketplace, hamper advances and innovation in energy recovery, and add costs where they are 

not justified from an environmental standpoint. If EPA insists on a minimum heating value, 

they recommend including a cost effectiveness provision in the rule that would enable facilities 

to demonstrate the value of using a material below this threshold. 

 Commenters from state agencies differed somewhat in their positions regarding the 5,000 

Btu/lb threshold. Two state agencies requested that EPA lower the minimum Btu threshold from 

5,000 Btu/lb to 4,000 Btu/lb, but another State agency supports the 5,000 Btu/lb threshold. Still 

another state commenter recommends that if EPA establishes a lower threshold, below which the 

non-hazardous secondary material would not be considered to have a meaningful heating value, 

that this value be based on innovation in energy recovery technologies from secondary materials 

with lower heating values. Due to the continuing evolution of energy recovery technologies, this 

commenter argues that EPA should include a "safe harbor" cut-off level in the rule with a 

provision for case-by-case approvals based on the most current proven technology. Another 

commenter recommends that if such a lower threshold is established, that it be based on the high 

moisture content of wood products that prevent these materials from reaching the minimum 

5,000 Btu/lb threshold. 

 EPA’s Response: 

After further evaluation, the Agency agrees with commenters that imposition of a strict 

bright-line test for minimum heating value could hamper advances and innovation in energy 
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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 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 costeffectively 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 costeffectively recover energy from the non-hazardous secondary material include, but are not 

limited to, whether the facility encounters a cost savings due to not having to purchase 

significant amounts of traditional fuels they otherwise would need, whether they are purchasing 

the non-hazardous secondary material to use as a fuel, whether the non-hazardous secondary 

material they are burning can self-sustain combustion, and whether their operation produces 

energy that is sold for a profit (e.g., a utility boiler that is dedicated to burning a specific type of 

non-hazardous secondary material that is below 5,000 Btu/lb could show that their operation 

produces electricity that is sold for a profit). 

3. Have Contaminants at Comparable Levels or Lower Than Traditional Fuels. 

 Under the proposed rule, non-hazardous secondary materials must contain contaminants 

at levels comparable to or lower than those in traditional fuels which the combustion unit is 

designed to burn. Such comparison is to be based on a direct comparison of the contaminant 

levels in the non-hazardous secondary material to the traditional fuel itself. Contaminants were 

defined under the proposal as any constituent in non-hazardous secondary materials that will 

result in emissions of the air pollutants identified in CAA section 112(b), and the nine pollutants 

listed under CAA section 129(a)(4) when such secondary materials are burned as a fuel or used 

as an ingredient, including those constituents that could generate products of incomplete 

combustion. 

The Agency specifically solicited comments on how EPA should interpret the 

“comparable to or lower than” standard. For example, should comparable mean the same as or 

lower, taking into consideration natural variations in sampling events? Also, instead of requiring 

that contaminant levels in non-hazardous secondary materials be comparable to traditional fuels, 

the Agency also requested comment as to whether to adopt a “not significantly higher” 

standard—that is, contaminants in non-hazardous secondary material used as a fuel in 
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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 [3a-D3-1]: 

 Several commenters addressed the “comparable” standard and the “not significantly 

higher” standard. Many of these comments stated that “comparable” should be understood to 

mean “similar, higher or lower,” not “equal” or the “same.” Commenters also requested that 

EPA clarify the definition of “comparable” and specifically requested that EPA explain the 

concept in greater detail. Of the comments that expressed a preference for either the 

“comparable” or “not significantly higher” standard, most preferred the latter, stating that it is 

more consistent with the approach used by EPA for hazardous waste in the 2008 DSW Final 

Rule and would not discourage beneficial use as much as the “comparable” standard. Two other 

commenters argued that instead of using a “not significantly higher” standard, the total 

environmental impact of using a non-hazardous material should be considered. For example, a 

non-hazardous secondary material may be lower in all contaminants, except one that may be 

considered higher than “comparable,” but the overall impact is beneficial in terms of less total 

contaminants and improved emissions. 

 Other commenters offered suggestions on how to interpret “comparable,” but also on 

how to implement the “comparable” standard. For example, “comparable” should refer to the 

traditional fuel that would be used if the non-hazardous secondary material was not being burned 

or allowed to be burned. Another commenter believed that the “comparable” standard should 

only be used as an initial step to determine if the material is a legitimate fuel. For example, 

where a material has high levels of a low-impact contaminant or a contaminant is controlled by 

the emission control device in the incineration unit, there should be a process to see whether the 

material can still be considered a fuel. Similarly, another commenter also recommended using 

the “comparable” standard as an initial determination step, with the “not significantly higher” 

standard being used as a secondary determination step in some situations. These situations 

would primarily be when there is a low-impact contaminant without environmental, health, or 

product quality impacts present in concentrations above those found in traditional raw materials. 

 EPA’s Response: 

EPA has retained the legitimacy criterion that non-hazardous secondary materials used as 

a fuel must contain contaminants at levels that are comparable to or lower than the 

concentrations found in traditional fuels which the combustion unit is designed to burn. The 

“comparable to or lower than” standard means any contaminants present in non-hazardous 

secondary materials that are within a small acceptable range, or lower than, the contaminant in 
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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 nonhazardous secondary materials that are being combusted. 

EPA recognizes that combustion is an inherently destructive process, even when energy 

is recovered. If a non-hazardous secondary material contains contaminants that are not 

comparable to those found in traditional fuels, and those contaminants are related to pollutants 

that are of concern at solid waste combustion units, then it follows that discard is occurring. 

The contaminants in these cases could not be considered a normal part of a legitimate fuel and 

are being discarded, either through destruction in the combustion unit or through releases into the 

air. Units that burn such materials are therefore most appropriately 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 non-hazardous 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 non-hazardous secondary material may be judged not to present an 

environmental problem when assessing all contaminants together, although significantly higher 

levels for one or more contaminants may be present such that they are destroyed or discarded by 

means of combustion. This, we have determined, is inconsistent with the concept of discard 

under the statute, since it would allow a solid waste to be subject to the CAA section 112 

standards, even though the non-hazardous secondary material has been discarded. 

We also disagree with commenters who believe that the comparable standard should only 

be used as an initial step to determine if the material is a legitimate fuel, particularly in those 

situations involving low-impact contaminants. Today’s rule does not differentiate low-impact 

contaminants from other contaminants, since such an assessment would require a risk analysis of 

each chemical. We believe that "comparable" is protective because it ensures that no more 

contaminants than those found in traditional fuels are released into the environment. EPA has 

already determined that these contaminants pose a threat to human health and the environment. 
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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. 

 Comment [3a-D3-2]: 

 Many comments discussed whether contaminants, and their concentrations in the nonhazardous secondary material, should have any bearing on the legitimacy determination for a 

given non-hazardous secondary material. Many of these commenters expressed opposition to 

using contaminants, and their concentrations in the non-hazardous secondary material, as a basis 

for legitimacy decisions. Some of these commenters argued that comparing contaminant levels 

would impose an unnecessary burden on emissions sources that are already stringently controlled 

under the CAA regulations. Other comments indicated that it would be more appropriate to 

compare emissions profiles from the combustion units rather than contaminant levels in the nonhazardous secondary materials themselves using the CAA section 129 pollutant list and the 112 

HAP list. Referring to existing stack testing data and the risk assessment performed by the 

cement industry, the commenter states that “it is accepted that organics in fuels do not survive 

intact to exit a cement kiln or cause harm to human health and the environment. In addition, 

stack testing comparing different fuels (tires, waste-derived fuel, coal, coke, etc) on a single kiln 

system under normal operating conditions supports the same conclusion.” 

 States offered a range of comments on this issue. One state contends that using the list of 

contaminants in CAA section 129(a)(4) is inadequate because it does not address all heavy 

metals or organic hazardous air pollutants. Another commenter argued that while section 112 of 

the CAA and Appendix VIII of 40 CFR part 261 would be impractical if parameter testing was 

required, the Appendix VIII list of constituents in 40 CFR part 261 would serve as a useful 

starting point for evaluating different issues related to those contaminants. 

 Other commenters suggested that EPA narrow the list of contaminants considered in the 

legitimacy criteria. One commenter recommends that those constituents that contribute to the 

secondary material’s value as a fuel be excluded from the contaminant list. Another commenter 

states that the list of contaminants should be limited to only the subset of HAP and pollutants 

listed in CAA section 129 that have the potential of being present in the emissions from burning 

the non-hazardous secondary materials. Broadening the list and requiring the evaluation and 

analysis of more constituents would be unnecessary and a waste of resources. The commenter, 

therefore, recommends that the list of contaminants be limited to only those pollutants found in 

section 112 of the CAA. Furthermore, this commenter argued that organic HAP do not need to 

be included in the legitimacy criteria because the rule is intended to define which non-hazardous 

secondary materials are non-wastes, as opposed to which HAP emission standards should be 

developed. The commenter further notes that the Boiler and Process Heater MACT will ensure 

that the organic HAP are properly controlled. Finally, although not specifically commenting on 

the legitimacy criterion for contaminants in the contaminant definition, the Agency received 

several comments that pathogens are present in both manure and sewage sludge, and received 

specific monitoring data confirming the presence of pathogens in certain varieties of chicken 

litter. 

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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. 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 considered in determining whether non-hazardous secondary 

materials that contain these contaminants are being discarded, and thus, subject to the section 

129 CAA standards. 

 We also disagree with the commenters who argue that the list is not broad enough 

because it does not address all heavy metals, organic hazardous pollutants or pathogens for the 

same reasons described above—that is, we should be focusing, in general, on those contaminants 

identified in the CAA that EPA will be evaluating to determine whether to establish emission 

standards. The Agency also disagrees that Appendix VIII to 40 CFR Part 261 is an appropriate 

list for determining which contaminants to consider for the purposes of defining non-hazardous 

solid waste, since the purpose of Appendix VIII is to be used by the Agency to make hazardous 

waste listing determinations (see 40 CFR 261.11(a)(3)) and the chemicals in Appendix VIII 

would not apply to non-hazardous wastes. 

 Finally, we disagree with those commenters who argue that we should not be considering 

the contaminants in the non-hazardous secondary materials themselves as part of the legitimacy 

criteria, but, if considered necessary, compare the emissions profiles from the combustion units. 

In order for a non-hazardous secondary material to be considered a non-waste fuel, it must be 

similar in composition, whereas comparing the emissions profiles between combustion units that 

burn traditional fuels and non-hazardous secondary materials only tells one how well the 

combustion unit is operating, not what the secondary material is that is being burned. Thus, 

while the Agency recognizes that such data can be useful in determining whether or not burning 

such secondary materials present a risk to human health or the environment, such a concept says 

nothing in terms of whether or not the non-hazardous secondary material is a legitimate 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 [3a-D3-3]: 

 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 
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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 nonhazardous secondary material and contaminant levels in traditional fuels should consider the 

entire characteristics of the material. Some non-hazardous secondary materials may have high 

concentrations of some constituents and low concentrations of others, relative to traditional fuels. 

Thus, decisions regarding legitimacy will not always be clear cut and the overall characteristics 

need to be considered qualitatively. In addition, given the variability of constituent 

concentrations in traditional fuels and non-hazardous secondary materials, solid waste 

determinations which requires a comparison, should allow for such variability in a reasonable 

manner. The commenter supports the method that looks at constituent concentrations (e.g., 

percent by weight or ppm by weight) as a reasonable approach that limits the impact of 

variability, whereas using lb/MMBtu compounds the impacts of variability. Since either the 

Boiler/Process Heater MACT or CISWI rule will adequately limit emissions from combustion of 

non-hazardous secondary materials, there is no justification for evaluating contaminant 

comparisons on a heating value basis. 

 EPA’s Response: 

The Agency agrees with commenters that a lb/MMBtu approach can serve to normalize 

contaminant concentration comparisons across a range of material loading scenarios. At this 

time, however, the Agency lacks sufficient lb/MMBtu information for all non-hazardous 

secondary materials under consideration. Accordingly, this approach is not being adopted for 

today’s final rule. As guidance is developed for implementation, a lb/MMBtu approach may be 

further considered. Thus, in today’s final rule, the assessment of whether the non-hazardous 

secondary material has contaminants comparable to traditional fuel products is to be made by 

directly comparing the numerical contaminant levels in the non-hazardous secondary material to 

the contaminant levels in traditional fuels based on the total level of contaminants, and not on 

contaminants per Btu of heat value. This approach is most appropriate because contaminant 

information is readily available to the respondent. 

The Agency recognizes that variability in constituent levels exist in non-hazardous 

secondary materials and traditional fuels, generally based on the source and geographic region 

that the material came from. Thus, we agree that such considerations can be taken into account 

in a reasonable manner when comparing constituent levels in the non-hazardous secondary 

material and the traditional fuel. 

We disagree with the commenters that comparison between contaminant levels in the 

non-hazardous secondary material and contaminant levels in traditional fuels should consider the 

entire characteristics of the material. Such as approach would suggest that contaminants can be 

present in the non-hazardous secondary material at levels that are not comparable in 

concentration to those contained in traditional fuel products, which could result in contaminants 

being combusted as a means of discarding them. 

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 Commenters disagreed about whether to implement a bright-line test for contaminants. 

One commenter supports the delineation of bright-line contaminant levels that would apply 

regardless of the type of traditional fuel burned, while another commenter maintains that it 

would not be appropriate to compare contaminant concentrations between non-hazardous 

secondary materials and traditional fuels based on a bright line approach. Another commenter 

states that the need to classify non-hazardous secondary materials as waste or non-waste may 

dictate the need for a bright line test rather than emissions testing from combustion units, given 

that emissions controls and limits are established in permits. Other commenters also disagreed 

with the establishment of a bright-line level comparison, with one commenter objecting to the 

establishment of any other contaminant level comparison, arguing that such a comparison would 

provide no benefit to the regulated community and arbitrarily assigns levels of contaminants 

without accounting for differences in materials and/or facilities. 

 EPA’s Response: 

EPA recognizes that the “bright line” approach may provide greater clarity and 

predictability to the regulated community, but that in both cases, the Agency would have to 

establish a line for what is acceptable and the line may either be somewhat arbitrary or it may 

exclude materials that, if carefully considered, should be considered legitimate. Based on the 

comments received on those approaches, we are convinced that they would not be workable. On 

the other hand, case-by-case comparisons by each person evaluating this legitimacy criterion can 

take into account the wide variety of non-hazardous secondary materials, as well as the 

appropriate traditional fuel to which it is being compared. Because this factor must apply to 

various different recycling activities and industries, the case-by-case approach is most 

appropriate. 

E. Comments on Legitimacy Criteria for Ingredients

In the proposed rule, non-hazardous secondary materials used as an ingredient in 

combustion units must meet the legitimacy criteria specified in 241.3(d)(2) in order to be 

considered a non-waste ingredient. To meet the ingredient legitimacy criteria, the non-hazardous 

secondary material must be handled as a valuable commodity, must provide a useful contribution 

to the production or manufacturing process, must be used to produce a valuable product or 

intermediate, and must result in products that contain contaminants at levels that are comparable 

in concentration to or lower than those found in traditional products that are manufactured 

without non-hazardous secondary materials. 

1. Managed as Valuable Commodities. 

Because the criterion “managing as a valuable commodity” for non-hazardous secondary 

materials used as an ingredient (storage not exceeding reasonable time frames, manage it 

consistent with an analogous ingredient or adequately contain to prevent release) are the same as 

those for non-hazardous secondary materials used as a fuel, EPA indicated that if changes are 

made to the criteria with respect to those non-hazardous secondary materials that are used as 

fuels, we would likewise make the same changes with respect to those non-hazardous secondary 

materials used as ingredients. We did solicit comments, however, on whether using these criteria 

for managing as valuable commodities (similar to the type of criteria for fuels) are appropriate 

for ingredients. 

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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 nonhazardous secondary material used as ingredients (i.e., that they must be managed as valuable 

commodities) will be consistent with that of fuels. As we noted previously, we disagree with the 

commenter that solid wastes and commodities are always managed in a similar manner. That is, 

commodities, on the one hand, are handled specifically to prevent the loss of the material 

because of its value. Solid wastes, on the other hand, when they are not highly regarded for a 

beneficial reuse, are often not managed in a way that minimizes the release of the material itself, 

but more in a way that protects the surrounding environment from the material. However, we 

also know that solid wastes, if not properly managed have created damages to the environment. 

Thus, non-hazardous secondary materials used as an ingredient must be managed in a manner 

consistent with the management of an analogous ingredient (where there is an analogous 

ingredient), or otherwise be adequately contained so as to prevent releases to the environment. 

For example, non-hazardous secondary materials that are used as ingredients in cement kilns 

must be managed in a manner consistent with the analogous ingredients that these secondary 

materials are replacing. An “analogous ingredient” is defined as a manufacturing process 

ingredient for which the secondary material substitutes and which serves the same function and 

has similar physical and chemical properties as the non-hazardous secondary material. Where 

there is no analogous ingredient, the non-hazardous secondary material must be adequately 

contained so as to prevent releases to the environment. However, the Agency may provide 

further guidance on what we consider to be managed as a valuable commodity. 

2. Useful Contribution. 

EPA received comments on the five ways the proposed rule states that a non-hazardous 

secondary material can add value and usefully contribute to a recycling process (based on criteria 

initially developed for hazardous secondary materials): (i) the non-hazardous secondary material 

contributes valuable ingredients to a product or intermediate; or (ii) replaces a catalyst or carrier 

in the recycling process; or (iii) is the source of a valuable constituent recovered in the recycling 

process; or (iv) is recovered or regenerated by the recycling process; or (v) is used as an effective 

substitute for a commercial product. The proposed rule stated that we believe that only items (i) 

and (v) are specifically relevant to our assessment of whether these non-hazardous secondary 

materials provide a useful contribution in combustion scenarios. We requested comment, 

however, on whether the non-hazardous secondary materials we are assessing as ingredients can 

provide useful contributions in other ways. 

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 A commenter requested that the EPA remain flexible and acknowledge that there may be 

other ways to demonstrate a secondary materials’ useful contribution. 

 EPA’s Response: 

 The Agency was unable to identify, and commenters did not identify any other way a 

non-hazardous secondary material could contribute to the recycling process, so the language in 

the final rule was not changed. The two ways to determine if the material provides a useful 

contribution are sufficiently flexible and will provide for accurate assessments. Thus, the final 

rule will continue to maintain that non-hazardous secondary materials contribute valuable 

ingredients to a product or intermediate and that non-hazardous secondary materials are used as 

an effective substitute for a commercial product will be used to determine if a material provides a 

useful contribution as an ingredient. 

3. Quantifying an Ingredient’s Contribution to Production/Manufacturing Activity. 

Not all of the constituents or components of the non-hazardous secondary material have 

to make a contribution to the production/manufacturing activity. EPA solicited comments on 

whether the Agency 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 [3a-E3-1]: 

 Generally, commenters disagreed with the establishment of a quantitative definition as to 

how much of a material must provide a useful contribution. One state agency is opposed to a 

quantitative definition because the numbers will vary by non-hazardous secondary material. 

Similarly, another state commenter also opposed a nationwide definition or percentage 

stipulating what constitutes a “useful contribution” because of the different possible reuse 

processes that may vary in terms of the amount of material that is deemed useful. One other 

commenter also objected to the establishment of any limits, but specifically commented on the 

establishment of a quantitative definition. They explain that a given non-hazardous secondary 

material can have several useful components, but the ability to use those components is 

dependent on the available manufacturing process or technology type. This variation would 

make it difficult and inefficient to apply a general quantitative rule of useful contribution. 

 EPA’s Response: 

 We agree with the commenters that quantifying the amount that all non-hazardous 

secondary materials must contribute to a production/manufacturing activity would be a 

challenge, if at all possible, given the breadth and depth of ways that non-hazardous secondary 

materials may be used as ingredients in combustion processes. As the non-hazardous secondary 

materials vary significantly in their character, composition and uses, trying to define useful 

contribution quantitatively would not, in our view, be practical. The complexities of defining 

“useful contribution” so that it can be determined through a bright-line test, and remain 

appropriate across industries, different recycling processes, and a variety of recycled nonhazardous 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 
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must contribute. 

In general, the regulated community should look to typical industry recovery rates in 

similar manufacturing processes to determine if the recycling recovery rates are reasonably 

efficient in terms of the ingredient making a useful contribution to the recycling process or 

product. In addition, it should be noted that EPA would generally look at the quantity required, 

the duration, and the extent of processing, and/or the rate of recovery of the overall process, not 

the recovery rate of a single step in the process, when analyzing this criterion for legitimacy. For 

example, if one step in the process recovers a small percentage of the constituent, but the overall 

process recovers a much larger percentage, the Agency would consider the overall efficiency of 

the recycling process in determining whether the non-hazardous secondary materials are 

providing a useful contribution. This assumes that there is enough of the target constituent or 

component present in the non-hazardous secondary materials to contribute meaningfully as an 

ingredient to the recycling process. 

 In addition, the Agency is reiterating its longstanding position that not every constituent 

or component in a non-hazardous secondary material would have to contribute to a recycled 

product or intermediate or to the recycling process in order for there to be an overall 

contribution. Thus, we agree with commenters who raised questions about this and have restated 

our position in this preamble to the final rule. 

4. Contaminants in Ingredients. 

The Agency requested comments on whether we should have a different definition of 

contaminants that applies specifically to ingredients. That is, since contaminant comparisons for 

the contaminant legitimacy criterion apply to a comparison of products rather than to the nonhazardous 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 [3a-E4-1]: 

 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 nonhazardous 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 
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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 solid waste, since the 

purpose of Appendix VIII is to be used by the Agency to make hazardous waste listing 

determinations (see 40 CFR 261.11(a)(3)) and the chemicals in Appendix VIII would not apply 

to non-hazardous wastes. Please see the related response on usage of the Appendix VIII list with 

regard to fuels (Section V.D.3). 

 With that said, the Agency recognizes and agrees with the commenters that variability in 

constituents exist between non-hazardous secondary materials based on the source and 

geographic region that it may come from. Thus, such considerations can be taken into account in 

determining which contaminants to evaluate. Regarding the comments dealing with state 

program involvement, EPA’s response to these comments is described in Section IX. “State 

Authority.” Finally, with respect to the commenter who requested that EPA develop a list of 

acceptable non-hazardous secondary materials that are used as ingredients for quick reference 

and develop guidance to assess non-hazardous secondary materials on this list, we have made 

some general conclusions throughout the preamble on which non-hazardous secondary materials 

when used as an ingredient in a combustion process would generally meet the legitimacy criteria. 

Persons may also refer to the various Materials Characterization Papers that are in the docket to 

today’s rule. However, each person will need to confirm that such non-hazardous secondary 

material ingredients meet the legitimacy criteria and provide documentation, as required in the 

CAA rules. 

5. Comparing contaminant levels in products. 

 EPA requested comment on whether, instead of requiring that contaminant levels in 

products manufactured from non-hazardous secondary material ingredients be comparable in 

concentration than those found in traditional products, that the Agency adopt a criterion under 

which contaminants in the product could not be significantly higher than found in the traditional 

products that are manufactured without the non-hazardous secondary material. 

 Comment [3a-E5-1]: 

A number of commenters disagree with the contaminant comparison criteria for nonhazardous 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. 
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Instead, the Agency should refer to constituents that may actually be a concern with respect to 

the product that is produced. The same commenter also recommends that the “toxics along for 

the ride” criterion only should be considered and not required, and that the Agency should adopt 

a “not significantly higher” standard. Also, while the Agency should retain the focus of the 

“toxics along for the ride” criterion upon products, that criterion should refer to constituents that 

may actually be a concern with respect to the products that are produced and should not use the 

defined term “contaminant.” 

 Other commenters oppose any limits on contaminants in ingredients. It was argued that 

portland cement is manufactured to meet strict chemical and performance specifications under 

such organizations as ASTM and the American Association of State Highway and Transportation 

Officials (AASHTO). These specifications dictate, to a large degree, the ingredients that can be 

used in cement manufacturing. There are a wide range of raw materials and fuels that can be 

used to meet cement manufacturing quality objectives. The levels of contaminants in these 

traditional raw materials and fuels can vary significantly. These variations occur within 

materials taken from the same source (e.g., single quarry) and also between different sources. 

For the purpose of comparing levels of contaminants found in non-hazardous secondary 

materials with levels found in traditional products, the non-hazardous secondary material 

contaminant should be allowed to be compared to multiple sources of the traditional raw 

materials that are available across the market to the facility. Such a comparison should be 

allowed regardless of whether or not the traditional material is being used by the facility at the 

time of the comparison. Doing so would allow for the variability of constituent levels to be 

properly accounted for when going through the comparison process. Variability needs to be 

considered because multiple sources of a single traditional material are typically available to a 

facility 

 EPA’s Response: 

In today’s action, EPA is finalizing this criterion as a part of the legitimacy requirement 

because it is essential in determining whether a non-hazardous secondary material that is 

combusted is in fact being legitimately used or is essentially being discarded—that is destroyed, 

in the name of legitimate recycling. EPA is also retaining the requirement that the recycling 

process must result in products that contain contaminants at levels that are comparable to (or 

lower than) concentrations found in traditional products that are manufactured without the 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 
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“constituent” when referring to the legitimacy criteria, EPA is retaining the use of the word 

“contaminant” in this criterion as it has been defined in this rule and accurately describes which 

individual constituents EPA is seeking to control in this criterion. The selection of that term was 

originally discussed in the ANPRM and was chosen since it refers to the constituents in 

secondary materials that may be of a concern when burned as a fuel or used as an ingredient. 

Finally, EPA notes that industry specifications can be very useful in making a legitimacy 

determination and, in particular, in evaluating compliance with this criterion. However, EPA 

cannot rely solely on product specifications to cover all possible situations and is including the 

contaminant comparison between products as a critical part of the legitimacy requirement. 

F. Comments on Non-Waste Determination Petitions

 The proposed rule established a non-waste determination process that would provide 

persons with an administrative process for receiving a formal determination from the EPA 

Regional Administrator that non-hazardous secondary materials that are burned as a fuel in a 

combustion unit and have not been managed within the control of the generator, have not been 

discarded in the first instance, and are indistinguishable in all relevant aspects from a fuel 

product are not solid wastes. This assumes all the criteria for the non-waste 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 non-hazardous secondary materials, while others said it was unnecessary in that CAA 

section 112 third-party combustors should be able to use appropriate comparable fuels without 

the inconvenience of a petition process. The specific comments are detailed below. The 

overview of the petition process is described in Section VII.G. The petition requirements in 

today’s rule are found at §241.3(c). 

 Comment [3a-F-1]: 

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 
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that EPA clearly indicate that today’s rule applies only for purposes of determining CAA 129 

applicability to non-hazardous secondary materials that are burned for energy recovery. They do 

not want today’s rule to set a precedent or interfere with their ongoing programs to allow and 

encourage the beneficial use of secondary materials which otherwise would be waste. 

 EPA’s Response: 

 CAA section 129 states that the term ‘‘solid waste’’ shall have the meaning ‘‘established 

by the Administrator pursuant to the Solid Waste Disposal Act’’ Id. at 7429(g)(6). Accordingly, 

the Administrator (or Regional Administrator) must establish the meaning and make the 

determinations, and the states’ definition of solid waste would not be applicable for purposes of 

the definition of solid waste under RCRA for establishing emissions standards under the CAA. 

No federal approval procedures for state adoption of today's rule are included in this rule under 

RCRA subtitle D. Although EPA does promulgate criteria for solid waste landfills and approves 

state municipal solid waste landfill permitting programs, RCRA does not provide EPA with 

authority to approve state programs beyond municipal solid waste landfill permitting programs. 

With that said, EPA would like to utilize the expertise and interest residing in the state 

beneficial use programs to bolster Agency decisions on non-waste determination petitions. The 

Agency may request the assistance of states or may utilize the information and contaminant data 

from state beneficial use determinations if it is applicable to the non-hazardous secondary 

material when used as a fuel or an ingredient in combustion units. These state beneficial use 

programs have been developed to encourage recycling and reuse, provided that the uses maintain 

the specified state’s acceptable level of risk, protect human health and the environment, and are 

managed in accordance with the conditions of the determination. 

Generally, when a state beneficial use determination has been granted (thus no longer a 

solid waste within that state), it may have chemical and physical properties that are comparable 

to the raw material it is replacing or, when incorporated into a product, its use is beneficial to the 

final product. Assuming the data to support the beneficial use determination remains available, it 

could help support EPA’s investigation of the contaminant concentrations for the purpose of 

making the legitimacy criteria determination. 

 State beneficial use determinations and procedures will continue intact for purposes of 

State laws, regulations, and programs. Thus, we do not expect that this rule will set a precedent 

or interfere with the States’ solid waste programs and the States will continue to employ their 

procedures to assess and regulate the management and use of non-hazardous secondary materials 

for purposes of State laws and regulations. In addition, as we have stated elsewhere in today’s 

preamble, this rule is limited for purposes of determining CAA 129 applicability for nonhazardous secondary materials that are burned for energy recovery or as an ingredient in a 

combustion unit. Thus, EPA will not be making any determination that non-hazardous 

secondary materials are or are not solid wastes for other possible beneficial uses. Such beneficial 

use determinations are generally made by the state for these other beneficial uses and EPA will 

continue to look to the states to make such determinations (e.g., land application, reuse as nonwaste, etc.). 

Comment [3a-F-2]: 

 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. 
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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 nonwaste 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 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 [3a-F-3]: 

 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 nonwaste 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 website, 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 [3a-F-4]:

 State Agencies recommended that EPA maintain a state or publicly available database of 

non-waste determination decisions if the Agency maintains decision-making authority under the 

petition process. 

EPA’s Response: 

 EPA agrees that it would be appropriate for EPA to maintain a database that is a 

compilation of decisions made on non-hazardous secondary material non-waste 

determinations. This would allow decisions made in one EPA Region, including the basis for the 

decision, to be available to other EPA Regions pertaining to the same or similar non-hazardous 

secondary materials and would support national consistency and minimize redundant 

efforts. Thus, the Agency expects to put together such a database and will make it available not 

only to its Regions, but will also make such a database publicly available. 
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 Comment [3a-F-5]: 

 Some commenters said States (or non-State Agencies) should be able to submit a nonwaste 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 nonwaste 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 nonhazardous secondary material in a particular state). 

 Comment [3a-F-6]: 

 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 website) 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 [3a-F-7]: 

 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 non-hazardous secondary materials have to comply with the same guidelines. 

Commenters requested that we create clear guidance on the petition process and on related 

implementation. 

 EPA’s Response: 

 We disagree with the commenters who argue that the petition process is vague and will 

be difficult to implement. All petitions that are submitted must clearly explain how the nonhazardous 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 
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combusted. One approach, which was called the “alternative approach,” was intended to be 

broader than the proposed approach, but still consistent, in the Agency’s judgment, with RCRA 

and relevant case law. Under the alternative approach, non-hazardous secondary materials that 

are burned in a combustion unit would be considered solid wastes, unless such non-hazardous 

secondary materials would remain within the control of the generator and meet the legitimacy 

criteria; in this limited instance, the non-hazardous secondary materials would not be considered 

solid wastes. Thus, under the alternative approach, fuels and ingredients that are generated from 

the processing of discarded non-hazardous secondary materials would be considered a solid 

waste, as well as non-hazardous secondary materials used as ingredients that are combusted at 

facilities that are not within the control of the generator. In addition, the alternative approach did 

not provide for a non-waste determination petition process, as described elsewhere in this 

preamble. The proposed rule noted that this approach could be adopted in a final rule if 

warranted by information presented during the public comment period and solicited comment on 

all aspects of the alternative approach. 

The other approach on which we requested comment was to identify all non-hazardous 

secondary materials that are burned in combustion units for energy recovery or as an ingredient 

as solid wastes and thus, all non-hazardous secondary materials would be subject to the section 

129 CAA requirements. The proposal noted that while the Agency believes there are legal 

constraints to taking such a broad approach in defining solid waste under RCRA, we solicited 

comment on this approach and specifically requested that commenters provide the basis for their 

position, in light of the existing case law on the issue of “discard.” 

Comment [3a-G-1]: 

All commenters addressing the alternative approach were opposed to the Agency 

adopting such an approach in the final rule. Several commenters argued generally against any 

approach that would allow any non-hazardous secondary material to ever be burned as non-waste 

fuels or ingredients, regardless of whether or not the secondary materials remained within the 

control of the generator. These commenters strongly urged the Agency to adopt a final rule that 

considers all non-hazardous secondary materials burned in a combustion unit for energy recovery 

or used as an ingredient to be included within the definition of solid waste and therefore, subject 

to the CAA section 129 requirements. These commenters argue that non-hazardous secondary 

materials that are burned in combustion units fall within the unambiguous meaning of the 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 
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comment—that is, the approach that would characterize all non-hazardous secondary materials 

as solid waste when burned in a combustion unit for energy recovery or as an ingredient. These 

commenters argued that this would exceed the Agency’s authority to regulate secondary 

materials that have not been discarded. 

EPA’s Response: 

Although some commenters supported a broader definition of solid waste than described 

in the alternative approach, the Agency did not receive any support for the alternative approach, 

and has therefore decided not to adopt it in this final rule. Regarding comments that advocated 

for all non-hazardous secondary materials burned in a combustion unit for energy recovery or as 

an ingredient to be discarded and, thus, solid waste, EPA has replied to this comment above in 

Section V.A. The Agency presumes that these commenters would like neither our proposed 

approach nor any alternative that allows any non-hazardous secondary material to be burned as 

other than a waste. 

Regarding industry comments which opposed the alternative approach because its 

characterization that all non-hazardous secondary materials that do not remain within the control 

of the generator are solid waste, we respond to the issue of transferring non-hazardous secondary 

materials off-site in Section V.A. 

EPA continues to believe that today’s final rule is a reasonable interpretation of the statutory 

definition of discard to consider that non-hazardous secondary materials under the control of its 

generator that are legitimately burned as fuels are not solid waste, that certain non-hazardous 

secondary materials (i.e., scrap tires under the oversight of established tire collection programs 

and resinated wood) that are not discarded and are legitimately used as fuels or ingredients are 

not solid waste, that non-hazardous secondary materials that are legitimately burned as 

ingredients are not solid wastes, and that fuels and ingredients that are produced from the 

processing of discarded non-hazardous secondary materials are not solid wastes. 
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PART 3b: Other Comments on the Proposed Rule and EPA Responses 

A. Proposed Approach

1. Definition of the Term Discard.

Comment [3b-A1-1]: 

Commenters requested that EPA clarify the following with respect to the definition of 

solid waste as included in this rulemaking: 

a) The rule applies only to the RCRA Subtitle D definition of solid waste specific to use as 

fuel or ingredients in combustion units as regulated by federal air pollution laws and 

regulations; 

b) The rule does not alter the federal definition of "solid waste" found at 40 C.F.R § 257.2; 

c) The federal rule does not preempt any state statutory or regulatory definition of solid 

waste; 

d) The EPA should clarify and specify that the fuels may be simultaneously regulated as a 

fuel, product, or recycled material pursuant to air pollution control programs, but as a 

solid waste by state solid waste programs; 

EPA’s Response: 

The responses for most of these issues are listed in Section “IX. State Authority” under “C. 

Clarifications on the Relationship to State Programs:” 

a) 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 fuel or ingredients in combustion units (as regulated by 

the CAA). 

b) Correct, the rule “does not alter the federal definition of "solid waste" found at 40 C.F.R 

§ 257.2.” 

c) 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. 

d) Non-hazardous secondary materials (NHSM) may be simultaneously regulated as a nonwaste fuel or ingredient for use in combustion units under §241.3, but as a solid waste by 

the State’s solid waste programs for state management purposes. Also, see the discussion 

in the beginning of this Section (IX. State Authority) in the final rule. 

Comment [3b-A1-2]: 

 The commenter urges the EPA to reconsider the definition of “secondary material.” EPA 

proposes to define the term “secondary materials” 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, postindustrial material, and scrap.” Proposed 40 C.F.R. § 241.2, 75 Fed. Reg. at 31,892. This 
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definition is much broader than the definition provided in the Final DSW Rule. 

In the Final DSW Rule, EPA defined “hazardous secondary material” as “a secondary 

material (e.g., spent material, by-product, or sludge) that, when discarded, would be identified as 

hazardous waste under part 261 of this chapter.” 40 C.F.R. § 260.10; 73 Fed. Reg. at 64,757. 

The key part of this definition, for purposes of comparison with this proposed rule, is EPA’s 

inclusion of only spent materials, by-products and sludges as “secondary materials” potentially 

subject to regulation. 

In contrast, EPA’s proposed rule broadens the definition of “secondary material” by 

including co-products produced at production facilities, as well as normal manufacturing 

intermediates that are proceeding from one step of the production process to the next sequential 

step. Unlike the definition of “byproduct” at 40 C.F.R. § 261.1, this proposed definition does not 

even recognize that there may be more than one primary product of a manufacturing or 

commercial process. 

EPA’s Response: 

EPA does not agree that the definition of “secondary material” in 40 CFR 241.2 is 

broader than the definition of “hazardous secondary material” in 40 CFR 260.10. The two 

definitions cite different examples but are not fundamentally different. EPA agrees with the 

comment that a manufacturing process can have more than one primary product (co-product), 

and that it can also produce an intermediate product that goes on to be used to make a primary 

product. 

Comment [3b-A1-3]:

The commenter believes that, in order to be consistent with RCRA and also to be 

consistent with the manner in which the term "secondary material" is used in industry, EPA 

should either not define the term "secondary material" in its final regulations, or, if it believes 

that some definition is necessary, define the term to include "spent materials," "byproducts, " and 

"sludges, " as those terms are defined in 40 C.F.R. § 261.1(c). 

EPA’s Response: 

EPA does not agree that the definition of “secondary material” in 40 CFR 241.2 should 

include the same examples as the definition of “hazardous secondary material” in 40 CFR 260.10 

(e.g., spent materials, by-products and sludges). The two definitions cite different examples but 

are not fundamentally different. Sludges, by-products, and spent materials are also considered to 

be included in the definition of secondary materials. 

Comment [3b-A1-4]: 

The NEWMOA-member states are concerned with the potential for creation of a dual 

regulatory system that will confuse facilities that process or use NHSM. For example, the 

proposed rule appears to establish a dual system whereby an NHSM that meets the legitimacy 

requirement and is managed by the generator (who maintains control over the NHSM and uses it 

as fuel in a combustion facility regulated under Section 112) is not a solid waste; whereby the 

same NHSM that is discarded remains a solid waste, resulting in the combustion facility that 
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wants to use it being regulated under Section 129 even though the combustion unit may be 

identical. 

EPA’s Response: 

The Agency disagrees with the commenter that the non-hazardous secondary materials 

rule creates a dual regulatory system, i.e. the same material is non- waste when combusted on 

site but is considered to be a waste when transferred off-site. When non-hazardous secondary 

material fuels are transferred to another party, the material is generally considered to be 

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.133 

EPA is not, however, 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. EPA has decided that it is appropriate to be cautious 

when deciding that a material transferred for combustion is a waste or not due to the inherent 

destructive nature of combustion – even if used for energy recovery. 

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 

materials not to be wastes if it could make the appropriate findings for those categories. 

In fact, the Agency does so with respect to resinated wood residuals. Commenters 

discussing resinated wood residuals 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 intercompany 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 when generated on-site (such that it is impossible to distinguish 

between materials that are being used as a raw material and those that are being used as a fuel). 

The preamble to the final rule also discussed the utilization of pulp and paper sludge 

outside the control of the generator. In one case presented by a commenter, pulp and paper 

sludge generated less than a mile away 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 sludge off-site and is, therefore, not a waste. The Agency 

agreed that the use of secondary materials off-site (which we assume the commenter means not 

 133 As noted in the preamble, we do not 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. 
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within the control of the generator) is not always indicative of waste activity and would generally 

agree that the case provides an example of when secondary materials may be legitimately used as 

non-waste fuels by a different company. However, we did not have information generally about 

the transfer of those pulp and paper sludge to other companies, including how the material might 

be handled as a valuable product, to make a broad determination about pulp and paper sludge 

used off-site as a fuel. 

In another example, commenters to the proposed rule generally discussed the use of coal 

combustion residuals (CCRs) as fuels outside the control of the generator. Commenters provided 

legal arguments that case law holds that transfers between companies were irrelevant for 

determining whether a recycled material was properly viewed as a solid waste. See Section 

V.A.1 of the final rule for our response to these legal arguments on the issue of “transfer” as it 

relates to the concept of discard. These commenters did not, however, 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.” ABR at 1056 

Because commenters did not provide sufficient information detailing how CCRs are 

managed when transferred outside the control of the generator, we were unable to determine 

whether such movement of CCRs outside the control of the generator is, or is not indicative of 

discard. As such, the determination is best left to the non-waste petition process, as finalized in 

today’s rule. As we’ve discussed, 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 or not such non-hazardous secondary 

materials are or are not solid wastes. For a discussion of non-waste determination petitions, see 

Section VII.G of today’s rule. 

Comment [3b-A1-5]: 

In the rule, contained is defined as meaning the non-hazardous secondary material 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 material. The word “both” seems to 

be an orphan and, with no obvious second clause, should be deleted. The last phrase 

“considering the nature and toxicity of the material” does not seem to add value to the previous 

language. 

EPA’s Response: 

EPA agrees with the commenter that the word “both” can be deleted from the definition. 

The definition now reads: 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. Clarifying changes 

are also made in the associated preamble discussions. The Agency disagrees with the 

commenter that the last phrase “considering the nature and toxicity of the material” does not 

seem to add value to the previous language. The nature of the material, particularly whether the 

material is solid, liquid or gas, and the degree of toxicity of the material are directly relevant to 

the degree of containment required. For example, pulp and paper sludges are contained in 

aerated stabilization basins with frequent removal of the biosolids. Proper containment of scrap 

tires is important to prevent tire fires that may cause contamination of soil, ground and surface 
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water, and air, and may also produce thousands of gallons of oil from the pyrolysis of tire rubber. 

Air pollutants from tire fires include black smoke containing toxins such as polycyclic aromatic 

hydrocarbons (PAHs), heavy metals, CO, SO2, and NOx.

134

Comment [3b-A1-6]: 

Several commenters argue that when a material is not discarded (it has been purchased 

from the generator) and it is the same material that the combustor already burns, the petition 

process ought not to be required. Commenters state the petition process should not be required 

at all for such traditional fuels, but at the very least should not be required for purchased 

secondary material, including biomass, when the same type of material is generated on the 

facility site in the first place. At most pulp and paper facilities, secondary material including, but 

not limited to, biomass generated on site is augmented with purchased biomass that is identical in 

nature. Therefore, if EPA will not remove the artificial distinction between generator and thirdparty generated traditionally-used fuels, then EPA should at least remove the petition process for 

purchased materials that are similar in nature to those generated on site. 

EPA’s Response: 

The commenter discusses both traditional fuels and non-hazardous secondary materials 

combusted outside the control of the generator. As codified in today’s rule, §241.2 states that 

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

Accordingly, the provisions in §241.3 relating to whether materials combusted outside the 

control of the generator are wastes or non-wastes, as well as provisions relating to the non-waste 

petition process are not applicable to units combusting traditional fuels. 

Under the other scenario described by the commenters, a non-hazardous secondary 

material is combusted outside the control of the generator by a third party that is identical to a 

non-hazardous secondary material that is generated on site by that combustor, such as biomass 

that is generated at pulp and paper mills. As discussed in comment/response above (3b-A1-4), 

when non-hazardous secondary material fuels are transferred to another party, we generally find 

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. EPA has decided that it 

is appropriate to be cautious when deciding that a material transferred for combustion is a waste 

or not due to the inherent destructive nature of combustion – even if used for energy recovery. 

Beyond this broad parameter, EPA has examined a number of specific materials, recycled onsite and transferred for recycling, and determined whether they are discarded and 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. 

 As outlined in the comment/response above on dual regulatory systems, the preamble 

discussed the utilization of 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 

 

134 U.S.EPA Description of Non-Hazardous Secondary Material Events that Resulted in Adverse Environmental 

Impacs (Docket # EPA-HQ-2008-0329) September 2009. 
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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. The Agency agreed 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, we did not have information generally about 

the transfer of those pulp and paper sludges to other companies to make a broad determination 

about pulp and paper sludges used off-site as a fuel. 

The Agency makes a similar finding here i.e. that the scenario described may be a 

legitimate use of non-waste fuel. However additional information about the transferred material, 

including how the material would be handled as a valuable commodity, would be needed to 

make a final determination. We also disagree with the commenter that we should remove the 

petition process for purchased materials that are similar in nature to those generated on site. The 

petition process remains a valuable tool for a facility 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. 

2. Processing Requirements.

Comment [3b-A2-1]: 

Commenters argue that the definition of processing is somewhat unclear, as it appears 

that EPA is requiring chemical processing, because no physical processing step would by itself 

be sufficient to satisfy this requirement. Based on the definition of processing and the Agency's 

description of sufficient processing steps, EPA appears to suggest that actually chemically 

processing previously discarded materials is necessary before the Agency will find the 

processing requirement is satisfied. The commenter believes this is a serious error in judgment, 

which will either result in companies eliminating the use of previously discarded materials or 

expending resources and generating new waste streams of chemicals to "process" materials that 

already satisfy EPA's legitimacy criteria. 

EPA’s Response: 

Today’s final rule codifies “processing” as meaning any operations that transform 

discarded non-hazardous secondary material into a non-waste fuel or non-waste ingredient 

product. Processing includes, but is not limited to, operations necessary to: remove or destroy 

contaminants; significantly improve the fuel characteristics of the material, e.g., sizing or drying 

the material in combination with other operations; chemically improve the as-fired energy 

content; or improve the ingredient characteristics. Minimal operations that result only in 

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

definition. 

We do not agree with commenters that EPA is requiring chemical processing in order to 

meet the definition of sufficient processing. In fact, “chemically” improving the as-fired energy 

content is only one of the several examples the Agency includes within the definition to illustrate 

the types of operations which would meet the definition. 
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In order to clarify the definition of sufficient processing, examples of sufficient 

processing for other non-hazardous secondary materials include the following: processing of 

used oil to produce on-specification used oil and also the construction and demolition (C&D) 

wood processed into fuel by sorting to remove contaminants (e.g. lead-painted wood, treated 

wood, non-wood materials), and sizing it. In all these instances, the secondary material is being 

sufficiently changed, either chemically or physically to produce a non-waste product. While the 

extent of processing that may be required may vary for different types of non-hazardous 

secondary materials, a sufficient amount of processing must occur to produce a non-waste 

product from secondary materials. Chemical processing may be sufficient to render some 

NHSMs a non-waste legitimate fuel or ingredient, but is not necessary in all cases. 

Comment [3b-A2-2]:

One commenter expressed concern that the definition of processing is insufficient and 

that its implementation across states will not be consistent. The commenter suggested that a list 

of activities that constitute adequate processing would be useful. 

EPA’s Response: 

Given the heterogeneity of NHSMs that may be affected by this rulemaking, it is not 

possible to produce a comprehensive list of processing procedures that are sufficient to render a 

material a non-waste (provided it meets the legitimacy criteria). 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 outlined in §241.2). The definition of processing in fact includes a list of operations that 

would meet the definition: “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.” The definition of processing 

also includes examples to illustrate the types of operations that would not meet our definition of 

processing, stating, “minimal operations that result only in modifying the size of the material by 

shredding do not constitute processing for purposes of this definition.” 

In order to clarify the definition of sufficient processing further, several examples of 

sufficient processing for other non-hazardous secondary materials were discussed in the 

preamble to the final rule, including: processing of used oil to produce on-specification used oil 

and also the construction and demolition (C&D) wood processed into fuel by sorting to remove 

contaminants (e.g. lead-painted wood, treated wood, non-wood materials), and sizing it. In all 

these instances, the secondary material is being sufficiently changed, either chemically or

physically to produce a non-waste product. While the extent of processing that may be required 

may vary for different types of non-hazardous secondary materials, an important part of the 

Agency’s position is that a sufficient amount of processing must occur to produce a non-waste 

product from secondary materials. We have provided a sufficient list of examples to illustrate 

what types of operations would and would not meet our definition of processing. 

We also direct the commenter to Section VII.F of the preamble, which discusses the types 

of notification and recordkeeping requirements, including documentation as to how the nonhazardous secondary material would satisfy our definition of processing, that a facility using 

discarded secondary materials that have undergone processing to produce a legitimate fuel or 
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ingredient are subject to. 

Comment [3b-A2-3]:

 One commenter discussed the unique properties of biomass feedstocks that often 

originate as residues from industrial and agricultural processes. The commenter argues that resizing, sorting, and drying should be considered sufficient processing to convert “unadulterated 

discarded wood secondary materials” into useful, valued fuel. 

EPA’s Response: 

It is not completely clear what types of secondary materials the commenter is discussing. 

We assume that by “unadulterated” the commenter means “clean” and that such materials would 

fit within the definition of “clean cellulosic biomass.” In today’s final rule, clean cellulosic 

biomass includes 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. As codified in §241.2, we consider 

clean cellulosic biomass to be an “alternative fuel,” which is included within the definition of 

“traditional fuels.” 

It is also unclear from the comments how these materials are discarded. As noted above, 

we believe that unadulterated wood would be considered an alternative fuel and within the 

definition of traditional fuel. As such, to the extent that the commenter is concerned that the 

transfer of these materials outside the control of the generator would be indicative of discard 

(e.g., from an industrial facility to a sorting facility), today’s final rule would not consider such 

transferring of traditional fuels to be indicative of discard, as traditional fuels do not have the 

potential incentives for sham recycling as do secondary materials. 

As it is unclear the types of materials the commenter is concerned with and whether the 

materials themselves are in fact being discarded, we refer the commenter to Section V.B.3 of 

today’s final rule for a response to comments concerning “Other Biomass.” We also note that 

Section V.A.1 and V.A.2 responds to comments regarding both the concepts of discard and 

processing, respectively. 

Comment [3b-A2-4]:

One commenter claims that various secondary material streams that clearly constitute 

legitimate fuels will contain incidental materials that cannot practically be screened out. Even 

so, incidental materials make no discernable difference to the environmental impact of the fuel 

stream, and either have fuel value or do not detract from fuel value. Therefore, the commenter 

urges EPA to allow the burning of such incidental materials as part of the fuel stream. 

EPA’s Response: 
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EPA notes that secondary material streams that contain incidental material must pass the 

legitimacy criteria described in the final rule. If the "incidental materials" cause them to fail the 

legitimacy criteria for contaminants, they are considered solid waste when burned as a fuel or 

ingredient. For more information on the legitimacy criteria, we direct the commenter to Section 

VII.H of the final rule. 

B. Comments on Specific Materials Used as Fuel 

1. Traditional Fuels

Comment [3b-B1-1]: 

The final rule should confirm that the examples given in the rule do not constitute an 

exhaustive list of all qualifying clean cellulosic biomass materials. 

EPA’s Response: 

The Agency acknowledges that the description of clean cellulosic biomass found in the 

definition of traditional fuels (codified at §241.2) may not be an exhaustive list of every material 

that may conceivably fall under the clean cellulosic biomass category. The Agency believes, 

however, that the definition 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. In addition, any person can petition EPA under the Administrative Procedures 

Act (APA) section 7004 of RCRA and general principles of administrative law for any 

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 under that provision to 

request such a change through rulemaking. The petition would also need to include a 

justification and rationale for the change. 

Comment [3b-B1-2]: 

Commenters request that EPA include information on the composition of unadulterated 

wood in the docket and that data used in defining wood and bark as traditional fuels. Information 

located in the Traditional Fuels Paper, identified as coming from Stultz and Kittoo, 1992 

describes the components of “bark only” as a fuel and provides no information on unadulterated 

wood. Additionally, while the table on page 16 of the docket item 0461.2 contains values for 

lead, cadmium, and mercury in wood fuel, there is no data presented in Stultz and Kittoo, 1992 

on those three inorganics in either bark or wood. European data on the emissions of these 

inorganics indicate that levels of these inorganics in unadulterated wood do not create significant 

inorganic emissions during the combustion process. 

EPA’s Response: 

The commenter notes that the lead, cadmium, and mercury estimates for wood fuel do not 

appear in the referenced source. EPA acknowledges that this appears to be an error in the 

traditional fuels paper and has revised both the paper and the final rule constituent data for 

unadulterated wood. This would give the generators and users of the wood information to allow 

them (and EPA in an enforcement proceeding) to determine whether the wood is a traditional 
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fuel or merely a waste material being burned. The information may also be useful in those cases 

where contaminants in a non-hazardous secondary material are being compared to unadulterated 

wood as a traditional fuel for purposes of meeting the legitimacy criterion relating to 

contaminant levels. 

Comment [3b-B1-3]: 

EPA should clarify that traditional fuels transferred to a third party are not waste and 

therefore do not have to go through the petition process. The proposed rule states that NHSM 

are not solid wastes (when combusted) if they remain within the control of the generator and 

meet the legitimacy criteria (§ 241.3(b)(1)). A petition process has been established for materials 

that do not meet the legitimacy requirements. Presumably, that includes those materials that 

would not satisfy the generator-controlled criteria (i.e. where an entity purchases the material 

from a third party.) Thus, for material that may be considered a “traditional fuel,” but where it is 

utilized by an entity that did not generate it, that alone would require it to go through the petition 

process despite the fact that it is a traditional fuel and the generator of that same material would 

not have to go through the petition process. This is an adverse result that could unnecessarily 

adversely affect competition among companies competing for low cost fuels within a highly 

competitive industry. 

EPA’s Response: 

The definition of traditional fuels, codified in today’s rule in §241.2, states that traditional 

fuels are not secondary materials and are not solid wastes unless discarded. Accordingly, the 

provisions in §241.3 relating to non-hazardous secondary materials that are used within the 

control of the generator, processed into new fuel products from discarded non-hazardous 

secondary material or are subject of a non-waste petition are not applicable to traditional fuels. 

Comment [3b-B1-4]:

One commenter believes that the EPA properly confirms that traditional fuels, including 

“clean” cellulosic biomass, are not solid waste, but should bring greater clarity to the final rule. 

Specifically, the EPA should extend the clean cellulosic biomass definition to dead trees and 

wood residues. 

EPA’s Response: 

Under the final rule, forest-derived biomass, including green wood, forest thinnings, 

clean and unadulterated bark and tree harvestings residuals, is considered an alternative 

traditional fuel. The categories would encompass dead trees and wood residues. See Section 

VII.A of the final rule. 

2. Manure

Comment [3b-B2-1]: 

One commenter notes that among other distinctions in the biomass category of fuels, it is 

important to note that within manure there are differences between dry manures and wet 
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manures. The commenter suggests that EPA establish a separate category of “non-cellulosic dry 

manure biomass fuel” to which the generator control requirement is inapplicable. 

EPA’s Response: 

Although we recognize that there are differences between dry and wet manures, the 

commenter does not provide sufficient information that warrants establishing a separate category 

of “non-cellulosic dry manure biomass fuel.” While the commenter provides a general statement 

suggesting separate categories for “wet” and “dry manure, the commenter does not suggest 

specific standards or definitions for how best to delineate between the two categories. For 

example, it is unclear how the commenter would determine the suggested new categories. 

Would it be more appropriate to create categories based on the type of animal manure or by 

moisture content or by some other factor? Thus, we do not have sufficient information to create 

different categories within the manure discussion. Further, such distinctions are not necessary, 

as all manure, regardless of whether it is wet or dry, must meet the legitimacy criteria in order to 

not be considered a solid waste. 

Further, the commenter does not provide sufficient information to support the argument 

that dry manure should be presumed not to be discarded if burned outside the control of the 

generator. In fact, the commenter provides no rationale for this position other than to request 

that the requirement that non-hazardous secondary materials used as fuels remain within the 

control of the generator not be applied to “non-cellulosic dry manure biomass fuel.” Unlike the 

general information provided in these comments, commenters discussing scrap tires and 

resinated wood residuals 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. Consequently, 

today’s final rule has determined that these secondary materials should not be considered a solid 

waste when transferred beyond the control of the generator, provided the legitimacy criteria are 

met. Based on the limited comments provided here, we cannot make a similar determination for 

dry manure. 

3. Other Biomass

Comment [3b-B3-1]:

One commenter states that the EPA is incorrect in determining the fuel legitimacy of 

treated wood as a class. 

EPA’s Response: 

In the Final Rule, EPA does not evaluate treated wood as a class. The discussion of 

“Other Biomass” in the final rule discusses several types of treated wood separately, with 

determinations specific to each type of treated wood discussed. 

Comment [3b-B3-2]: 

Building materials coated with lead-based paint should be classified as solid waste to 

allow processing of these materials, including thermal processing. As proposed, the rule 

impedes implementation of technologies capable of meeting EPA’s proposed emission standards 
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and diverting useable building products and leachable lead away from landfills for useful, 

legitimate, recycling. 

EPA’s Response: 

We note that discarded C&D-derived wood that is not clean would be considered a solid 

waste under today’s rule. C&D-derived wood, however, 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—that is, sufficiently processed. The data provided by 

one company demonstrates that C&D-derived wood can be sufficiently processed to meet the 

legitimacy criterion for four contaminants, even when these contaminants are compared to 

untreated wood concentrations presented in the background document, “Preliminary 

Characterization Study - Traditional Fuels and Key Derivatives, Prepared In Support of the Final 

Rulemaking –Identification of Nonhazardous Secondary Materials That Are Solid Waste.” A 

complete determination, however, would also include the comparison of As and Cr 

concentrations. As with other NHSMs, C&D-derived wood can contain de minimis amounts of 

contaminants and other materials provided it meets the legitimacy criterion for contaminant 

levels. We would also note that based on the data presented, C&D derived wood also meets the 

meaningful heating value criterion. 

Comment [3b-B3-3]: 

The definition of fuel processing in the proposed rule indicates that chipping and drying 

of a wood product would not be sufficient to allow for a “discarded secondary material” such as 

logging slash or wood left on a log landing after a harvest to be re-classified as a fuel and not a 

solid waste. Commenters request that EPA define re-sizing, sorting and/or drying as sufficient 

treatment to convert unadulterated “discarded” woody secondary materials (e.g., silvicultural 

residues which have been “discarded” and then chipped) into a fuel. 

EPA’s Response: 

The final rule does not include processing language for this clean wood-based biomass; 

as described above. This material is considered a traditional fuel under the final rule. We refer 

the commenter to Section VII.A of the final rule. 

Comment [3b-B3-4]:

Many commenters state that all forms of biomass should be considered to be legitimate 

fuels and not waste. In particular, clean biomass in the form of bark, sawdust, shavings and trim 

generated in peeling and manufacturing operations at wood preserving facilities may serve as an 

environmentally friendly fuel. The combustion of this material produces no net addition of CO2

since the CO2 emitted is equal to the CO2 removed from the atmosphere in the creation of wood 

fiber. Also, woody biomass is a very clean fuel with very low levels of mercury, chlorine, and 

other non-mercury metallic HAPS. 

EPA’s Response: 

We disagree that all forms of biomass should be considered a legitimate fuel as some 
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forms of biomass may be discarded and/or not meet the legitimacy criteria outlined in the final 

rule. We note, however, that clean cellulosic biomass is considered a traditional fuel under this 

final rule. This includes 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. Such historically managed traditional fuels and alternative traditional fuels are not 

secondary materials or solid wastes unless discarded. 

Clean biomass is defined as biomass that does not contain contaminants at concentrations 

not normally associated with virgin biomass materials. This definition has been modified from 

the proposed rule to clarify that biomass that is processed to remove contaminants is considered 

to be “clean” biomass. 

Comment [3b-B3-5]: 

Some commenters recommended that urban wood be considered a non-waste legitimate 

fuel under the rule, and some suggested that this material is a traditional fuel. 

EPA’s Response: 

In responding, we note that the definition of urban wood differed across some of these 

commenters. Some commenters appear to be referring to C&D-derived wood when discussing 

urban wood, while others refer specifically to tree trimmings, stumps, and related forest-derived 

biomass from urban settings, while others include a mixture of both. 

For commenters referring to urban wood as what EPA would describe in the Final Rule 

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), this material 

falls under the definition of “clean biomass” and therefore, when burned as a fuel, is considered a 

traditional fuel. However, in response to commenters referring to C&D-derived wood, this 

material is only classified as a non-waste fuel if it has been sufficiently processed and meets the 

legitimacy criteria. EPA refers the commenter to the discussion of C&D-derived wood and 

forest-derived wood in the Final Rule (Sections V.B.3 and VII.A, respectively). 

Comment [3b-B3-6]:

Commenters argue that unadulterated wood and bark should be considered traditional 

fuel and that man-made woods like particleboard, plywood, and oriented strand board (OSB) can 

be burned efficiently in combustors as a legitimate fuel. The commenter asserts that the 

government has a right and need to randomly spot check wood fuel for hazardous contaminants, 

but the small percentage of adulterated wood should not condemn all wood to being checked 

before classified as a fuel. The commenter also notes that resizing, sorting and/or drying should 

be sufficient treatment to convert unadulterated wood into fuel. 

EPA’s Response: 

We agree with the commenter that unadulterated wood and bark are traditional fuels. 
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Both are clean biomass, which is considered a traditional fuel under the final rule. We refer the 

commenter to Section VII.A of the final rule for our definitions of traditional fuel and clean 

biomass. With respect to the man-made wood mentioned by the commenter, these NHSMs must 

meet the legitimacy criteria to be considered a non-waste legitimate fuel and, if discarded, must 

meet the processing requirements of the rule. As noted in Section V.B.3 of the final rule, sorting 

C&D wood to remove contaminants (e.g., lead-painted wood, treated wood, non-wood materials) 

and reducing its size prior to burning produces a material that likely meets the processing 

requirements of the rule. 

Comment [3b-B3-7]:

Information on the composition of unadulterated wood should be provided and used in 

defining wood and bark as a traditional fuel. 

EPA’s Response: 

EPA provides information on the composition of unadulterated wood in the traditional fuels 

paper posted on the docket: “Materials Characterization Paper in support of the Final 

Rulemaking: Identification of Nonhazardous Secondary Materials That Are Solid Waste - 

Traditional Fuels and Key Derivatives.” The composition data presented in this paper helped 

inform the development of the final rule. 

Comment [3b-B3-8]: 

Several commenters asserted that “contaminated” construction and demolition materials 

and chromate copper arsenate (CCA) treated wood can be processed to be viable fuel stock. In 

addition, wood generated at construction and demolition sites has contaminants that are 

comparable to traditional fuels. 

EPA’s Response: 

In response to the commenter’s concerns regarding the application of the rule to C&D 

material, the proposed rule included clean construction wood in the definition of traditional fuels 

and the final rule retains this conclusion (see the final rule). However, discarded C&D-derived 

wood that is not clean, including CCA-treated wood, would be considered a solid waste under 

today’s rule. C&D-derived wood also 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 and management as a valuable commodity. As with other NHSM’s, 

sufficiently processed C&D-derived wood can still contain de minimis amounts of contaminants 

and other materials as long as the material meets all of the legitimacy criteria. The commenter 

has not provided any data to support the argument that CCA-treated wood included in C&D 

debris is sufficiently processed to meet the legitimacy criteria. The commenter is encouraged to 

use the non-waste determination process included in today’s final rule to obtain a more definitive 

response on this issue. 

 

Comment [3b-B3-9]: 
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Because EPA’s plans to consider clean cellulosic biomass as a traditional fuel not subject 

to the Proposed Rule are addressed in the preamble to the Proposed Rule rather than the 

Proposed Rule itself, some commenters requested that EPA reiterate in the preamble to the final 

rule (“Final Rule”) that it will treat clean cellulosic biomass as a traditional fuel, and therefore 

not subject to the Final Rule. 

The commenter also requests that EPA clarify what constitutes clean biomass in the 

preamble to the Final Rule, so that it is clear that the drying of otherwise clean biomass material 

does not cause it to lose its status as a traditional fuel. 

For this reason, the commenter encourages EPA to utilize a definition of clean biomass 

similar to that in Section VII.C.5.a of the preamble to the Proposed Rule, which states that clean 

biomass: 

“must not be altered (either chemically or through some type of production 

process), such that it contains contaminants not normally associated with virgin 

biomass materials, to ensure that the material being burned does not introduce 

contaminants not normally associated with virgin biomass materials.” 

75 Fed. Reg. at 31,861. 

Accordingly, the commenter respectfully requests that EPA make clear in the preamble to 

the Final Rule that it will use this second definition to classify material as clean biomass. In the 

alternative, if EPA wishes to use a standard similar to its first definition of clean biomass, the 

commenter respectfully requests that all measurements of contaminant concentrations be on a 

dry weight basis, thereby allowing wet and dry biomass to be evaluated on an equal playing 

field. 

EPA’s Response: 

Clean cellulosic biomass is a traditional fuel and not a solid waste unless discarded 

(discarded defined as abandoned, disposed thrown away [see Section IV]). As such, drying of 

the material would not impact its status as a traditional fuel. The definition of traditional fuels 

and clean biomass has been changed from the proposed rule (see Section V.B.1). To provide 

certainty in the application and the meaning of traditional fuel, the definitions of “traditional 

fuel” and “clean biomass” have been added to §241.2, as indicated below. 

Traditional fuel is defined in Subpart A §241.2 Definitions of the final rule as follows: 

“...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. 

Clean cellulosic biomass 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 
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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. Such historically managed traditional fuels and alternative fuels are not 

secondary materials or solid wastes unless discarded.”

Section 241.2 of the final rule establishes the following definition for clean biomass: 

“... biomass that does not contain contaminants at concentrations not normally 

associated with virgin biomass materials.” 

 As indicated above, this description of clean is slightly modified from the proposal. The 

definition in the proposal 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. The final rule 

also clarifies that clean refers to cellulosic biomass. 

Comment [3b-B3-10]: 

Various commenters argued that there is no justification for considering secondary 

materials from cellulosic biofuel/biomaterial products as solid waste. The use of cellulosic fuels 

may significantly reduce greenhouse gas (GHG) emissions, but as proposed, the rule would 

create a disincentive to use these fuels. 

EPA’s Response: 

We disagree that there is no justification for consideration of secondary materials from 

cellulosic biofuel/biomaterial products as solid waste. Like other NHSMs, cellulosic biomass 

must meet the criteria for non-waste fuels outlined in today’s final rule to be considered a nonwaste legitimate fuel. In some circumstances, cellulosic biomass may not meet these criteria. 

For example, if cellulosic biomass is not “clean” as defined in today’s final rule, it may include 

contaminants at higher concentrations than traditional fuels. Thus, the combustion of this 

material may be a waste activity. Clean cellulosic biomass is considered a type of traditional 

fuel under this final rule. 

Comment [3b-B3-11]: 

Two commenters expressed concern that the Agency was willing to expand the category 

of cellulosic biomass that would not be considered solid waste to include painted and treated 

wood. 

EPA’s Response: 

Similar to other NHSMs, painted or treated wood may be considered a non-waste 

legitimate fuel under the final rule if it meets the legitimacy criteria and, if discarded in the first 

instance, is sufficiently processed. 
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Comment [3b-B3-12]: 

Some commenters asserted that pellets produced at its facilities from cellulosic biomass 

meet the legitimacy and processing requirements included in the proposed rule and should be 

considered a non-waste legitimate fuel. 

With respect to processing, the pelletizing process transforms non-hazardous secondary 

biomass materials into a new fuel that also significantly improves the fuel characteristics of the 

secondary biomass material. Pellet manufacturers take secondary biomass materials and refine 

them into pellets that are uniform in size, shape, moisture, density and energy content. Pellets go 

through a full range of manufacturing processes which can involve debarking, chipping, drying, 

and hammer-milling. Basically, pellets are produced by putting biomass through a hammer mill 

which reduces the particle size yielding a uniform sized biomass fiber. The biomass is then fed 

through a pellet mill where it is forced through a die producing a pellet to the required 

specifications. The high pressure of the press causes the temperature of the wood to significantly 

increase, and the natural lignin in the wood binds the pellet together as it cools. Because the 

wood fibers are broken down by the hammer mill, there is little to no difference in the finished 

pellets between different wood types. Finally, the finished product is bagged or shipped in bulk 

to market. 

The commenter maintains that pellets produced from this process meet the legitimacy 

criteria. The sale of these pellets to third parties to use as a substitute is indicative of its 

management as a valuable commodity. With respect to meaningful heating value, the 

commenter notes that dried and pelletized biomass exhibit Btu/lb values well above the 5,000 

Btu/lb threshold listed in the proposed rule. Finally, the commenter notes that, with the 

exception of the deposition of atmospheric dusts, woody biomass is, for the most part, 

considered clean (uncontaminated material). The residues created by processing are also 

considered clean unless they have been chemically treated in any manner. The commenter adds 

that wood that has been chemically treated is specifically prohibited for use by its densified fuel 

certification program, as are feedstock materials with a high level of probability of contamination 

(including construction waste debris, pallets, and post-consumer recycled wood). There are, 

however, some situations in which contamination can be incidental. Situations that have been 

historically observed include contact with sea water (salt water) along coastal regions and 

contact with salt in northern regions where chloride based salts are applied to roads for the 

purpose of melting ice in the winter months. 

EPA’s Response: 

Clean cellulosic biomass is a traditional fuel and, therefore, does not need to be 

processed. Pelletizing the material would not affect the material's status as a traditional fuel. 

The commenter mentions, however, that there could be some "incidental" contamination in the 

material. Under the definition of clean biomass, if the material contains contaminants at 

concentrations not normally associated with virgin biomass materials, the material would no 

longer be considered clean, and thus not an alternative traditional fuel as defined in§241.2. 

Comment [3b-B3-13]: 

Some commenters indicated that many of the materials in question are blends containing 

biomass such as non-recyclable paper, which have heat value comparable to or greater than 
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virgin biomass fuels. To classify these as waste simply because they are not "virgin" will 

effectively sabotage the goals and objectives established by Congress, the Administration, and 

EPA to move toward more renewable biofuels and reduce dependence on fossil fuels. 

EPA’s Response: 

EPA supports the development of biofuels and technologies to reduce dependence on 

fossil fuels. With respect to the NHSM blends referenced by the commenter, the commenter did 

not provide sufficient information to determine whether these blends as a whole meet the nonwaste criteria included in today’s final rule. 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. Non-hazardous secondary materials that no 

longer meet these legitimacy criteria would be considered solid wastes and the units combusting 

those non-hazardous secondary materials would be considered a commercial or industrial solid 

waste incineration (CISWI) unit (see 40 CFR 60.2875). 

Comment [3b-B3-14]: 

One commenter expressed concern over the amount and quality of the data used by EPA. 

According to the commenter, EPA should collect more data and perform additional analyses in 

order to develop a better grasp of the way in which certain materials are currently used within 

and among related industries, particularly the wood products industry. Subsequent to further 

data collection and analysis, EPA should consider treating resinated wood and other secondary 

wood materials as a “traditional fuel.” 

EPA’s Response: 

EPA disagrees with this comment. During the public comment period for the ANPRM 

and proposed rules, EPA collected additional data and information on NHSMs currently burned 

as fuels and ingredients. Based on this information, other input from stakeholders, and 

information compiled in the development of the materials characterization papers, EPA has 

assembled much information on the use of various NHSMs. EPA refers the commenter to the 

materials characterization papers on the docket for this rulemaking, and the discussion of various 

NHSMs in the preamble to the final rule. 

4. Scrap Tires

Comment [3b-B4-1]: 

Certain aspects of the proposed regulation do not take into account several new 

developments in the scrap tire market. The regulation deals with two extremes (shred and whole 

tires), but excludes, in particular, types of processes like non-combustive reverse polymerization, 

where preprocessing is not necessary. Reverse polymerization is a patented process using a 

microwave based gasification process, at very low heat. Plants using this process will be 

supported by Power Purchase Agreements to purchase the electricity generated on-site from the 

gasses released in the microwaving process and the oil condensed from the gas. New regulation 
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will severely harm markets for such emerging technology. Consequently, the environmental 

benefits of improved technology will be lost. 

EPA’s Response: 

The commenter indicates that reverse polymerization is a new technology that is a 

microwave based gasification process. As discussed in the final rule, 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). 

Synthesis gas can meet the requirements of a fuel product produced from processing of discarded 

non-hazardous secondary materials, provided the syngas has been adequately processed to 

remove contaminants. 

In general, the Agency would require additional information on new technologies, such 

as reverse polymerization to determine whether these materials would be considered wastes or 

non-wastes in the context of today’s rule. In particular, information would be required as to how 

the carbonaceous material (scrap tires) is converted into a synthesis gas or synthesis oil that 

meets legitimacy criteria including specific processes for removal of contaminants from the 

synthesis gas prior to combustion as a fuel. 

Comment [3b-B4-2]: 

One commenter argues that in order to prevent tire consumers from avoiding recycling 

fees, a mandatory environmental fee should be charged for each tire manufactured or installed, 

regardless of where the tire was purchased (on the internet or in a shop). This would provide for 

disposal of every tire removed. 

EPA’s Response: 

The commenter suggests the establishment of a mandatory recycling fee for all tires. We 

note, however, that the purpose of this rule is to determine which non-hazardous secondary 

materials are solid waste when combusted. Thus, this comment is outside the purview of this 

rule. 

Comment [3b-B4-3]: 

One State Environmental Program (The Commonwealth of Kentucky, Docket 

document ID: EPA-HQ-RCRA-2008-0329-1188) originally commented on the ANPRM 

that whole waste tires are a solid waste under their state law and did not want a rule that 

interfered with their rules and enforcement, but in the response to the proposal said, 

“After further reflection, one way to ensure that scrap tires are headed for 

the user instead of a tire pile is use of a full manifest system... where the 

individual manifest is returned to the original generator after receipt by 

the recycler. In the case of scrap tires, this would usually be the processor 

returning the signed manifest or electronic document to the tire retailer. 

This system has been used in Texas for over 15 years and provides a 

checkable paper trail without an undue paper burden on the regulatory 
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system itself. This method means that groups of tires must be separately 

tracked through the system, from the tire retailer to the processor and 

back again and can be verified by checking copies at a receiving location 

(for instance, a cement kiln).” 

The Texas Commission on Environmental Quality (TCEQ) considers these non-wastes 

for their state program. Please see TCEQ’s full comments in the docket under document 

ID # EPA-HQ-RCRA-2008-0329-1306.2. 

EPA’s Response: 

EPA has not established a tracking or manifest system for scrap tires or any other 

NHSMs under this final rule, but notes that this could be a component of an “Established Tire 

Collection Program” (defined at §241.2). 

Tires that are collected from vehicles under the oversight of an established tire collection 

program are non-waste (see the full requirements at §241.3(b)(2)(i) of today’s rule. The 

legitimacy criteria need to be met in order for the scrap tires to be non-waste. In particular, the 

material has to also be managed as a valuable commodity (§241.3(d)(1)(i)). That is one of the 

components of the legitimacy criteria and based on our assessment, tires or TDF would typically 

meet the other two components of the legitimacy criteria (in having meaningful heating value 

(§241.3(d)(1)(ii) and comparable contaminants to the traditional fuels they replace 

(§241.3(d)(1)(iii)). See the response to comments in the final rule for more detail on meeting the 

criteria (Section V.B.5 of the final rule). 

Comment [3b-B4-4]: 

A number of commenters contend that a system whereby dedicated, hired trucking 

haulers are contracted by the receiving user, such as a kiln, to bring tires or other NHSMs 

exclusively from the generator to the end user, that this should qualify as non-waste tires. 

EPA’s Response: 

Private management and trucking arrangements that have been developed for collection 

and transport of scrap tires need to be considered with regard to whether they satisfy the 

regulatory requirements of an “established tire collection program,” as defined at section 241.2 

and described in the preamble. 

Comment [3b-B4-5]: 

Many commenters claim that the proposed rule would make it financially difficult or 

impossible to dispose of scrap tires in an environmentally friendly manner. Specifically, the 

proposed rule would create barriers to the beneficial use of scrap tires in certain markets that 

have traditionally been looked at as fuel uses for tire derived fuel. An industry commenter 

believed they would be less able to handle scrap tires, hurting established markets that have been 

responsibly built up over the last several decades. The proposed rule would undo the years of 

progress that has been made in developing markets for scrap tires. Commenters argue that the 

combination of the proposed rule and a difficult economic climate creates a new and very serious 

threat to small businesses’, employees’, and families’ well-being. 
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EPA’s Response: 

The answer to these related comments are largely addressed in the response to comments 

in the final rule (Section V.B.5). 

 The commenters are referring to annually generated tires collected from tire retailers and 

other auto-related shops. In regard to the specific comment on “the proposed rule would create 

barriers to the beneficial use of scrap tires in certain markets that have traditionally been looked 

at as fuel uses for tire derived fuel...and would undo the years of progress that have been made 

in developing markets for scrap tires;” we anticipate that most annually generated tires will be 

non-waste through compliance with §241.3(b)(2)(i) or processed in accord with §241.3(b)(4). 

The commenters concern is mitigated 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 from vehicles at tire 

shops described in yours and related comments. The tires are expected to be able to continue to 

be used as a non-waste fuel (per §241.3(b)(2)(i)) similar to how they are managed prior to the 

rule (in those instances). 

Comments [3b-B4-6]:

One commenter argues that if used whole tires are classified as solid waste and the 

commenter will be subject to the CISWI standards applicable to energy recovery units (ERUs), 

EPA needs to develop a separate subcategory of ERUs applicable to dedicated tire-fired units. 

EPA’s Response:

This comment addresses the CISWI standards applicable to energy recovery units. The 

purpose of today’s rule is to identify the requirements and procedures for the identification of 

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 CAA. We refer the commenter to the 

docket for the CISWI rule for information on this rule (See docket EPA-HQ-OAR-2003-0119). 

5. Used Oil

Comment [3b-B5-1]: 

One commenter indicated that burning off-spec used oil in asphalt, lime, and cement 

plants has several advantages relative to combusting natural gas, diesel fuel, or virgin fuel oil at 

facilities. In addition, off-spec used oil is more efficient by perhaps 6% than natural gas which 

forms water vapors when burnt and therefore delivers less energy. Finally, burning off-spec oil 

reduces imports and provides a needed market for material that presently does not have another 

market. 

EPA’s Response: 

We recognize that there can be benefits associated with burning non-hazardous secondary 

materials that are solid wastes. However, we have determined that off-spec used oil is a solid 

waste when burned in combustion devices. 
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Comment [3b-B5-2]: 

Commenters note that the distinction between on-spec and off-spec used oil fuel has 

nothing to do with its heating quality. Both categories of used oil fuel will generally have the 

same Btu content (approximately 140,000 British Thermal Units per gallon) the equivalent of 

virgin petroleum oil if the water content is the same. Commenters also argue that less fuel is 

used as there are more Btu’s per gallon (more heat) as compared to many other traditional fuels. 

EPA’s Response:

EPA recognizes that both on-spec and off-spec used oil have a high heating value, but 

this alone does not make it a non-waste. See Section V.B.7 of the preamble for a discussion on 

when used oil does and does not meet the legitimacy criteria. 

Comment [3b-B5-3]: 

Many commenters argue that used oil can be off-spec (per 40 CFR 279) due to a low 

flash point which does not affect the fuel quality nor should one presume low flash fuel releases 

CAA pollutants.

EPA’s Response: 

We are not reopening any of the provisions of 40 CFR part 279 for used oil. Section 

279.11 provides the requirements for used oil to be considered on- or off-spec and, as a result, 

part 279 places restrictions on the use of off-spec used oil, including for burning. The off-spec 

used oil would, therefore, be a solid waste. The current non--hazardous secondary material rule-

-is not separately evaluating each provision of part 279. On-spec used oil, on the other hand, 

could be burned with no restrictions, in the same method as oil that is directly refined, and is 

considered a valid traditional fuel. 

Comment [3b-B5-4]:

Several commenters argue that designating used oil as a solid waste will harm the 

development and maintenance of the country’s transportation infrastructure. 

Many commenters expressed concern that the proposed regulation will reduce the 

available recycling markets for used oil and unravel the success of the Federal recycling program 

without justifying any environmental benefits. Fewer outlets and less incentive to recycle in 

today's stressed economy will invite wildcat dumping, thus reducing America's sustainability 

efforts. 

Commenters mentioned that classifying used oil as a waste does not provide additional 

environmental protection or environmental benefits. 

The commenters mentioned that the fine-tuned used oil market EPA helped foster is very 

effective and they are concerned that this rule would impair that. Due to this effective process 

and because used motor oil is cleaner than in previous decades, there exists no justification for 

changes in how this used commodity is regulated. 

EPA’s Response: 
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The purpose of this rule is to establish criteria for determining whether non-hazardous 

secondary materials are solid wastes when burned as fuels or ingredients. Other policy matters 

are not being considered in this context. Regardless, the commenter has not provided data to 

show the infrastructure problems. On-spec used oil is considered to be a traditional fuel and not 

solid waste. Thus, the demand for this material is likely to continue to be strong, and used oil 

processors will continue to collect used oil. For CISWI applicability to units that use used oil, 

like space heaters, refer to the response under 3b-B5-5. The current data that we have suggests 

that most used oil is on-spec. 

The final rule does not change the regulations under 40 CFR 279. 

See used oil response to comments in Section V.B.7 of the preamble for additional 

information on used oil. 

Comment [3b-B5-5]: 

Many commenters urge EPA to continue allowing used oil to be used as a viable fuel for 

small space heaters. Otherwise, the rule would create an undue burden on the environment, 

human health and the generators of this oil. For example, the commenters argue that the rule 

would result in (1) steep cost increases for small business fast lube operators, (2) the unraveling 

of 40 CFR Part 279 such that used oil-fired space heaters could no longer be utilized, and (3) 

reduced collection of used oil from do-it-yourself oil changers. 

EPA’s Response: 

EPA is not changing the ability to use off-spec used oil in space heaters, nor changing 

part 279 regulations. The effect of this rule would be that space heaters burning off-spec used oil 

are burning it as a solid waste and would theoretically be subject to CAA 129 regulations - if 

applicable. EPA’s regulations under CAA 129 do not apply to space heaters. For additional 

details on the applicability of CAA section 129 requirements for space heaters, refer to the 

revised CISWI applicability under 40 CFR 60.2025. 

Also see the other related responses: The response for comment 3a-B7-9 provides 

additional discussion on space heaters. The response in 3b-B5-4 also addresses the implication 

for used oil changers and associated costs. The response in 3a-B7-10 discusses the burden of 

compliance in general. 

Comment [3b-B5-6]: 

The Federal Standards for the Management of Used Oil already prescribe the specific 

types of combustion devices when burning for energy recovery. Kindly refer to Subpart H of the 

Standards for the Management of Used Oil and 40 CFR 279.61. We believe our current air 

permits meet their stated goal of protecting the environment under the existing Clean Air Act. 

EPA’s Response: 

EPA disagrees that the provisions of 40 CFR 279.61 provide the standards under the 

CAA for the burning of off-spec used oil. Those are the devices that may burn off-spec used oil, 

but there is no determination under the CAA whether those devices are to be subject to CAA 112 

or 129. As has been discussed in the preamble, today’s final rule does not change the 
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requirements under RCRA regulations. Thus, section 279.61 is not relevant to the CAA 

requirements. Persons may burn the off-spec used oil in those facilities described under section 

279.61. 

Comment [3b-B5-7]: 

One commenter argues that blending off-specification used oil to produce onspecification used oil is not feasible for significant quantities of off-specification used oil. For 

example, blending is not economically or physically feasible for used oils generated by industries 

using metalworking fluids (which are formulated by the manufacturer to contain non-hazardous 

chlorinated paraffins). In addition, using an industrial facility located in the Midwest as an 

example, the commenter notes that the halogen content of off-spec used oil generated in the 

Midwest is much higher than the national average due to the virgin fuel oil formulations in that 

region. For the example facility, the observed concentration provided by the commenter was 

11,880 ppm. While it is possible to blend that off-spec used oil with on-spec used oil to create 

an on-spec blend (with a halogen content just below 4,000 ppm), doing so results in a net 

financial loss, given that the on-spec used oil to be blended with the off-spec costs $0.90 per 

gallon and the blend would command a price of just $0.65 per gallon. 

EPA’s Response: 

We recognize that producing on-spec used oil from off-spec used oil may be infeasible in 

some cases. Off-spec used oil has been determined to be a waste fuel because of the level of 

contaminants it contains. In fact, used oil in this case has such high levels of contaminants that 

turning it into a marketable product is not economically feasible. Thus, combusting it is 

indicative of waste activity rather than legitimate fuel activity. In the event the combustion is for 

disposal of unwanted used oil, this is a waste activity and the used oil is a waste. 

Comment [3b-B5-8]: 

As discussed in the preamble, a number of industry comments argue that off-spec used 

oil should be considered a product and not a waste under the rationale that used oil is a 

commercial chemical product. These comments claim that, since commercial chemical products 

are not a solid waste when burned for energy recovery if they are themselves fuels, this principle 

should apply to off-spec used oil, even if the oil was originally used for lubrication, or other 

purposes, rather than energy recovery. 135 EPA replies to the basic arguments on off-spec used 

oil in the preamble. 

However, comments also argue that the proposed rule’s characterization of off-spec used 

 

135 Comments cite 40 CFR 261.33 and 40 CFR 261.2(c)(2)(B)(ii), which they claimed to represent an “exclusion” 

from the subtitle C definition of solid waste for commercial chemical products. They also cite 50 FR at 614, 616n.4 

and 618-19 (Jan 4, 1985), as well as 50 FR at 14219 (April 11, 1985), for the proposition that off-specification 

commercial chemical products may be burned for energy recovery and not be considered a waste. EPA replies in 

the preamble to the general point regarding the hazardous waste regulations. However, the Agency also wishes to 

note that there is no “exclusion” from the definition of solid waste for commercial products that are fuels. The effect 

of the Agency regulatory and preamble statements on commercial chemical products that are themselves fuels is 

merely to state the obvious – that products manufactured in order to burn for energy recovery are simply products 

and not wastes. 
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oil as a waste is inconsistent with EPA’s prior interpretations of what is a fuel, citing the 

following four letters and memos from the Agency in support of this contention. 

1. An August 8, 2002 letter from Elizabeth Cotsworth, then Director of the Office 

of Solid Waste, to Richard Wasserstrom of the American Forest & Paper Association 

(AF&PA), which found that crude sulfate turpentine is a commercial chemical 

product which is itself a fuel, and therefore is not a solid waste when it is burned for 

energy recovery. Comments claim that EPA based this determination on the 

longstanding use of turpentine as a fuel and its fuel value. 

2. An April 21, 2006 memorandum from Ron Fein, Office of Regional Counsel, 

EPA Region 1, which states that the test of whether or not burning as a fuel is a 

“normal use and/or an original intended use of the product,” is to look at either 

present commercial use or an established history of use as a commercial fuel source. 

The comment claims that used oil, whether on-spec or off-spec, meets both of those 

tests, as it is has both present commercial use and an established history of use as a 

commercial fuel source. 

3. A December 30, 1992 letter from Sylvia Lowrance, then Director of the Office of 

Solid Waste, to Karl Bremer, Chief, RCRA Permitting Branch, EPA Region 5, which 

states that butane and propane propellants that have been recovered from aerosol cans 

are not solid wastes when burned for energy recovery because butane and propane are 

themselves fuels. 

4. A February 19, 1999 letter to Gregory Stephens of the Aaron Oil Company from 

then Director Cotsworth, which discusses that petroleum products recovered from 

absorbent pads are excluded from the definition of solid waste even when burned as 

fuels because of the exclusion for off-specification commercial chemical products. 

EPA’s Response: 

As stated numerous times on the record of this proceeding, EPA is not revisiting its 

Subtitle C regulations. Nevertheless, our determination that off-specification used oil is a solid 

waste is consistent with our previous interpretations of what is a solid waste under Subtitle C 

regulations. In general, the referenced letters stand for the proposition that for commercial 

chemical products to not be considered a solid waste when burned for energy recovery they must 

themselves be fuels. In essence, we are talking about materials that never become wastes in the 

first place – not secondary materials.136 All of the materials discussed in the cited letters (crude 

sulfate turpentine, a propellant mixture containing butane and propane, and petroleum products 

recovered from absorbent pads) are to be used as fuels. Thus, when these materials are burned 

for energy recovery, they had never become secondary materials. 

The crude sulfate turpentine was described as “extracted from wood during the pulping 

process and collected and sold as a raw material” and can be used to replace “more traditional 

fossil fuels.” The turpentine is, therefore, one of those materials that, with time and technology, 

can be produced as a fuel product. 

The April 21, 2006, Region 1 memorandum actually identifies particular commercial 

chemical product fuels. Off-specification used oil is not one of them. Moreover, the 

 

136 We would note that “commercial chemical products” as listed or identified in the subtitle C rules only apply to 

unused commercial chemical products or off-specification unused commercial chemical products, and not products 

that have been used. 
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memorandum lays out the requirements to consider whether a commercial chemical product is a 

fuel with the same basic reasoning that this regulation uses to decide whether a material is a 

“traditional fuel.” While the memorandum uses the term “fuel to fuel exemption,” the 

memorandum is clearly referring to material that is “produced for use as (or a component of) 

fuel.”137 “Present use or established history” is one element of whether a material is a product 

fuel, but it by no means trumps every other factor. Again, a waste may be historically used as a 

fuel, but that alone does not make it a product fuel. It would be a waste fuel. 

The letter on propane and butane very clearly states that these materials are normally 

used as fuels and “when unused” can be burned as fuels. There is no indication that the extracted 

propane and butane were contaminated or not treated as a commodity. They were unused 

materials that had been manufactured as propellants, were not used, but could now be used as 

fuels. 

The letter discussing petroleum products recovered from absorbent pads states quite 

plainly that the “recovered products are never disposed of” and are used as fuels, which was their 

intended purpose. The reference to off-specification commercial chemical products is rather 

unclear in the letter. Nevertheless, as we have noted, the off-specification used oil is not an 

“unused commercial chemical product” produced as a fuel, so 40 CFR 261.33 does not apply. 

Off-spec used oil has been used as a lubricant, coolant, heat (non-contact) transfer fluid, 

hydraulic fluid, heat transfer fluid or for similar uses. It was not produced for use as a fuel. 

Comment [3b-B5-9]:

Certain commenters believe that the metals data from a 2003 study presented in EPA’s 

Materials Characterization Paper is inaccurate (Used Oil MCP, p. 7), asserting that the data 

presented are based on only one sample and are not representative of used oil generally. 

EPA’s Response:

The Material Characterization Paper for used oil has been revised based on comments. 

We have revised it to use additional data from objective tests (representative of used oil) 

provided by the commenters. 

During the public comment period for the ANPRM and proposed rules, EPA collected 

additional data and information on NHSMs currently burned as fuels and ingredients. Based on 

this information, other input from stakeholders, and information compiled in the development of 

the materials characterization papers, EPA has assembled information on the use of various 

NHSMs. EPA refers the commenter to the finalized materials characterization papers on the 

docket for this rulemaking. 

6. Coal Refuse

Comment [3b-B6-1]: 

Commenters expressed concern that the rule, as proposed, may make it difficult to realize 

 

137 As cited in text, above, the provisions cited do not create an “exemption,” but merely state a fact that certain 

material does not become a waste in the first place. 
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environmental benefits associated with reclaiming legacy coal piles. The benefits of reclaiming 

this coal refuse include elimination of unstable and eroded steep slopes, elimination of sources of 

AMD, reduction of potential sources of pile fires, and reclamation of the land with vegetation. 

In addition, EPA’s proposed definition of legacy coal as solid waste does not incorporate 

the concepts of life cycle assessments and full cost accounting. As noted in an Office of Surface 

Mining rulemaking in the Federal Register dated May 1, 2008 (page 24125): “...we believe that 

removal of all refuse material would be the most beneficial way to ensure complete reclamation 

of the site” DMME estimates the cost to reclaim piles in southwest Virginia to exceed $150 

million. Classifying legacy piles as solid waste will inhibit removal of “gob” piles due to 

prohibitive cost without offsetting coal sale revenue. 

EPA’s Response: 

The commenter claims that the proposed rule’s classification of legacy coal piles as solid 

waste will make it difficult to realize environmental benefits associated with reclaiming legacy 

coal piles. Regarding coal refuse placed in legacy piles, we acknowledge the significant impacts 

that these legacy piles can have on the environment, especially the degradation of water quality 

of local watersheds in areas adjacent to these legacy piles. What does and what does not 

constitute a solid waste, however, hinges on whether or not the material at issue has been 

discarded in the first instance. EPA is constrained by the statutory definition of solid waste 

under RCRA. Mere beneficial reuse of a discarded material does not change its status. Wastes 

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 it decision on the policy, but must evaluate whether a 

secondary material is a solid waste under RCRA. 

Regarding the commenter’s assertion that the proposed rule does not incorporate the 

concepts of life cycle analysis and full cost accounting, the final rule aims to facilitate materials 

management to the extent allowed by the statute, as noted in the preamble. Again, we note that 

we are constrained by the statutory definition of solid waste under RCRA, which hinges on 

whether or not the material is discarded. In the case of coal refuse placed in legacy piles, these 

secondary materials have clearly been discarded in the first instance. 

As discussed in the final rule, coal refuse is unique from other non-hazardous secondary 

materials in that it is a byproduct of fuel production processes and is itself a raw material that can 

be used as a fuel. Because coal refuse is essentially raw material coal, which is generated in the 

production of fuel and can be used itself as fuel, we find that it would be illogical to require a 

different level of processing for discarded coal refuse than is used for virgin coal. Under the 

final rule, coal refuse that is recovered from legacy piles and used as fuel that is subjected to the 

types 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 we they 

do since currently mined coal is certainly a legitimate fuel and is the same as those from the 

legacy piles. While the final rule continues to consider coal refuse that has been placed in legacy 

piles to be considered a solid waste as it has clearly been discarded, so long as this discarded coal 

refuse is subjected to the same processing as virgin coal and meets the legitimacy criteria, such 

processed coal refuse would not be considered a solid waste. 
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Comment [3b-B6-2]: 

The commenter expressed concern that the term “coal fine” is not defined in the proposed 

rule. The term could be construed as broad enough to classify as a “waste” and as a “solid 

waste” relatively small amounts of coal that are moved by rainfall from a coal-burning unit’s 

coal storage pile into the storm water management system near the coal storage pile. By design, 

these “coal fines,” or “residual coal,” normally settle out of the water column in the water 

management system and then can be collected, returned to the coal pile, and dried for use as fuel 

with the rest of the coal in the storage pile. This residual coal has a reduced Btu value due to the 

higher soil content than typically exists in mined coal, but the Btu content of this material is still 

approximately 8,000 to 8,500 Btu/lb, higher than the average Btu value of mined lignite, which 

is approximately 6,300 to 8,300 Btu/lb. This residual coal is used as a fuel in the normal 

combustion process to produce electricity and clearly is not “discarded,” “abandoned,” 

“disposed,” or managed in any other way that warrants its description as a “waste” or “solid 

waste” under the proposed rule. 

EPA’s Response: 

It appears that the coal fines referenced by the commenter are a natural occurring part of 

virgin coal piles that are located at combustion facilities. As such, we agree with the commenter 

that these materials are essentially “residual coal” and are not discarded and should not be 

considered solid waste. 

We note, however, that to the extent that the coal fines are associated with coal refuse 

piles, we would view these coal fines similarly to coal refuse in today’s final rule. That is, coal 

fines that are currently generated as part of coal mining operations would be considered to be an 

alternative fuel and not a solid waste. Coal fines that are contained in legacy coal refuse piles 

would clearly be discarded and would have to be processed to not be considered a solid waste; 

however, to the extent that coal fines are included within coal refuse piles and are processed in a 

manner similar to virgin coal, such materials would be rendered non-wastes. This is because all 

the coal in the refuse piles should be treated the same and fines are coal. 

7. Sewage Sludge

Comment [3b-B7-1]: 

One commenter notes that dewatered sewage sludge when combusted is clearly a solid 

waste in EPA's opinion irrespective of the myriad ways to dewater it. Pelletized sewage sludge 

apparently meets EPA's "adequate processing" criteria because the process destroys pathogens 

and bacteria. The commenter states that it could be argued that pelletizing is nothing but a more 

sophisticated moisture removal process and that EPA’s justification for classifying pelletized 

sewage sludge as a non-waste fuel suggests that pathogens and bacteria are included in the 

legitimacy test for sewage sludge. The commenter would like to understand EPA's reasoning 

behind these new and unique criteria, apparently applicable only to sewage sludge, by having 

this addressed in the final rule. 

EPA’s Response: 
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To be clear, neither in today’s final rule, nor in the proposed rule did we determine that 

pelletized sewage sludge is a non-waste fuel. The proposed rule discussed sewage sludge 

processed into fuel pellets as an example of adequate processing. However, the proposed rule 

also noted that although we consider sewage sludge processed into fuel pellets to meet our 

definition of processing, the fuel pellets would still have to meet the legitimacy criteria to be 

considered a non-waste fuels. The proposed rule (as well as this final rule) determined that 

sewage sludge has contaminant levels that are higher than traditional fuels in use today, and 

would not satisfy the contaminant legitimacy criterion. Although both the proposed rule and the 

commenter note that the process of turning sewage sludge into fuel pellets destroys pathogens, it 

is not clear whether or not the process of turning sewage sludge into fuel pellets would remove 

contaminants at levels that would allow the sewage sludge pellets to meet the contaminant 

legitimacy criterion. Therefore, we did not make such a determination in the proposed rule and 

we do not today, as commenters did not provide additional information on this point. 

Further, dewatering alone does not meet our definition of processing. 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). The commenter states that it could be argued that pelletizing is nothing more than a 

sophisticated moisture removal process. However, the commenter does not provide any 

additional information to argue this point. As stated in the proposed rule, sewage sludge can be 

processed into fuel pellets by biosolid drying. Specifically, raw sewage sludge is moved to 

digesters where microbes decompose the organic solids. The resulting biosludge is pressed with 

wide fabric belts into sheets and water is removed. This sludge cake is then baked in “tumbledrying” ovens that destroy the bacteria, removing any remaining water, and rotate the sludge into 

the final pelletized product. We continue to consider that these types of operations to meet our 

definition of processing, but again note that the resulting fuel pellets must still meet the 

legitimacy criteria in order to be considered a non-waste fuel. 

The definition of processing is not uniquely being applied to sewage sludge. Today’s 

final rule codifies “processing” as meaning any operations that transform discarded nonhazardous secondary material into a non-waste fuel or non-waste ingredient product. Processing 

includes, but is not limited to, operations necessary to: remove or destroy contaminants; 

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

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

the ingredient characteristics. Minimal operations that result only in modifying the size of the 

material by shredding do not constitute processing for purposes of this definition. We use the 

examples listed in this final definition of processing to guide our determination of whether or not 

any particular material has been sufficiently processed. 

For example, one commenter provided a detailed description of slag processing 

procedures. The iron and steel slag material the commenter uses is extracted and dug out of an 

old slag bank with bulldozers with rippers and fed into a grizzly feeder and hopper where 

oversized steel slag is removed from the process for further size reduction. The slag which 

passed through the grizzly is then conveyed over a magnet to remove iron-bearing scrap and then 

screened to size the aggregate. Depending on the size of the aggregate, it may need to be 

crushed at several stages, rescreened and it again passes over magnets to remove metals for 

further separation or non-magnetic metal may be picked from the slag. 
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In determining that such operations would constitute sufficient processing, we noted that 

the processing of the discarded slag includes not only rigorous operations to extract the slag from 

the discard environment, but also the concerted removal of contaminants through magnetic 

separation. In other words, the operations described by commenters appear to both remove 

contaminants as well as improve the ingredient characteristics of the slag. This is the same 

criteria and rationale for not only sewage sludge processed into fuel pellets, but the processing of 

any non-hazardous secondary material. 

Comment [3b-B7-2]: 

One commenter expressed concern that the language in the proposed rule appears 

to be a permanent determination and that no local entity can self-implement some other, 

different site-specific determination with respect to sewage sludge: 

"EPA is not proposing to list specific non-hazardous secondary materials 

as either wastes or non-wastes in regulatory language, but is rather 

specifying the criteria to be used to determine if these secondary materials 

are or are not solid wastes. . . However, it is EPA's goal in this proposal 

...to indicate, as clearly as possible, which non-hazardous secondary 

materials used in fuels or ingredients in combustion units are or are not 

considered solid waste based on this criteria ." [31860] 

The foregoing language should be clarified to allow local determinations to be made, 

including determinations with respect to sewage sludge. 

EPA’s Response: 

It is not appropriate to list all specific non-hazardous secondary materials as either wastes 

or non-wastes in regulatory language in recognition of changes in economies, technologies, 

markets, and material processes. There could be instances where determinations of whether a 

particular non-hazardous secondary material meets the various legitimacy criteria will have to be 

based on site-specific information; a national designation that in all circumstances a particular 

non-hazardous secondary material is, or is not, a solid waste may not be possible. 

As the commenter noted, we also stated in the proposal and continue to maintain that 

EPA’s goal is to indicate, as clearly as possible, which non-hazardous secondary materials used 

as fuels or ingredients in combustion units are or are not considered solid waste based on this 

criteria. As evidence of this, we have included several specific non-hazardous secondary 

materials (e.g., scrap tires collected and managed under the oversight of established tire 

collection programs and resinated wood residuals) in the regulatory text of the final rule where 

we have determined that such a designation is appropriate. However, these materials must still 

meet the legitimacy criteria in order to not be considered a solid waste (see §241.2). 

Further, EPA has tried to make solid waste determinations for as many non-hazardous 

secondary materials as possible based on all information available to the Agency in order to 

establish the appropriate MACT floors for the respective final rules promulgated today under 

sections 112 and 129 of the CAA as well as to provide clarity for the regulated community. 

For the reasons stated in the preamble to the final rule, we have determined that sewage 

sludge when used as a fuel in a combustion unit is a solid waste. In short, this determination is 
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based on our findings that sewage sludge would be unable to meet the contaminant and 

meaningful heating value legitimacy criteria. (For a full discussion regarding sewage sludge, see 

Section V.B.10 of today’s final rule). 

Today’s final rule is self-implementing in nature in that 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 section 

241.3(d) (and continue to meet those criteria) when combusted. Under this framework, owners 

and operators can make a non-waste determination for an NHSM burned as a fuel or ingredient if 

they are able to demonstrate that the material meets the legitimacy criteria and, if previously 

discarded, has been sufficiently processed to create a legitimate fuel or ingredient. With respect 

to sewage sludge, EPA outlines several reasons why it considers sewage sludge to be a solid 

waste when combusted in the final rule). Any determination that sewage sludge is not a solid 

waste must address each of these issues. 

We also direct the commenter to Section VII.I of the preamble, which discusses the types 

of notification and recordkeeping requirements, including documentation as to how the nonhazardous 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. 

Comment [3b-B7-3]:

One commenter argued that incineration is an important option for sewage sludge 

management. According to the commenter, POTWs have a limited number of options available 

for management of sewage sludge materials, and they are under constant pressure to find a 

workable approach that fits their operational needs and budget. The commenter believes that the 

incineration of sewage sludge is a cost-effective and safe management option. If EPA designates 

sewage sludge as a solid waste and requires sewage sludge combustion units to comply with 

CAA §129, many POTWs lack the financial ability to upgrade their incinerators or will be forced 

to shift to other, more costly, options. 

EPA’s Response:

The comment admits that the sewage sludge is being incinerated – burned for destruction. 

Therefore, CAA section 129 is the appropriate regulatory provision. This seems to comport with 

EPA’s position that sewage sludge is burned not for energy recovery, but for destruction. We 

also note that our rule does not preclude the burning of sewage sludge; however, as we have 

determined that sewage sludge is a solid waste, any combustion unit burning sewage sludge must 

be subject to the requirements of CAA section 129. 

We understand that compliance with Section 129 may lead to increased costs for POTWs 

that burn sewage sludge. We also note that any potential costs that may impact POTWs, 

including upgrading emissions control equipment or shifting to other management options, are 

considered in the Sewage Sludge Incinerator Rule being promulgated under section 129 of the 

CAA. For more information on this related rulemaking, see Docket ID No. EPA-HQ-OAR2009-0559. 

Comment [3b-B7-4]:
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Some commenters argue that sewage sludge is managed as a valuable commodity as is 

outlined in the legitimacy criteria in the proposed rule. They claim that sewage sludge is not 

stored for an unreasonable amount of time and it is adequately contained to prevent releases to 

the environment. Additionally, sewage sludge is never discarded prior to its combustion in an 

SSI or other energy producing incineration unit. Other commenters propose that sewage sludge 

satisfies the valuable commodity criteria because historically it has been beneficially used for its 

nutrient and organic value in land application which demonstrates its value as a commodity. 

EPA’s Response: 

EPA finds that sewage sludge, when burned, is a solid waste. Even if the sludge is 

managed as a valuable commodity, it still is unable to meet the legitimacy criteria for 

contaminants and meaningful heating value and therefore would still be considered solid waste. 

EPA has emphasized during this rule that it is not examining the solid waste status of any 

material other than that used in a combustion unit. 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. Moreover, even if a secondary material has value in 

applications other than combustion, that is not relevant to the determination whether the material 

meets the legitimacy criteria for combustion. 

Comment [3b-B7-5]:

One commenter notes that EPA acknowledges gasification processes, which produce 

syngas, to be an adequate process for producing a non-waste fuel product. As such, EPA 

acknowledges that sewage sludge would be a legitimate fuel and not a solid waste when 

processed by gasification. The commenter recommends that EPA modify its definition of the 

gasification system to include the close-coupled variety, which does not require syngas cleaning 

to remove impurities. 

EPA’s Response: 

Unfortunately, the commenter did not provide sufficient data and information to 

determine if this close-coupled gasification system would constitute sufficient processing. The 

commenter noted that our discussion of gasification includes the provision that the syngas has 

been adequately processed to remove contaminants. As the close-coupled gasification system 

referenced by the commenter does not require the syngas to be cleaned and impurities removed, 

it is unclear whether the resulting syngas would contain contaminants at levels comparable to or 

less than traditional fuels, which would make the resulting syngas from such processing unable 

to meet the contaminant legitimacy criterion and therefore a solid waste. 

The “Detailed Discussion and Rationale for Today’s Final Rule” section of the preamble 

also describes how the legitimacy criteria are met. In all situations in which an NHSM is 

determined to be non-waste, it must meet the legitimacy criteria per §241.3(d). The processing 

requirements are established in §241.3(b)(4) and “processing is defined in §241.2.”

C. Comments on Specific Materials Used as Ingredients 

Comment [3b-C-1]: 
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In response to EPA’s request for comment on slag processing in the proposed rule, one 

commenter provided a detailed description of slag processing procedures. The iron and steel 

slag material the commenter uses is extracted and dug out of an old slag bank with bulldozers 

with rippers and fed into a grizzly feeder and hopper where oversized steel slag is removed from 

the process for further size reduction. The slag that passed through the grizzly is then conveyed 

over a magnet to remove iron-bearing scrap and then screened to size the aggregate. Depending 

on the size of the aggregate, it may need to be crushed at several stages, rescreened, and passed 

over magnets again to remove metals for further separation, or non-magnetic metal may be 

picked from the slag. Finish product is conveyed to individual stockpiles depending on quality, 

metal content, and size gradation for loading into customer tractor trailer dump trucks for use as 

construction aggregate or possible use in a combustion process to make cement. Except for the 

metal separation process, comparable processes are employed at natural aggregate pits or 

quarries. 

EPA’s Response: 

Today’s final rule codifies “processing” as meaning any operations that transform 

discarded non-hazardous secondary material into a non-waste fuel or non-waste ingredient 

product. Processing includes, but is not limited to, operations necessary to: remove or destroy 

contaminants; significantly improve the fuel characteristics of the material, e.g., sizing or drying 

the material in combination with other operations; chemically improve the as-fired energy 

content; or improve the ingredient characteristics. Minimal operations that result only in 

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

definition. 

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 contaminants 

through magnetic separation. In other words, the operations described by commenters appear to 

both remove contaminants as well as improve the ingredient characteristics of the slag. 

Assuming the processed slag meets the legitimacy criterion 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 

Comment [3b-D-1]: 

Many commenters assert that the proposed rule’s legitimacy criteria are more stringent 

than those for hazardous waste regulated under RCRA Subtitle C and states that there is no 

defensible legal or logical basis for proposing legitimacy criteria recycling for non-hazardous 

materials that are more stringent than legitimacy criteria for hazardous materials. Commenters 

claim that non-hazardous secondary materials by definition do not present “substantial” 

environmental dangers. The relatively moderate burdens of non-hazardous waste regulation do 

not create incentives for sham recycling. Finally, materials will generally be burned in tightly 

regulated combustion processes, whether they are classified as wastes or as fuels, and may well 

be subject to tighter pre-combustion standards as fuels than as wastes. 
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All these factors point toward a legitimacy framework that gives more weight to 

promoting recycling than is the case for hazardous substance regulation. Yet EPA proposes to 

regulate the reuse of these non-hazardous materials more tightly than it regulates the reuse of 

hazardous materials. EPA offers no factual justification for this approach. 

EPA’s Response: 

EPA considered these points in various parts of the final rulemaking, in particular, see the 

response under 3a-A1-13 which also applies to this comment. In addition see Section III, 

Section IV, and Section VIII.C of the final rule. 

Comment [3b-D-2]: 

It is not clear whether all three legitimacy criteria have to be met to qualify the fuel as 

legitimate or if any single criteria is sufficient. The rule should be explicit if “ANY of the 

following criteria” is sufficient, or if “ALL of the following criteria” must be met. Meeting any 

of the three criteria should be sufficient to exempt the fuel from classification as a solid waste. A 

requirement to meet ALL three criteria would amount to triple jeopardy. If a fuel is managed as 

a valuable commodity it implies that such fuel has a “meaningful heating value” to the user. To 

require all three criteria to be met is redundant and unfair to the user. Likewise, the issue of 

“contaminant levels” has been addressed fully by the facility air permit. Simply put, the air 

permit will not allow the use of any contaminated material which is likely to exceed the permit 

limits of the facility.

EPA’s Response: 

The final rule states that all legitimacy criteria must be met in order for a fuel or 

ingredient to be considered a non-waste. The legitimacy criteria are a necessary component of 

this rule since they are designed to ensure that non-hazardous secondary materials are not being 

combusted as a means of disposal but rather for their use as an ingredient or fuel. If the 

combustion unit is not using the NHSM to replace a regular fuel, but is combusting in order to 

discard unwanted items, that constitutes disposal and that would be a “solid waste” NHSM. 

Management prior to combustion does not automatically indicate that the secondary 

material has meaningful heating value. Moreover, the purpose of this rule is to identify under 

RCRA which non-hazardous secondary materials are solid waste when burned. Permit limits are 

specifically designed to deal either with wastes or non-wastes. They are irrelevant to determine 

whether material is a waste or not in the first instance. 

Comment [3b-D-3]:

One commenter recommends that EPA establish a representative minimum value for 

meeting the heating value legitimacy criteria. This minimum value should be based on an 

assessment of non-hazardous secondary materials that are commonly used as fuels. The 

commenter notes that EPA’s proposed minimum value of 5,000 Btu/lb (as received) is not 

representative of some of the fuels that are cost-effectively burned within industry, including 

pulp and paper sludge, recycled fly ash, and some waste coals. 
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EPA’s Response:

The 5,000 Btu/lb limit is a general guideline, which is being adopted in this final rule, but 

allows some flexibility. To allow such flexibility for facilities with energy recovery units that 

use non-hazardous secondary materials as fuels with an energy content lower than 5,000 Btu/lb, 

as fired, a person may demonstrate (see Section VII.I Determining That Non-Hazardous 

Secondary Material Meets the Legitimacy Criteria) that a meaningful heating value is derived 

from the non-hazardous secondary material if the energy recovery unit can cost-effectively 

recover meaningful energy from the non-hazardous secondary materials used as fuels. 

Please see additional details about this discussion in the response to comments final rule 

in Section “V.D.2. Meaningful Heating Value and Use as a Fuel.” 

Comment [3b-D-4]: 

Regarding the contaminant legitimacy criterion, one commenter seeks clarification from 

EPA as to whether EPA intends for facilities to test for 190 pollutants in each secondary material 

and traditional fuel. The commenter argues that this expectation is unrealistic and will result in 

non-compliance and large economic cost. 

EPA’s Response: 

Facilities will not be required to test for all possible contaminants (189 HAPs under CAA 

112 and 9 pollutants under CAA 129) and can instead use their expert knowledge of the 

secondary materials to determine if testing is necessary to ensure compliance with this aspect of 

the rule. In the case of an enforcement action, facilities may be required to explain to EPA their 

reasoning in determining which contaminants would be of possible concern for a secondary 

material. 

The testing expectations expressed here comport with various hazardous waste testing 

protocol. 

Comment [3b-D-5]: 

 Commenters believe that the rule should include a qualitative comparison of the 

incremental risk presented by use of alternative fuels that may contain higher contaminant levels. 

Some alternative fuels may contain higher concentrations of some contaminants, yet lower 

concentrations of others. This should be taken into account when determining whether a 

materials exhibits "comparable" levels of contaminants. In some instances, the fractional heat 

input of the alternative fuel may be a small percentage of the total heat input to the combustion 

unit, such that the incremental emissions may be nearly indistinguishable from the emissions of 

solely traditional fuel. This may be especially true in the circumstance where a high-efficiency 

control device is in place on the combustion unit. The incremental increase in emissions may be 

of such a small magnitude to be essentially inconsequential. 

EPA’s Response: 

This comment implies that the contaminant legitimacy criterion should consider the 

emissions profile of NHSMs rather than constituent concentrations in these materials. We 
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disagree. In order for a non-hazardous secondary material to be considered as 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 data can be useful in determining whether or not burning such 

material presents a risk to human health or the environment, we find it says nothing in terms of 

whether or not the non-hazardous secondary material is a legitimate non-waste fuel. 

E. Comments on Legitimacy Criteria for Ingredients 

Comment [3b-E-1]: 

The commenter states that the definitions section of the rule should explicitly state that 

“ingredients” are associated with combustion units, and not with other processes. The proposed 

rule explicitly addresses secondary materials used as fuels or ingredients in combustion units. 

We believe that describing an ingredient in the proposed rule as “ingredient used in combustion 

unit” is a significant advantage and suggest that a definition of ingredient be added to the 

definitions section of the rule to assure awareness of the limitation to ingredients used in 

combustion units. As we understand, the proposed rule does not apply to non-combustion 

processes, so feedstocks for non-combustion processes are regulated as solid wastes under 

Wisconsin’s regulations. We believe that the proposed rule will avoid causing impacts to 

Wisconsin’s beneficial reuse program (NR 538, in our solid waste code series), as long as the 

word “ingredients” in the proposed rule continues to be limited to “ingredients used in 

combustion processes”. 

EPA’s Response: 

Section 241.3(b)(3) explicitly refers to “ingredients used in combustion units.” The 

Agency disagrees with the commenter that additional clarification in the rule is needed. EPA 

also notes that the determination in this rule regarding materials in combustion units does not 

make any statement regarding what a state regulation does. Whether a state regulation considers 

a material a waste, or note, is not relevant to this rule. 

F. Comments on Non-Waste Determination Petitions 

Comment [3b-F-1]: 

The commenter recommends that EPA consider establishing “presumptive 

determinations” as part of the non-waste determination process for certain materials that EPA 

has universally deemed to be “non-solid wastes.” These presumptive determinations might 

include a generic description of the material and its application and perhaps a range of acceptable 

HAP concentrations. EPA could develop and refine these presumptive determinations on an 

ongoing basis using the information they receive in the petition process. 

EPA Response:
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EPA will record petition decisions on specific NHSMs in an effort to make subsequent 

petition decisions on similar NHSMs more efficient. EPA intends to also record EPA’s 

decisions and supporting materials regarding NHSM non-waste determination petitions, and will 

make the information available on the internet for reference in future decisions. 

Due to the wide range and variability in non-hazardous secondary materials and their use 

as fuels or ingredients, the Agency has not codified a presumptive determination for specific 

broad categories of materials within the petition process in the final rule. 

Today’s rule does decide that scrap tires and resinated wood may be transferred to third 

parties under certain conditions and be non-waste without undergoing the petition process (See 

241.3(b)(2) in today’s rule). The preamble to the final rule also discusses how EPA may make 

other non-waste determinations for specific categories of materials including OCC rejects and 

pulp and paper sludge (see Section V.B) that can be used in petition determinations. 

In regard to determinations made outside the petition process, refer to the response under 

comments in the petition section (comment 3b-I1-1). 

Today’s rule does codify the definition of traditional fuels which reduces inappropriate 

petition applications for traditional fuels. 

Comment [3b-F-2]: 

The commenter requests input on the timetable for cessation of combustion of solid waste 

fuels. Regardless of the provisions in the final rule, there must be an avenue and a timetable by 

which a source can stop accepting a given fuel if the fuel is classified as a solid waste, thus 

subjecting the source to the CISWI rule. This would allow a source to make an economic 

decision and allow it to stay within the boiler rules that have always applied. 

EPA’s Response: 

Regarding the commenter’s request for input on the date by which facilities must stop 

burning NHSMs considered to be solid wastes to avoid CISWI requirements, we refer the 

commenter to the CISWI rule (EPA-HQ-OAR-2003-0119). 

G. Comments on Implementation of the Rule 

Comment [3b-G-1]: 

One commenter requests that the EPA establish a viable process of updating the rule and 

the legitimacy requirements for fuels and ingredients to take into account changes in 

technologies, prices and the environmental costs of using primary materials. 

EPA’s Response: 

EPA recognizes that practices regarding the use of different secondary materials are 

changing as technology continues to advance and finds that the legitimacy criteria give the 

regulated community enough flexibility to use NHSMs as non-waste fuels, as technologies and 

markets change over time. The Agency has designed the Final Rule to be self-implementing to 

give the regulated community the flexibility to adapt to these changes and foster the development 

of new technologies. As mentioned several places in the preamble (see sections V.D.2 on 
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meaningful heating value and V.F on the petition process) the Agency plans to develop and issue 

guidance on the rule to assist the regulated community in implementation of rule provisions. 

Comment [3b-G-2]: 

Many commenters expressed concerns with the EPA not promulgating the final NHSM 

rule prior to the Section 112 and 129 standards that the Agency is developing in conjunction with 

this rulemaking. The commenters believe that the development and implementation of the air 

rules relies heavily on the determination of what materials are considered legitimate non-waste 

fuels and ingredients and which are considered solid waste when burned for these uses. Without 

that initial determination, it will be impossible for owners/operators to understand the effect of 

the rules on their facilities, to make economic decisions as to which fuels to use, to install the 

appropriate pollution control equipment, and to conduct test burns in a timely manner. The 

commenters question whether a smooth implementation is feasible without promulgating the 

NHSM rule well before the suite of Clean Air regulations. 

EPA’s Response: 

We concur that the rules being finalized under the CAA are interrelated to the NHSM 

rule. While we would prefer to have that flexibility for the CAA rules to be finalized after this 

rule is finalized for the reasons stated by the commenter, the CAA rules are under a court ordered 

deadline to promulgate their rules. The developments of the NHSM final rule and CAA final 

rules have been closely coordinated throughout the rulemaking process. 

Comment [3b-G-3]: 

State agencies and environmental groups expressed concern that the proposed rule 

establishes a self-determination process that will impose significant challenges to inspection and 

compliance staff at the local and state level. Specifically, the rule includes no mechanism that 

ensures a facility is appropriately determining whether the material is a secondary material or a 

solid waste. Nor is there a mechanism to confirm and approve by the state or federal agencies. 

EPA’s Response:

EPA recognizes the issues for the inspection and compliance staff at the state and local 

level and strove to minimize the resource burden while providing a vehicle to enforce 

combustor’s compliance with the criteria established in this rule. The Boiler MACT rule, Boiler 

Area Source rule, and CISWI rule in conjunction with this rule provide that assurance for 

appropriate implementation by the combustors. Specifically, the owners or operators of 

commercial or industrial facilities that combust materials that are not traditional fuels are 

directed to the recordkeeping and reporting requirements in CAA section 112 regulations for 

boilers (§63.7530, 63.7555 and 63.11225(c)(2)(ii) [for area sources]), and the CAA section 129 

regulations for commercial and industrial incinerators (§60.2175(v)). In those regulations, 

facilities must comply with reporting or recordkeeping provisions related to compliance with 

applicable §241 requirements. For more detailed information, please see Section “VII. I 

Determining that Non-hazardous Secondary Materials Meet the Legitimacy Criteria” in the final 

rule. 

Refer to the respective air rules for the full discussion on enforcement and 
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implementation. 

H. Comments on Economic and Environmental Impacts 

Comment [3b-H-1]: 

Many commenters argued that classifying various NHSMs as solid waste would 

adversely affect industries that rely on these materials as fuels or ingredients by increasing 

production costs and reducing competitiveness. In particular, commenters argued that facilities 

that burn NHSMs classified as solid waste when burned as a fuel or ingredient would either incur 

higher emissions control costs under CAA Section 129 emission standards or incur costs 

associated with substituting to virgin fuels and/or ingredients. The commenters maintain that 

these increases in costs cannot be passed on to consumers because the choice of energy source 

will not be based on availability and economics, but on arbitrary determinations that a particular 

material is a waste, rather than a fuel. Other commenters expressed concern that the NHSM Rule 

will allow an untold number of facilities to burn non-hazardous secondary materials without 

emissions controls, air monitoring, or reporting requirements. According to the commenters, the 

EPA is failing to meet its responsibility to protect the environment and human health. 

Also related to the costs of the rule, one commenter maintains that EPA minimizes the 

difficulty of being regulated under Section 129 versus regulation under Section 112 of the CAA 

by simply comparing the two sections in a chart in the supporting documentation for the 

proposed rule. In California, for example, it is substantially more difficult, if not impossible, to 

site an incinerator of any kind, but especially a Section 129 incinerator, if for no other reason, 

because of the stigma that the moniker "Section 129" carries. 

The additional numerical limits of the specified eight compounds in addition to other 

Section 112 (b) compounds that may be regulated, coupled with the periodic monitoring 

requirements of Title V, while difficult and expensive in themselves, are small compared to the 

pre-construction site risk assessments that must "minimize, on a site-specific basis, to the 

maximum extent practicable, potential risks to public health or the environment," criteria which 

are almost impossible to meet in California. Handling of ash from additional Section 129 

incinerators is also an expensive and ongoing problem for operators that the proposed rule's 

Regulatory Impact Analysis (RIA) completely fails to address. 

EPA’s Response: 

This final rule alone does not directly invoke any costs138 or benefits. This rule is 

published as part of a four-rule package that includes the Boiler MACT and CISWI rules. Costs 

to the regulated community and corresponding benefits to human health and the environment are 

captured under these 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 

 

138 Excluding minor administrative burden/cost (e.g. rule familiarization) and voluntary petition costs. 
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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 Agency and the Office of Management and Budget 

(OMB) guidelines and procedures. These documents are available in the docket established for 

this action. 

EPA disagrees that the NHSM Rule will allow an untold number of facilities to burn nonhazardous secondary materials without emissions controls, air monitoring, or reporting 

requirements. Although the rule determines whether a given combustion unit-burning nonhazardous secondary materials-would be regulated pursuant to Section 112 or Section 129 of the 

Clean Air Act, regulations promulgated under both sections of the Act include requirements to 

protect human health and the environment from harmful air pollutant emissions. Additional 

information on the Section 112 major and area source Boiler NESHAPs and the Section 129 

CISWI standards developed in conjunction with the Final NHSM rule are available on EPA 

docket numbers EPA-HQ-OAR-2002-0058, EPA-HQ-OAR-2006-0790 and EPA-HQ-2003-

0119, respectively. 

Comment [3b-H-2]: 

EPA’s benefits analysis for the NHSM rule focuses primarily on criteria pollutant 

reduction with emphasis on PM2.5 reduction. There is no analysis of any true benefit between 

compliant, well-managed Section 112 incinerators and Section 129 incinerators or a 

comprehensive health risk assessment analysis between the two scenarios showing any relative 

betterment to the environment under the proposed definition. The benefits analysis also ignores 

the negative corollary impacts of fewer Section 112 incinerators and the additional trucking of 

secondary materials to new management options, potential impacts on landfill and landfill 

emissions, etc. The cost/benefit analysis "disclaimer" [31889] should address these phenomena 

as a direct result of this rulemaking and not defer it to future NESHAPS/NSPS/EG incinerator 

rulemaking analyses. 

EPA’s Response: 

This final rule alone does not directly invoke any costs139 or benefits. This rule is 

published as part of a four-rule package that includes the Boiler MACT and CISWI rules. Costs 

to the regulated community and corresponding benefits to human health and the environment are 

captured under these 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 Agency and the Office of Management and Budget 

(OMB) guidelines and procedures. These documents are available in the docket established for 

this action. 

 

139 Excluding minor administrative burden/cost (e.g. rule familiarization) and voluntary petition costs. 
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Comment [3b-H-3]: 

EPA fails to develop a Regulatory Flexibility Analysis. EPA does not offer a factual 

basis for making the assertion that the rule will not have a significant impact on a substantial 

number of small entities. 

EPA’s Response: 

EPA disagrees with this comment. After considering the economic impacts of today’s 

final rule on small entities, EPA certifies that this action will not have a significant economic 

impact on a substantial number of small entities. No small entities, as defined by the Small 

Business Administration’s (SBA) regulations at 13 CFR 121.201, are directly regulated by this 

final rule (see Section XI.C of the Final Rule). 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. 

Comment [3b-H-4]: 

The fundamental issue that environmental justice, environmental and public health 

groups have raised with the EPA for two decades now has been the obvious unequal protection 

that the agency and state environmental agencies have allowed to exist. Some communities have 

seen an effort to reduce toxic air emissions while others have watched toxic emissions escalate to 

dangerous levels with no abatement in sight. Advocates for environmental justice have been 

fighting an uphill battle against industrial and commercial facility operators and state regulatory 

agencies that have not ensured that all communities are being provided the full protections of the 

Clean Air Act. As a result of this negligence, people living in some overburdened communities 

are being exposed to excessively high levels of noxious air pollutants on a daily basis. 

To provide protections for environmental justice communities, the commenter urges EPA 

to promulgate the most protective definition possible. By excluding any NHSMs from the 

regulatory definition of “solid waste,” the EPA’s rule would exempt thousands of industrial 

facilities that burn these materials from the monitoring and siting requirements that Congress 

enacted to protect communities from the toxic emissions that waste burning is known to 

generate. 

EPA’s Response: 

Under the final rule, if a non-hazardous secondary material is not discarded in the first 

instance and is legitimately recycled, it is not considered a solid waste. While the Agency is 

constrained by the statute and case law in defining what is a solid waste under this final rule, we 

recognize and are sensitive to environmental justice concerns. As such, we have prepared an 

environmental justice summary paper140 designed to assess the potential for unequal protection 

of sensitive communities. This document summarizes the overall environmental justice (EJ) 

 

140 “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,” January 2011. 
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impacts of the four-rule package.141 Presenting the EJ impacts of each of these rules individually 

would be complicated, and could be misleading by the fact that the four rules are interdependent. 

We found that environmental justice impacts that may result from the four rules are likely to be 

related to the following: emissions from regulated combustion units, emissions from the 

diversion of non-hazardous secondary materials from their current fuel or ingredient use 

applications to disposal or other beneficial uses, and potential 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, we have concluded the following: 

1. Emissions changes from affected combustion units are unlikely to lead to adverse and 

disproportionate impacts for low-income and minority populations; 

2. Increases in emissions associated with the diversion of non-hazardous secondary 

materials away from their current fuel or ingredient uses are minimal compared to the 

emissions reductions resulting from the rules. Thus, in net terms, the emissions impacts 

of the rules are unlikely to lead to adverse and disproportionate impacts for low-income 

and minority populations; 

3. Low-income and minority populations located near waste management facilities (not 

including boilers) are disproportionately high relative to the national average 

Overall, this rulemaking package is expected to result in net emissions reductions and 

corresponding net environmental improvement to communities of concern, on a national level. 

Comment [3b-H-5]: 

One commenter asserts that the rule, as proposed, would adversely affect the financing of 

integrated recycling programs. In many areas, the financing of these programs is based largely 

on the amount of solid waste managed in a state. If materials are deemed not to be solid wastes, 

the commenter argues that financing based on waste volumes would decline. 

EPA’s Response: 

We note that the scope of this final rule is limited to identify the requirements and 

procedures for the identification of solid wastes used as fuels or ingredients in combustion units. 

We are articulating a narrow definition in this final rule and are not making solid waste 

determinations that apply to other beneficial uses. States may employ their own definition of 

solid waste either for this rule or for other purposes. However, the state solid waste 

determination would not affect whether materials are burned in 112 or 129 units. This rule 

applies to those materials. 

 

141 (1) Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: 

Commercial and Industrial Solid Waste Incineration (CISWI) Units (the CISWI Rule); (2) National Emission 

Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and Institutional Boilers (the area 

source Boilers Rule); (3) National Emission Standards for Hazardous Air Pollutants for 

Industrial/Commercial/Institutional Boilers and Process Heaters (major source Boilers Rule); and (4) Identification 

of Non-hazardous Secondary Materials that are Solid Waste (the NHSM rule). 
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Comment [3b-H-6]: 

One commenter noted that the Obama Administration has pressed Executive Order 12898 

to be a key consideration in government decision-making, recommitting the Federal government 

to addressing environmental justice in minority and low-income populations. The commenter 

claims that the anticipated effect of the proposed rule has serious implications for the 

Administration’s overarching efforts to alleviate environmental injustice. Vulnerable 

populations will confront even greater environmental injustice in the wake of this purposed rule. 

The environmental burdens of land disposal units and material recovery facilities will be greater 

as increased utilization of these entities will be accompanied by increases in transportation, 

odors, and noise. 

EPA’s Response: 

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 rules142 will generally result in an improved 

level of environmental protection. No disproportionately high and adverse human health or 

environmental effects on any population, at a nationwide level, including any minority or lowincome population, is expected. 

Comment [3b-H-7]: 

One commenter argues that the proposed rule will create greater dependence on foreign 

fuel, not less. Although EPA has not undertaken a calculation of this fuel displacement, by any 

measure it is a massive amount of energy. In addition, EPA has failed to calculate the energy 

costs of disposing of the vast quantity of solid waste-derived fuels into landfills. Consequently, 

the commenter believes that it is clear that the proposed rule (as well as the Alternative 

Approach) would constitute “a significant energy action” within the meaning of Executive Order 

13211 and it was improper for EPA, particularly without any analysis, to reach the opposite 

conclusion. 

EPA’s Response: 

EPA disagrees with this comment. 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,143 is not expected to directly affect energy use or use patterns. 

 

142 National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and 

Institutional Boilers; National Emission Standards for Hazardous Air Pollutants for 

Industrial/Commercial/Institutional Boilers and Process Heaters; and, Standards of Performance for New Stationary 

Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration 

(CISWI) Units 

143 National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and 

Institutional Boilers; National Emission Standards for Hazardous Air Pollutants for 

Industrial/Commercial/Institutional Boilers and Process Heaters; and Standards of Performance for New Stationary 

Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration 

(CISWI) Units. 
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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. The Agency acknowledges that 

interactions between this rule and the section 112 and section 129 CAA emission standards 

promulgated in conjunction with the final rule may affect the use of non-hazardous secondary 

materials as a source of energy. We refer the commenter to those rules for information on these 

energy impacts. 

Comment [3b-H-8]:

One commenter argues that the total capacity of section 129-permitted facilities is not 

sufficient to manage all of the solid waste-derived fuels encompassed by this proposed rule. 

Based on CISWI unit capacity data released by EPA as part of the CISWI rulemaking, the 

commenter presents the results of an analysis suggesting that CISWI units would not have 

sufficient capacity to manage used oil considered to be a solid waste under the rule, let alone the 

other NHSMs diverted from their current fuel or ingredient uses as a result of the rule. 

According to the commenter, EPA has not adequately focused on the real world consequences of 

its policy choices in this rulemaking. Instead of net environmental benefits, the realistic outcome 

of implementing this proposed rule would be an environmental disaster. 

EPA’s Response: 

The purpose of this final rule is to establish which non-hazardous secondary materials are 

solid wastes for the purpose of combustion under CAA section 129. The determination of total 

available capacity of section 129-permitted facilities is beyond the scope of this rule. However, 

it appears that the commenter’s assessment of capacity fails to account for several factors that 

could alleviate potential capacity constraints. First, with respect to used oil, the commenter 

appears to assume that no off-spec used oil would be blended with on-spec used oil to create an 

on-spec oil blend. To the extent that such blending occurs, this could significantly reduce the 

amount of used oil diverted from its current fuel use applications. In addition, the commenter 

does not consider the possibility that non-combustion beneficial use markets for various NHSMs 

could expand over time, or that generators may engage in source reduction activities to minimize 

the quantity of waste NHSMs generated on an annual basis. 

I. Comments on Materials Not Specifically Identified in the Preamble 

1. Using the General Framework of the Regulations 

Comment [3b-I1-1]: 

Commenters asked about whether specific materials were a waste or a non-waste or were 

a traditional fuel. Commenters also requested that EPA create a list of wastes and non-wastes in 

the final rule. 

EPA Response: 

Usage of the “regulatory framework” 

 
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In the preamble of the final rule, we list most of the commonly used NHSMs, the 

available data for the NHSMs, and discuss the waste status based on the available information. 

In order to determine if it is a traditional fuel, refer to the definition in §241.2 and refer to the 

discussion in the preamble of the final rule for additional detail. 

In order to determine whether an NHSM used as a fuel or ingredient is or is not a solid 

waste, the combustor using the NHSM is expected to use the regulatory framework described in 

today’s rule at §241.3 and comply with the applicable CAA regulations, including the 

notification and record-keeping requirements discussed in the preamble to today’s rule. See 

Section VII in the final rule under “I. Determining That Non-Hazardous Secondary Materials 

Meet the Legitimacy Criteria” 

The purpose of today’s rule is to identify the requirements and procedures for the 

identification of 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 CAA (See §241.1 

Purpose). In recognition of changes in economies, technologies, markets and material processes, 

EPA is not finalizing a list of specific non-hazardous secondary materials as either wastes or 

non-wastes in regulatory language, but is rather specifying the criteria to be used to determine if 

these secondary materials are or are not solid wastes. There could be instances where 

determinations of whether a particular non-hazardous secondary material meets the various 

criteria will have to be based on site-specific information; a national designation that in all 

circumstances, a particular non-hazardous secondary material is or is not a waste may not be 

possible. 

EPA has gathered data in a series of Material Characterization Papers (available in the 

docket) that would be applicable to the commenter's material in question. We believe that the 

non-hazardous secondary fuels and ingredients discussed in these Materials Characterization 

Papers account for the vast majority of all non-hazardous secondary materials used in 

combustion processes in the U.S., although there are some variations in the broad material 

categories that were not specified in the rule. In addition, EPA collected data for traditional fuels 

that can be used for comparison (which is also in the Material Characterization Papers in the 

docket). 

Please note that the Material Characterization Papers were developed using the best 

available data and data from commenters (that relied on professional judgment for inclusion). 

The papers have been offered for comment during public comment periods for the ANPRM and 

for the proposed rule and have been updated after each comment period. EPA intends to 

maintain the Material Characterization Paper for traditional fuels for use in implementation. 

 The preamble of the rule describes how the waste determinations are to be made and 

how the rule should be implemented in Section “VII. Detailed Discussion and Rationale for 

Today’s Final Rule.” 

The basic principle therein, is that the generator of the material must be able to show that 

it is not discarded, is treated as a valuable commodity in that it is handled so as not to lose it, has 

real fuel value, and is not being burned to dispose of materials. 

2. Questions on Waste Status of Substances used as Fuel in General 

Comment [3b-I2-1]: 
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Black liquor solids -- Black liquor solids are clearly a valuable fuel product and not a 

waste material. EPA’s proposed rule reaffirmed prior interpretations that black liquor solids are 

not regulated as solid wastes under RCRA Subtitle C hazardous waste regulations when 

combusted under certain conditions and that EPA therefore has no intention of regulating black 

liquor solids as a solid waste under the Clean Air Act (CAA) requirements of Section 129. The 

commenter supports EPA’s intention not to consider black liquor solids a solid waste under CAA 

Section 129. Black liquor solids combustion in a chemical recovery furnace is essential to 

maintaining a closed-loop system within a pulp mill, allowing the recovery of chemicals and the 

generation of steam for process use or electricity generation. Black liquor solids are clearly a 

valuable fuel product and not a waste material 

EPA’s Response: 

EPA has stated that secondary materials excluded from the definition of solid waste 

under the RCRA subtitle C regulations for hazardous waste will remain non-wastes under this 

rule. We are not reopening the RCRA subtitle C rules. This was also mentioned in the response 

to comments in the final rule (Section V.A). 

In the event that it is not excluded from the definition of solid waste under the RCRA 

subtitle C regulations for hazardous waste, please refer to the “regulatory framework” response 

described above. 

Comment [3b-I2-2]: 

Treated Seeds -- One commenter requests that EPA add treated seeds to the scope of materials 

which may be considered under the rule. The commenter currently burns treated seeds in a 

boiler as an alternative to coal. The commenter states that the seeds have been discarded, and 

would not meet the standards for clean biomass as described in the rule. Chemicals applied to 

seeds are fungicides intended to preserve the seed and colorants intended to classify the seeds. 

The fungicides currently used as active ingredients (subject to change) include certain chemicals 

which may contain chlorine or fluorine. The quantity of fungicides used on seeds is measured in 

terms of ounces of material per 100 pounds of seeds treated. The total quantity of material 

applied is generally no more than one to two percent on a weight basis, with the active ingredient 

being a fraction of the quantity applied. Thus, the quantity of chlorine or fluorine expected in 

treated seeds is a very small amount. Based on current corn fungicides and the associated 

application rates, the overall content of these materials on treated seeds is less than 0.039 % 

chlorine by weight and 0.0014 % fluorine by weight. The commenter notes that these levels are 

lower than contaminant levels in coal. 

The commenter also provided information that treated corn seed has an average heating value of 

7,245 Btu per pound (as received). Because of the substantial investment in such seed material, 

the commenter stated that the seeds are managed as a valuable commodity as bulk seeds are 

placed in secure bins and bagged seeds remain bagged until they are fed in a combustion unit so 

as to avoid contamination from other materials, minimize losses and reduce exposure to 

moisture. Obsolete seeds are managed as a valuable commodity reflecting its valuable heat 

content. 

EPA’s Response: 
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The commenter has not provided sufficient information about treated seeds to determine 

whether they would or would not be considered solid wastes when burned. More information 

would be needed to make complete determinations. The commenters may wish to petition for a 

non-waste determination. The treated seeds have been discarded and must be processed if they 

are to be considered non-waste fuels. Specifically, as stated in section 241.3(b)(4), discarded 

non-hazardous secondary materials that have not been processed to produce a non-waste fuel or 

ingredient would be considered a solid waste. Accordingly, as the commenter stated that the 

seeds have been discarded, information about processing of the material would be required. EPA 

would also need additional information about the process of managing the obsolete and nonobsolete seeds from the time it is determined that they should be burned as a fuel until they are 

combusted. 

Comment [3b-I2-3]: 

Paint Chips --One state agency commenter suggests that paint chips/sludge from an 

automotive assembly plant will be affected by the final rule and describes how energy is 

currently recovered from this material. The commenter has approved this material as an 

alternative fuel for use in the boilers. Use of the material is regulated as part of the facility's Title 

V air permit and has been determined by KYDEP to not present a risk to human health or the 

environment. Commenters are concerned that further EPA regulation will prohibit the use of 

State-of-Kentucky approved alternative fuels.

Tall Oil -- A limited number of commenters view tall oil as a valuable commodity and a 

legitimate fuel, and seek EPA’s concurrence that tall oil would not be considered a discarded 

waste material. In certain instances, facilities will combust tall oil in place of fuel oil. The 

Commenters view tall oil as a valuable commodity and a legitimate fuel and seek EPA’s 

concurrence that tall oil would not be considered a discarded waste material. 

Cullet from Glass Melting Furnaces -- The commenter urges EPA to avoid any rulemaking or modification to the proposed rule that would result in cullet being classified as a solid 

waste or that would result in glass melting furnaces being subject to regulation under CAA § 129. 

Such a result would be counter to the CAA's purposes and plain language, as well as inconsistent 

with prior EPA regulatory actions. The commenter urges EPA to confirm that cullet use will not 

subject glass manufacturing plants to regulation as a solid waste incinerator. 

Plastics -- One commenter asserts that scrap plastics have a high energy content ranging 

from 8,250 to 19,000 Btu per pound, comparing favorably and even better than coal in terms of 

fuel value. Accordingly, the legitimacy criteria should be developed in a manner to minimize 

what must be demonstrated to avoid solid waste classification of scrap plastics. 

Others -- There were additional items raised as well, including auto shredder residue, 

steel drums, and carpet to name a few. 

EPA’s Response: 

Please refer to the “regulatory framework” response above. 

Some comments imply that a non-hazardous secondary material should pass the 

legitimacy test if it has a meaningful fuel value, regardless of whether the material is managed as 
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a valuable commodity or contains contaminants in higher concentrations than virgin fuels. We 

disagree. As indicated in the final rule, we all three legitimacy criteria for fuels are necessary to 

ensure that the combustion of an NHSM is not a waste activity. 

EPA notes that current state permits are not determinative of whether the combustor is to 

be regulated under CAA 112 or 129. 

In regard to plastics, (as stated in the proposed rule [75 FR 31872], polyvinyl chloride 

plastics would contain contaminants (halogens [chlorine]) that are not comparable to the 

traditional fuel which the unit is designed to burn. Refer to the Materials Characterization Paper 

on scrap plastics located in the docket for today’s rule. 

In addition, see the applicability of CAA section 129 requirements. 

3. Questions on Gases (Flared, Contained Gases, etc)

Comment [3b-I3-1]: 

Vented Gas -- Commenters request clarification on whether biogas that would otherwise 

be flared to the atmosphere is considered discarded and therefore solid waste. The commenter is 

concerned that, if such streams are considered "discarded" boilers and process heaters that are 

being used as effective control devices could be classified as CISWI units, and that facilities 

would choose alternative control options where no beneficial use is being derived from the 

stream to avoid being subject to the proposed CISWI rules. 

EPA’s Response: 

This rule does not apply to vented gas that is not contained and simply goes into the 

atmosphere. We are not dealing with whether such vented gases are subject to the definition of 

solid waste. To the extent a biogas is combusted as a non-hazardous secondary material, to 

determine whether the material is or is not a solid waste, the combustor using the material is 

expected to use the framework described in today’s rule at §241.3. The preamble of the rule 

describes how the waste determinations are to be made and how the rule should be implemented. 

See comment below on contained gas. 

Comment [3b-I3-2]: 

Landfill Gas and Sewage Digester Gas -- Commenters asked EPA to clarify that landfill 

gas and sewage digester gas are unequivocally "traditional fuels" and are not solid wastes if they 

are combusted in any type of boiler. The commenter is concerned that in the numerous times the 

expression "traditional fuels" appears in the proposed rulemaking, there is no mention of landfill 

gas and/or sewage digester gas, fuels that have been used for many years by local governments 

around the United States to produce substantial amounts of renewable electrical power. 

EPA’s Response: 

The Agency disagrees that landfill gas or sewage digester gas are traditional fuels. They 

are extracted from landfills, which contain wastes. They may be considered commodity fuels 

that have been processed from waste materials but they would have to meet all the requirements 

necessary to be considered a processed commodity fuel. 
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Comment [3b-I3-3]: 

Syngas -- Creosote-treated wood may be beneficially used as an ingredient in other 

products. While the most common current reuse of treated wood is combustion as fuel, other 

technologies are evolving that do or will utilize treated wood as an ingredient to make other 

products. The commenter lists the following as examples: 

• Enerkem is now completing a commercial scale biofuels plant in Westbury, Ontario that 

is producing syngas from treated wood utility poles and will this year begin production of 

ethanol. 

• American Cogeneration, LLC has licensed technology from the Energy and 

Environmental Research Center at the University of North Dakota to gasify wood 

biomass, including creosote treated crossties, to produce syngas for heat and power 

production. A plant utilizing out of service ties from the Canadian Pacific Railway is 

under construction. 

• Engineered wood products, such as glue-laminated shapes, plywood, or particle board 

may be manufactured using out-of-service treated wood. The new products may benefit 

from preservatives already in the wood and/or may be treated further to extend their use 

lives. 

EPA’s Response: 

In the first two examples, the commenter discussed use of creosote treated wood as 

ingredient in a gasification process. As indicated in the final rule, 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). 

Synthesis gas can meet the requirements of a fuel product produced from processing of discarded 

non-hazardous secondary materials, provided the syngas has been adequately processed to 

remove contaminants. In general, however, the Agency would require additional information on 

the specific gasification process, and in particular, how the carbonaceous material (creosote 

wood) is chemically converted into a synthesis gas to determine whether these materials used in 

the gasification process would be considered as ingredients, and correspondingly, whether the 

material would be required to meet applicable legitimacy criteria. 

In the last example on engineered wood products of a plant utilizing out-of-service 

treated wood, additional information on the manufacturing process would be required for a 

determination. From the description provided, it appears the treated wood would be used as a 

raw material rather than a fuel or ingredient in a combustion process. Today’s rule is not 

applicable to other such end uses. 

Comment [3b-I3-4]: 

Contained Gas -- A limited number of commenters indicated that the final rule should 

contain a definition of “contained gaseous material.” The statutory definition of solid waste 

includes “solid, liquid, semisolid or contained gaseous material.” 42 U.S.C. § 6903(27) 

(emphasis added). EPA has interpreted the term “contained gaseous material” to include gases in 

containers, but not gases flowing through pipes to combustion units. Under the June 4, 2010 
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proposed revisions to the CISWI rule, the existing definition of solid waste will be removed, and 

the rule will rely upon the proposed definition of solid waste here (proposed 40 C.F.R. Part 241). 

The commenters state that the preamble language in the proposed rule could be read to 

suggest that gaseous fuels are to be included in the Part 241 definition of solid waste. In 

discussing which traditional fuels are to be used for comparison purposes in applying the 

legitimacy criterion concerning contaminants, the proposed rule says: 

“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, while for gas-fired boilers, the level of 

contaminants in the non-hazardous secondary material fuels would be compared 

to natural gas.”

The commenter assumes that EPA does not intend to regulate gaseous fuels through this 

rule or otherwise under CAA section 129. Consistent with the statutory definition of solid waste 

and with EPA’s approach in the 2000 CISWI rule, EPA should make clear that “contained 

gaseous material” is only meant to cover gas in a container when that container and its contents 

are combusted. 

EPA’s Response: 

 As a preliminary matter, EPA wishes to correct certain misconceptions in these 

comments. First, we wish to make it clear that the statement regarding secondary material fuels 

replacing natural gas in gas-fired boilers only refers to fuels that are secondary materials. It does 

not refer to a situation in which a gas-fired boiler can use, for example, refined fuel oil. EPA is 

aware that fuel oil and gas may be used interchangeably in some boilers. The preamble 

statement, however, only applies to a secondary material, not a product fuel. Since onspecification used oil is considered an alternative “traditional fuel,” it would not be considered a 

secondary material. 

Next, EPA also acknowledges that this rule does not apply to vented gas that is in no way 

contained and simply goes into the atmosphere. We are not dealing with whether such vented 

gases are subject to the definition of solid waste. Vented gas simply will not be used as a 

secondary material in any gas-fired boiler and thus, is not part of this rulemaking; nor is EPA 

reopening any rules regarding such vented gases. 

Further, EPA is not considering viewpoints regarding how it regulates gases under the 

hazardous waste regulations – specifically, whether gases in pipelines are contained. The 

Agency needs to evaluate whether the non-hazardous secondary gaseous material that will be 

used as substitutes in gas-fired boilers are solid wastes, or not, under the statutory definition. 

EPA’s determination in this rule is based on the plain language of the statute. 

This leads EPA to the situation covered in this rule. In the first place, we are unable to 

find any Agency reasoning supporting previous EPA interpretations that only gases in containers 

may be considered “contained.” Based on the facts of this case, EPA cannot see how gaseous 

secondary material that is generated in any particular system and is somehow sent to a gas-fired 

boiler, even through a pipeline, can be considered an “uncontained gas.” This even assumes that 

“uncontained gas” is not covered under the definition of solid waste, which EPA does not 

concede in this rulemaking. This would mean that a clean gas-fired boiler could still burn under 

CAA 112 secondary material that is handled through a seriously leaking pipeline, has little to no 
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real fuel value, and is full of dirty contamination, simply because the material is not a “contained 

gas” under the definition of solid waste. EPA rejects any such formulation. 

4. Questions on Waste Status of Substances used as Ingredients 

Comment [3b-I4-1]: 

One commenter argues that metal-bearing slag, flue dust, and used carbon are all 

recycled as part of the standard gold production process in order to recover their carbon or metal 

values. The specific processes employed by the commenter for these materials are as follows: 

Flue dust -- As part of the smelting process, gold-bearing "dust" is generated in smelting 

furnaces. This dust is conveyed by pipe to, and filtered in, a baghouse located in the refinery 

building. Dust from the baghouse is collected in barrels, which are stored in the refinery 

building. This dust is then sent to a dedicated leaching circuit for recovery of its gold content. 

At times in the past, however, this flue dust has been conveyed directly back to the smelting 

furnaces in order to recover its gold values. 

Slag -- Slag, the primary gold-bearing material stream emerging from the retort furnaces 

at the commenter’s Nevada facility, is mixed with a flux composed of silica and borax and 

smelted in an induction furnace. The product of this induction furnace is molten dore, which is 

poured into molds and allowed to cool and harden. After hardening, the dore (which is the final 

"product" produced by Newmont) is sent off-site. Metal-bearing slag, which is attached to the 

dore, is broken off the dore and then placed into barrels inside the refinery building. The slag is 

then processed for gold recovery. Newmont has at times processed the slag by placing it directly 

back into the induction furnaces as an ingredient for gold recovery. 

Used Carbon -- The commenter conveys used carbon to carbon regeneration kilns in 

order to drive off the impurities so that the carbon can be used anew in gold production 

operations. The regenerated carbon is used as a substitute for carbon that the commenter would 

otherwise have to purchase if it did not regenerate its used carbon. The used carbon is thus a 

valuable commodity. Another commenter said that carbon regeneration is a long-established and 

standard part of gold beneficiation, and has been investigated and documented on numerous 

occasions by EPA while developing its RCRA rules and in other rulemakings. The carbon is 

recycled continuously and is not discarded. The commenter believes the proposed rule as drafted 

would not apply to carbon regeneration kilns, and that EPA did not intend with the proposal to 

identify carbon used and reused at gold mines as a solid waste. Even if the carbon were “solid 

waste” under the terms of the proposed rule, it is not “combusted” or “burned” as EPA uses those 

terms in the proposed rule. Finally, carbon regeneration kilns qualify as “material recovery 

facilities,” as defined in Section 129, and as such, are not subject to emission standards 

promulgated for solid waste incineration units. 

EPA’s Response: 

If the flue dust, slag, and used carbon processed using the procedures described by the 

commenter are recycled in a continuous process as described, they are not discarded, but they 

still need to pass the legitimacy criteria to be non-waste. 

Regarding the commenter’s request to consider carbon used in carbon regeneration units 
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as a non-waste; in order to determine whether an NHSM used as a fuel or ingredient is or is not a 

solid waste, the combustor using the NHSM is expected to use the framework described in 

today’s rule at §241.3 and comply with the applicable CAA regulations. 

See the response above for the basic framework of the regulations (§241.3) to determine 

if the NHSM is a waste or non-waste. 

5. Other Questions on Waste Status 

Comment [3b-I5-1]: 

Analysis of Lab Samples -- One commenter believes that EPA has overlooked the 

management of laboratory samples in the rule. The analysis of samples has a definite purpose 

completely separate from disposal of the sample material. The samples themselves, as well the 

analytical procedures, have a value and the results of the analysis provide a useful function. The 

taking of samples and their subsequent analysis do not constitute discard because there is a 

definite use involved. A number of analytical methods involve thermal destruction of the sample 

to generate the analytical result (e.g., ash analysis, flame ionization detection, bomb calorimetry, 

atomic absorption spectroscopy, total organic carbon, etc.). The commenter requests that EPA 

clarify in the final rule that laboratory samples are not solid waste. 

EPA’s Response: 

In order to determine if the air rules are applicable to laboratory analysis units, please see the 

applicability under the CAA Section 129 CISWI rule. We refer the commenter to the docket for 

the CISWI rule for information on this rule (See docket EPA-HQ-OAR-2003-0119). For 

additional details on the applicability of CAA section 129 requirements for laboratory 

equipment, refer to the revised CISWI applicability under 40 CFR 60.2025. 

As noted by the commenter, the purpose of combusting the sample is to generate analytic 

results. The sample is not being “discarded” according to the plain meaning of the word 

(abandoned, dispose of or throw away). On the other hand, if there were excess unwanted 

samples and they were actually being discarded by disposing of them in the lab unit, that would 

be a waste. 

J. Miscellaneous Comments 

Comment [3b-J-1]: 

One commenter indicated that any future repairs, renovations, or remodeling activities for 

its secondary spill containers will be conducted in accordance with the Asbestos NESHAP and 

with 40 CFR 745 Subpart L. 

EPA’s Response:

This comment is not pertinent to this regulation, which establishes criteria for 

determining whether non-hazardous secondary materials are solid wastes when burned as a fuel 

or ingredient. 

Comment [3b-J-2]: 
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The commenter asserts that the rule will undo regulations that exempt F006 sludge from 

hazardous waste regulatory restrictions. The new definition of solid waste facilitates more 

recycling of electroplating waste water treatment sludge, i.e., the listed hazardous waste, F006. 

Under the revised definition of solid waste, sludge that is reclaimed for metals recovery would 

not be “discarded” for regulatory purposes, and would not, therefore, be subject to hazardous 

waste regulations – provided that the recycling is legitimate and that plating facilities and 

reclamation facilities meet the set of conditions regarding the management and recycling of the 

sludge. Excluding the recycling of F006 sludge from the RCRA hazardous waste regulatory 

restrictions can encourage more recycling of the sludge and save small metal finishing operations 

money. EPA cannot use this rulemaking to undo these established regulatory provisions. 

EPA’s Response: 

As discussed throughout the preamble to the final rule, EPA is not reopening any subtitle 

C regulations, including the 2008 DSW Final Rule. The result of this rule will have no effect on 

the RCRA subtitle C hazardous waste program because it does not address hazardous waste. In 

addition, see other responses about hazardous waste. Nevertheless, the DSW rule deals only 

with reclamation not burning for energy recovery. 

Comment [3b-J-3]: 

One commenter argued that EPA’s designation of lead-based paint shavings as a 

hazardous waste is inhibiting the use of technology to recover paint and other materials from 

C&D debris. 

EPA’s Response: 

This comment addresses regulations for hazardous waste established under RCRA 

Subtitle C and is not relevant to this rulemaking. 

Comment [3b-J-4]: 

Comment Period - Several commenters requested that EPA extend the public comment 

period for the proposed rule. Commenters argued that 60 days does not provide the time 

required to fully review and provide comment on a proposed rule. One commenter argued that 

additional time is necessary to perform a thorough review of the data used in the emissions floor 

calculations. 

EPA’s Response: 

EPA disagrees that 60 days was an insufficient period of time to review the Proposed 

Rule and prepare comments. The duration of the public comment period for the Proposed Rule 

was consistent with that of other rules developed under EPA's authority under RCRA. In 

addition, given the court-ordered deadline for the development of the Final Rule, EPA decided 

not to extend the comment period beyond 60 days. 

To respond to the commenter who requested more time to review data used on the 

emissions floor calculations, EPA notes that this comment is not relevant to this rulemaking, the 

purpose of which is to establish criteria for determining which non-hazardous secondary 

materials are solid wastes when combusted as fuels or ingredients. We refer the commenter to 
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the air rules proposed in conjunction with this rulemaking (see docket numbers EPA-HQ-OAR2002-0058, EPA-HQ-OAR-2006-0790, and EPA-HQ-OAR-2003-0119). 
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PART 3c: Major Comments Received on the Advance Notice of Proposed Rulemaking 

(ANPRM) as Responded to in the Proposed Rule 

Prior to issuance of the proposed rule, an Advance Notice of Proposed Rulemaking on 

the identification of non-hazardous secondary materials that are solid waste was issued January 

2, 2009. Major comments received on the ANPRM, and the responses to those comments, were 

included in Section VII.C of the preamble to the proposed rule. Those major comments and EPA 

responses contained in the preamble of the proposed rule are repeated verbatim here. 

These responses do not reflect changes that were made from proposal to the final rule; 

see Sections 3a and 3b for those changes. The responses for the final rule supersede the 

responses to the ANPRM comments. 

A. Comments from State Agencies 

 EPA received comments from several states and state organizations in response to the 

ANPRM. Comments received expressed a range of viewpoints representing states with differing 

solid waste management programs and authorities. Consequently, it was not surprising that the 

comments received often articulated competing suggestions and recommendations based upon 

different state programs and experiences. 

Comment: 

Some states did not want EPA to define what is or is not a waste at the federal level if it 

impacts or limits the scope of what states currently regulate under their solid waste management 

authority. Some states noted a potential problem related to existing “stringency provisions” in 

some state laws. For example, if a solid waste determination is made at the federal level, it could 

be argued that the state is less stringent through their issued exemptions and the state rule must 

be rescinded. Conversely, some states argued they cannot, by state statute, be more stringent 

than the Federal regulations, and even if they don’t have this statutory limitation, they may feel 

pressure to not be more restrictive than the federal definition. Many states said we should defer 

the determination of whether those non-hazardous secondary materials used as fuels or 

ingredients are solid wastes to the states and urged flexibility in how each state could incorporate 

any new regulations into its existing solid waste management programs. 

 EPA’s Response: 

The Clean Air Act (section 129(g)(6)) states that the term “solid waste” shall have the 

meaning established by the Administrator pursuant to the Solid Waste Disposal Act. 

Accordingly, EPA must define which non-hazardous secondary materials used as fuels or 

ingredients in combustion units are solid waste at the national level in order to identify the 

universe of sources subject to the boilers emissions standards to be issued under CAA section 

112 and the CISWI emissions standards to be issued under CAA section 129. See section VIII of 
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today’s proposal for a discussion on the applicability of state solid waste definitions and 

beneficial use determinations, as well as a discussion on state adoption of this rulemaking.

Comment: 

Many states commented that they had long-standing “waste” management programs 

regulating non-hazardous secondary materials, that no one had questioned the legitimacy of their 

regulatory programs in the past, and that it was inappropriate and contrary to the intent of RCRA 

for EPA to exclude this material, which had been considered “waste” for many decades, from 

regulation under RCRA. 

On the other hand, other states were concerned a federal designation that some of these 

non-hazardous secondary materials are “wastes” would disrupt existing recycling markets by 

creating a deterrent from using these non-hazardous secondary materials as fuels or ingredients. 

These states emphasized the importance of promoting beneficial use of non-hazardous secondary 

materials and were concerned that regulation of certain materials (especially used tires) under 

CAA section 129 would create negative incentives to their beneficial use and consequently could 

have negative environmental impacts. 

Many states explained that they manage/regulate many of these secondary materials as 

solid waste (e.g., tires), but determine they are not wastes (via beneficial use determinations) 

when after analysis the state has determined they are going to a legitimate use (e.g., as a fuel). 

These states recommended that these materials remain a solid waste until they are approved for, 

procured and delivered to the potential end user in order to retain their ability to regulate the 

management of these secondary materials, usually under its solid waste management 

authority.144 For example, some states recommended that EPA exclude whole tires from the 

definition of solid waste at the point of combustion.145 

 EPA’s Response: 

In developing this proposed rule, EPA attempted to balance and address the concerns 

raised by the states regarding potential impacts on their existing solid waste programs in 

determining which non-hazardous secondary materials are solid wastes when combusted, while 

at the same time, recognizing that the proposed rule needed to be based on whether these 

secondary materials are considered to have been managed in a way that meets the plain meaning 

of discard, as defined in AMC I. We believe we have addressed that balance, considering the 

statutory limitations, but also understand that today’s proposal could impact existing state solid 

waste management programs, as well as states’ beneficial use programs, and specifically request 

 

144 Many states regulate used tires under a statutory authority outside of their solid waste management statutory 

authority, while some states regulate used tires pursuant to both their solid waste management authority, as well as 

separate tire statutory authority. 

145. Subsequent to the closing of the comment period, the Environmental Council of States (ECOS) approved 

Resolution 09-7, entitled “Meaning of ‘Solid Waste’ under the Resource Conservation and Recovery Act (RCRA) as 

it Applies to Non-Hazardous Waste Programs.” This resolution, which was revised on March 23, 2010, urges EPA 

to exclude whole tires from the definition of solid waste for the purposes of combustion. Both the original (dated 

September 22, 2009) and revised versions are included in the docket for today’s rule. 
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comment on how today’s proposal impacts or could impact such state programs. For example, 

does the proposed approach impact the ability of the states to continue to regulate the 

management of secondary materials prior to their final end use. 

 Comment: 

Some state commenters suggested that the Agency address CAA section 129 

implementation issues by subcategorizing energy recovery units that burn waste materials and 

regulate this combustion similarly to the CAA section 112 requirements.146 

EPA’s Response: 

This comment relates to EPA’s regulation of solid waste incineration units under section 

129 and is not relevant to this action, which proposes to define “solid waste” under RCRA for 

non-hazardous secondary materials. 

B. Meaning of Discard 

As discussed in Section VI, 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 ANPRM provided a thorough discussion on the definition of solid waste, including a 

summary of relevant case law. See also Section VI.B in today’s preamble. Further, the ANPRM 

highlighted the importance of the concept of “discard,” noting that the definition of solid waste 

turns on the meaning of the phrase, “other discarded material,” as this term encompasses all 

other examples provided in the definition. 

Comment: 

Several comments stressed that the Agency use the plain meaning of discard (i.e., 

disposed of, abandoned, or thrown away) in defining the term “solid waste” for the purpose of 

establishing the appropriate standards for combustion units under CAA sections 112 and 129. 

EPA’s Response: 

EPA agrees with the premise of using the “plain meaning” of discard, as this position is 

consistent with case law on the issue (for a more detailed discussion, please refer to the ANPRM 

and section VI.B of today’s preamble). 

Comment: 

Some commenters noted that the same rationale and principles related to “discarded 

materials” should apply whether these materials are regulated under RCRA subtitles C or D, as 

 

146Id. ECOS Resolution 09-7 presents this position as an alternative to excluding whole tires from the definition of 

solid waste for the purposes of combustion. 
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the principles related to “discarded materials” are the same. Other commenters argued that the 

subtitle C approach should not be used for non-hazardous secondary materials since these 

materials pose less risk relative to hazardous wastes. 

EPA’s Response: 

EPA believes it is appropriate to use the same general framework that has been used to 

define solid waste for purposes of RCRA subtitles C and D (albeit tailored to specifically address 

non-hazardous secondary materials used as fuels or ingredients in combustion units), noting that 

the same statutory definition of solid waste applies to both RCRA subtitles D and C. However, 

EPA is not proposing in today’s action any revisions to its hazardous waste regulations. 

Comment: 

Some commenters argued that any secondary materials that are beneficially reused or 

recycled are not waste, regardless of whether or not the reuse or recycling is conducted in the 

same or different location or industry (on-site and off-site). 

EPA’s Response: 

The Agency does not agree with this assertion, as this position is not consistent with case 

law. Again, the question of whether a material is or is not a solid waste depends on the issue of 

discard. In Safe Food and Fertilizer v. EPA, 350 F. 3d 1263, 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 discretion to determine 

if non-hazardous secondary materials are not a solid waste if it is managed within the control of 

the generator, as well as if it is transferred outside the control of the generator. 

As previously described, this proposal states that non-hazardous secondary materials used 

as a fuel in combustion units that remain under the control of the generator and meet the 

legitimacy criteria are not solid waste, but that non-hazardous secondary materials that are 

transferred to a third party and combusted are considered solid wastes, unless a petition for a 

non-waste determination has been granted. Ingredients, on the other hand, are determined not to 

be solid waste even if they are managed outside the control of the generator as long as they meet 

the legitimacy criteria. See section VII.D.6 for a discussion on EPA’s rationale for these 

determinations. 

 

Comment: 

One commenter noted that EPA’s hazardous waste regulations under subtitle C provide 

that hazardous secondary materials “burned to recover energy” or “used to produce a fuel” are 

“discarded” and, therefore, are solid wastes. 40 CFR.261.2(c)(2). The commenter went on to 
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point out that under the ANPRM approach, EPA is interpreting the definition of solid waste to 

mean that burning of non-hazardous secondary material, under appropriate conditions, is not 

“discard” under RCRA. According to the comment, the ANPRM is inconsistent with the 

interpretation in 40 CFR 261.2. Regardless of whether EPA believes that it can issue separate 

definitions of solid waste for hazardous waste and non-hazardous waste, the commenter suggests 

“discarded” cannot be read both to include materials that are “burned to recover energy” or “used 

to produce a fuel” and to exclude such materials. 

EPA’s Response: 

EPA disagrees with this comment and does not believe the regulations are inconsistent. 

The hazardous waste definition may be considered a “presumption” that secondary materials 

burned for energy recovery, or used to produce a fuel, are solid wastes. EPA has, through 

rulemaking, excluded from the definition of solid waste a number of materials burned for energy 

recovery under certain conditions. See 40 CFR §§ 261.2(c)(2)(A)(ii) (off specification 

commercial chemicals otherwise listed as hazardous wastes); 261.4(a)(6)(“black liquor” in 

pulping processes); 261.4(a)(7) (spent sulfuric acid); and 261.4(a)(16) (comparable fuels). In 

addition, EPA has excluded materials used to produce fuels. See, 40 CFR §§ 261.4(a)(12) (oil 

bearing hazardous secondary material inserted into the petroleum refining process), and 

261.4(a)(18) (petrochemical recovered oil inserted into the refining process). 

Regardless of the appropriateness of these exclusions, or whether the Agency may 

appropriately exclude any secondary materials from the solid waste definition, consistency 

between the regulations for hazardous and non-hazardous secondary materials is not an issue. 

This proposed rule, which identifies certain secondary materials burned for energy recovery as 

not being solid wastes, is comparable to the conditional exclusions for the definition of solid 

waste in the hazardous waste regulations. Conditions apply to all of the secondary materials 

being considered for determinations as to whether they are solid wastes. The legitimacy criteria 

apply to all of the secondary materials. 

 It is reasonable and within EPA’s discretion to determine that non-hazardous secondary 

materials may be burned as products and are not wastes. Today’s proposal acknowledges the 

difficulty that the combustion of secondary materials is commonly associated with disposal. 

However, this view does not take into account that the secondary material may often be used to 

produce a safe fuel product that is a valuable commodity and is sold in the marketplace no 

differently from traditional fuels. This position seems like a common sense interpretation of the 

term, “solid waste,” under RCRA. 

Another difficulty the Agency faces is the misconception that secondary material that is 

burned, either for destruction or energy recovery, by definition has high levels of contaminants. 

The manner in which the secondary material is managed is a key factor that determines discard. 

Contaminant levels are part of that consideration. If a material has high levels of contaminants, 

it would be considered sham recycling, which is one type of way a material can be “discarded.” 

Hazardous secondary materials – those that would be hazardous wastes under RCRA 

subtitle C, if discarded – are more likely to contain high levels of contaminants. Thus, EPA 
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could reasonably presume that burning such secondary materials, even if burned for energy 

recovery, is likely a waste activity. This was the Agency’s rationale for issuing the subtitle C 

rule at 40 CFR § 261.2(c)(2), which specifies that burning for energy recovery is a waste 

disposal activity. In EPA’s rule establishing the comparable fuels exclusion from the definition 

of solid waste for hazardous secondary materials, the Agency stated that these hazardous 

secondary materials (comparable fuels) are lower in hazardous contaminants than the normal 

hazardous wastes and that burning of the comparable fuels “does not present the element of 

discarding hazardous constituents through combustion that underlies the typical classification of 

hazardous waste-derived fuels as a solid waste. 50 Fed. Reg. at 629-630 (Jan. 4, 1985).” 63 FR 

at 33783 (1998). We may, after looking at certain secondary materials, decide that they are not 

in fact solid wastes and are being burned as valuable commodities to recover energy. This 

interpretation, however, is consistent with today’s proposal, which also evaluates whether 

materials burned for energy recovery are wastes or non-wastes. 

Moreover, the case law supports the conclusion that materials burned for energy recovery 

or used to produce fuels may or may not be solid wastes. American Mining Congress v. EPA, 

824 F.2d 1177 (D.C. Cir. 1987) (‘‘AMC I’’), 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. The provision under consideration in this case dealt 

specifically with material “reclaimed” in a continuous process. That is, material is regenerated 

from a secondary material in a continuous process. However, it is highly likely the courts would 

apply this same reasoning to secondary materials that are otherwise reused or recycled in a 

continuous industrial process, such as material used, or combusted, to recover energy. Accord, 

Association of Battery Recyclers v. EPA, 208 F.3d 1047 (D.C. Cir. 2000) (“ABR”). 

It is also worth noting that the Ninth Circuit has specifically found that non-hazardous 

secondary materials may, under certain circumstances, be burned and not constitute solid waste 

under RCRA. See Safe Air For Everyone v. Waynemeyer (“Safe Air”), 373 F.3d 1035 (9th Cir., 

2004) (Kentucky bluegrass stubble may be burned to return nutrients to the soil and not be a 

solid waste). This activity is not waste treatment even in the absence of energy recovery. We 

believe, therefore, that burning material for another useful purpose (e.g., energy recovery) does 

not necessarily constitute a disposal activity. 

With respect to materials used to produce fuels, in American Petroleum Institute v. EPA, 

216 F.3d 50 (D.C. Cir. 2000) (“API II”), 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). Both of these materials are returned to the petroleum refinery process and used 

to produce fuel. The court in this case was clearly considering the conditions under which two 

types of material may be excluded from the definition of solid waste. For purposes of the issue 

of concern in today’s proposal, this decision supports EPA’s discretion to determine whether or 

not a secondary material used as a fuel product is a solid waste or not, in light of factors relevant 

to determining whether the material is discarded. Therefore, EPA is not prevented from 

exercising its discretion to decide that issue either way. 
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C. General Approach 

EPA received several comments on the general approach outlined in the ANPRM for 

determining which non-hazardous secondary materials used as fuels or ingredients in combustion 

units are or are not solid wastes. Most commenters supported the general regulatory structure 

that included: (1) a recognition that certain materials are inherently fuel products, (2) a selfimplementing approach for identifying those non-hazardous secondary materials that are not 

considered solid waste pursuant to general criteria and (3) a petition process for receiving a nonwaste determination from the Agency.147

Comments: 

Several commenters discussed whether to include a list of wastes and/or a list of nonwastes in the regulations. One commenter recommended that a list of secondary materials that 

are considered wastes be identified, rather than a list of secondary materials that are not 

considered wastes, while other commenters urged for the inclusion of a list of secondary 

materials that are not considered wastes when burned as a fuel. If EPA included a list of 

secondary materials that are not considered wastes when burned as a fuel in its regulations, one 

commenter also suggested that the Agency additionally include a list of secondary materials that 

are considered wastes in order to remove any uncertainty. Those commenters who urged that the 

regulations include a list of secondary materials not considered a waste when used as a fuel or 

ingredient also cautioned that such a list should not be all-inclusive in order to account for 

changes in technology and new secondary materials and processes that are not yet developed. 

EPA’s Response: 

In recognition of changes in economies, technologies, markets and material processes, 

EPA is not proposing to list specific non-hazardous secondary materials as either wastes or nonwastes in regulatory language, but is rather specifying the criteria to be used to determine if these 

secondary materials are or are not solid wastes. We believe that there could be instances where 

determinations of whether a particular non-hazardous secondary material meets the various 

criteria will have to be based on site-specific information; a national designation that in all 

circumstances, a particular non-hazardous secondary material is or is not a waste may not be 

possible. However, it is EPA’s goal in this proposal, as well as in the pending final rule 

preamble, to indicate, as clearly as possible, which non-hazardous secondary materials used as 

fuels or ingredients in combustion units are or are not considered solid waste based on this 

 

147 On August 18, 2009, EPA received a letter signed by nearly one hundred community groups and citizens that 

urged for an expansive definition of solid waste for the purposes of combustion and argued against the general 

approach of the ANPRM. A copy of this letter has been placed in the docket for today’s proposed rule. The letter 

highlights stakeholder concerns regarding the differences between CAA sections 112 and 129 and argues against an 

overly narrow definition of solid waste. Partially in response to these comments and others, we are considering and 

taking comment on an alternative approach to that proposed and described in section VII.D. This alternative 

approach would include, with certain exceptions, non-hazardous secondary materials that are burned as a fuel or 

used as an ingredient in the combustion process within the definition of solid waste. As such, units combusting 

those materials would be required to meet CAA section 129 standards. For more information on the alternative 

approach, see section VII.E of this proposed rulemaking. 
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criteria. As several commenters also noted, any approach must be flexible enough to account for 

changing technologies and new secondary materials that could, in the future, be viable fuels or 

ingredients. The proposed approach allows for these changes, not by codifying a list of specific 

non-hazardous secondary materials that are or not waste, but rather by adopting a selfimplementing approach that can consider site-specific information, if necessary. 

Comment: 

A few commenters noted a preference for categorical determinations that certain 

secondary materials were products, not wastes (e.g., traditional fuels) along with clear criteria for 

solid waste determinations for secondary materials not falling into one of these categories (i.e. a 

petition process for non-waste determinations). 

EPA’s Response: 

EPA partially agrees with this approach. The proposed rule discusses traditional fuels as 

a category of fuel products that are not secondary materials and therefore, are not solid waste. 

With respect to non-hazardous secondary materials, although this proposal does not list 

types/categories of such secondary materials that are or are not solid waste in regulatory text (as 

discussed above), we are proposing self-implementing regulatory criteria to be used by the 

regulated universe to determine whether the non-hazardous secondary material would or would 

not be a solid waste. The regulatory criteria are based on four categories of non-hazardous 

secondary materials that are managed under various scenarios, including: (1) non-hazardous 

secondary materials that remain within the control of the generator and meet the legitimacy 

criteria and used as fuel; (2) non-hazardous secondary materials that meet the legitimacy criteria 

and are used as ingredients; (3) fuel or ingredient products that are processed from discarded 

non-hazardous secondary materials and that are used as fuels or ingredients in a combustion unit, 

provided they meet the legitimacy criteria; and (4) EPA has granted a non-waste determination 

for non-hazardous secondary material fuels managed outside the control of the generator. 

More detailed information on these categories and their respective criteria can be found 

in section VII.D. of this proposal. 

Comment: 

Some commenters suggested that a petition process for a waste determination should not 

be mandatory. Proponents of this position urged that any regulatory construct for demonstrating 

that non-hazardous secondary materials qualify as alternative fuels should be self-implementing 

and not involve the need for individual regulatory determinations. 

EPA’s Response: 

The non-waste petition process that applies to non-hazardous secondary material fuels 

managed outside the control of the generator is not mandatory; however, we note that the 

assumption in this proposed rule is that these materials would be a solid waste, unless they are 
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granted a non-waste determination by EPA. Also, as explained above, we are proposing a selfimplementing approach for all the other non-hazardous secondary material management 

categories that can consider site-specific information, if necessary (i.e., facilities will make a 

self-determination of whether the non-hazardous secondary material in question meets the 

regulatory criteria). We again note it is EPA’s intention to indicate in the preamble, as clearly as 

possible, which non-hazardous materials used as fuels or ingredients in combustion units are or 

are not considered solid waste based on the criteria laid out in regulatory text. The Agency 

expects this self-implementing approach will govern for the majority of situations. 

D. Level of Processing Needed to Produce a Non-Waste Product From Discarded Waste 

Material 

In the ANPRM, we stated that if a non-hazardous secondary material is processed into a 

legitimate fuel or ingredient product, then the processed material would not be a discarded 

material. We listed various non-hazardous secondary materials we believed to have undergone 

adequate processing (e.g., tire-derived fuel), and requested comment on whether some of the 

materials, such as mined landfilled ash, should be considered to have undergone adequate 

processing, such that it would be rendered a non-waste. 

Comments: 

Most commenters generally agreed with the concept, but had differing views on what 

level of “processing” would render a discarded material a legitimate non-waste product fuel or 

ingredient product. Their views ranged from not requiring any processing, to specifying a 

minimum level of processing if processing criteria are retained. These commenters argued that 

any management activity associated with recovering the non-hazardous secondary material 

would be sufficient. Commenters who indicated that the non-hazardous secondary material 

should not be required to “undergo processing” before it is considered a non-waste fuel or 

ingredient argued that as long as these secondary materials meet the legitimacy criteria, they 

should not be viewed as a solid waste once recovered from the discard environment; these 

commenters provided examples of non-hazardous secondary materials, such as whole tires, 

biomass, and coal fly ash. Also, some commenters stated that the act of recovering or 

“extracting” the material from the “discard environment” should constitute the requisite degree 

of processing needed. Commenters who argued that no minimum level of processing be 

specified supported their position by noting that procedures for recovering solid waste vary 

widely and that the amount of processing required would be dependent on the application for 

which the non-hazardous secondary material is being prepared. 

EPA’s Response: 

 We disagree with the commenters who generally argued that no level of processing or 

even a minimum level of processing should be sufficient to produce a non-waste fuel or 

ingredient. We likewise disagree with those commenters who argued that the act of recovering 

or “extracting” secondary material from the discard environment should be sufficient to be 

considered processing. Rather, the Agency believes that sufficient processing of the secondary 
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material (e.g., changing the mass, chemical make-up, or removing particular components from 

the secondary material) must be undertaken to transform a waste-derived fuel or waste-derived 

ingredient into a fuel or ingredient product. Thus, our position on this issue has changed from 

that discussed in the ANPRM, as explained below. 

 

For example, the Agency no longer believes that, in light of the proposed definition of 

processing, simply cutting or sizing a material is sufficient to produce a product fuel or 

ingredient. Specifically, under the proposed rule, processing “means any operations that 

transform discarded non-hazardous secondary material into a new fuel or new ingredient 

product. Minimal operations, such as operations that result only in modifying the size of the 

material by shredding, do not constitute processing for purposes of this definition. Processing 

includes, but is not limited to, operations that: 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; and improve the 

ingredient characteristics..” See the proposed definition in §241.2. 

We believe the proposed definition is specific enough to describe the general level of 

processing that would be needed, but flexible enough to apply broadly to the wide range of nonhazardous secondary materials that are currently under consideration, or that could be under 

consideration in the future as technologies change. We believe that discarded non-hazardous 

secondary materials must be sufficiently processed in order to render a secondary material into a 

non-waste product. Without sufficient processing, the non-hazardous secondary material that is 

produced would remain a waste-derived fuel or waste-derived ingredient, and if burned in a 

combustion unit, would be subject to the CAA section 129 requirements. The Agency 

specifically requests comment on these points. 

 See section VII.D.4 for a discussion of the processing of discarded non-hazardous 

secondary materials into non-waste fuel or ingredient products. That section describes EPA’s 

rationale for why this processed material is no longer considered a solid waste, as well as 

examples of processing that EPA believes does or does not meet the requisite level to render a 

discarded secondary material into a non-waste product. 

E. Comments on Specific Materials Used as Fuels 

 In the ANPRM, we listed a number of non-hazardous secondary materials, as well as 

traditional fuels, that we believe are currently being used as fuels and ingredients. We solicited 

comment on additional information, including: the composition or characteristics of nonhazardous secondary materials; how much of the non-hazardous secondary material is produced 

and utilized; how it is utilized (i.e. as a fuel or an ingredient); and how it is generally handled. 

The majority of comments submitted for fuels were in regard to traditional fuels and the 

following non-hazardous secondary materials-- biomass, used tires, used oil, coal refuse, and 

sewage sludge. 

a. Traditional Fuels. The ANRPM described traditional fuels to include: coal, oil, 

natural gas, and their derivatives (e.g., petroleum coke, bituminous coke, coal tar oil, refinery 
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gas, synthetic fuel, heavy recycle, asphalts, blast furnace gas, recovered gaseous butane, and 

coke oven gas), as well as cellulosic biomass (e.g., wood). We requested comment on whether 

there are other fuels that should be considered as traditional fuels and would fall within this 

grouping. 

Comments: 

A few commenters suggested that bagasse should be included in the traditional fuel group 

because it is a valuable co-product which is fed directly from the mill to the boilers and has 

historically been the source of electrical power in communities located near the sugar cane mills. 

In addition, cellulosic biomass crops similar to bagasse (e.g., energy cane and other fast growing 

grasses) grown specifically for fuel production, agricultural seeds, woody biomass, and wood 

collected from forest fire clearance activities, land clearing biomass, trees, unadulterated wood 

from pallets, and uncontaminated wood from disaster debris were suggested as materials that 

should qualify as traditional fuels. Last, several commenters argued that used oil, on-spec and 

off-spec, should be listed as traditional fuels. Since neither type of used oil is discarded, the 

presumption is that it is recycled. 

EPA’s Response: 

We agree with commenters that many of the materials mentioned in the comments should 

be classified as traditional fuels, which are not solid waste. However, to further add clarity, we 

are proposing that in order to qualify as a traditional fuel, cellulosic biomass must be “clean”—

that is, must not be altered (either chemically or through some type of production process), such 

that it contains contaminants not normally associated with virgin biomass materials, to ensure 

that the material being burned does not introduce contaminants not normally associated with 

virgin biomass materials (we describe what we consider to be clean biomass in section 

VII.C.5.b). We believe clean biomass to include, but not necessarily be limited to: 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, agricultural seeds); wood collected from 

forest fire clearance activities; trees and clean wood found in disaster debris; clean biomass from 

land clearing operations; and clean construction wood. 

In regard to used oil, for the reasons discussed later in section VII.D.4, we are including 

on-spec used oil in the list of traditional fuels because we believe it meets our view of what is a 

traditional fuel (i.e., fuels that have been historically managed as valuable fuel products rather 

than being managed as waste materials). However, off-spec used oil will be considered a solid 

waste, unless it is processed into a legitimate non-waste fuel, such as on-spec oil. 
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b. Biomass. Biomass includes a wide range of secondary materials which can be 

divided into two categories, cellulosic and non-cellulosic, as stated in the ANPRM.148 While the 

ANPRM indicated that much of the biomass currently used as fuels are not solid waste since they 

have not been discarded in the first instance and are legitimate fuel products, we specifically 

requested comment on whether some biomass contains contaminants that are significantly higher 

in concentration when compared to traditional fuel products. 

Comments: Cellulosic Biomass

For the cellulosic biomass category, several commenters argued that resinated wood 

products (e.g., board trim, sander dust, panel trim) used to manufacture particleboard, medium 

density fiberboard, and hardboard are not discarded and are typically used on-site to either make 

composites or are used as fuel. One commenter stated that “[i]t is also important to note the 

quantity of formaldehyde actually present in these resonated wood fuels. It is minute. As the 

resins cure, virtually all of the formaldehyde in the adhesive is cross linked into polymers and no 

longer exists as formaldehyde. Current extraction tests on the highest formaldehyde content 

products show levels to be less than 0.02%, using the standard industry extraction test for 

formaldehyde from composites, EN 1203.” Commenters also point out that formaldehyde is a 

common product of incomplete combustion, suggesting that trace amounts of formaldehyde 

would be present in the emissions irrespective of whether formaldehyde was present in the 

residuals. One commenter noted that incomplete combustion of virtually all organic materials 

produces carbon monoxide and formaldehyde. Commenters also stated that California rules on 

product emissions will shortly push those numbers below 0.01%, and cite several studies that 

indicate emissions from burning resinated wood residuals are not significantly different than 

burning wood absent the resinated materials.149 Specific to panel trim, one commenter argued 

that emissions are not expected to be any different from those generated from unadulterated 

wood and traditional fuels like coal and oil that contain concentrations of Part 261, Appendix 

VIII constituents that are orders of magnitude higher than in panel trim. 

One commenter discussed the use of pulp and paper sludges as fuel. This commenter 

states that because these residuals are primarily composed of biomass, emissions from burning 

these materials are essentially the same as the emissions from burning other biomass fuels, such 

as bark or wood. The commenter cited a report that found that the burning of kraft pulp mill 

wastewater treatment residuals in bark boilers at levels below about 10 to 15 percent of total heat 

input is not expected to lead to an increase in any of the criteria or criteria-related pollutants, 

such as NOx, SO2, or VOC.150 Further, the commenter states that a comparison of emission data 

for forty-eight organic compounds when burning wood residue and wood residue in combination 

 

148 In the ANPRM, we did not distinguish between “clean” cellulosic biomass and that which is not. Therefore, the 

comments discussed in this section are only in reference to cellulosic biomass that does not meet the definition of 

“clean.” 

149 See U.S. EPA, “Wood Products in the Waste Stream: Characterization and Combustion Emissions, Vol. 1,” 

November 1996. See also 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. 

150 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. 
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with bleached kraft mill wastewater treatment residuals (around 12 percent of total heat input) in 

four wood-fired boilers showed no discernible differences in emissions of these organics when 

the residuals were co-fired. A similar comparison was conducted for metals, showing no 

discernable impact when burning these sludges. 

Another commenter stated that treated wood (e.g., pentachlorophenol, copper-based 

compounds, borate based compounds) also should be considered a fuel because it is not 

discarded and can be safely burned in boilers. In addition, commenters stated that creosote 

treated wood is a coal derivative and burning creosote would likely result in emissions no greater 

than burning coal. Creosote is a distilled and homogenous product that should burn more 

thoroughly than coal and is not burned in its pure form. Commenters also noted that creosote 

treated wood is a combination of two materials we listed as traditional fuels. For these reasons, 

it should qualify as a fuel. However, the same commenter noted that they would not be opposed 

to EPA requiring CCA lumber to be removed from the fuel stream. 

EPA’s Response: Cellulosic Biomass

We agree that certain biomass (cellulosic biomass that is “clean” and non-cellulosic 

biomass) materials can be legitimate fuels. We also generally agree with commenters that 

secondary materials, such as secondary mill residues (i.e., residues such as sanderdust, board, 

trim and breakage from the manufacture of reconstituted wood/panel products) and pulp and 

paper mill residuals (i.e., primary and secondary wastewater treatment sludges)151 are likely 

legitimate fuels. 

 Regarding resinated wood products, we acknowledge that we have limited compositional 

data on these materials. As noted above, we did receive comments on the ANPRM concerning 

the contaminant data of these materials, specifically in regard to formaldehyde and emissions 

comparisons relative to burning wood that do not contain these resinated materials. Although 

emissions comparisons are not a direct indicator of whether these fuels satisfy the legitimacy 

criteria, we recognize that such data can be useful as an indicator of the contaminant levels in the 

secondary material fuels relative to traditional fuels. Based upon what limited data we do have 

regarding these materials, as well as comments received on the ANPRM, we have decided to 

classify resinated wood residuals as non-wastes for purposes of this proposed rule, if they are 

used as fuels within the control of the generator. (As we discuss in section VII.E of this 

preamble, the Agency is considering resinated wood residuals under the alternative approach as 

solid wastes when burned under the control of the generator for energy recovery, since as a 

matter of policy, the Agency may want to define a broader definition of solid waste.) Thus, 

given the general lack of data, we are requesting data and information both on the contaminant 

levels of these materials, as well as the appropriateness of categorizing them as non-wastes.152 

 

151 Primary sludges consist of wood fiber and inorganic materials and secondary sludges are primarily microbial 

biomass. 

152 It is worth noting that, in response to a request from EPA’s Office of Air and Radiation (OAR), EPA’s National 

Center for Environmental Assessment (NCEA) initiated an update of the formaldehyde IRIS assessment to address 

significant new scientific information that had become available on formaldehyde. EPA anticipates deriving an 

inhalation reference concentration (RfC) and reexamining the inhalation cancer assessment as part of this update. 
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Based on the data and information the Agency receives, we may decide that such secondary 

materials are more appropriately defined as solid wastes. 

We also acknowledge having limited data on pulp and paper sludges that are used as fuel. 

As noted above, we did receive comments on the ANPRM about contaminants associated with 

these secondary materials. Similar to resinated wood residuals, based on the limited data we 

have, we also have decided to classify pulp and paper sludges that are used as fuels within the 

control of the generator to be non-waste. (Like resinated wood residuals, the Agency also 

decided to classify pulp and paper sludges as solid wastes when burned under the control of the 

generator for energy recovery under the alternative approach being considered. See section 

VII.E.). Given the limited data we have, we also are requesting comment both on the 

contaminant levels of these materials, as well as the appropriateness of categorizing them as nonwastes, and may decide based on the comments received to classify pulp and paper sludges as 

solid waste when burned under the control of the generator in a combustion unit for energy 

recovery when the rule is promulgated. 

Although limited information was submitted in regard to painted wood or 

pentachlorophenol, copper-based and borate-based compound treated wood materials and their 

contaminant concentrations, we believe these secondary materials contain elevated levels of 

contaminants relative to traditional fuels, and thus do not meet legitimacy criteria and should be 

considered solid waste if burned in a combustion unit. (It should also be noted that to the extent 

that any of these treated wood materials are identified as a hazardous waste, it would not be 

eligible to be burned in a non-hazardous waste combustion unit.) In regard to creosote treated 

lumber, we believe there is still a fair amount of uncertainty associated with the level of 

contaminants (e.g., levels of polycyclic aromatic hydrocarbons present in creosote) in 

comparison to traditional fuels. We, therefore, are requesting that commenters provide 

additional data on contaminant levels associated with these non-hazardous secondary materials 

relative to traditional fuels that are in use today as fuels. 

Comments: Non-cellulosic Biomass

One commenter stated that animal manure should not be categorically excluded from the 

definition of solid waste because it is inherently waste-like, is discarded, and does not meet the 

legitimacy criteria for “handled as a valuable commodity.” The commenter stated that manure 

generated in concentrated Animal Feeding Operation (CAFO) are known to contain heavy 

metals, halogens, dioxins, etc. Manure from CAFOs are discarded in two ways after it is 

collected: some manure is recycled for land application (e.g., “used in a manner constituting 

disposal”) and excess manure is simply disposed. 

 

The draft assessment has been reviewed by scientists and managers within NCEA and across EPA. EPA will release 

a draft for public comment and independent expert scientific peer review, with a National Academy of Sciences 

(NAS) panel review expected to commence in late April 2010, which will coincide with a formal public comment 

process through the Federal Register. 
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The same commenter acknowledged that manure can be recycled for use as bioenergy, 

but cautioned that it should not automatically be exempt from the definition of solid waste. In 

support of its position that manure recycled into bioenergy and used as fuel is still a solid waste, 

the commenter cites the regulations at 40 CFR 261.2(e)(2)(ii), which lists materials burned for 

energy recovery, used to produce a fuel, or contained fuels among materials that are solid wastes, 

even if recycling of those materials involves use, reuse, or return to the original process. Overall, 

the commenter is concerned with the large volumes of animal manure currently being generated 

at animal feeding operations and the lack of oversight at recycling facilities to ensure that 

recovery is immediate and happens without releasing any pollutants into the environment. Based 

on the commenter’s observations, current regulations (i.e. the 2008 CAFO NPDES Rule) still are 

not sufficient to assure that CAFO operations will meet the two benchmarks of immediacy and 

environmental care that define a “valuable commodity.” They conclude that for manure to be 

excluded from the definition of solid waste, it should have to meet numerous qualifying 

conditions to show that the manure is being recycled. 

EPA’s Response: Non-cellulosic Biomass 

Because the focus of this rulemaking is to determine which non-hazardous secondary 

materials are or are not solid waste when burned as a fuel or ingredient in combustion units (not 

when utilized for other purposes, such as land application), we are not making any determination 

that manure is a solid waste 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 to make such determinations. 

With respect to whether manure is a legitimate non-waste fuel, EPA recognizes that 

manure has been used previously as a fuel, and is currently used as a fuel source in other 

countries. In fact, some commenters have argued that manure should be considered a traditional 

fuel, and if not, should at least be considered a non-waste fuel since they believe that manure 

meets the legitimacy criteria. While we appreciate the information submitted in the comments, 

we lack data sufficient to evaluate the legitimacy criteria for manure. Therefore, we request 

information and data on how manure is handled from its point of generation to the point it is used 

as a fuel, in order that EPA can determine whether manure would meet this legitimacy criterion. 

 

In addition, EPA has limited data on the contaminant concentrations and Btu value of 

manure to determine whether it would meet these legitimacy criteria. Therefore, we are 

requesting that commenters provide additional information and data on the extent to which 

manure (including materials, such as chicken litter) is currently used as a fuel, as well as data to 

support whether these materials meet our legitimacy criteria, including the contaminant levels—

that is, they contain contaminants at levels comparable to traditional fuels and heating content of 

the various types of manure.153 We will evaluate the information submitted during the public 

comment period and will discuss our determination in the final rule. 

 

153 Based on data provided to EPA by USDA, research conducted by the Texas Agricultural Experiment Station and 

the Texas Cooperative Extension shows that manure has a dry, ash free heating value of 8,5000 Btu/lb, while other 

research demonstrates the energy value of manure (as received) to be much lower (between 2,710-5,764 Btu/lb). 
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On the other hand, if manure is processed into biofuels, by, for example, 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, managed as a valuable commodity, has a meaningful heating value and contains 

contaminants at levels that are comparable to traditional fuel. We again acknowledge, however, 

that we have limited data (such as how the biofuels are managed, once generated, contaminant 

concentrations and Btu value) on biofuels that are produced from animal manures, and request 

that commenters provide additional data on the extent to which manures are currently processed 

into biofuels, as well as data to support whether these materials meet our legitimacy criteria, 

including contaminant levels and heating content. 

c. Used Tires. We discussed in the ANPRM that tires used as legitimate alternative 

fuels can be categorized as a non-waste fuel if they have not been previously discarded (i.e., if 

the used tires have not been abandoned and thrown away). The ANPRM further stated that used 

tires collected and managed pursuant to a state tire oversight program, are not considered to be 

discarded. The ANPRM also explained that discarded used tires that have been processed to 

make a legitimate fuel product (such as TDF) would not be a solid waste. Furthermore, we 

requested comment on whether used tires that fall within the category of secondary materials that 

are discarded, but can be directly used as a legitimate fuel or ingredient without processing 

because they are indistinguishable in all relevant aspects from a fuel or ingredient product (e g., 

whole tires) should not be considered a solid waste. 

Comments: 

Other than the states,154 commenters generally agreed with the approach outlined in the 

ANPRM. Commenters did not agree, however, that whole tires taken from waste tire piles, but 

not processed, should be considered solid wastes. Several commenters responded that tires 

should be excluded from the definition of solid waste irrespective of where they are generated, 

including from waste tire piles. Along the same lines, some commenters argued that regardless 

of the source, scrap tires are indistinguishable from one another in terms of fuel/Btu value and air 

emissions and that the only distinction is whether they have been previously discarded. Others 

stated that extraction and reclamation from a waste tire pile should be sufficient processing to 

classify a tire as a legitimate non-waste fuel. 

EPA’s Response: 

As discussed in section VII.D.2, we now believe that whole used tires (even if 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) would be considered a solid waste. We acknowledge that whole tires can be 

 

For more information, please refer to the background paper entitled, “USDA Response to EPA’s Belief that Manure 

that is Burned as a Fuel is a Solid Waste,” which is located in the docket for today’s rule. 154 For a discussion of state comments regarding used tires, see section VII.C.1., “Comments from State Agencies.” 
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legitimately burned as fuel, but because they have been discarded, whole tires would be 

considered solid wastes and subject to the CAA section 129 requirements unless processed into a 

non-waste fuel product. See section VII.D.2 for a more detailed discussion on why we now 

consider whole used tired to have been discarded by the original owner. 

We are also proposing a process by which a facility or person can apply for a non-waste 

determination for secondary materials that are not managed within the control of the generator. 

As outlined in section VII.D.5, the purpose of the petition process is to recognize that some nonhazardous secondary materials may remain outside the control of the generator and not be 

processed into a fuel product, but still be a legitimate non-waste fuel product. As part of this 

petition, the facility must demonstrate that the secondary material has not been discarded in the 

first instance.155 

We also are requesting comment on whether discarded materials, such as used tires that 

have been abandoned and disposed of in waste tire piles and have not been processed (as defined 

in this proposal), should not be considered solid wastes if they meet the legitimacy criteria and 

are indistinguishable in all relevant aspects from a product or intermediate. 

d. Used Oil. As indicated in the ANPRM, we consider off-specification (or “off-spec”) 

used oil that is collected from repair shops to have been discarded. Used oil that meets the onspecification (or “on-spec”) levels and properties of 40 CFR 279.11 is considered be a legitimate 

non-waste fuel product. We requested comment on whether off-spec used oil managed pursuant 

to the 40 CFR part 279 used oil management standards and which is burned for energy recovery 

in certain types of combustion devices156 should be considered a legitimate non-waste fuel. 

Comments: 

Most commenters believe that off-spec (and on-spec) used oil should not be classified as 

a solid waste. Various reasons were provided in support. Specifically, one commenter reasoned 

that off-spec used oil should not be treated as a solid waste if it has been delivered to a legitimate 

recycler for processing. Designation as a solid waste would lead to costly burning in hazardous 

waste incinerators, burning in uncontrolled space heaters, and more undesirable disposal 

methods. Many commenters also referred to Congress’ intent to manage used oil differently and 

EPA’s regulatory structure for the management of used oil as evidence that used oil should not 

be classified as a solid waste. They added that used oil is typically neither disposed of, thrown 

away, nor abandoned, but is collected and contained. Used oil is a valuable product that is 

subject to EPA’s recycling presumption. Btu content is not necessarily lower than on-spec used 

oil or virgin fuel, and contaminants, such as water, flashpoint, and metals can be effectively 

addressed. In a similar, but slightly different view, a number of commenters argued that on-spec 

 

155 The petition process for a non-waste determination would also require the petitioner to describe how the nonhazardous secondary material satisfies the criteria outlined in the petition process, which includes whether it meets 

the legitimacy criteria. 

156 Devises include industrial boilers located at facilities that are engaged in a manufacturing process where 

substances are transformed into new products, utility boilers used to produce electric power, steam, heated or cooled 

air or other gases or fluids for sale, used oil fired space heaters provided the burner meets the provisions of 40 CFR 

279.23, and hazardous waste incinerators subject to regulation under 40 CFR subpart O of parts 264 and 265. 
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and off-spec used oil should be included in the list of traditional fuels. Since neither is 

discarded, the presumption is that it is recycled. Only one commenter thought that off-spec used 

oil should continue to be considered a solid waste within the RCRA framework. 

EPA’s Response: 

We agree with the commenters who said that on-spec used oil should not be classified as 

a solid waste. Based upon how we define traditional fuels (i.e. fuels that have been historically 

managed as valuable fuel products rather than being managed as waste materials), we believe 

that on-spec used oil should be considered a traditional fuel. 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.157 Used oil that has been determined to be on-spec has verified that it 

contains contaminants at levels below the maximum concentration limits established in the 

standards, such that the emissions resulting from the burning of on-spec used oil will not pose an 

increased threat to human health or the environment than the emissions resulting from the 

burning of virgin oil or diesel. This is because the contaminants of concern (i.e., those for which 

maximum concentration levels have been set) present in on-spec used oil are either at the same 

concentration or a lower concentration than virgin refined fuel oil.158 

This approach is supported by Safe Food and Fertilizer v. EPA, 350 F.3d 1263 (D.C. Cir. 

2003). The decision upheld an EPA rule that excluded from the definition of solid waste certain 

recycled materials used to make zinc fertilizers (and the fertilizers themselves) as long as they 

were not speculatively accumulated, met certain handling, storage and reporting conditions, and 

were “identical” to fertilizers made from raw materials, i.e., they had concentration levels for 

certain chemicals that fall below specified thresholds. 350 F.3d at 1265. We believe on-spec 

used oil satisfies these criteria. 

In regard to off-spec used oil, we disagree that it should not be classified as a solid waste. 

The used oil regulations are structured such that off-spec used oil is managed within the 

constraints of the used oil management standards until it is processed into on-spec used oil or it 

is properly disposed of. It may only be burned in specific types of combustion devices.159 

Although off-spec used oil may be managed within the control of the generator, it contains 

contaminants at levels that are not comparable to traditional fuels, and thus would not be 

considered a legitimate non-waste fuel per the legitimacy criteria. Therefore, today’s proposed 

rule considers off-spec used oil as a solid waste subject to the CAA section 129 requirements, as 

 

157 Once used oil is claimed to be on-spec and the marketer complies with the requirements for analysis and record 

retention, notification, and record tracking shipment to on-specification burners, it is no longer subject to other 

management standards. We note that today’s proposed rule does not change any of the regulations in place that 

regulate on-spec used oil. 

158 See Used Oil Final Rule, 50 FR 49181 (November 29, 1985). 

159 These devices, listed in 40 CFR 279.61, were determined to not pose significant health risks when burning offspec used oil because they typically are equipped with particulate control equipment (as required by CAA permits). 

Nonindustrial boilers (e.g., those located in apartment and office buildings, schools, and hospitals), on the other 

hand, were found to pose significant risk when off-spec used oil is burned because they are typically very small and 

may not achieve complete combustion and do not have any emission control equipment. 
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wells as state, and local requirements, unless it is processed to meet the on-spec used oil limits 

specified in 40 CFR 279.11. 

It also should be noted that off-spec used oil may be burned in used oil-fired space 

heaters pursuant to 40 CFR part 279, provided: 1) the heater burns only used oil that the owner 

or operator generates or used oil received from household do-it-yourself used oil generators; 2) 

the heater is designed to have a maximum capacity of not more than 0.5 million Btu per hour; 

and 3) the combustion gases from the heater are vented to the ambient air. The RCRA used oil 

regulations base this provision on a finding that uncontrolled emissions from these sources do 

not pose a significant threat to human health and the environment.160 However, consistent with 

our determination that off-spec used oil be considered a solid waste when burned as a fuel, we 

believe that off-spec used oil managed within the control of the generator would not qualify for 

the generator controlled exclusion when burned in a used oil fired-space heater, since 

contaminant levels are not comparable to traditional fuels. Therefore, we are proposing that offspec used oil combusted at a unit that is within the control of the generator would be solid waste. 

We request comment on this approach, as well as any supporting information. 

e. Coal Refuse/Coal Combustion Residuals. The ANPRM identified coal refuse (i.e., 

mining rejects and recovered landfilled ash) as a solid waste because it has been discarded and 

has not been subsequently processed for use as a fuel. We solicited comment on whether there 

are circumstances under which these materials have been discarded, but not processed, and can 

be considered as non-waste fuels once they are removed or recovered from the “discard” 

environment and managed as legitimate fuels. 

Comments: 

Several commenters responded that coal refuse should not be classified as a solid waste. 

One commenter argued that there is no basis for continuing to classify an alternative fuel or 

ingredient as a solid waste merely because it does not have to undergo some type of processing 

before being used. The same commenter also indicated that the recovery of ash and mill rejects 

from disposal sites all involve some degree of processing. The materials have to be excavated, 

stored, and transported to their designated uses where they are also often subject to the same 

types of processing activities that are associated with the mining and management of virgin coal 

(i.e., screening, sizing, and chemical analysis to identify Btu, ash characteristics and sulfur 

content). Given the significant costs associated with the extraction of these materials, including 

excavation and handling, as well as the nearly identical nature of these materials to traditional 

fuels and ingredients, the extraction operations themselves constitute the requisite degree of 

processing necessary to be viewed as a non-waste. One commenter stated that they were aware 

of one electric utility that in the past recovered high-carbon content ash from a disposal facility 

that it owns, and used the ash as a fuel source by supplementing the coal used in one of their 

utility boilers. The same company today takes high-carbon fly and bottom ash directly from 

several existing boiler units and burns it at their power generating station. This commenter noted 

that there are at least four patented processes for removing unwanted carbon from fly ash that 

 

160 Used Oil Final Rule, 50 FR 49194 (November 29, 1985). 
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allow the processed ash to produce both technically compliant fly ash for use in concrete and a 

separate carbon stream that can be re-introduced into the boiler for its fuel value. 

One commenter contended that coal refuse is a solid waste due to its toxicity levels in 

comparison to normal coal. Specifically, waste coals can have up to four times more mercury 

and chromium, and three times more lead than other coals. 

EPA’s Response: 

 As discussed in the Material Characterization Paper developed for this rulemaking, large 

volumes of coal refuse piles were accumulated at mining sites from the time mining first began 

in the Appalachians through the late 1970s. Beginning in the late 1970s, laws were enacted that, 

for the first time, required stabilization and reclamation of mining sites, including coal refuse 

disposal piles and fills. Current mining operations continue to generate the material, though 

likely at lower rates than in previous decades. 

For purposes of this proposal, we are therefore differentiating between coal refuse that 

was generated in the past and placed into "legacy" piles, and the current generation of coal 

refuse. Legacy piles of coal refuse would clearly be considered to be disposed of and 

abandoned, thus meeting the definition of a solid waste material. We would not consider 

currently generated coal refuse to be abandoned or disposed of and, therefore, would not be 

considered a solid waste. 

With regard to coal refuse from legacy piles, the processing of coal refuse for use as a 

fuel or ingredient involves separation through the use of screens or grizzlies, blending, crushing, 

and some drying. Although we understand that virgin coal is similarly processed, we believe 

that such operations would constitute “minimal processing” and would not meet the processing 

definition as proposed. See section VII.D.4 for a discussion of what does and does not constitute 

“processing” as defined in this proposal. Therefore, because coal refuse from legacy piles has 

been discarded and does not undergo a sufficient level of processing, it is considered a solid 

waste and would be subject to the CAA 129 requirements if burned in a combustion unit. 

We note that one commenter contended that coal refuse contained elevated levels of 

mercury, chromium, and lead when compared to other coals. We recognize that available data 

show that coal refuse generally has higher metals concentrations than non-refuse coal 

concentrations. 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.161 For the purposes of this proposal, however, it is not 

necessary to discuss whether coal refuse from legacy piles satisfies the contaminant requirement 

 

161 CFBs ability to achieve lower emissions levels is due to several factors: (1) CFB boilers are often newer than 

many existing pulverized coal utility boilers and may be equipped with better particulate matter (PM) controls; (2) 

CFBs utilize lower operating temperatures, which result in lower metal and NOx emissions; and (3) CFB boilers 

often add limestone to their feed to control SO2 emissions, which results in greater metal fixation to the ash. 
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of the legitimacy criteria, given that we believe that such coal refuse is a solid waste because it is 

discarded and is not sufficiently processed into a fuel product. 

We are also differentiating between mined landfilled ash, which generally refers to 

landfilled coal ash, from coal refuse, which we generally characterize as coal mining rejects that 

have been placed in waste piles (known as gob or culm, for example).162 Coal combustion 

residuals (CCRs) that have been discarded in the first instance (e.g., coal ash mined from 

landfills) would be considered solid waste unless they are processed into legitimate non-waste 

fuel products. It appears that the patented processes described by the commenter that separates 

carbon from the fly ash to produce a fuel would satisfy the processing requirement included in 

this proposal. However, until the Agency has additional information, we are not in a position to 

indicate that such processing is sufficient to produce a non-waste fuel. Therefore, we are 

requesting that commenters provide additional information explaining how this processing is 

conducted, and the extent to which these high carbon fuels are produced nationwide. With 

respect to high-carbon fly and bottom ash taken directly from existing boiler units and burned at 

power generating stations, we believe that such secondary materials are not discarded and would 

not be considered a solid waste if it was managed within the control of the generator and satisfies 

the fuel legitimacy criteria. 

Regarding the commenter that indicated coal fly ash and mill rejects are often subjected 

to the same types of processing activities that are associated with the mining and management of 

virgin coal (i.e., screening, sizing, and chemical analysis to identify Btu, ash characteristics and 

sulfur content), we believe that screening, sizing, and chemical analysis constitutes a minimal 

level of processing, and would not satisfy the processing requirement of this proposal. Although 

we recognize that sizing of materials is an important processing step for fuels in order to improve 

combustion efficiency, we believe this represents an inadequate level of processing to change a 

discarded material into a product fuel and, therefore, these materials would be considered solid 

wastes under today’s proposal. However, we request that commenters provide additional 

information on the extent to which CCRs are recovered from the discard environment (e.g., 

landfills) and used as fuels. We also request that commenters provide more detailed information 

on how these secondary materials are processed, and whether these materials might satisfy the 

legitimacy criteria for fuels. 

f. Sewage Sludge. Sewage sludge or “wastewater treatment sludge” as referred to in the 

ANPRM, was one of several non-hazardous secondary materials that we solicited comment as to 

whether it is a legitimate alternative fuel and thus would not be solid waste if it has not been 

previously discarded. 

Comments: 

All commenters who addressed this issue argued that sewage sludge should not be 

classified as a solid waste. One commenter specifically pointed to the RCRA statutory definition 

of solid waste, stating that Congress expressly exempts solid and dissolved materials in domestic 

sewage processed at Publicly Owned Treatment Works (POTWs). Rather, sewage sludge should 

 

162 The ANPRM included landfill ash in its description of coal refuse. 
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be regulated comprehensively under the Clean Water Act (CWA), or to the extent necessary to 

meet CAA obligations, EPA should regulate the combustion of POTW sewage sludge under 

CAA section 112. Additionally, it was put forth that if the Agency disagreed with the assertion 

that the RCRA statute requires the Agency to exempt sewage sludge from the definition of solid 

waste, that the Agency provide a regulatory exclusion for sewage sludge burned in incinerators 

in order to preserve the current framework for regulating sewage sludge managed under section 

405 of the CWA to avoid redundancy. This commenter was also concerned about the 

implications a determination that sewage sludge is solid waste when incinerated would have on 

how states regulate sewage sludge managed for different purposes (e.g., land application). 

Two commenters stated that sewage sludge meets all three legitimacy criteria for fuels. It 

is handled as a valuable commodity by virtue of it being continuously dewatered and directly 

injected into the incinerator; it is not diverted or stored and every effort is made to maximize the 

quantity of sludge to be combusted. One commenter stated these materials have meaningful 

heating value, given that it recovers a net energy value of 4,300,000 Btus/hour of useable thermal 

energy from its combustion. Also, the CWA section 405 regulations provide risk-based limits 

for contaminants when incinerated, such that as long as the contaminant level is below the limits, 

it does not pose a significant health risk. 

EPA’s Response: 

We agree with commenters that the RCRA statutory definition of solid waste excludes 

the solid or dissolved material in domestic sewage. This is evidenced by the RCRA hazardous 

waste regulations that extend this exclusion to mixtures of hazardous waste with domestic 

sewage, provided that the mixture occurs in a pipeline en route to a POTW. See 40 CFR 

261.4(a)(1). However, we do not agree with the commenters that the Domestic Sewage 

Exemption (DSE) applies to the sludge generated from the treatment process and thus, sewage 

sludge is a solid waste if it is discarded.163 We believe that sewage sludge burned without energy 

recovery (i.e., burned for destruction) in an incinerator is discarded, and thus a solid waste. 

Further, the Agency is not proposing to provide a regulatory solid waste exclusion for sewage 

sludge burned in incinerators that would preserve the current framework for regulating sewage 

sludge managed under section 405 of the CWA to avoid redundancy. However, we request 

comment on whether such an approach is within our discretion. Regarding the commenter’s 

concerns about possible impacts on how states regulate sewage sludge managed for different 

purposes (e.g., land application), as discussed in more detail in Section VIII, through this 

rulemaking, EPA is articulating the narrow definition of which non-hazardous secondary 

materials are or are not solid waste when used as fuel for energy recovery or as ingredients in 

combustion units. We are not making solid waste determinations that cover other possible 

 

163 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 this 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.” See 45 FR 

33097 (May 19, 1980). In the 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. (See 

45 FR 33101). 
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secondary material end uses. In EPA’s view, these regulations should have no effect on state 

programs that choose to regulate this material in different ways and under different authorities. 

 

Two commenters indicated that many POTWs recover energy in the form of usable heat 

from the incineration of sewage sludge via waste heat boilers. Although waste heat boilers are 

useful devices for providing energy in the form of steam for secondary processes, the Agency 

does not regard them 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 (see 40 CFR 260.10). 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. The CAA program views waste heat recovery units (i.e., 

external to the combustion chamber) similarly. 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 

from a combustion unit that has some other primary purpose (such as an institutional waste 

incinerator). The presence of a waste heat recovery unit on the exhaust gas does not change the 

fact that the unit combusting the secondary material is primarily an incineration unit burning 

waste for disposal purposes. See Other Solid Waste Incinerators (OSWI) final rule at 70 FR 

74870 at 74876, (December 16, 2005). Therefore, sewage sludge burned in a waste heat 

recovery unit would not satisfy the meaningful heating value legitimacy criteria and would thus 

be considered to be burning solid waste (for more discussion on the legitimacy criteria, see 

section VII.D.6). 

 

The Agency also notes that data generally shows that municipal sewage sludge contains 

metals that are typically higher in concentrations when compared to traditional fuels (e.g., coal 

and fuel oil). See the table below for a comparison of the concentration of certain toxics of 

municipal wastewater treatment sludges to coal. 
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Comparison of Toxics of Municipal Wastewater Treatment Sludges to Traditional Fuels164

Element 

Sewage Sludge 

Coal 

(mg/kg) 

40-City Study 

(mg/kg dry weight) 

National Sewage Sludge Study 

(mg/kg dry weight) 

Arsenic 9.9 6.7 10 

Cadmium 69 6.9 0.5 

Chromium 429 119 20 

Copper 602 741 Not available 

Lead 369 134.4 40 

Mercury 2.8 5.2 0.1 

Molybdenum 17.7 9.2 Not available 

Nickel 135.1 42.7 20 

Selenium 7.3 5.2 1 

Zinc 1,594 1,202 Not available 

Sewage sludge findings in this table are for final sludge which is defined as the liquid, solid, or semi-solid residue 

generated during the treatment of domestic sewage in a treatment works, receiving secondary treatment or better, and 

which may include sewage sludge processed to meet the land application standards.

The Agency does not believe that sewage sludge would meet the legitimacy criteria for 

contaminants. Therefore, the Agency is proposing that sewage sludge, generated from POTWs 

and when combusted, be classified as a solid waste, and subject to the CAA Section 129 

requirements. 

F. Comments on Specific Materials Used as Ingredients 

The ANPRM identified a number of non-hazardous secondary materials that we believe 

are currently being used as ingredients in combustion processes (i.e., blast furnace slag; CKD; 

coal combustion residual group (fly ash, bottom ash, and boiler slag); foundry sand; silica fume; 

and secondary glass material). The ANPRM solicited comment on whether or not these nonhazardous secondary materials are legitimate ingredients per the legitimacy criteria, and 

requested additional data and/or information supporting whether these secondary materials are 

legitimate ingredients. The majority of comments submitted were in regard to: CKD, CCRs, 

foundry sand, and blast furnace slag/steel slag. 

a. Cement Kiln Dust. For CKD, the ANPRM indicated that CKD is not a solid waste if 

it is recycled within the continuous clinker production process. 

 Comments: 

One commenter responded that they strongly support this view, but that other CKD which 

may be available could be useful if industry could find a means to incorporate this viable ingredient 

into the process. Thus, they believe that any EPA interpretation regarding the use of CKD must 

allow for access of the material irrespective of where the ingredient is maintained prior to use. 

 

164 More information on the composition of municipal wastewater treatment sludges can be found in the Materials 

Characterization Paper on Wastewater Treatment Sludge, which has been placed in the docket for today’s proposed 

rule. 
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EPA’s Response: 

As explained in section VII.D.3, we are proposing that non-hazardous secondary materials 

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 (discussed in 

section VII.D.6.b). This proposal does 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 nonhazardous secondary material fuels) since we believe that non-hazardous secondary materials used as 

ingredients in manufacturing processes, such as cement kilns are commodities managed within 

continuous commerce and are used as an integral part of the manufacturing process. That is, 

secondary materials that are directly used (or in the case of previously used materials, reused), 

function 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 secondary 

materials recycled in ways that most closely resemble normal production processes. 

With respect to the comment that our interpretation regarding the use of CKD must allow 

for access of the material irrespective of where the ingredient is maintained prior to use, it is not 

clear what point the commenter is making. To the extent that the CKD has not been discarded in 

the first place, we are proposing that the use of CKD in a cement kiln would not be considered a 

solid waste whether it remains under the control of the generator or is transferred to another 

person, so long as it meets the legitimacy criteria. However, if CKD has been discarded, its use 

as an ingredient in the cement kiln would be considered combustion of a solid waste, (and the 

cement kiln would be subject to the CAA section 129 requirements), unless it has been processed 

(as defined in section VII.D.4) to produce a non-waste ingredient. 

b. Coal Combustion Residuals. The ANPRM identified what was considered to comprise 

the CCR group: fly ash, bottom ash, and boiler slag. Similar to CKD, it was stated that coal fly 

ash that is handled as a commodity within continuous commerce when it is marketed to cement 

kilns as an alternative ingredient is not discarded. Under the ANPRM approach, if the CCR 

product was previously discarded, such non-hazardous secondary materials would be solid 

wastes, unless they were processed into a legitimate ingredient product. However, we solicited 

comment on the situation where a discarded material is recovered from the environment and 

directly used as an ingredient (i.e. without processing). Additionally, we solicited comment on 

the extent to which non-hazardous secondary materials that have already been discarded (e.g., 

coal fly ash that has been landfilled) are later processed and used as ingredients in combustion 

units, as well as requested descriptions of the types of processing that these secondary materials 

undergo. 

 Comments: 

Several commenters believe CCRs can be either legitimate fuels or ingredients when used 

in a combustion unit. One commenter stated that there are a number of cement kilns that use or 

have used high carbon fly ash as a fuel and ingredient. As an ingredient, the constituents within 

the fly ash are similar to those required from natural materials (such as shale, marl or limestone) 

in that they contain fractions of silica, iron and aluminum needed in the kiln. As a fuel, the 
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relatively high carbon content imparts energy through its combustion, reducing the need for 

some portion of fossil or other fuels for the kiln. 

EPA’s Response: 

As discussed above (and as further discussed in Section VII.D.6.b), we are proposing that 

non-hazardous secondary materials 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. Commenters point out that CCRs can serve both as ingredients, as well as fuel 

supplements. This raises the question of whether these types of secondary materials should be 

treated like non-hazardous secondary materials used as fuels (where we assume they are discarded if 

they are managed outside the control of the generator), as opposed to ingredients (in which case they 

are not solid waste even if they are managed outside the control of the generator provided they satisfy 

the legitimacy criteria and have not been discarded in the first instance). It also raises the question as 

to whether these materials should be required to satisfy the legitimacy criteria for fuels or for 

ingredients, or both. We do not believe it would be appropriate to require these types of secondary 

materials to satisfy the criteria of both fuels and ingredients. As a result, we are proposing that the 

decision to treat them as fuels or ingredients should be based on the primary purpose of using the 

non-hazardous secondary material in the cement kiln. With respect to CCRs, we believe the primary 

purpose of their use is as an ingredient; thus, provided the CCRs satisfy the legitimacy criteria for 

ingredients and are not discarded in the first instance, they would not be considered solid waste.165 

However, we specifically solicit comment on this point, and in particular, whether the use of CCRs is 

primarily used for their ingredient value as opposed for their fuel value. 

Comment: 

With respect to the extent that CCRs have been discarded, but are later processed, one 

commenter noted that there are at least four patented processes for removing unwanted carbon 

from fly ash that would allow the processed ash to produce both technically compliant fly ash for 

use in concrete and a separate carbon stream that can be re-introduced into the boiler for fuel 

value. Another commenter stated that coal fly ash (and mill rejects) recovered from disposal 

sites all involve some degree of processing, in that the materials have to be excavated, stored, 

and transported to their designated uses. The materials are also often subject to the same types of 

processing activities that are associated with the mining and management of virgin coal (i.e., 

screening, sizing, and chemical analysis to identify Btu, ash characteristics and sulfur content). 

Finally, one commenter disagreed with our position on CCRs. The commenter believes that 

CCRs are wastes due to their high concentration of contaminants, predominantly mercury. 

EPA’s Response: 

In regard to when a discarded material is recovered from the environment and directly 

used as a fuel or ingredient, we are proposing that the secondary material is a solid waste, unless 

it undergoes a sufficient level of processing to produce a legitimate fuel product or ingredient. 

 

165 We note that used tires provide both fuel value and ingredient value in cement kilns. In this instance, however, 

we believe the primary purpose of using tires in a cement kiln is to recover their energy value, and therefore believe 

tires should satisfy the fuel criteria in determining whether the materials are discarded and legitimate. 
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As discussed in detail in section VII.D.4, when a non-hazardous secondary material has been 

discarded, unless sufficient processing occurs to change the material to produce a legitimate fuel 

product or ingredient, it would remain a solid waste under this proposal. However, we are also 

requesting comment on whether such non-hazardous secondary materials that have been 

discarded and shown to be a legitimate fuel or ingredient product, should nevertheless be 

considered a legitimate non-waste fuel or ingredient, even if the non-hazardous secondary 

material does not undergo processing at all or an adequate amount of processing. 

As previously described for processed CCR’s that are used as fuels, it appears that the 

patented processes described by the commenter that separates carbon from the fly ash to produce 

technically compliant fly ash for use in concrete would satisfy the processing requirement 

included in this proposal; however, we are requesting 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. 

Regarding the commenter that indicated that coal fly ash and mill rejects are often subject 

to the same types of processing activities that are associated with the mining and management of 

virgin coal (i.e., screening, sizing, and chemical analysis to identify Btu, ash characteristics and 

sulfur content), we do not believe that screening, sizing, and chemical analysis by itself is a 

sufficient level of processing that would render a discarded material into a non-waste ingredient 

product. As we noted previously in Section VII.C.5.e., while we recognize that screening, 

sizing, and chemical analysis can be important for producing traditional fuels, we also are 

proposing that such processing is not sufficient to change a waste-derived fuel into a product 

fuel. Thus, such secondary materials that undergo such minimal processing are still considered 

waste-derived fuels because such processing of CCRs, even with screening and chemical 

analyses, would not be sufficient to produce a non-waste ingredient. However, we request that 

commenters provide additional information as to the extent to which CCRs are recovered from 

the discard environment (e.g., landfills) and used as ingredients in cement kilns, and if so, we 

request commenters provide more detailed information on the extent to which these CCRs are 

processed, and thus, might satisfy our proposed definition of processing in section VII.D.4. 

In addressing the commenter who argued that CCRs are solid wastes due to their high 

concentration of contaminants, we begin by noting that the chemical properties of CCRs are 

influenced to a great extent by those of the coal burned, the type of combustion unit, and the air 

pollution controls applied.166 We are also aware that fly ash may contain various levels of 

metals, such as vanadium, zinc, copper, chromium, nickel, lead, arsenic, and mercury.167 

However, in a recent Report to Congress that addressed the use of these secondary materials as 

ingredients in cement and concrete applications, the overall conclusion reached with respect to 

 

166 For more information on the different types, or ranks, of coal, please refer to the Materials Characterization Paper 

on Traditional Fuels and Key Derivatives, which is located in the docket of today’s proposed rule. 167 Listed by relative frequency. See “Technical Background Document for the Report to Congress on Removing 

Wastes from Fossil Fuel Combustion: Waste Characterization.” U.S.EPA. March 15, 1999. 
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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.168 

The Report to Congress also identifies several industry stakeholders and state agencies 

that have recognized that regulatory programs for the control of mercury and NOx in electric 

utility air emissions (and the necessary new emission control technologies and configurations 

necessary to achieve emissions reductions) can potentially result in increased carbon levels in 

coal fly ash that impact the ability to use the ash as a supplementary cementitious material.169 

Consequently, EPA is studying the possible effects of new air emission control technologies and 

configurations on the composition of CCRs and publishing its findings in a series of reports.170 

Thus, we request 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. 

c. Foundry Sand. Similar to the previously discussed ingredients, we requested data 

and/or information supporting whether foundry sand is discarded and if not discarded, whether it 

meets the legitimacy criteria. 

 

Comment: 

One commenter responded and stated that foundry sand meets all four legitimacy criteria 

for ingredients. The commenter offered several examples of applications for foundry sand in 

support of why it should not be a solid waste; however, very little information was provided in 

the context of utilizing foundry sand as an ingredient in a combustion process. 

EPA’s Response: 

Since this proposal is limited to those situations where the non-hazardous secondary 

material is used as a fuel or ingredient in a combustion process, examples of using foundry sand 

in other applications is not directly relevant. However, as previously explained, we are proposing 

 

168 “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. 

169 Id at 4-4. 170 A series of reports have been and are being developed by U.S. EPA’s Office of Research Development. To date, 

three documents have been finalized, including: (1) “Characterization of Mercury-Enriched Coal Combustion 

Residuals from Electric Utilities Using Enhanced Sorbents for Mercury Control.” EPA-600/R-06/008. Feb. 2006; 

(2) “Characterization of Coal Combustion Residuals from Electric Utilities Using Wet Scrubbers for Multi-Pollutant 

Control.” EPA-600/R-08/077. July 2008; and (3) “Characterization of Coal Combustion Residuals from Electric 

Utilities Using Multi-Pollutant Control Technology – Leaching and Characterization Data.” EPA-600/R-09/151. 

December 2009. 
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that non-hazardous secondary materials 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 (discussed in section VII.D.6.b). 

d. Blast Furnace Slag/Steel Slag. The ANPRM also requested data and/or information 

regarding blast furnace slag and steel slag and their use as legitimate ingredients and thus, 

whether they are or are not considered solid waste. 

Comments: 

Two commenters responded that steelmaking slag and mill scale should be excluded from 

the definition of solid waste because they meet all four legitimacy criteria for ingredients. With 

respect to our solicitation for comment on when a material is previously discarded and has been 

processed into a legitimate ingredient product, one commenter responded that current practice to 

obtain these materials requires the procurement of a mining license and operating practices that 

are similar to processing of natural aggregates (though drilling and blasting practices are not 

required for recovery). In particular, iron and steel slag aggregates are removed by ripping and 

digging, followed by magnetic separation, crushing, further magnetic separation and finally sized 

by screening. They are then loaded and weighed in customer trucks subject to quality assurance 

and quality control for comparable virgin aggregate intended for the same use. 

EPA’s Response: 

As with the previous ingredients, we are proposing 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. If these materials, as described by the commenter, are 

considered to have been discarded in the first instance, then they would have to be sufficiently processed into 

ingredient products that satisfy the legitimacy criteria in order to be classified as a non-waste ingredient. Based on 

the processing operations described above, it appears that blast furnace and steel slag undergo 

sufficient processing; however, before the Agency concludes this to be the case, we request that 

commenters provide more detailed information regarding the level of processing that occurs. 

G. Legitimacy Criteria 

The ANPRM discussed the following legitimacy criteria specific to fuel products that are 

used in combustion processes: (1) handled as valuable commodities; (2) have meaningful 

heating value; (3) and contain contaminants that are not significantly higher in concentration 

than traditional fuel products. Likewise, for ingredients, the ANPRM listed the following 

criteria: (1) handled as a valuable commodity; (2) the non-hazardous secondary material 

provides a useful contribution; (3) the recycling results in a valuable product; and (4) the product 

does not contain contaminants that are significantly higher in concentration than traditional 

products. We requested comment on the criteria themselves and whether they are reasonable for 

non-hazardous secondary materials. 

a. General 

Comments: Application of Legitimacy Criteria
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Commenters provided various viewpoints on the appropriateness of the legitimacy 

criteria for non-hazardous secondary materials that are used as fuels or ingredients. Several 

commenters disagreed with the application of the same subtitle C legitimacy definition for 

determining whether non-hazardous secondary materials are solid waste under RCRA subtitle D 

because non-hazardous secondary materials do not pose the same hazards. However, many of 

the commenters agreed with the application of the subtitle C legitimacy principles, but also 

argued that the criteria must be flexible to account for increasing use and changes in 

commodities, technologies, markets, and fuel prices and should not be more onerous than the 

legitimacy test codified at 40 CFR 260.43. Commenters also requested clarification as to 

whether all criteria need to be met, but urged EPA to recognize that legitimate uses are possible 

even if not all criteria are met. 

 EPA’s Response: Application of Legitimacy Criteria

First, we would note that there are two questions that the Agency needs to answer: (1) 

whether or not the non-hazardous secondary material is a fuel product or ingredient product, or 

whether the material has been discarded and is therefore a solid waste, which includes wastederived fuels or ingredients and (2) whether the non-hazardous secondary material is being 

legitimately and beneficially used or recycled. 

With respect to the legitimacy question, EPA believes it important and crucial to develop 

a set of legitimacy criteria to make sure that the fuel product and ingredient product are being 

legitimately and beneficially used and not simply being discarded via sham recycling. The 

definition of legitimate recycling developed for subtitle C hazardous secondary materials 

carefully considered the history surrounding the uses of 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 

proposing to codify 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 or ingredients 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. The rationale for the non-hazardous secondary materials legitimacy 

provisions (including comparisons to the DSW legitimacy provision) is discussed in section 

VII.D.6. 

Commenters also suggested that the legitimacy criteria must be flexible to account for 

increasing use and changes in commodities, technologies, markets, and fuel prices and should 

not be more onerous than the legitimacy definition codified at 40 CFR 260.43. We agree with 

these commenters and have proposed qualitative criteria that we believe provide the flexibility 

needed in evaluating these secondary materials that will accommodate such changes. The 

legitimacy criteria are structured to distinguish between legitimate reuse/recycling and disposal 

(i.e., sham recycling), while at the same time not impose restrictions on the types of non-
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hazardous secondary materials that may be of value in the future. For a detailed discussion of 

the proposed legitimacy criteria, see section VII.D.6. 

In regard to the commenters who requested clarification on whether all criteria need to be 

met, we believe that each of the criteria is important and addresses certain issues that need to be 

assessed. Therefore, each criterion must be met in order for the non-hazardous secondary 

material to be considered to be a legitimate non-waste fuel or ingredient. Thus, today’s proposal 

requires that in evaluating the legitimacy criteria, the owner/operator of the combustion unit must 

assure that the non-hazardous secondary material meets all of the criteria.171 See section 

VII.D.6. for additional discussion. 

 Comment: Ingredients (General)

We also received one general comment regarding the legitimacy criteria for ingredients. 

The commenter argued that the determination is not applicable for any material that is within a 

process and is being recycled in that process, and should not have to be justified as a secondary 

material, since closed-loop systems do not manage solid waste. 

EPA’s Response: Ingredients (General)

We generally agree with the commenter. That is, to the extent that the non-hazardous 

secondary material has not been discarded in the first instance, which we presume it would not 

be as part of a closed-loop system, and such secondary material meets the legitimacy criteria, it 

would not be considered a solid waste when combusted. Thus, as an example, where CKD is 

recycled back into the cement kiln, and meets the legitimacy criteria, it is not solid waste. 

b. Fuels or Ingredients Being Managed as Valuable Commodities 

Comments: 

For this criterion, most commenters generally agreed with the Agency that such nonhazardous secondary materials should be managed as a valuable commodity, but argued that a 

specified containment system should not be a mandatory part of the criteria. One commenter 

suggested that rather than focus on containment, the focus should be on whether the nonhazardous secondary material has value for future use. Another commenter suggested that a 

more appropriate requirement is that the non-hazardous secondary material should be stored in a 

manner that preserves their economic value and avoids damaging releases to the environment. 

 

171 In EPA’s final definition of solid waste rule regarding hazardous secondary materials, EPA codified a “legitimate 

recycling provision.” See 40 CFR 260.43. This legitimacy provision has two parts. The first part includes two 

factors that must be considered and met, which are considered the core of the legitimacy factors. The second part of 

the legitimacy provision consists of two factors that must be considered, but need not be met because the Agency is 

aware of situations where a legitimate recycling process exists, but may not conform to one or both of these factors. 

For further discussion of the legitimacy factors in the hazardous waste rules, see section VII.C.7 of this preamble 

and the final definition of solid waste rule (October 30, 2008 beginning on 73 FR 64700). Thus, the application of 

the legitimacy provision proposed in this rule is different than that promulgated in the final definition of solid waste 

rule in that all of the criteria to be considered in today’s proposed rule must both be considered and met. 
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Another commenter thought that EPA should look to state requirements for containment, 

handling, and storage. Similarly, another commenter suggested that EPA should recognize that 

if a non-hazardous secondary material is managed pursuant to federal requirements that also 

apply to raw materials (e.g., coal refuse compared to coal), the criteria are satisfied. Lastly, one 

commenter argued that the concept of “speculative accumulation” of one year can prevent 

accumulation of enough non-hazardous secondary materials to make recovery economical and 

thus, is not an appropriate criterion to conclude that a non-hazardous secondary material isn’t 

being reused and is a solid waste. 

EPA’s Response: 

We generally agree with those commenters who argued that a specific containment 

system should not be required and, therefore, are proposing a qualitative approach in line with 

the same principle as the commenter who suggested that non-hazardous secondary materials 

should be stored in a manner that preserves their economic value, while preventing damaging 

releases to the environment. We also are proposing to incorporate the concept that nonhazardous secondary materials be “contained” in the same manner as its analogous fuel or raw 

ingredient. Thus, we are proposing that where there is an analogous fuel or ingredient, the nonhazardous secondary material used would be required to be managed in a manner consistent with 

the management of the analogous fuel or ingredient or otherwise must be adequately contained 

so as to prevent releases to the environment. As explained in section VII.D.6, an “analogous 

ingredient or fuel ” is an ingredient or 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. Where there is no analogous fuel or ingredient, the 

non-hazardous secondary material must be adequately contained so as to prevent damaging 

releases to the environment. “Adequately contained” is when a non-hazardous secondary 

material is stored in a manner that adequately prevents releases to the environment considering 

the nature and toxicity of the non-hazardous secondary material. In regard to the comment on 

speculative accumulation, we are not proposing a specific timeframe, because states already 

require varied timeframes and we will leave this up to the state’s discretion. 

c. Fuels Must Have Meaningful Heating Value. The ANPRM discussed the meaningful 

heating value criterion for legitimate alternative fuel, and outlined a qualitative approach rather 

than a "bright-line" cutoff for heating value. The ANPRM requested comment as to whether it 

was possible or appropriate to establish a specific heating value cutoff. 

Comments: 

Several commenters favored the ANPRM approach, while others recommended either a 

lower Btu benchmark or replacing the Btu benchmark with a case-by-case analysis. No 

commenters recommended deleting the criterion. Commenters emphasized that innovations and 

advancements in technology can efficiently produce energy from non-hazardous secondary 

materials with lower heating value content. 

EPA’s Response: 
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We are proposing a qualitative approach for a meaningful heating value criterion as 

outlined in the ANPRM. The proposed regulatory text specifies that “the material must have a 

meaningful heating value and be used as a fuel in a combustion unit that recovers energy”. See 

proposed 241.3(d)(1)(ii). We are clarifying in this proposal, that non-hazardous secondary 

materials with a heating value of greater than 5,000 Btu/lb, as fired, would be considered to 

satisfy the criterion. However, non-hazardous secondary materials with a heating value lower 

than 5,000 Btu/lb, as fired, may also be considered to have a meaningful heating value if the unit 

can cost-effectively recover meaningful energy. See section VII.D.6.a.for an explanation of the 

factors that may be considered in determining whether an energy recovery unit can costeffectively recover energy from a non-hazardous secondary material. Also, as outlined in the 

same section, this criterion is an appropriate factor, since it expresses the principle that nonhazardous secondary materials used as a fuel with a meaningful heating value provides a useful 

contribution to the manufacturing process. The Agency believes a 5,000 Btu/lb benchmark, as 

fired, identifying when a non-hazardous secondary material, by definition, provides fuel value is 

appropriate since it is consistent with determinations expressed in previous RCRA and CAA 

rulemakings, including the RCRA comparable fuels rule (63 FR 33781), the RCRA subtitle C 

boilers and industrial furnaces rule (48 FR 11157-59), and the CAA NESHAP for Hazardous 

Waste Combustors NODA (62 FR 24251). 

We request comment on whether it would be appropriate to also identify a lower Btu/lb 

threshold, below which non-hazardous secondary materials would not be considered to have 

meaningful heating value and thus, would be a solid waste by definition. 

d. Fuel/Ingredient Contaminant Levels. To address the possible presence of waste-like 

contaminants in non-hazardous secondary materials, the ANPRM stated that such secondary 

materials used as fuels should not contain contaminants that are significantly higher than those 

contained in traditional fuels. For ingredients, the ANPRM stated that products that use nonhazardous secondary materials as ingredients in combustion units should not contain 

contaminants that are significantly higher in concentration than the product produced without the 

non-hazardous secondary material. For both ingredients and fuels, the ANPRM suggested that a 

qualitative approach may be more appropriate to use than numerical specifications. In addition, 

we requested comment on whether the contaminants evaluated should be the hazardous 

constituents listed in Appendix VIII to 40 CFR part 261, or whether a different list of 

contaminants would be more appropriate. 

Comments: 

Commenters were evenly divided on whether the presence of contaminants was an 

appropriate legitimacy criterion. For commenters favoring the criterion, most believed that a 

qualitative approach was preferable; stating that little risk exists for environmental exposure and 

numerical specifications may be impractical due to the multiplicity of fuels or ingredients. 

However, a minority of commenters favored a quantitative approach. For commenters 

recommending that the presence of contaminants not be included as a criterion, most emphasized 

that emissions will be controlled under either CAA sections112 or 129. They stated that 
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comparative contaminant concentrations are inappropriate, and that the Agency should recognize 

the lower risks posed by non-hazardous secondary materials. One commenter stated that the 

amount of contamination acceptable in an alternative fuel depends on how much is fired with the 

main boiler fuel, the type of contaminant (organic vs. inorganic), and the emission controls used. 

 

Specifically with respect to the use of ingredients in combustion units, one commenter 

agreed that the assessment should involve the final recycled product and not the ingredient itself. 

However, another commenter countered that the assessment should be a comparison of post 

combustion emission levels, not the product made with non-hazardous secondary materials to 

those in a product made with virgin materials. This commenter reasoned that combustion will 

destroy many of the substances that EPA considers possible contaminants and basically 

eliminates any environmental concern. Another commenter recommended an analysis of 

appropriate total constituent concentrations, leachable constituent concentrations, and a 

comparison to traditional ingredients (as outlined in the Solid Waste RCRA subtitle D 

groundwater protection constituent list). 

 EPA’s Response: 

Based on our assessment of all of the comments, we believe it appropriate to include 

contaminant levels as a legitimacy criterion. Thus, we do not agree with those commenters’ that 

assert that contaminant comparisons are not appropriate to require as part of the legitimacy 

criteria. The Agency believes the criterion is necessary because non-hazardous secondary 

materials that contain contaminants that are not comparable in concentration to those contained 

in traditional fuel products or ingredients would suggest that these contaminants are being 

combusted as a means of discarding them, and thus the non-hazardous secondary material should 

be classified as a solid waste. In some cases, this can also be an indicator of sham recycling. For 

example, non-hazardous secondary materials that may not contain comparable concentrations of 

contaminants include chromium-, copper-, and arsenic (CCA)-treated lumber, polyvinyl chloride 

(PVC) plastics which can contain up to 60 percent halogens (chlorine), lead-based painted wood, 

and fluorinated plastics. Also, we disagree with the commenter who argued that any assessment 

should only include a comparison of post-combustion emission levels because the combustion 

unit will destroy many of the substances that EPA considers possible contaminants (and thereby 

eliminate any environmental concern). The Agency believes that this post-combustion 

assessment of contaminants further supports the principle that contaminant levels (before and 

after combustion) are important indicators of legitimacy. 

The legitimacy criterion for fuel/ingredient contaminants outlined in today’s rule has 

changed from the criterion outlined in the ANPRM. In the ANPRM, non-hazardous secondary 

materials used as fuel could not contain contaminants that were significantly higher than 

traditional fuel products. For ingredients, the non-hazardous secondary material could not result 

in products that contain contaminants that are significantly higher in concentration than found in 

traditional products. 

Under today’s proposed rule, non-hazardous secondary material used as fuels in 

combustion units must contain contaminants (defined as HAP listed under CAA section 112(b) 
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and the nine pollutants listed under CAA section 129) at levels “comparable” to those in 

traditional fuels which the combustion unit is designed to burn. For use as an ingredient, the 

non-hazardous secondary material must result in products that contain contaminants at levels that 

are “comparable” in concentration to those found in traditional products that are manufactured 

without the non-hazardous secondary material ingredients. 

As discussed in section VII. C.7 of the proposed rule, requiring that the secondary 

material have contaminants at levels comparable to traditional fuels would ensure that the 

burning of any secondary materials in combustion units will not result in discard of materials and 

will not result in increased releases to the environment that could impact the health and 

environment of the local community. Ensuring that the level of contaminants in the nonhazardous secondary material is comparable to traditional fuels would prevent secondary 

materials from being discarded and be the most protective of human health and the environment. 

Today’s proposed rule also requests comment on an approach, consistent with the ANPRM 

approach, which would only compare contaminants at levels that are significantly higher than 

traditional fuel products. 

Similar to the ANPRM, the assessment of whether the non-hazardous secondary material 

used as a fuel 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. See section VII.C.7.,for a complete discussion of 

contaminant assessments. 

The assessment of whether products produced from the use of non-hazardous secondary 

material ingredients in combustion units that have contaminants that are comparable in 

concentration to traditional products can be made by a comparison of contaminant levels in the 

ingredients themselves to traditional ingredients they are replacing, or by comparing the 

contaminant levels in the product itself with and without use of the non-hazardous secondary 

material ingredient. See section VII.D.6.b. 

e. Ingredients Must Provide Useful Contribution. The ANPRM cited (from the October 

2008 DSW Final Rule for hazardous waste) five ways172 in which a secondary material can add 

value and usefully contribute to a recycling process and solicited comment on whether they are 

appropriate for non-hazardous secondary materials. 

Comment: 

Only one commenter responded and indicated that the five criteria are too narrow and 

should be broadened to apply to the non-hazardous secondary material uses (i.e., processes not 

considered recycling) since using the criteria for hazardous waste as a model is too limiting. 

 

172 The five ways include: (i) the 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. 
PART 3c: Major Comments Received on the ANPRM 

as Responded to in the Proposed Rule (now superseded by the final rule responses) 

Response to Comments Document -NHSM Rule 

253 of 275 

EPA’s Response: 

After review of the comment, we understand that there is some interest in broadening 

those criteria for non-hazardous secondary material use, but the commenter did not provide any 

information to merit the development of a separate or additional criteria for non-hazardous 

secondary material use to describe how they can “add value and usefully contribute to a 

recycling process” (or broaden to non-recycling uses as suggested by the commenter). However, 

the Agency solicits comments on this point; in particular, what the separate criteria would be and 

how a non-hazardous secondary material would or can “add value and usefully contribute to a 

recycling process.” 

f. Ingredients Must Produce a Valuable Product. For this criterion to be met, the 

ANPRM indicated that a product or intermediate is valuable if it is (i) sold to a third party or (ii) 

used by the recycler or generator as an effective substitute for a commercial product or as an 

ingredient or intermediate in an industrial process. We then requested comment on whether this 

description of valuable product/intermediate is an appropriate way to consider this criterion in 

the context of non-hazardous secondary materials used as ingredients. 

Comments: 

One commenter responded that they support this criterion, but caution that it be broad 

enough so that it addresses the value obtained by both its use on-site and off-site by a third party. 

The commenter also suggested that the provision be interpreted broadly to also include 

traditional recycling markets and the products generally in which such secondary materials are 

utilized. 

EPA’s Response: 

We believe that the criteria described in the ANPRM are broad enough to address the 

value obtained by both its use on-site and off-site by a third party. With regard to interpreting 

the criterion broadly enough to include traditional recycling markets and the products in which 

the secondary materials are utilized, we do not agree that it would be appropriate. Specifically, 

this rule is addressing a particular issue within the context of RCRA—that is, which nonhazardous secondary materials are or are not solid wastes when used in a combustion unit. We 

have tailored the legitimacy criteria to apply specifically to the use of these non-hazardous 

secondary materials as fuels or ingredients in combustion units only. An assessment of uses 

beyond those in combustion units is beyond the scope of this rulemaking. 
PART 4: Comment Crosswalk 

 - Comments on the Proposed Rule

Response to Comments Document -NHSM Rule 

254 of 275 

PART 4: Comment Crosswalk 

The tables below provide a crosswalk between each comment and response in this 

document and individual commenter IDs. The first table provides a reference for comments 

submitted in response to the Proposed Rule. The second table provides a reference for comments 

submitted in response to the ANPRM. Commenters are usually associated with more than one 

topic and are therefore linked to multiple comment codes. Some of the comments associated are 

associated for the EPA response and are not identical to the comment stated. Each comment and 

response is assigned a comment code (i.e., 3a-A-1) and matched with individual related 

comments. 

Example: 

Commenter ID “0539” is an abbreviated version of the full commenter ID of “EPA-HQRCRA-2008-0329-0539.” That comment and 40 others are associated with the first comment 

and response discussed in PART 3a of this document (comment code “3a-A1-1”). 

Refer to the commenter list in PART 2 for the commenters associated with the ID 

numbers.173,174,175 Duplicates and Copyrighted comments may not be included. We refer the 

commenters to the entire rule, not just the areas we selected in the crosswalk; while the main 

commenter points are linked to the EPA responses, the rest of the rule should also be referenced. 

Crosswalk for Comments on Proposed Rule

Comment Topic 

Comment 

Code Comment IDs (all start with: “EPA-HQ-RCRA-2008-0329-”) 

Proposed Approach - 

Definition of Discard 

3a-A1-1 0539, 0783, 0784, 0868, 0871, 0872, 0911, 0960, 0963, 1034, 1038, 

1138, 1139, 1140, 1141, 1142, 1143, 1158, 1160, 1161, 1163, 1165, 

1169, 1170, 1251, 1260, 1268, 1273, 1276, 1289, 1291, 1318, 1378, 

1401, 1402, 1449, 1456, 1571, 1572, 1607, 1686 

3a-A1-2 0580, 0626, 0632, 0633, 0634, 0635, 0636, 0638, 0640, 0641, 0642, 

0644, 0645, 0647, 0648, 0649, 0650, 0651, 0652, 0653, 0654, 0655, 

0656, 0657, 0658, 0659, 0660, 0661, 0662, 0663, 0664, 0665, 0666, 

0667, 0668, 0669, 0670, 0671, 0672, 0677, 0678, 0679, 0680, 0681, 

0682, 0683, 0685, 0686, 0687, 0688, 0689, 0690, 0691, 0692, 0694, 

0695, 0696, 0697, 0698, 0699, 0700, 0701, 0702, 0703, 0704, 0705, 

0707, 0708, 0709, 0710, 0711, 0718, 0719, 0720, 0721, 0722, 0723, 

0724, 0730, 0731, 0732, 0733, 0734, 0735, 0736, 0742, 0743, 0744, 

0745, 0746, 0748, 0749, 0750, 0751, 0752, 0755, 0757, 0758, 0760, 

0761, 0762, 0763, 0764, 0765, 0768, 0790, 0791, 0792, 0793, 0794, 

0795, 0796, 0797, 0798, 0801, 0802, 0803, 0804, 0805, 0806, 0807, 

0808, 0809, 0810, 0811, 0813, 0814, 0815, 0816, 0817, 0819, 0820, 

 

173 Comments 1137, 1209, and 1429 do not appear in the comment crosswalk. The contents of these comments are 

represented by comments 1272, 1446, and 1167, respectively. 

174 Comment 1418 does not appear in the comment crosswalk because the commenter submitted only a coversheet 

without content. 

175 Comment 1431 does not appear in the comment crosswalk because it was withheld due to copyrighted content. 
PART 4: Comment Crosswalk 

 - Comments on the Proposed Rule

Response to Comments Document -NHSM Rule 

255 of 275 

Comment Topic 

Comment 

Code Comment IDs (all start with: “EPA-HQ-RCRA-2008-0329-”) 

0821, 0822, 0823, 0824, 0825, 0826, 0827, 0828, 0829, 0830, 0831, 

0832, 0833, 0834, 0835, 0836, 0837, 0838, 0839, 0845, 0846, 0847, 

0848, 0849, 0850, 0851, 0852, 0853, 0854, 0855, 0856, 0857, 0858, 

0859, 0860, 0867, 0876, 0877, 0878, 0879, 0880, 0881, 0882, 0883, 

0884, 0885, 0886, 0887, 0888, 0889, 0890, 0891, 0892, 0893, 0894, 

0895, 0896, 0897, 0898, 0899, 0900, 0901, 0902, 0903, 0904, 0905, 

0906, 0907, 0908, 0913, 0914, 0915, 0916, 0917, 0918, 0919, 0920, 

0921, 0922, 0923, 0924, 0925, 0926, 0927, 0928, 0929, 0930, 0931, 

0932, 0933, 0934, 0935, 0936, 0937, 0938, 0939, 0940, 0941, 0942, 

0943, 0944, 0945, 0946, 0947, 0948, 0949, 0964, 0965, 0966, 0967, 

0968, 0969, 0970, 0971, 0972, 0973, 0974, 0975, 0976, 0977, 0978, 

0979, 0980, 0981, 0982, 0984, 0985, 0986, 0987, 0988, 0989, 0993, 

0994, 0995, 0996, 0997, 0998, 1000, 1001, 1002, 1003, 1004, 1005, 

1006, 1007, 1008, 1009, 1010, 1011, 1016, 1017, 1018, 1019, 1020, 

1021, 1022, 1024, 1025, 1026, 1027, 1028, 1029, 1030, 1048, 1049, 

1050, 1051, 1052, 1053, 1054, 1055, 1056, 1057, 1058, 1059, 1060, 

1061, 1062, 1063, 1064, 1065, 1067, 1068, 1069, 1070, 1071, 1072, 

1073, 1074, 1075, 1076, 1077, 1079, 1080, 1082, 1083, 1084, 1085, 

1086, 1087, 1089, 1090, 1091, 1092, 1093, 1094, 1095, 1096, 1097, 

1098, 1099, 1100, 1101, 1102, 1103, 1104, 1105, 1106, 1107, 1108, 

1110, 1111, 1112, 1113, 1115, 1116, 1117, 1118, 1119, 1120, 1121, 

1122, 1123, 1125, 1126, 1127, 1128, 1129, 1130, 1131, 1133, 1134, 

1135, 1136, 1145, 1146, 1147, 1149, 1150, 1151, 1152, 1153, 1260, 

1308, 1329, 1332, 1337, 1425, 1471, 1472, 1473, 1474, 1475, 1476, 

1477, 1478, 1479, 1480, 1481, 1482, 1483, 1484, 1485, 1486, 1487, 

1488, 1489, 1490, 1492, 1493, 1494, 1495, 1496, 1497, 1498, 1499, 

1500, 1501, 1502, 1503, 1504, 1505, 1506, 1507, 1508, 1509, 1510, 

1511, 1512, 1513, 1514, 1515, 1516, 1517, 1518, 1519, 1520, 1521, 

1522, 1523, 1524, 1525, 1526, 1527, 1528, 1529, 1530, 1531, 1532, 

1533, 1535, 1536, 1537, 1538, 1539, 1540, 1541, 1542, 1543, 1544, 

1546, 1547, 1548, 1549, 1550, 1551, 1552, 1553, 1554, 1555, 1556, 

1557, 1558, 1559, 1560, 1561, 1562, 1575, 1643, 1667 

3a-A1-3 0598, 0778, 0783, 0784, 0842, 0871, 0872, 0954, 0960, 0963, 1038, 

1040, 1138, 1139, 1140, 1141, 1142, 1143, 1159, 1165, 1170, 1187, 

1188, 1192, 1231, 1246, 1259, 1265, 1291, 1307, 1312, 1318, 1360, 

1390, 1398, 1400, 1401, 1402, 1415, 1456 

3a-A1-4 0960, 1159, 1161, 1260, 1276, 1289, 1401, 1449, 1575, 1643 

3a-A1-5 0788, 1156, 1260 

3a-A1-6 0783, 0911, 1138, 1139, 1140, 1141, 1142, 1143, 1260, 1291, 1318 

3a-A1-7 0728, 0737, 0739, 0776, 0778, 0780, 0783, 0784, 0865, 0957, 0961, 

0962, 1034, 1040, 1042, 1043, 1046, 1138, 1139, 1140, 1141, 1142, 

1143, 1157, 1158, 1165, 1166, 1168, 1170, 10, 1171, 1173, 1180, 

1186, 1192, 1241, 1246, 1249, 1251, 1265, 1272, 1274, 1277, 1282, 

1291, 1312, 1315, 1318, 1354, 1360, 1398, 1402, 1407, 1416 

3a-A1-8 0607, 0629, 0728, 0737, 0739, 0740, 0774, 0783, 0784, 0842, 0862, 

0868, 0960, 0963, 1036, 1037, 1040, 1042, 1138, 1139, 1140, 1141, 

1142, 1143, 1157, 1163, 1165, 1166, 1169, 1170, 1235, 1246, 1251, 

1268, 1272, 1277, 1282, 1289, 1291, 1312, 1315, 1316, 1318, 1354, 

1360, 1398, 1401, 1402, 1407, 1432, 1437, 1445, 1449, 1456, 1456, 

1458, 1469, 1577, 1602, 1603, 1603, 1685, 1686

3a-A1-9 0783, 0865, 1041, 1138, 1139, 1140, 1141, 1142, 1143, 1156, 1166, 
PART 4: Comment Crosswalk 

 - Comments on the Proposed Rule

Response to Comments Document -NHSM Rule 

256 of 275 

Comment Topic 

Comment 

Code Comment IDs (all start with: “EPA-HQ-RCRA-2008-0329-”) 

1291 

3a-A1-10 0740, 0783, 1138, 1139, 1140, 1141, 1142, 1143, 1166, 1170, 1291 

3a-A1-11 0598, 1180, 1188 

3a-A1-12 0579, 0607, 0611, 0781, 0784, 0788, 0800, 0863, 0865, 0865, 0871, 

0872, 0875, 0909, 0910, 0953, 0957, 0959, 0961, 1012, 1034, 1040, 

1041, 1043, 1046, 1138, 1139, 1140, 1141, 1142, 1143, 1156, 1156, 

1158, 1159, 1170, 1173, 1179, 1196, 1235, 1237, 1257, 1258, 1268, 

1289, 1305, 1312, 1358, 1395, 1402, 1437, 1447, 1563, 1572, 1576, 

1579, 1586, 1587, 1588, 1596, 1599, 1604, 1611, 1639, 1640, 1651, 

1663, 1717 

3a-A1-13 0842, 1166, 1170, 1289, 1445 

Proposed Approach - 

Processing Requirements 

3a-A2-1 0580, 0607, 0626, 0632, 0633, 0634, 0635, 0636, 0638, 0640, 0641, 

0642, 0644, 0645, 0647, 0648, 0649, 0650, 0651, 0652, 0653, 0654, 

0655, 0656, 0657, 0658, 0659, 0660, 0661, 0662, 0663, 0664, 0665, 

0666, 0667, 0668, 0669, 0670, 0671, 0672, 0677, 0678, 0679, 0680, 

0681, 0682, 0683, 0685, 0686, 0687, 0688, 0689, 0690, 0691, 0692, 

0694, 0695, 0696, 0697, 0698, 0699, 0700, 0701, 0702, 0703, 0704, 

0705, 0707, 0708, 0709, 0710, 0711, 0718, 0719, 0720, 0721, 0722, 

0723, 0724, 0730, 0731, 0732, 0733, 0734, 0735, 0736, 0742, 0743, 

0744, 0745, 0746, 0748, 0749, 0750, 0751, 0752, 0755, 0757, 0758, 

0760, 0761, 0762, 0763, 0764, 0765, 0768, 0790, 0791, 0792, 0793, 

0794, 0795, 0796, 0797, 0798, 0801, 0802, 0803, 0804, 0805, 0806, 

0807, 0808, 0809, 0810, 0811, 0813, 0814, 0815, 0816, 0817, 0819, 

0820, 0821, 0822, 0823, 0824, 0825, 0826, 0827, 0828, 0829, 0830, 

0831, 0832, 0833, 0834, 0835, 0836, 0837, 0838, 0839, 0845, 0846, 

0847, 0848, 0849, 0850, 0851, 0852, 0853, 0854, 0855, 0856, 0857, 

0858, 0859, 0860, 0867, 0876, 0877, 0878, 0879, 0880, 0881, 0882, 

0883, 0884, 0885, 0886, 0887, 0888, 0889, 0890, 0891, 0892, 0893, 

0894, 0895, 0896, 0897, 0898, 0899, 0900, 0901, 0902, 0903, 0904, 

0905, 0906, 0907, 0908, 0913, 0914, 0915, 0916, 0917, 0918, 0919, 

0920, 0921, 0922, 0923, 0924, 0925, 0926, 0927, 0928, 0929, 0930, 

0931, 0932, 0933, 0934, 0935, 0936, 0937, 0938, 0939, 0940, 0941, 

0942, 0943, 0944, 0945, 0946, 0947, 0948, 0949, 0964, 0965, 0966, 

0967, 0968, 0969, 0970, 0971, 0972, 0973, 0974, 0975, 0976, 0977, 

0978, 0979, 0980, 0981, 0982, 0984, 0985, 0986, 0987, 0988, 0989, 

0993, 0994, 0995, 0996, 0997, 0998, 1000, 1001, 1002, 1003, 1004, 

1005, 1006, 1007, 1008, 1009, 1010, 1011, 1016, 1017, 1018, 1019, 

1020, 1021, 1022, 1024, 1025, 1026, 1027, 1028, 1029, 1030, 1036, 

1048, 1049, 1050, 1051, 1052, 1053, 1054, 1055, 1056, 1057, 1058, 

1059, 1060, 1061, 1062, 1063, 1064, 1065, 1067, 1068, 1069, 1070, 

1071, 1072, 1073, 1074, 1075, 1076, 1077, 1079, 1080, 1082, 1083, 

1084, 1085, 1086, 1087, 1089, 1090, 1091, 1092, 1093, 1094, 1095, 

1096, 1097, 1098, 1099, 1100, 1101, 1102, 1103, 1104, 1105, 1106, 

1107, 1108, 1110, 1111, 1112, 1113, 1115, 1116, 1117, 1118, 1119, 

1120, 1121, 1122, 1123, 1125, 1126, 1127, 1128, 1129, 1130, 1131, 

1133, 1134, 1135, 1136, 1145, 1146, 1147, 1149, 1150, 1151, 1152, 

1153, 1167, 1235, 1260, 1273, 1308, 1329, 1332, 1337, 1425, 1471, 

1472, 1473, 1474, 1475, 1476, 1477, 1478, 1479, 1480, 1481, 1482, 

1483, 1484, 1485, 1486, 1487, 1488, 1489, 1490, 1492, 1493, 1494, 

1495, 1496, 1497, 1498, 1499, 1500, 1501, 1502, 1503, 1504, 1505, 

1506, 1507, 1508, 1509, 1510, 1511, 1512, 1513, 1514, 1515, 1516, 
PART 4: Comment Crosswalk 

 - Comments on the Proposed Rule

Response to Comments Document -NHSM Rule 

257 of 275 

Comment Topic 

Comment 

Code Comment IDs (all start with: “EPA-HQ-RCRA-2008-0329-”) 

1517, 1518, 1519, 1520, 1521, 1522, 1523, 1524, 1525, 1526, 1527, 

1528, 1529, 1530, 1531, 1532, 1533, 1535, 1536, 1537, 1538, 1539, 

1540, 1541, 1542, 1543, 1544, 1546, 1547, 1548, 1549, 1550, 1551, 

1552, 1553, 1554, 1555, 1556, 1557, 1558, 1559, 1560, 1561, 1562, 

1571, 1607, 1667 

3a-A2-2 0598, 0607, 0676, 0712, 0717, 0728, 0739, 0740, 0778, 0780, 0783, 

0784, 0788, 0800, 0864, 0865, 0871, 0872, 0912, 0962, 1034, 1035, 

1036, 1040, 1041, 1042, 1043, 1138, 1139, 1140, 1141, 1142, 1143, 

1157, 1161, 1165, 1166, 1168, 1170, 1171, 1180, 1186, 1188, 1200, 

1249, 1251, 1268, 1273, 1277, 1282, 1289, 1291, 1312, 1360, 1378, 

1381, 1395, 1401, 1402, 1417, 1432, 1437, 1449, 1571, 1572, 1577, 

1602, 1603, 1607, 1614, 1664, 1677, 1685 

Comments on Specific 

Materials Used as Fuel - 

Traditional Fuels 

3a-B1-1 0728, 0737, 0844, 1138, 1158, 1160, 1168, 1232, 1255, 1269, 1307, 

1326, 1360, 1362, 1415, 1458, 1568 

3a-B1-2 0676, 0728, 0774, 0800, 0841, 0865, 0871, 0872, 0873, 0909, 0962, 

1138, 1139, 1140, 1141, 1142, 1143, 1156, 1159, 1168, 1186, 1232, 

1248, 1249, 1255, 1258, 1326, 1360, 1395, 1398, 1399, 1401, 1445, 

1568, 1610 

3a-B1-3 1312 

3a-B1-4 0616, 0629, 0783, 0784, 0844, 0865, 0871, 0872, 1012, 1046, 1158, 

1159, 1159, 1160, 1168, 1171, 1248, 1274, 1289, 1291, 1351, 1378, 

1401, 1402, 1417, 1469, 1610 

3a-B1-5 0784, 0871, 0872, 1040, 1040, 1159, 1161, 1187, 1378, 1402 

Comments on Specific 

Materials Used as Fuel - 

Manure 

3a-B2-1 1040, 1174, 1178, 1188, 1219, 1258, 1314 

3a-B2-2 1258 

3a-B2-3 0676, 0843, 1258 

3a-B2-4 1258 

3a-B2-5 0598, 0676, 0843, 1258 

3a-B2-6 0843, 1258 

Comments on Specific 

Materials Used as Fuel - 

Other Biomass 

3a-B3-1 0767, 0772, 0871, 0872, 0875, 1036, 1040, 1040, 1158, 1168, 1265, 

1268, 1289, 1303, 1305, 1312, 1360, 1390, 1395, 1407, 1450, 1455, 

1458, 1570, 1679, 1715 

3a-B3-2 0871, 0872, 0875, 1040, 1040, 1158, 1168, 1177, 1201, 1305, 1312, 

1394, 1450, 1455, 1569, 1570, 1715 

3a-B3-3 0602, 0605, 0608, 0715, 0781, 0784, 0788, 0862, 0863, 0871, 0872, 

1036, 1040, 1158, 1168, 1187, 1248, 1248, 1268, 1303, 1305, 1312, 

1390, 1402, 1407, 1458, 1463, 1679 

3a-B3-4 0605, 0608, 1303, 1463, 1679 

3a-B3-5 0774, 0784, 0866, 0871, 0872, 1036, 1040, 1158, 1268, 1360, 1402, 

1726 

Comments on Specific 

Materials Used as Fuel - Pulp 

and Paper Sludge 

3a-B4-1 1200, 1307, 1415, 1455, 1458, 1566, 1665, 1674, 1682 

3a-B4-2 1307, 1415, 1455, 1566, 1665, 1674, 1682 

3a-B4-3 1307, 1395, 1415, 1566, 1665, 1674, 1682 

3a-B4-4 0579, 0611, 1231, 1307, 1415, 1458, 1566, 1665, 1674, 1682 

3a-B4-5 1231, 1395 

3a-B4-6 1263 
PART 4: Comment Crosswalk 

 - Comments on the Proposed Rule

Response to Comments Document -NHSM Rule 

258 of 275 

Comment Topic 

Comment 

Code Comment IDs (all start with: “EPA-HQ-RCRA-2008-0329-”) 

Comments on Specific 

Materials Used as Fuel - 

Scrap Tires 

3a-B5-1 0540, 0607, 0607, 0717, 0865, 0871, 0872, 0912, 0957, 1040, 1042, 

1138, 1139, 1140, 1141, 1142, 1143, 1155, 1158, 1160, 1166, 1170, 

1173, 1179, 1186, 1197, 1235, 1238, 1238, 1241, 1268, 1306, 1354, 

1390, 1395, 1416, 1449, 1452, 1455, 1491, 1576, 1611, 1614, 1681 

3a-B5-2 0598, 0604, 0607, 0712, 0756, 0774, 0784, 0788, 0865, 0912, 0957, 

0959, 1040, 1138, 1139, 1140, 1141, 1142, 1143, 1158, 1160, 1166, 

1170, 1173, 1179, 1186, 1196, 1197, 1235, 1238, 1241, 1263, 1306, 

1346, 1354, 1390, 1395, 1402, 1416, 1449, 1452, 1455, 1576, 1583, 

1611, 1614 

3a-B5-3 0540, 0541, 0542, 0543, 0544, 0545, 0547, 0548, 0549, 0550, 0551, 

0552, 0553, 0555, 0556, 0557, 0558, 0559, 0560, 0561, 0562, 0563, 

0564, 0565, 0566, 0567, 0568, 0569, 0570, 0571, 0572, 0573, 0574, 

0576, 0578, 0581, 0582, 0583, 0585, 0586, 0587, 0588, 0589, 0590, 

0591, 0592, 0593, 0597, 0615, 0625, 0788, 0865, 0871, 0872, 0912, 

0957, 1040, 1138, 1139, 1140, 1141, 1142, 1143, 1158, 1160, 1164, 

1166, 1170, 1173, 1188, 1190, 1197, 1238, 1238, 1241, 1306, 1341, 

1354, 1387, 1449, 1452, 1455, 1566, 1576, 1581, 1611, 1614, 1665, 

1674, 1682 

3a-B5-4 0598, 0607, 0607, 0712, 0717, 0865, 0869, 1138, 1139, 1140, 1141, 

1142, 1143, 1166, 1188, 1197, 1235, 1395, 1449, 1565 

3a-B5-5 0605, 1304, 1309 

3a-B5-6 0607, 0865, 0959, 1040, 1138, 1139, 1140, 1141, 1142, 1143, 1158, 

1166, 1170, 1197, 1263, 1306, 1449, 1455 

3a-B5-7 0954, 1223, 1260, 1309, 1393 

3a-B5-8 0607, 0712, 0865, 1034, 1138, 1139, 1140, 1141, 1142, 1143, 1166, 

1235, 1238, 1572 

3a-B5-9 0540, 0607, 0607, 0865, 0871, 0872, 1034, 1041, 1138, 1139, 1140, 

1141, 1142, 1143, 1155, 1166, 1170, 1188, 1235, 1238, 1306, 1354, 

1449, 1491, 1566, 1572, 1583, 1665, 1674, 1681, 1682 

3a-B5-10 0598, 0604, 0607, 0756, 0800, 0865, 0912, 1040, 1042, 1138, 1139, 

1140, 1141, 1142, 1143, 1155, 1166, 1170, 1179, 1238, 1256, 1263, 

1306, 1346, 1354, 1401, 1437, 1449, 1458, 1491, 1566, 1576, 1583, 

1611, 1614, 1665, 1674, 1681, 1682, 1712 

Comments on Specific 

Materials Used as Fuel - 

Resinated Wood Residuals 

3a-B6-1 0607, 0783, 1040, 1138, 1139, 1140, 1141, 1142, 1143, 1159, 1166, 

1178, 1235, 1273, 1280, 1291, 1545 

3a-B6-2 0616, 0693, 0716, 0774, 0782, 0871, 0872, 0953, 1013, 1036, 1039, 

1040, 1040, 1046, 1159, 1159, 1188, 1237, 1265, 1267, 1280, 1358, 

1360, 1395, 1579, 1586, 1587, 1588, 1596, 1599, 1639, 1640, 1651, 

1663 

3a-B6-3 0616, 0716, 0871, 0872, 1013, 1037, 1039, 1040, 1159, 1191, 1237, 

1265, 1267, 1280, 1289, 1358, 1382, 1395, 1458, 1579, 1586, 1587, 

1588, 1596, 1599, 1639, 1640, 1651, 1663 

3a-B6-4 0616, 0871, 0872, 0953, 1013, 1037, 1039, 1040, 1159, 1159, 1191, 

1237, 1265, 1267, 1358, 1382, 1579, 1586, 1587, 1588, 1596, 1599, 

1639, 1640, 1651, 1663 

3a-B6-5 0616, 0693, 0871, 0872, 0953, 1036, 1039, 1040, 1040, 1159, 1159, 

1237, 1265, 1267, 1289, 1358, 1579, 1586, 1587, 1588, 1596, 1599, 

1639, 1640, 1651, 1663 

3a-B6-6 0716, 0953, 1039, 1267, 1289, 1358 

3a-B6-7 0784, 0871, 0872, 0953, 1013, 1039, 1040, 1237, 1265, 1267, 1358, 

1402, 1579, 1586, 1587, 1588, 1596, 1599, 1639, 1640, 1651, 1663 
PART 4: Comment Crosswalk 

 - Comments on the Proposed Rule

Response to Comments Document -NHSM Rule 

259 of 275 

Comment Topic 

Comment 

Code Comment IDs (all start with: “EPA-HQ-RCRA-2008-0329-”) 

Comments on Specific 

Materials Used as Fuel - 

Used Oil 

3a-B7-1 0609, 0610, 0613, 0614, 0618, 0620, 0622, 0623, 0627, 0628, 0630, 

0714, 0714, 0741, 0766, 0774, 0776, 0783, 0785, 0788, 0799, 0800, 

0868, 0871, 0872, 0910, 0951, 0957, 0992, 1032, 1154, 1155, 1160, 

1163, 1165, 1168, 1171, 1173, 1175, 1176, 1179, 1181, 1181, 1183, 

1184, 1189, 1193, 1195, 1196, 1197, 1198, 1204, 1206, 1207, 1208, 

1211, 1221, 1222, 1224, 1226, 1227, 1233, 1234, 1234, 1236, 1239, 

1240, 1241, 1242, 1242, 1243, 1244, 1245, 1247, 1250, 1251, 1252, 

1259, 1264, 1270, 1273, 1279, 1281, 1284, 1286, 1291, 1292, 1293, 

1294, 1295, 1296, 1298, 1299, 1307, 1311, 1313, 1318, 1319, 1320, 

1321, 1322, 1323, 1324, 1325, 1330, 1333, 1336, 1340, 1343, 1344, 

1345, 1347, 1348, 1350, 1352, 1355, 1357, 1361, 1364, 1365, 1367, 

1368, 1369, 1370, 1372, 1375, 1376, 1377, 1379, 1383, 1384, 1385, 

1386, 1390, 1391, 1392, 1396, 1397, 1403, 1404, 1405, 1408, 1412, 

1413, 1414, 1415, 1416, 1420, 1421, 1426, 1428, 1430, 1433, 1434, 

1435, 1436, 1437, 1438, 1438, 1440, 1441, 1445, 1448, 1450, 1451, 

1457, 1461, 1464, 1465, 1466, 1470, 1564, 1571, 1573, 1574, 1580, 

1584, 1585, 1589, 1590, 1591, 1592, 1593, 1594, 1598, 1600, 1601, 

1605, 1607, 1609, 1615, 1616, 1617, 1618, 1619, 1620, 1621, 1622, 

1623, 1624, 1625, 1626, 1627, 1628, 1629, 1630, 1631, 1631, 1633, 

1634, 1635, 1636, 1637, 1638, 1642, 1644, 1645, 1646, 1647, 1648, 

1649, 1650, 1652, 1653, 1654, 1655, 1656, 1660, 1661, 1666, 1668, 

1670, 1671, 1673, 1675, 1678, 1678, 1683, 1686, 1686, 1717 

3a-B7-2 0629, 0714, 0799, 0868, 0871, 1436, 1437, 1445, 1686, 1718, 1719, 

1720, 1721, 1723 

3a-B7-3 0714, 0871, 0872, 1160, 1247, 1273, 1375, 1411, 1436, 1437, 1571, 

1607, 1717 

3a-B7-4 0706, 0783, 0785, 0868, 0910, 0951, 1179, 1183, 1184, 1189, 1193, 

1195, 1197, 1198, 1204, 1207, 1273, 1279, 1286, 1291, 1293, 1321, 

1322, 1330, 1345, 1350, 1352, 1364, 1376, 1377, 1383, 1384, 1391, 

1405, 1411, 1412, 1433, 1434, 1436, 1441, 1571, 1573, 1594, 1605, 

1607, 1647, 1649, 1666, 1668, 1671, 1683, 1686, 1717 

3a-B7-5 0630, 0741, 0868, 1197, 1247, 1273, 1292, 1468, 1571, 1607, 1686 

3a-B7-6 0609, 0610, 0613, 0614, 0618, 0622, 0623, 0628, 1032, 1181, 1181, 

1233, 1234, 1234, 1236, 1239, 1250, 1252, 1257, 1273, 1348, 1365, 

1414, 1430, 1435, 1440, 1464, 1465, 1466, 1571, 1574, 1584, 1585, 

1590, 1598, 1607, 1621, 1622, 1623, 1624, 1626, 1627, 1628, 1629, 

1630, 1644, 1648, 1650, 1673, 1675 

3a-B7-7 0963, 1456 

3a-B7-8 0620, 1210, 1273, 1426, 1571, 1607, 1670, 1717 

3a-B7-9 0741, 0868, 1210, 1257, 1264, 1686 

3a-B7-10 0620, 0627, 0766, 0785, 0868, 0951, 1032, 1154, 1165, 1183, 1184, 

1189, 1190, 1193, 1195, 1198, 1204, 1206, 1207, 1208, 1210, 1222, 

1224, 1226, 1240, 1241, 1242, 1243, 1244, 1245, 1257, 1279, 1281, 

1286, 1293, 1295, 1298, 1299, 1319, 1320, 1321, 1322, 1324, 1325, 

1330, 1333, 1345, 1347, 1350, 1352, 1355, 1357, 1370, 1376, 1377, 

1379, 1383, 1384, 1387, 1391, 1397,1273, 1404, 1405, 1411, 1412, 

1428, 1433, 1434, 1438, 1438, 1441, 1461, 1566, 1571, 1573, 1576, 

1589, 1591, 1592, 1593, 1594, 1600, 1605, 1607, 1609, 1611, 1615, 

1616, 1617, 1618, 1619, 1620, 1625, 1631, 1635, 1637, 1642, 1645, 

1646, 1647, 1649, 1652, 1653, 1654, 1655, 1656, 1661, 1665, 1666, 
PART 4: Comment Crosswalk 

 - Comments on the Proposed Rule

Response to Comments Document -NHSM Rule 

260 of 275 

Comment Topic 

Comment 

Code Comment IDs (all start with: “EPA-HQ-RCRA-2008-0329-”) 

1668, 1670, 1671, 1674, 1682, 1683, 1686, 1686, 1717, 1718, 1719, 

1720, 1721, 1722, 1723 

Comments on Specific 

Materials Used as Fuel - Coal 

Refuse 

3a-B8-1 0778, 0800, 0841, 0957, 0990, 1033, 1035, 1036, 1081, 1138, 1139, 

1140, 1141, 1142, 1143, 1156, 1156, 1170, 1173, 1180, 1225, 1272, 

1274, 1351, 1399, 1432, 1458, 1459, 1469, 1577, 1602, 1603, 1608 

3a-B8-2 0778, 0841, 0957, 0990, 1035, 1036, 1081, 1156, 1156, 1170, 1173, 

1180, 1225, 1272, 1301, 1351, 1399, 1432, 1458, 1459, 1469, 1577, 

1602, 1603, 1608 

3a-B8-3 0990, 1035, 1036, 1156, 1180, 1225, 1274, 1432, 1458, 1469, 1577, 

1602, 1603, 1608 

3a-B8-4 0957, 0990, 1173, 1274 

3a-B8-5 0841, 0990, 1170, 1180, 1225, 1301, 1399 

Comments on Specific 

Materials Used as Fuel - Coal 

Combustion Residuals 

3a-B9-1 0598, 0717, 0957, 1138, 1139, 1140, 1141, 1142, 1143, 1173, 1251, 

1315, 1432 

3a-B9-2 0957, 1031, 1138, 1139, 1140, 1141, 1142, 1143, 1173, 1315, 1432 

3a-B9-3 1031, 1138, 1139, 1140, 1141, 1142, 1143, 1395, 1432 

3a-B9-4 0729, 0957, 0990, 1173, 1188, 1215, 1315, 1395 

3a-B9-5 0957, 0990 

Comments on Specific 

Materials Used as Fuel - 

Sewage Sludge 

3a-B10-1 0612, 0619, 0624, 0684, 0713, 0725, 0726, 0727, 0738, 0753, 0759, 

0775, 0800, 0873, 1138, 1139, 1140, 1141, 1142, 1143, 1182, 1192, 

1199, 1205, 1228, 1231, 1253, 1261, 1266, 1271, 1278, 1283, 1285, 

1287, 1288, 1290, 1297, 1317, 1331, 1335, 1349, 1359, 1371, 1373, 

1374, 1388, 1389, 1400, 1406, 1409, 1410, 1439, 1443, 1444, 1446, 

1454, 1462, 1595, 1597, 1612, 1613, 1658, 1669, 1676, 1680, 1713 

3a-B10-2 0619, 0952, 1014, 1138, 1139, 1140, 1141, 1142, 1143, 1192, 1253, 

1261 

3a-B10-3 0612, 0873, 0952, 1014, 1261 

3a-B10-4 0619, 0873, 0991, 1138, 1139, 1140, 1141, 1142, 1143, 1203, 1253, 

1261, 1331, 1335, 1349, 1400, 1409, 1453 

3a-B10-5 0612, 0619, 0624, 0684, 0684, 0725, 0726, 0726, 0727, 0738, 0753, 

0759, 0775, 0873, 0952, 0991, 1014, 1182, 1192, 1199, 1203, 1228, 

1253, 1261, 1266, 1271, 1278, 1283, 1285, 1287, 1288, 1290, 1297, 

1316, 1317, 1331, 1335, 1349, 1359, 1371, 1373, 1374, 1388, 1389, 

1400, 1406, 1409, 1410, 1439, 1443, 1444, 1446, 1453, 1454, 1462, 

1595, 1597, 1612, 1613, 1713 

3a-B10-6 0612, 0624, 0684, 0725, 0726, 0727, 0738, 0753, 0759, 0775, 0952, 

0958, 1014, 1182, 1192, 1199, 1203, 1228, 1231, 1261, 1266, 1271, 

1278, 1283, 1285, 1287, 1288, 1290, 1297, 1316, 1317, 1331, 1335, 

1349, 1359, 1371, 1373, 1374, 1388, 1389, 1395, 1400, 1406, 1409, 

1410, 1439, 1443, 1444, 1446, 1453, 1454, 1462, 1595, 1597, 1612, 

1613, 1713 

Comments on Specific 

Materials Used as Fuel - 

Processed Fats 

3a-B11-1 0706, 0771, 1259, 1411 

Comments on Specific 

Materials Used as Ingredients 

- Cement Kiln Dust 

3a-C1-1 1449 

Comments on Specific 

Materials Used as Ingredients 

3a-C2-1 0717, 0990, 1138, 1315, 1449 

3a-C2-2 0990, 1315 
PART 4: Comment Crosswalk 

 - Comments on the Proposed Rule

Response to Comments Document -NHSM Rule 

261 of 275 

Comment Topic 

Comment 

Code Comment IDs (all start with: “EPA-HQ-RCRA-2008-0329-”) 

- Coal Combustion Residuals 3a-C2-3 0990, 1449 

3a-C2-4 990 

Comments on Specific 

Materials Used as Ingredients 

- Foundry Sand 

3a-C3-1 0963, 1456 

Comments on Specific 

Materials Used as Ingredients 

- Blast Furnace Slag/Steel 

Slag 

3a-C4-1 0603, 0844, 0911, 1160, 1451 

Comments on Legitimacy 

Criteria for Fuels - Managed 

as a Valuable Commodity 

3a-D1-1 0598, 0674, 0728, 0756, 0780, 0783, 0784, 0912, 0957, 1138, 1139, 

1140, 1141, 1142, 1143, 1165, 1168, 1171, 1173, 1188, 1232, 1274, 

1275, 1291, 1301, 1318, 1346, 1354, 1398, 1402, 1614 

3a-D1-2 0783, 0871, 1138, 1139, 1140, 1141, 1142, 1143, 1165, 1274, 1291 

3a-D1-3 0739, 0783, 0788, 1274, 1275, 1291 

3a-D1-4 0739, 1170 

Comments on Legitimacy 

Criteria for Fuels - 

Meaningful Heating Value 

and Use as a Fuel 

3a-D2-1 0598, 0674, 0676, 0717, 0728, 0780, 0783, 0787, 0842, 0862, 0864, 

0957, 1012, 1040, 1138, 1139, 1140, 1141, 1142, 1143, 1165, 1166, 

1168, 1170, 1171, 1173, 1174, 1188, 1232, 1246, 1247, 1259, 1269, 

1272, 1274, 1291, 1318, 1378, 1395, 1398, 1469, 1582 

Comments on Legitimacy 

Criteria for Fuels - Have 

Contaminants at Comparable 

Levels or Lower Than 

Traditional Fuels 

3a-D3-1 0598, 0603, 0693, 0728, 0770, 0776, 0780, 0783, 0784, 0788, 0862, 

0865, 0909, 0957, 0962, 1044, 1046, 1138, 1139, 1140, 1141, 1142, 

1143, 1158, 1165, 1166, 1170, 1171, 1173, 1188, 1232, 1273, 1277, 

1282, 1291, 1312, 1318, 1360, 1363, 1398, 1402, 1571, 1607 

3a-D3-2 0579, 0598, 0611, 0674, 0774, 0783, 0787, 0842, 0865, 0871, 0872, 

0875, 0909, 0957, 1040, 1040, 1044, 1046, 1138, 1139, 1140, 1141, 

1142, 1143, 1165, 1166, 1168, 1170, 1171, 1173, 1188, 1268, 1274, 

1289, 1291, 1312, 1318, 1360, 1363, 1395, 1398, 1401, 1686 

3a-D3-3 0629, 1040, 1188, 1268, 1274 

3a-D3-4 0579, 0611, 0674, 0783, 1274, 1291, 1318, 1360 

Comments on Legitimacy 

Criteria for Ingredients - 

Managed as Valuable 

Commodities 

3a-E1-1 0783, 1165, 1200, 1274, 1291, 1318 

Comments on Legitimacy 

Criteria for Ingredients - 

Useful Contribution 

3a-E2-1 0598, 0783, 0864, 1138, 1139, 1140, 1141, 1142, 1143, 1165, 1188, 

1246, 1274, 1291, 1318 

Comments on Legitimacy 

Criteria for Ingredients - 

Quantifying an Ingredient’s 

Contribution to 

Production/Manufacturing 

Activity 

3a-E3-1 0598, 0783, 0864, 1165, 1246, 1274, 1291, 1318, 1449 

Comments on Legitimacy 

Criteria for Ingredients - 

Contaminants in Ingredients 

3a-E4-1 0579, 0611, 0712, 0770, 0783, 1041, 1188, 1246, 1248, 1274, 1291, 

1318, 1460 

Comments on Legitimacy 

Criteria for Ingredients - 

Comparing contaminant 

levels in products 

3a-E5-1 0674, 0783, 0865, 1041, 1138, 1139, 1140, 1141, 1142, 1143, 1165, 

1246, 1274, 1291, 1318, 1395 
PART 4: Comment Crosswalk 

 - Comments on the Proposed Rule

Response to Comments Document -NHSM Rule 

262 of 275 

Comment Topic 

Comment 

Code Comment IDs (all start with: “EPA-HQ-RCRA-2008-0329-”) 

Comments on Non-Waste 

Determination Petitions 

3a-F-1 0598, 0607, 0607, 0712, 0740, 0756, 0780, 0783, 0784, 0788, 0864, 

0865, 0871, 0872, 0962, 1033, 1034, 1042, 1043, 1046, 1138, 1139, 

1140, 1141, 1142, 1143, 1157, 1158, 1159, 1163, 1165, 1166, 1168, 

1170, 1171, 1185, 1188, 1192, 1200, 1232, 1235, 1247, 1249, 1263, 

1272, 1291, 1305, 1346, 1354, 1395, 1398, 1402, 1416, 1460, 1572, 

1582 

3a-F-2 0717, 0728, 0769, 0774, 0776, 0784, 0787, 0864, 0963, 1037, 1038, 

1138, 1139, 1140, 1141, 1142, 1143, 1159, 1165, 1166, 1171, 1180, 

1185, 1188, 1192, 1200, 1247, 1251, 1289, 1381, 1402, 1416, 1417, 

1456, 1460, 1577, 1602, 1603, 1664, 1677 

3a-F-3 0776, 0788, 1166, 1170, 1171, 1185, 1200, 1262, 1310, 1342, 1366, 

1416, 1577, 1602, 1603 

3a-F-4 0712, 1166, 1170, 1171, 1200, 1262, 1310, 1334, 1338, 1342, 1354, 

1356, 1366, 1416, 1416 

3a-F-5 0784, 1170, 1171, 1185, 1366, 1402 

3a-F-6 0693, 0728, 1174, 1260, 1262, 1277, 1282 

3a-F-7 0607, 0739, 0769, 0774, 0776, 0780, 0963, 1033, 1037, 1042, 1138, 

1139, 1140, 1141, 1142, 1143, 1157, 1159, 1166, 1185, 1200, 1289, 

1381, 1417, 1456, 1460, 1577, 1602, 1603, 1664, 1677 

Comments on the Other 

Approaches for Defining 

Solid Wastes 

3a-G-1 0607, 0630, 0674, 0712, 0740, 0766, 0774, 0776, 0783, 0784, 0785, 

0787, 0862, 0863, 0865, 0868, 0870, 0871, 0872, 0875, 0910, 0951, 

0957, 0960, 0962, 0963, 1012, 1037, 1040, 1040, 1046, 1138, 1139, 

1140, 1141, 1142, 1143, 1159, 1159, 1165, 1166, 1168, 1169, 1170, 

1171, 1173, 1175, 1183, 1184, 1188, 1189, 1192, 1193, 1195, 1198, 

1204, 1207, 1211, 1232, 1232, 1235, 1249, 1260, 1263, 1268, 1269, 

1272, 1273, 1274, 1277, 1279, 1282, 1286, 1289, 1291, 1293, 1318, 

1321, 1322, 1330, 1345, 1350, 1352, 1354, 1375, 1376, 1377, 1383, 

1384, 1391, 1398, 1401, 1402, 1405, 1407, 1412, 1416, 1417, 1433, 

1434, 1441, 1456, 1566, 1571, 1573, 1594, 1605, 1607, 1647, 1649, 

1659, 1665, 1666, 1668, 1671, 1674, 1682, 1683, 1686, 1686 

PART 3b: Other Comments on the Proposed Rule and EPA Responses 

Proposed Approach - 

Definition of Discard 

3b-A1-1 1354 

3b-A1-2 1038, 1274 

3b-A1-3 1274 

3b-A1-4 0957, 1156, 1161, 1173, 1251, 1301, 1354 

3b-A1-5 0783, 1138, 1139, 1140, 1141, 1142, 1143, 1168, 1291 

3b-A1-6 0871, 0872 

Proposed Approach - 

Processing Requirements 

3b-A2-1 1138, 1139, 1140, 1141, 1142, 1143, 1166, 1251, 1305 

3b-A2-2 0598, 1040, 1416 

3b-A2-3 1012, 1138, 1139, 1140, 1141, 1142, 1143, 1269, 1274 

3b-A2-4 0871, 0990, 1165 

Comments on Specific 

Materials Used as Fuel - 

Traditional Fuels 

3b-B1-1 0737 

3b-B1-2 1012 

3b-B1-3 0871, 0872 

3b-B1-4 1161, 1458, 1567 
PART 4: Comment Crosswalk 

 - Comments on the Proposed Rule

Response to Comments Document -NHSM Rule 

263 of 275 

Comment Topic 

Comment 

Code Comment IDs (all start with: “EPA-HQ-RCRA-2008-0329-”) 

Comments on Specific 

Materials Used as Fuel - 

Manure 

3b-B2-1 1258 

Comments on Specific 

Materials Used as Fuel - 

Other Biomass 

3b-B3-1 0767 

3b-B3-2 0781, 0788, 1168, 1305 

3b-B3-3 0675, 0862 

3b-B3-4 0774, 0784, 0863, 0871, 0872, 0955, 0957, 0961, 1040, 1046, 1158, 

1159, 1165, 1168, 1170, 1171, 1173, 1187, 1188, 1200, 1231, 1232, 

1265, 1351, 1360, 1401, 1402, 1455, 1659 

3b-B3-5 0631, 0774, 0863, 0871, 0872, 0956, 1040, 1159, 1268, 1300, 1672 

3b-B3-6 0774, 0871, 0872, 1378 

3b-B3-7 0871, 0872 

3b-B3-8 0608, 0774, 0787, 0863, 0871, 0872, 1393, 1407 

3b-B3-9 0844, 0871, 0872, 1158, 1170, 1351, 1360, 1401, 1451 

3b-B3-10 0737, 0871, 0872, 1170, 1171 

3b-B3-11 0871, 0872 

3b-B3-12 1231, 1232, 1232 

3b-B3-13 1158, 1360, 1380, 1641 

3b-B3-14 1037 

Comments on Specific 

Materials Used as Fuel - 

Scrap Tires 

3b-B4-1 0864 

3b-B4-2 1223 

3b-B4-3 1179, 1188, 1354, 1395, 1452 

3b-B4-4 0912, 1188, 1354, 1452, 1614 

3b-B4-5 1034, 1138, 1166, 1241, 1491, 1681 

3b-B4-6 1696 

Comments on Specific 

Materials Used as Fuel - 

Used Oil 

3b-B5-1 1211, 1445 

3b-B5-2 1247, 1273, 1445, 1566, 1571, 1607, 1665, 1674, 1682 

3b-B5-3 0609, 0610, 0613, 0614, 0618, 0622, 0623, 0628, 1032, 1181, 1181, 

1233, 1234, 1234, 1236, 1239, 1250, 1252, 1284, 1292, 1348, 1365, 

1414, 1430, 1435, 1440, 1445, 1464, 1465, 1466, 1566, 1574, 1584, 

1585, 1590, 1598, 1621, 1622, 1623, 1624, 1626, 1627, 1628, 1629, 

1630, 1644, 1648, 1650, 1665, 1673, 1674, 1675, 1682 
PART 4: Comment Crosswalk 

 - Comments on the Proposed Rule

Response to Comments Document -NHSM Rule 

264 of 275 

Comment Topic 

Comment 

Code Comment IDs (all start with: “EPA-HQ-RCRA-2008-0329-”) 

3b-B5-4 0609, 0610, 0613, 0614, 0618, 0620, 0622, 0623, 0628, 0766, 0774, 

0776, 0785, 0788, 0800, 0870, 0871, 0872, 0910, 0951, 0992, 1032, 

1045, 1154, 1164, 1165, 1168, 1171, 1176, 1179, 1181, 1183, 1184, 

1189, 1193, 1195, 1196, 1198, 1204, 1207, 1208, 1211, 1224, 1226, 

1233, 1234, 1236, 1239, 1240, 1241, 1242, 1243, 1244, 1245, 1247, 

1250, 1251, 1252, 1273, 1279, 1281, 1286, 1292, 1293, 1295, 1298, 

1299, 1319, 1320, 1321, 1322, 1324, 1325, 1330, 1345, 1347, 1348, 

1350, 1352, 1355, 1357, 1364, 1365, 1370, 1376, 1377, 1379, 1383, 

1384, 1391, 1404, 1405, 1412, 1414, 1426, 1428, 1430, 1433, 1434, 

1435, 1438, 1440, 1441, 1442, 1445, 1461, 1464, 1465, 1466, 1571, 

1573, 1574, 1581, 1584, 1585, 1589, 1590, 1591, 1592, 1593, 1594, 

1598, 1600, 1601, 1605, 1607, 1609, 1615, 1616, 1617, 1618, 1619, 

1620, 1621, 1622, 1623, 1624, 1625, 1626, 1627, 1628, 1629, 1630, 

1631, 1635, 1637, 1642, 1644, 1645, 1646, 1647,1648, 1649, 1650, 

1652, 1653, 1654, 1655, 1656, 1661, 1666, 1668, 1670, 1671, 1673, 

1675, 1683, 1686, 1718, 1719, 1720, 1721, 1723 

3b-B5-5 0620, 0627, 0992, 1045, 1155, 1165, 1190, 1206, 1208, 1221, 1222, 

1224, 1226, 1227, 1240, 1242, 1243, 1244, 1245, 1257, 1264, 1270, 

1281, 1284, 1294, 1295, 1296, 1299, 1302, 1311, 1313, 1319, 1320, 

1323, 1324, 1325, 1333, 1336, 1340, 1343, 1344, 1347, 1355, 1357, 

1361, 1367, 1368, 1369, 1370, 1372, 1379, 1385, 1386, 1387, 1392, 

1396, 1403, 1404, 1408, 1411, 1413, 1420, 1421, 1426, 1428, 1438, 

1442, 1448, 1457, 1461, 1470, 1564, 1566, 1576, 1580, 1589, 1591, 

1592, 1593, 1600, 1609, 1611, 1615, 1616, 1617, 1618, 1619, 1620, 

1625, 1631, 1632, 1633, 1635, 1637, 1638, 1642, 1645, 1646, 1652, 

1653, 1654, 1655, 1656, 1660, 1661, 1665, 1670, 1674, 1678, 1678, 

1682, 1717, 1718, 1719, 1720, 1721, 1722, 1723, 1724, 1725 

3b-B5-6 0609, 0610, 0613, 0614, 0618, 0622, 0623, 0628, 1032, 1181, 1181, 

1233, 1234, 1234, 1236, 1239, 1250, 1252, 1284, 1348, 1365, 1414, 

1430, 1435, 1440, 1464, 1465, 1466, 1574, 1584, 1585, 1590, 1598, 

1621, 1622, 1623, 1624, 1626, 1627, 1628, 1629, 1630, 1644, 1648, 

1650, 1673, 1675 

3b-B5-7 1273, 1375, 1571, 1607 

3b-B5-8 0777 

3b-B5-9 1686 

Comments on Specific 

Materials Used as Fuel - Coal 

Refuse 

3b-B6-1 0778, 0800, 0841, 0990, 1033, 1156, 1180, 1274, 1301, 1399 

3b-B6-2 0729, 1166, 1170, 1274 

Comments on Specific 

Materials Used as Fuel - 

Sewage Sludge 

3b-B7-1 0579, 1188, 1203, 1232, 1453, 1582 

3b-B7-2 1261, 1685 

3b-B7-3 0612, 0624, 0684, 0725, 0726, 0727, 0738, 0753, 0754, 0759, 0775, 

0873, 0952, 1014, 1138, 1139, 1140, 1141, 1142, 1143, 1182, 1199, 

1203, 1228, 1261, 1266, 1271, 1278, 1283, 1285, 1287, 1288, 1290, 

1297, 1317, 1359, 1371, 1373, 1374, 1388, 1389, 1400, 1406, 1410, 

1439, 1443, 1444, 1446, 1453, 1454, 1462, 1595, 1597, 1612, 1613, 

1713 

3b-B7-4 0619, 0684, 0726, 0991, 1203, 1231, 1232, 1253, 1261, 1331, 1335, 

1349, 1400, 1409, 1453 

3b-B7-5 0747, 0991 
PART 4: Comment Crosswalk 

 - Comments on the Proposed Rule

Response to Comments Document -NHSM Rule 

265 of 275 

Comment Topic 

Comment 

Code Comment IDs (all start with: “EPA-HQ-RCRA-2008-0329-”) 

Comments on Specific 

Materials Used as Ingredients 

3b-C-1 603 

Comments on Legitimacy 

Criteria for Fuels 

3b-D-1 0629, 0774, 0784, 0842, 0871, 0872, 0960, 0962, 0963, 1036, 1040, 

1040, 1041, 1046, 1138, 1165, 1166, 1170, 1249, 1259, 1268, 1273, 

1274, 1277, 1282, 1289, 1305, 1360, 1398, 1402, 1417, 1437, 1456, 

1571, 1607, 1686 

3b-D-2 0774, 0788, 0960, 0962, 1040, 1289, 1360 

3b-D-3 0674, 0864, 0874, 1247, 1307, 1415, 1416, 1469 

3b-D-4 1416 

3b-D-5 1200, 1248, 1401 

Comments on Legitimacy 

Criteria for Ingredients 

3b-E-1 1200 

Comments on Non-Waste 

Determination Petitions 

3b-F-1 1035, 1469 

3b-F-2 0756, 0776, 0784, 0957, 1040, 1040, 1159, 1159, 1165, 1166, 1173, 

1263, 1346, 1354, 1402 

Comments on 

Implementation of the Rule 

3b-G-1 0676, 0781, 1292, 1566, 1665, 1674, 1682 

3b-G-2 0594, 0606, 0675, 0774, 0784, 0842, 0871, 0872, 0962, 0963, 1040, 

1047, 1158, 1165, 1166, 1170, 1277, 1282, 1289, 1305, 1390, 1398, 

1402, 1417, 1456, 1575, 1643 

3b-G-3 0739, 0780, 0784, 0788, 0871, 1035, 1402, 1416 

Comments on Economic and 

Environmental Impacts 

3b-H-1 0538, 0575, 0575, 0579, 0580, 0596, 0606, 0607, 0611, 0616, 0617, 

0620, 0621, 0626, 0632, 0633, 0634, 0635, 0636, 0638, 0639, 0640, 

0641, 0642, 0643, 0644, 0645, 0646, 0647, 0648, 0649, 0650, 0651, 

0652, 0653, 0654, 0655, 0656, 0657, 0658, 0659, 0660, 0661, 0662, 

0663, 0664, 0665, 0666, 0667, 0668, 0669, 0670, 0671, 0672, 0677, 

0678, 0679, 0680, 0681, 0682, 0683, 0685, 0686, 0687, 0688, 0689, 

0690, 0691, 0692, 0693, 0694, 0695, 0696, 0697, 0698, 0699, 0700, 

0701, 0702, 0703, 0704, 0705, 0707, 0708, 0709, 0710, 0711, 0712, 

0716, 0718, 0719, 0720, 0721, 0722, 0723, 0724, 0730, 0731, 0732, 

0733, 0734, 0735, 0736, 0742, 0743, 0744, 0745, 0746, 0748, 0749, 

0750, 0751, 0752, 0755, 0757, 0758, 0760, 0761, 0762, 0763, 0764, 

0765, 0767, 0768, 0769, 0771, 0772, 0773, 0779, 0783, 0784, 0784, 

0787, 0790, 0791, 0792, 0793, 0794, 0795, 0796, 0797, 0798, 0801, 

0802, 0803, 0804, 0805, 0806, 0807, 0808, 0809, 0810, 0811, 0812, 

0813, 0814, 0815, 0816, 0817, 0818, 0819, 0820, 0821, 0822, 0823, 

0824, 0825, 0826, 0827, 0828, 0829, 0830, 0831, 0832, 0833, 0834, 

0835, 0836, 0837, 0838, 0839, 0840, 0845, 0846, 0847, 0848, 0849, 

0850, 0851, 0852, 0853, 0854, 0855, 0856, 0857, 0858, 0859, 0860, 

0861, 0865, 0866, 0867, 0868, 0871, 0872, 0873, 0875, 0876, 0877, 

0878, 0879, 0880, 0881, 0882, 0883, 0884, 0885, 0886, 0887, 0888, 

0889, 0890, 0891, 0892, 0893, 0894, 0895, 0896, 0897, 0898, 0899, 

0900, 0901, 0902, 0903, 0904, 0905, 0906, 0907, 0908, 0912, 0913, 

0914, 0915, 0916, 0917, 0918, 0919, 0920, 0921, 0922, 0923, 0924, 

0925, 0926, 0927, 0928, 0929, 0930, 0931, 0932, 0933, 0934, 0935, 

0936, 0937, 0938, 0939, 0940, 0941, 0942, 0943, 0944, 0945, 0946, 

0947, 0948, 0949, 0950, 0953, 0957, 0961, 0964, 0965, 0966, 0967, 

0968, 0969, 0970, 0971, 0972, 0973, 0974, 0975, 0976, 0977, 0978, 

0979, 0980, 0981, 0982, 0983, 0984, 0985, 0986, 0987, 0988, 0989, 
PART 4: Comment Crosswalk 

 - Comments on the Proposed Rule

Response to Comments Document -NHSM Rule 

266 of 275 

Comment Topic 

Comment 

Code Comment IDs (all start with: “EPA-HQ-RCRA-2008-0329-”) 

0990, 0991, 0993, 0994, 0995, 0996, 0997, 0998, 0999, 1000, 1001, 

1002, 1003, 1004, 1005, 1006, 1007, 1008, 1009, 1010, 1011, 1013, 

1016, 1017, 1018, 1019, 1020, 1021, 1022, 1023, 1024, 1025, 1026, 

1027, 1028, 1029, 1030, 1034, 1035, 1039, 1040, 1041, 1042, 1047, 

1048, 1049, 1050, 1051, 1052, 1053, 1054, 1055, 1056, 1057, 1058, 

1059, 1060, 1061, 1062, 1063, 1064, 1065, 1066, 1067, 1068, 1069, 

1070, 1071, 1072, 1073, 1074, 1075, 1076, 1077, 1078, 1079, 1080, 

1082, 1083, 1084, 1085, 1086, 1087, 1088, 1089, 1090, 1091, 1092, 

1093, 1094, 1095, 1096, 1097, 1098, 1099, 1100, 1101, 1102, 1103, 

1104, 1105, 1106, 1107, 1108, 1109, 1110, 1111, 1112, 1113, 1114, 

1115, 1116, 1117, 1118, 1119, 1120, 1121, 1122, 1123, 1124, 1125, 

1126, 1127, 1128, 1129, 1130, 1131, 1132, 1133, 1134, 1135, 1136, 

1138, 1139, 1140, 1141, 1142, 1143, 1144, 1145, 1146, 1147, 1148, 

1149, 1150, 1151, 1152, 1153, 1157, 1158, 1161, 1163, 1165, 1166, 

1168, 1169, 1172, 1173, 1180, 1188, 1192, 1196, 1213, 1214, 1215, 

1216, 1217, 1218, 1219, 1220, 1230, 1232, 1235, 1237, 1247, 1260, 

1261, 1267, 1268, 1273, 1276, 1280, 1284, 1291, 1305, 1308, 1310, 

1312, 1327, 1328, 1329, 1332, 1337, 1339, 1342, 1353, 1358, 1364, 

1375, 1395, 1402, 1419, 1422, 1423, 1424, 1425, 1426, 1427, 1432, 

1432, 1445, 1449, 1471, 1472, 1473, 1474, 1475, 1476, 1477, 1478, 

1479, 1480, 1481, 1482, 1483, 1484, 1485, 1486, 1487, 1488, 1489, 

1490, 1492, 1493, 1494, 1495, 1496, 1497, 1498, 1499, 1500, 1501, 

1502, 1503, 1504, 1505, 1506, 1507, 1508, 1509, 1510, 1511, 1512, 

1513, 1514, 1515, 1516, 1517, 1518, 1519, 1520, 1521, 1522, 1523, 

1524, 1525, 1526, 1527, 1528, 1529, 1530, 1531, 1532, 1533, 1534, 

1535, 1536, 1537, 1538, 1539, 1540, 1541, 1542, 1543, 1544, 1546, 

1547, 1548, 1549, 1550, 1551, 1552, 1553, 1554, 1555, 1556, 1557, 

1558, 1559, 1560, 1561, 1562, 1567, 1571, 1572, 1578, 1579, 1586, 

1587, 1588, 1596, 1599, 1601, 1604, 1607, 1614, 1639, 1640, 1647, 

1651, 1659, 1663, 1667, 1686, 1696, 1716 

3b-H-2 0579, 0611, 0616, 0783, 0865, 0871, 0912, 0961, 0992, 1034, 1040, 

1138, 1139, 1140, 1141, 1142, 1143, 1158, 1180, 1247, 1261, 1263, 

1265, 1291, 1306, 1572, 1614, 1686 

3b-H-3 0598, 0756, 0868, 1034, 1180, 1196, 1247, 1346, 1375, 1572, 1686, 

1686 

3b-H-4 0617, 0639, 0643, 0646, 0773, 0779, 0812, 0818, 0840, 0861, 0950, 

0983, 0999, 1023, 1066, 1078, 1088, 1109, 1114, 1124, 1132, 1144, 

1148, 1167, 1174, 1177, 1202, 1202, 1213, 1214, 1215, 1216, 1217, 

1218, 1219, 1220, 1260, 1309, 1310, 1314, 1327, 1328, 1334, 1338, 

1339, 1356, 1419, 1422, 1423, 1424, 1427, 1534, 1657 

3b-H-5 0596, 0767, 0772, 0841, 0990, 1037, 1040, 1138, 1139, 1140, 1141, 

1142, 1143, 1165, 1170, 1172, 1188, 1203, 1247, 1255, 1268, 1276, 

1307, 1326, 1331, 1335, 1349, 1354, 1366, 1395, 1399, 1409, 1415, 

1417, 1432, 1432, 1437, 1452, 1453, 1567, 1575, 1576, 1578, 1582, 

1604, 1611, 1643 

3b-H-6 0580, 0626, 0632, 0633, 0634, 0635, 0636, 0638, 0640, 0641, 0642, 

0644, 0645, 0647, 0648, 0649, 0650, 0651, 0652, 0653, 0654, 0655, 

0656, 0657, 0658, 0659, 0660, 0661, 0662, 0663, 0664, 0665, 0666, 

0667, 0668, 0669, 0670, 0671, 0672, 0677, 0678, 0679, 0680, 0681, 

0682, 0683, 0685, 0686, 0687, 0688, 0689, 0690, 0691, 0692, 0694, 

0695, 0696, 0697, 0698, 0699, 0700, 0701, 0702, 0703, 0704, 0705, 
PART 4: Comment Crosswalk 

 - Comments on the Proposed Rule

Response to Comments Document -NHSM Rule 

267 of 275 

Comment Topic 

Comment 

Code Comment IDs (all start with: “EPA-HQ-RCRA-2008-0329-”) 

0707, 0708, 0709, 0710, 0711, 0718, 0719, 0720, 0721, 0722, 0723, 

0724, 0730, 0731, 0732, 0733, 0734, 0735, 0736, 0742, 0743, 0744, 

0744, 0745, 0746, 0748, 0749, 0750, 0751, 0752, 0755, 0757, 0758, 

0760, 0761, 0762, 0763, 0764, 0765, 0768, 0782, 0786, 0790, 0791, 

0792, 0793, 0794, 0795, 0796, 0797, 0798, 0801, 0802, 0803, 0804, 

0805, 0806, 0807, 0808, 0809, 0810, 0811, 0813, 0814, 0815, 0816, 

0817, 0819, 0820, 0821, 0822, 0823, 0824, 0825, 0826, 0827, 0828, 

0829, 0830, 0831, 0832, 0833, 0834, 0835, 0836, 0837, 0838, 0839, 

0845, 0846, 0847, 0848, 0849, 0850, 0851, 0852, 0853, 0854, 0855, 

0856, 0857, 0858, 0859, 0860, 0867, 0876, 0877, 0878, 0879, 0880, 

0881, 0882, 0883, 0884, 0885, 0886, 0887, 0888, 0889, 0890, 0891, 

0892, 0893, 0894, 0895, 0896, 0897, 0898, 0899, 0900, 0901, 0902, 

0903, 0904, 0905, 0906, 0907, 0908, 0910, 0912, 0913, 0914, 0915, 

0916, 0917, 0918, 0919, 0920, 0921, 0922, 0923, 0924, 0925, 0926, 

0927, 0928, 0929, 0930, 0931, 0932, 0933, 0934, 0935, 0936, 0937, 

0938, 0939, 0940, 0941, 0942, 0943, 0944, 0945, 0946, 0947, 0948, 

0949, 0964, 0965, 0966, 0967, 0968, 0969, 0970, 0971, 0972, 0973, 

0974, 0975, 0976, 0977, 0978, 0979, 0980, 0981, 0982, 0984, 0985, 

0986, 0987, 0988, 0989, 0993, 0994, 0995, 0996, 0997, 0998, 1000, 

1001, 1002, 1003, 1004, 1005, 1006, 1007, 1008, 1009, 1010, 1011, 

1016, 1017, 1018, 1019, 1020, 1021, 1022, 1024, 1025, 1026, 1027, 

1028, 1029, 1030, 1034, 1041, 1042, 1048, 1049, 1050, 1051, 1052, 

1053, 1054, 1055, 1056, 1057, 1058, 1059, 1060, 1061, 1062, 1063, 

1064, 1065, 1067, 1068, 1069, 1070, 1071, 1072, 1073, 1074, 1075, 

1076, 1077, 1079, 1080, 1082, 1083, 1084, 1085, 1086, 1087, 1089, 

1090, 1091, 1092, 1093, 1094, 1095, 1096, 1097, 1098, 1099, 1100, 

1101, 1102, 1103, 1104, 1105, 1106, 1107, 1108, 1110, 1111, 1112, 

1113, 1115, 1116, 1117, 1118, 1119, 1120, 1121, 1122, 1123, 1125, 

1126, 1127, 1128, 1129, 1130, 1131, 1133, 1134, 1135, 1136, 1138, 

1139, 1140, 1141, 1142, 1143, 1145, 1146, 1147, 1149, 1150, 1151, 

1152, 1153, 1166, 1167, 1174, 1308, 1309, 1314, 1329, 1332, 1334, 

1337, 1338, 1356, 1425, 1445, 1471, 1472, 1473, 1474, 1475, 1476, 

1477, 1478, 1479, 1480, 1481, 1482, 1483, 1484, 1485, 1486, 1487, 

1488, 1489, 1490, 1492, 1493, 1494, 1495, 1496, 1497, 1498, 1499, 

1500, 1501, 1502, 1503, 1504, 1505, 1506, 1507, 1508, 1509, 1510, 

1511, 1512, 1513, 1514, 1515, 1516, 1517, 1518, 1519, 1520, 1521, 

1522, 1523, 1524, 1525, 1526, 1527, 1528, 1529, 1530, 1531, 1532, 

1533, 1535, 1536, 1537, 1538, 1539, 1540, 1541, 1542, 1543, 1544, 

1546, 1547, 1548, 1549, 1550, 1551, 1552, 1553, 1554, 1555, 1556, 

1557, 1558, 1559, 1560, 1561, 1562, 1572, 1614, 1667 

3b-H-7 0579, 0611, 0787, 0869, 1040, 1263, 1273, 1571, 1607 

3b-H-8 1247, 1273, 1571, 1607 

Comments on Materials not 

Specifically Identified in the 

Preamble - Using the General 

Framework of the 

Regulations 

3b-I1-1 0774, 0776, 0871, 0872, 0909, 0957, 1040, 1138, 1139, 1140, 1141, 

1142, 1143, 1170, 1171, 1173, 1200, 1202, 1212, 1274, 1390 

Comments on Materials not 

Specifically Identified in the 

Preamble - Questions on 

Waste Status of Substances 

3b-I2-1 0776 

3b-I2-2 0874, 1447 

3b-I2-3 0871, 0960, 1015, 1165, 1186, 1194, 1267, 1467, 1606 
PART 4: Comment Crosswalk 

 - Comments on the Proposed Rule

Response to Comments Document -NHSM Rule 

268 of 275 

Comment Topic 

Comment 

Code Comment IDs (all start with: “EPA-HQ-RCRA-2008-0329-”) 

used as Fuel in General 

Comments on Materials not 

Specifically Identified in the 

Preamble - Questions on 

Gases (Flared, Contained 

Gases, etc.) 

3b-I3-1 1171, 1275 

3b-I3-2 0579, 0611, 0728, 0756, 0863, 0957, 1162, 1173, 1251, 1263, 1346, 

1354, 1407 

3b-I3-3 0772, 0875, 0991, 1312 

3b-I3-4 0598, 0674, 0783, 1138, 1139, 1140, 1141, 1142, 1143, 1165, 1168, 

1291 

Comments on Materials not 

Specifically Identified in the 

Preamble - Questions on 

Waste Status of Substances 

used as Ingredients 

3b-I4-1 1318 

Comments on Materials not 

Specifically Identified in the 

Preamble - Other Questions 

on Waste Status 

3b-I5-1 0629, 1165 

Miscellaneous Comments 3b-J-1 1229 

3b-J-2 0962, 1036, 1159, 1398 

3b-J-3 0781, 1168, 1305, 1390 

3b-J-4 0535, 0546, 0584, 0594, 0601, 1158, 1662, 1684 

 
PART 4: Comment Crosswalk 

 - Comments on the ANPRM (as responded to in the final rule)

Response to Comments Document -NHSM Rule 

269 of 275 

Crosswalk for Comments on Advanced Notice of Proposed Rule Making

 The table below links those ANPRM comments that were also addressed in the final rule 

response to comments (which covered more topics than the ANPRM responses in the proposal). 

All of the ANPRM comments were considered in development of the proposed rule, but the final 

rule responses supersede the proposal responses. 

ANPRM Comments Linked 

to Final Rule Topics 

Final Rule 

Comment 

Code 

ANPRM Comment IDs 

(all start with: “EPA-HQ-RCRA-2008-0329-”) 

Proposed Approach - 

Definition of Discard 

3a-A1-1 0346, 0350, 0359, 0382, 0389, 0410 

3a-A1-2 0374, 0397 

3a-A1-3 0334, 0346, 0347, 0350, 0354, 0359, 0374, 0374, 0375, 0385, 

0387, 0394, 0397 

3a-A1-4 0362, 0375, 0382, 0389, 0410 

3a-A1-5 0410 

3a-A1-6 0375, 0410 

3a-A1-7 0346 

3a-A1-8 0342, 0346, 0366, 0374, 0389, 0393 

3a-A1-9 

3a-A1-10 0332, 0346 

3a-A1-11 

3a-A1-12 0328, 0346, 0352, 0362, 0374, 0375, 0386, 0387, 0389, 0395 

3a-A1-13 0346, 0375, 0385 

Proposed Approach - 

Processing Requirements 

3a-A2-1 0395, 0410 

3a-A2-2 0334, 0335, 0344, 0346, 0347, 0350, 0352, 0374, 0376, 0380, 

0384, 0389, 0392, 0397 

Comments on Specific 

Materials Used as Fuel - 

Traditional Fuels 

3a-B1-1 0338, 0344, 0350, 0352, 0381, 0389, 0396, 0402 

3a-B1-2 0338, 0347, 0354, 0366, 0380, 0381, 0392 

3a-B1-3 0352, 0354 

3a-B1-4 0339 

3a-B1-5 

Comments on Specific 

Materials Used as Fuel - 

Manure 

3a-B2-1 0343, 0403 

3a-B2-2 

3a-B2-3 0347 

3a-B2-4 0343 

3a-B2-5 0343 

3a-B2-6 

3a-B2-7 

Comments on Specific 

Materials Used as Fuel - Other 

Biomass 

3a-B3-1 0332, 0333, 0335, 0360, 0374 

3a-B3-2 0335, 0360, 0374 

3a-B3-3 0335, 0364, 0374 
PART 4: Comment Crosswalk 

 - Comments on the ANPRM (as responded to in the final rule)

Response to Comments Document -NHSM Rule 

270 of 275 

ANPRM Comments Linked 

to Final Rule Topics 

Final Rule 

Comment 

Code 

ANPRM Comment IDs 

(all start with: “EPA-HQ-RCRA-2008-0329-”) 

3a-B3-4 0364 

3a-B3-5 0374 

Comments on Specific 

Materials Used as Fuel - Pulp 

and Paper Sludge 

3a-B4-1 

3a-B4-2 

3a-B4-3 

3a-B4-4 

3a-B4-5 

3a-B4-6 

Comments on Specific 

Materials Used as Fuel - Scrap 

Tires 

3a-B5-1 0329, 0334, 0343, 0346, 0353, 0374, 0405 

3a-B5-2 0329, 0346, 0353, 0374, 0384, 0405 

3a-B5-3 0329, 0340, 0346, 0374, 0401 

3a-B5-4 0343, 0345, 0353, 0371, 0374, 0405 

3a-B5-5 0410 

3a-B5-6 0345, 0346, 0352, 0353, 0357, 0401 

3a-B5-7 0341, 0371, 0410 

3a-B5-8 0353 

3a-B5-9 0346, 0357, 0398 

3a-B5-10 0329, 0346, 0347, 0352, 0353, 0357, 0374, 0384, 0398, 0401 

Comments on Specific 

Materials Used as Fuel - 

Resinated Wood Residuals 

3a-B6-1 0339, 0341 

3a-B6-2 0331, 0335, 0370, 0374, 0388 

3a-B6-3 0374, 0388 

3a-B6-4 0374 

3a-B6-5 0370, 0374, 0381, 0402 

3a-B6-6 0370 

3a-B6-7 0374 

Comments on Specific 

Materials Used as Fuel - Used 

Oil 

3a-B7-1 0334, 0337, 0339, 0344, 0350, 0374 

3a-B7-2 0337, 0373, 0389, 0394 

3a-B7-3 0337, 0394 

3a-B7-4 0337, 0339, 0374 

3a-B7-5 0394 

3a-B7-6 

3a-B7-7 0361 

3a-B7-8 0394 

3a-B7-9 

3a-B7-10 

Comments on Specific 

Materials Used as Fuel - Coal 

3a-B8-1 0346, 0404 

3a-B8-2 0346 
PART 4: Comment Crosswalk 

 - Comments on the ANPRM (as responded to in the final rule)

Response to Comments Document -NHSM Rule 

271 of 275 

ANPRM Comments Linked 

to Final Rule Topics 

Final Rule 

Comment 

Code 

ANPRM Comment IDs 

(all start with: “EPA-HQ-RCRA-2008-0329-”) 

Refuse 3a-B8-3 0404 

3a-B8-4 0341 

3a-B8-5 0346, 0404 

Comments on Specific 

Materials Used as Fuel - Coal 

Combustion Residuals 

3a-B9-1 0349, 0367, 0368 

3a-B9-2 0367, 0368, 0377 

3a-B9-3 0377, 0404 

3a-B9-4 0378 

3a-B9-5 

Comments on Specific 

Materials Used as Fuel - 

Sewage Sludge 

3a-B10-1 0356, 0372 

3a-B10-2 0363, 0391 

3a-B10-3 0363, 0391 

3a-B10-4 0356, 0372 

3a-B10-5 

3a-B10-6 

Comments on Specific 

Materials Used as Fuel - 

Processed Fats 

3a-B11-1 0334, 0358, 0381, 0402 

Comments on Specific 

Materials Used as Ingredients - 

Cement Kiln Dust 

3a-C1-1 0334, 0366 

Comments on Specific 

Materials Used as Ingredients - 

Coal Combustion Residuals 

3a-C2-1 0349, 0378 

3a-C2-2 0378 

3a-C2-3 0378 

3a-C2-4 

Comments on Specific 

Materials Used as Ingredients - 

Foundry Sand 

3a-C3-1 0334, 0361 

Comments on Specific 

Materials Used as Ingredients - 

Blast Furnace Slag/Steel Slag 

3a-C4-1 0334, 0390 

Comments on Legitimacy 

Criteria for Fuels - Managed 

as a Valuable Commodity 

3a-D1-1 0334, 0336, 0339, 0343, 0355 

3a-D1-2 0334, 0336, 0339, 0374 

3a-D1-3 0339, 0353, 0355, 0362, 0376 

3a-D1-4 0343, 0346, 0355 

Comments on Legitimacy 

Criteria for Fuels - Meaningful 

Heating Value and Use as a 

Fuel 

3a-D2-1 0334, 0336, 0339, 0343, 0346, 0350, 0353, 0355, 0359, 0367, 

0368, 0374, 0376, 0381, 0388, 0389, 0396, 0399, 0400, 0402 

Comments on Legitimacy 

Criteria for Fuels - Have 

Contaminants at Comparable 

Levels or Lower Than 

3a-D3-1 0334, 0336, 0339, 0346, 0350, 0353, 0380, 0383, 0392 

3a-D3-2 0334, 0336, 0339, 0346, 0353, 0355, 0374, 0376, 0381, 0383, 

0402 
PART 4: Comment Crosswalk 

 - Comments on the ANPRM (as responded to in the final rule)

Response to Comments Document -NHSM Rule 

272 of 275 

ANPRM Comments Linked 

to Final Rule Topics 

Final Rule 

Comment 

Code 

ANPRM Comment IDs 

(all start with: “EPA-HQ-RCRA-2008-0329-”) 

Traditional Fuels 3a-D3-4 0343 

3a-D3-5 0334, 0339, 0355, 0373 

Comments on Legitimacy 

Criteria for Ingredients - 

Managed as Valuable 

Commodities 

3a-E1-1 0334, 0336, 0339 

Comments on Legitimacy 

Criteria for Ingredients - 

Useful Contribution 

3a-E2-1 0334, 0336, 0339, 0344, 0359 

Comments on Legitimacy 

Criteria for Ingredients - 

Quantifying an Ingredient’s 

Contribution to 

Production/Manufacturing 

Activity 

3a-E3-1 0334, 0336, 0339 

Comments on Legitimacy 

Criteria for Ingredients - 

Contaminants in Ingredients 

3a-E4-1 0334, 0336, 0339 

Comments on Legitimacy 

Criteria for Ingredients - 

Comparing contaminant levels 

in products 

3a-E5-1 0334, 0336, 0339 

Comments on Non-Waste 

Determination Petitions 

3a-F-1 0328, 0330, 0339, 0346, 0374 

3a-F-2 

3a-F-3 0346 

3a-F-4 0346 

3a-F-5 0346 

3a-F-6 

3a-F-7 

Comments on the Other 

Approaches for Defining Solid 

Wastes 

3a-G-1 0339, 0346 

Proposed Approach - 

Definition of Discard 

3b-A1-1 0380, 0387, 0389, 0392, 0393, 0395, 0403 

3b-A1-2 0336, 0373 

3b-A1-3 

3b-A1-4 0389 

3b-A1-5 0374 

3b-A1-6 

Proposed Approach - 

Processing Requirements 

3b-A2-1 

3b-A2-2 

3b-A2-3 

3b-A2-4 
PART 4: Comment Crosswalk 

 - Comments on the ANPRM (as responded to in the final rule)

Response to Comments Document -NHSM Rule 

273 of 275 

ANPRM Comments Linked 

to Final Rule Topics 

Final Rule 

Comment 

Code 

ANPRM Comment IDs 

(all start with: “EPA-HQ-RCRA-2008-0329-”) 

Comments on Specific 

Materials Used as Fuel - 

Traditional Fuels 

3b-B1-1 

3b-B1-2 

3b-B1-3 

3b-B1-4 

Comments on Specific 

Materials Used as Fuel - 

Manure 

3b-B2-1 0403 

Comments on Specific 

Materials Used as Fuel - Other 

Biomass 

3b-B3-1 

3b-B3-2 0343, 0364, 

3b-B3-3 

3b-B3-4 0332, 0333, 0346, 0374, 0396, 0399, 0400 

3b-B3-5 0364, 0374 

3b-B3-6 0332, 0333, 0374 

3b-B3-7 

3b-B3-8 0364, 0374 

3b-B3-9 0346, 0355, 0374 

3b-B3-10 0346, 0355, 0374 

3b-B3-11 

3b-B3-12 

3b-B3-13 0374 

3b-B3-14 

Comments on Specific 

Materials Used as Fuel - Scrap 

Tires 

3b-B4-1 

3b-B4-2 

3b-B4-3 0353 

3b-B4-4 

3b-B4-5 

3b-B4-6 

Comments on Specific 

Materials Used as Fuel - Used 

Oil 

3b-B5-1 

3b-B5-2 

3b-B5-3 

3b-B5-4 0340, 0374 

3b-B5-5 

3b-B5-6 

3b-B5-7 

3b-B5-8 

3b-B5-9 

Comments on Specific 

Materials Used as Fuel - Coal 

Refuse 

3b-B6-1 

3b-B6-2 0346 
PART 4: Comment Crosswalk 

 - Comments on the ANPRM (as responded to in the final rule)

Response to Comments Document -NHSM Rule 

274 of 275 

ANPRM Comments Linked 

to Final Rule Topics 

Final Rule 

Comment 

Code 

ANPRM Comment IDs 

(all start with: “EPA-HQ-RCRA-2008-0329-”) 

Comments on Specific 

Materials Used as Fuel - 

Sewage Sludge 

3b-B7-1 0334 

3b-B7-2 

3b-B7-3 

3b-B7-4 0356, 0372, 0391 

3b-B7-5 

Comments on Specific 

Materials Used as Ingredients 

3b-C-1 0384, 0390 

Comments on Legitimacy 

Criteria for Fuels 

3b-D-1 0342, 0346, 0374, 0375, 0380, 0392 

3b-D-2 0350, 0359 

3b-D-3 0380, 0392 

3b-D-4 

3b-D-5 0343, 0355, 0363, 0380, 0387, 0388, 0392, 0399, 0400, 

Comments on Legitimacy 

Criteria for Ingredients 

3b-E-1 0359, 0393 

Comments on Non-Waste 

Determination Petitions 

3b-F-1 

3b-F-2 

Comments on Implementation 

of the Rule 

3b-G-1 

3b-G-2 0346 

3b-G-3 

Comments on Economic and 

Environmental Impacts 

3b-H-1 0352, 0374, 0375, 0393 

3b-H-2 0374 

3b-H-3 0344, 0359 

3b-H-4 0410 

3b-H-5 0330, 0334, 0346, 0353, 0374, 0395 

3b-H-6 0410 

3b-H-7 

3b-H-8 

Comments on Materials not 

Specifically Identified in the 

Preamble - Using the General 

Framework of the Regulations 

3b-I1-1 0334, 0335, 0346, 0374, 0380, 0392, 0410 

Comments on Materials not 

Specifically Identified in the 

Preamble - Questions on 

Waste Status of Substances 

used as Fuel in General 

3b-I2-1 0410 

3b-I2-2 0348, 0358 

3b-I2-3 0398 

Comments on Materials not 

Specifically Identified in the 

Preamble - Questions on Gases 

(Flared, Contained Gases, etc.) 

3b-I3-1 0374 

3b-I3-2 0334 

3b-I3-3 

3b-I3-4 0374, 0387 
PART 4: Comment Crosswalk 

 - Comments on the ANPRM (as responded to in the final rule)

Response to Comments Document -NHSM Rule 

275 of 275 

ANPRM Comments Linked 

to Final Rule Topics 

Final Rule 

Comment 

Code 

ANPRM Comment IDs 

(all start with: “EPA-HQ-RCRA-2008-0329-”) 

Comments on Materials not 

Specifically Identified in the 

Preamble - Questions on 

Waste Status of Substances 

used as Ingredients 

3b-I4-1 0384, 0390 

Comments on Materials not 

Specifically Identified in the 

Preamble - Other Questions on 

Waste Status 

3b-I5-1 

Miscellaneous Comments 3b-J-1 

3b-J-2 

3b-J-3 

3b-J-4 

Major Comments Received on 

the Advance Notice of 

Proposed Rulemaking 

(ANPRM) as Responded to in 

the Proposed Rule 

3c 0326, 0351, 0365, 0369, 0379