Response to Comments Document -NHSM Rule

1 of 275 

### R ESPONSES TO 

### C OMMENTS 

### D OCUMENT FOR THE 

### I DENTIFICATION OF 

### N ON



### HAZARDOUS 

### S ECONDARY 

### M ATERIALS 

### T HAT 

### A RE 

### S OLID 

### W ASTE 

### R ULEMAKING

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



### F EBRUARY 

### 2011Response to Comments Document -NHSM Rule

2 of 275 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 Ma terials 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 Mate rials 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 C ontribution to Production/Manufacturing Activity 4. Contaminants in Ingredients 5. Comparing contaminan t levels in products
F. Comments on Non-Wast e Determination Petitions G. Comments on the Other Approach es for Defining Solid WastesResponse to Comments Document -NHSM Rule

3 of 275 PART 3b: Other Comments on the Proposed Rule and EPA Responses Page 164 A. Proposed Approach B. Comments on Specific Ma terials 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 Mate rials Used as Ingredients D. Comments on Legitimacy Criteria for Fuels E. Comments on Legitimacy Criteria for Ingredients
F. Comments on Non-Wast e Determination Petitions G. Comments on Implementation of the Rule H. Comments on Economic and Environmental Impacts I. Comments on Materials not Specifi cally Identified in the Preamble
J. Miscella neous 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 Ma terials Used as a Fuel F. Comments on Specific Mate rials Used as Ingredients G. Legitimacy Criteria

PART 4: Comment Crosswalk Page 254PART 1: Introduction Response to Comments Document -NHSM Rule

4 of 275 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 pr oposed 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. Follo wing 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, includin g, 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 ma terials, potential interactions between the proposed rule and existing Federa l 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 ra ised by commenters, were included in Section V of the preamble to the final rule. Those co mments 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, ge nerally from one commenter, together with the responses to those comments, are outlined in Section 3b.

Prior to issuance of the pr oposed 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 th e preamble to the proposed rule. Those major ANPRM comments contained in the proposed rule preamble are repeat ed 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.PART 2: Commenters Response to Comments Document -NHSM Rule

5 of 275 PART 2: Commenters

The table below provides the document ID a nd name of each commenter who submitted comments to the docket in respons e to either the Advanced Noti ce of Proposed Rulemaking or the Proposed Rule. All of these comments we re considered in the rulemaking process.

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

Document ID Commenter Name (includes person that subm itted 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, Administra tor, Waste Management Divisi on, 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 La nd, Illinois Environmental Protection Agency EPA-HQ-RCRA-2008-0329-0335 Jeffrey T. Miller, Pr esident and Executive Director, Treated Wood Council (TWC) EPA-HQ-RCRA-2008-0329-0336 Rich Raiders, Senior Lead Environmental Engineer and Lew Buchanan, Principal Environmental Engin eer, Arkema Inc. EPA-HQ-RCRA-2008-0329-0337 Lin Longshore, Vice President of Environmenta l Compliance, Safety-Kleen Systems, Inc. EPA-HQ-RCRA-2008-0329-0338 Mark A. Dupuis, President and CEO, Inte rnational 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, Wa terkeeper 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 Wast e 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. Fa ggert, Vice President and Chief Environmental Officer, Dominion EPA-HQ-RCRA-2008-0329-0345 Scott Thompson, Oklahoma Departme nt of Environmental Quality EPA-HQ-RCRA-2008-0329-0346 Robert D. Bessette, President, Counc il 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, Husc h Blackwell Sanders LLP on behalf of Monsanto Company EPA-HQ-RCRA-2008-0329-0349 Debra J. Jezouit, Megan H. Berge, Baker Bo tts L.L.P. on behalf of The Class of '85 Regulatory Response Group EPA-HQ-RCRA-2008-0329-0350 James R. Roewer, Executive Director, Util ity Solid Waste Activities Group (USWAG) EPA-HQ-RCRA-2008-0329-0351 Tyrone P. Wilson, Director, Regulatory Affair s, Energy and Environment, Portland Cement Association (PCA) EPA-HQ-RCRA-2008-0329-0352 Tyrone P. Wilson, Director, Regulatory Affair s, Energy and Environment, Portland Cement Association (PCA) EPA-HQ-RCRA-2008-0329-0353 Tracey J. Norberg, Senior Vice Presiden t 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 Offi cer, Intrinergy, LLC (Intrinergy) EPA-HQ-RCRA-2008-0329-0356 Pat Kast on behalf of Douglas J. Craig, Dire ctor 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 Regul atory Affairs, National Grain and Feed Association (NGFA) EPA-HQ-RCRA-2008-0329-0359 Tawny A. Bridgeford, Associ ate 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 Presiden t, American Foundry Society (AFS)PART 2: Commenters Response to Comments Document -NHSM Rule

6 of 275 Document ID and Commenter Name for Each Co mment on the ANPRM and the Proposed Rule

Document ID Commenter Name (includes person that subm itted 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 Hor nback, 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, SC ANA Corporation EPA-HQ-RCRA-2008-0329-0368 Shirley M. Ruffin, Corporat e Environmental Services De partment, 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, Depart ment 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, Envi ronmental Technology Council (ETC) EPA-HQ-RCRA-2008-0329-0374 Timothy G. Hunt, Senior Di rector, 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 Sect ion, Biotechnology Indus try Organization (BIO) EPA-HQ-RCRA-2008-0329-0376 Tamra S. Van Til, C onsultant Representing, Michigan Biomass EPA-HQ-RCRA-2008-0329-0377 Lisa I. Cooper, Senior Vice Presid ent, PMI Ash Technol ogies, 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, R hodia Inc. (Rhodia) EPA-HQ-RCRA-2008-0329-0380 Steven E. Sliver, Chief, Storage Tank and Solid Waste Section, Waste and Hazardous Materials Division, Michigan Departme nt 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 Commercia l 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, Cor porate 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 beha lf of Utility Air Re gulatory 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, Oper ations 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, Ha mpton 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 Di vision, Michigan Department of Environmental Quality (MDEQ) EPA-HQ-RCRA-2008-0329-0393 Al Shea, Administrator, Division of Air a nd Waste, Wisconsin De partment of Natural
Resources EPA-HQ-RCRA-2008-0329-0394 Christopher Harris, General C ounsel, 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 Direct or, Technical Services, on be half of F. Reed Wills,PART 2: Commenters Response to Comments Document -NHSM Rule

7 of 275 Document ID and Commenter Name for Each Co mment on the ANPRM and the Proposed Rule

Document ID Commenter Name (includes person that subm itted on behalf of an organization) President, ADAGE EPA-HQ-RCRA-2008-0329-0398 David L. Wagger, Director of Environmental Ma nagement, on behalf of Scott J. Horne, Vice President, Governmental Affairs and Genera l Counsel, Institute of Scrap Recycling Industries, Inc. (ISRI) EPA-HQ-RCRA-2008-0329-0399 David A. Buff, P.E., Q.E.P., Principal Engine er, Golder Associates, Inc., on behalf of Florida Sugar Industry (FSI) EPA-HQ-RCRA-2008-0329-0400 David A. Buff, P.E., Q.E.P., Pr incipal 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 Ti re 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 Asse ssment and Environmenta l 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 Environmenta l Manager, Lafarge North America EPA-HQ-RCRA-2008-0329-0538 L. Whisenhant EPA-HQ-RCRA-2008-0329-0539 Pat Gallagher, Sierra Club; J ohn 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, Br idgestone 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 sponsor ing 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, Main e 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 Manage r, Bridgestone Retail Operations EPA-HQ-RCRA-2008-0329-0558 J. D. Butts, Oklahoma Dist rict Manager, Firestone EPA-HQ-RCRA-2008-0329-0559 Jessica Pierson, Recruiting and Retenti on 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 Engin eer, Bridgestone Reta il 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 Pres ident, General Counsel & Secretary, Bridgestone Retail Operations, LLC EPA-HQ-RCRA-2008-0329-0575 Chuck Williams, TWWPART 2: Commenters Response to Comments Document -NHSM Rule

8 of 275 Document ID and Commenter Name for Each Co mment on the ANPRM and the Proposed Rule

Document ID Commenter Name (includes person that subm itted 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. Ad ams, Assistant Depar tmental Engineer, Air Quality Engineering, Technica l Services Department, Sanita tion Districts of Los Angeles County EPA-HQ-RCRA-2008-0329-0580 Mass Email Comment Campaign sponsor ing 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, E nvironmental Law Department, Br idgestone 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, Environm ental Specialist, Bridgestone Retail Operations, LLC EPA-HQ-RCRA-2008-0329-0592 Jennifer Cullerton, Sr. Specialist, HR Oper ations and Support, Bridgestone Retail Operations, LLC EPA-HQ-RCRA-2008-0329-0593 Susan Robbins, Instructional Designer, E ducation Department, Bridgestone Retail Operations, LLC EPA-HQ-RCRA-2008-0329-0594 Sarah S. Markham, Environmen tal 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 La nd, 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 & Hise r, 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, Util ity Sales, Atlantic Wood Industries, Inc. EPA-HQ-RCRA-2008-0329-0607 Gavin Adams on behalf of Phillip D. Da vis, Chief, Solid Waste Branch, Alabama Department of Environmen tal 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 E ngineer, Air Quality Engineering, Technical Services Department, Sanitati on Districts of Los Angeles County (Sanitation Districts) EPA-HQ-RCRA-2008-0329-0612 Stephen L. Hershner, Utilities Environmenta l 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 EH S Manager, Corporate EHS, Ar mstrong 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. Swans on, Provisional Director of Plant Operations,
Central Contra Costa Sani tary District (CCCSD) EPA-HQ-RCRA-2008-0329-0620 J. Teinert EPA-HQ-RCRA-2008-0329-0621 Richard Merriman, Rick's Advantech Automotive Center LLCPART 2: Commenters Response to Comments Document -NHSM Rule

9 of 275 Document ID and Commenter Name for Each Co mment on the ANPRM and the Proposed Rule

Document ID Commenter Name (includes person that subm itted 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 Mana ger, 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, Ener Tech 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, Ma nager, Policy, Local G overnment Assistance and Solid Waste Section, Municipal Divisi on, Minnesota Pollution Control Agency EPA-HQ-RCRA-2008-0329-0677 A. BartczakPART 2: Commenters Response to Comments Document -NHSM Rule

10 of 275 Document ID and Commenter Name for Each Co mment on the ANPRM and the Proposed Rule

Document ID Commenter Name (includes person that subm itted 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 Serv ices, 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 Protec tion Division, Oklahom a 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 Regul ation, Division of Ai r 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. Co merford, 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 ofPART 2: Commenters Response to Comments Document -NHSM Rule

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

Akron EPA-HQ-RCRA-2008-0329-0728 Mitchell H. Bernstein, Va n Ness Feldman on behalf of BMW Group, General Motors Company, and Toyota EPA-HQ-RCRA-2008-0329-0729 Myra H. Glover, Director, En vironmental, Health and Safe ty, 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 Heatin g 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. Ha ley, 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 Br own, 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 Clea ning Systems and Equipment, Inc. (Heatech) EPA-HQ-RCRA-2008-0329-0767 Stephen T. Smith on behalf of David A. We bb, 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, Pr esident 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, Environm ental Affairs, Georgia-Pacific, LLC (GP) EPA-HQ-RCRA-2008-0329-0775 Thomas K. Walsh, Engineer - Director/T reasurer, Upper Blackstone Water PollutionPART 2: Commenters Response to Comments Document -NHSM Rule

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

Abatement District EPA-HQ-RCRA-2008-0329-0776 Kathleen Wheeler, Resident Manager, Gra phic Packaging Interna tional, 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 Dire ctor, 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 Sa les 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, Northeas t Waste Management Officials' Association (NEWMOA) on behalf of the Solid Waste Progr ams in the states of Connecticut, Maine, Massachusetts, New Hampshir e, 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, Vi rginia 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. LangloisPART 2: Commenters Response to Comments Document -NHSM Rule

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Document ID Commenter Name (includes person that subm itted 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 Asso ciation 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 Manage r, 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 Colo simo, CEO, Phoenix Renewable Resources (Phoenix) EPA-HQ-RCRA-2008-0329-0863 Bruce J. Parker, President and CEO, Nati onal 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, Environm ent and Government A ffairs, Lafarge North America â€“ Cement Division (Lafarge) EPA-HQ-RCRA-2008-0329-0866 John J. Petchul, Staff Environmenta l 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, Ar kansas 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 an d Water Reclamation, Prince William County Service Authority (PWCSA) EPA-HQ-RCRA-2008-0329-0874 Jeffrey R. Klieve, Director, Environmenta l Affairs, Monsanto Company (Monsanto)PART 2: Commenters Response to Comments Document -NHSM Rule

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Document ID Commenter Name (includes person that subm itted 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, Gene ral 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 Pres ident, 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. DudaPART 2: Commenters Response to Comments Document -NHSM Rule

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Document ID Commenter Name (includes person that subm itted 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 Mana ger, Florida Plywoods, Inc. EPA-HQ-RCRA-2008-0329-0954 Susan J. Miller, Vice President, Environmen t, 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, Util ity Solid Waste Activities Group (USWAG) EPA-HQ-RCRA-2008-0329-0958 Alan B. Rubin, Principa l, Envirostrategies, LLC EPA-HQ-RCRA-2008-0329-0959 Carroll L. Missimer, Global Di rector-Environmental Affairs, P. H. Glatfelter Company (Glatfelter) EPA-HQ-RCRA-2008-0329-0960 Jeff White, Director of Environmental Stewar dship, 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, Nati onal Association for Surface Finishing (NASF) EPA-HQ-RCRA-2008-0329-0963 Jerry Call, Executive Vice Presiden t, 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. TrypalukPART 2: Commenters Response to Comments Document -NHSM Rule

16 of 275 Document ID and Commenter Name for Each Co mment on the ANPRM and the Proposed Rule

Document ID Commenter Name (includes person that subm itted 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 Fore sts, 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

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Document ID Commenter Name (includes person that subm itted 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. Vins on 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 an d 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 Sustainabl e Development Department, Arkema Inc. (Arkema) EPA-HQ-RCRA-2008-0329-1045 Gary N. Wilcox, President, Connect icut Cleaning & Heating Equipment EPA-HQ-RCRA-2008-0329-1046 David P. Tenny, President and CEO, Nati onal Alliance of Fo rest 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 Envir onmental Specialist, RRI Energy, Inc. EPA-HQ-RCRA-2008-0329-1082 S. ElkevizthPART 2: Commenters Response to Comments Document -NHSM Rule

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Document ID Commenter Name (includes person that subm itted 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

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Document ID Commenter Name (includes person that subm itted 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, Direct or, 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 Environmen tal 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 Sustaina bility, International Paper Company EPA-HQ-RCRA-2008-0329-1159 Stephen E. Woock, EHS&S Fe deral Regulatory Affairs Mana ger, 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, Miss ouri Forest Products Association (MFPA) EPA-HQ-RCRA-2008-0329-1162 Erik Bakken, Manager, Corporate Environm ental 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. Bo ck, PLLC on behalf of West Coast Refuse & Recycling Coalition (WCRRC) EPA-HQ-RCRA-2008-0329-1170 Robert D. Bessette, President, Counc il of Industrial Boiler Owners (CIBO) EPA-HQ-RCRA-2008-0329-1171 David A. Buff, Golder Associates on be half 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 Exec utive - Environmental Services, Ameren Corporation (Ameren) EPA-HQ-RCRA-2008-0329-1174 David Mickey, Blue Ridge E nvironmental De fense 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 Re newables Group and President of Niagara Generation, LLC EPA-HQ-RCRA-2008-0329-1177 Scott Gardner, Managing Director of US Re newables Group and President of Niagara Generation, LLCPART 2: Commenters Response to Comments Document -NHSM Rule

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Document ID Commenter Name (includes person that subm itted 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 E nvironmental Counsel, American Trucking Associations, Inc. (ATA) EPA-HQ-RCRA-2008-0329-1180 Basil G. Constantelos, Managing Director, E nvironmental 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, Environmenta l 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 Direct or, 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 Industr ial 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 Presid ent, 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 Mana ger, Victor Valley Wastewater Reclamation Authority EPA-HQ-RCRA-2008-0329-1200 Suzanne Bangert, Administrator, Air & Waste Di vision, State of Wisc onsin Department of
Natural Resources EPA-HQ-RCRA-2008-0329-1201 M. H. Freeman EPA-HQ-RCRA-2008-0329-1202 Louis Zeller, Scienc e Director, Blue Ridge Environmental Defense League EPA-HQ-RCRA-2008-0329-1203 Todd A. Tolbert, Environmental Analyst II, Associated Electric C ooperative, 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 ow ner, A&I Parts Center, Inc. EPA-HQ-RCRA-2008-0329-1209 Madelent Karlositsch, Stony Bro ok Regional Sewerage Authority EPA-HQ-RCRA-2008-0329-1210 Gary Carpenter, Kansas Auto Repair Inc. EPA-HQ-RCRA-2008-0329-1211 Howard Marks, Director Envi ronment, 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. CarneyPART 2: Commenters Response to Comments Document -NHSM Rule

21 of 275 Document ID and Commenter Name for Each Co mment on the ANPRM and the Proposed Rule

Document ID Commenter Name (includes person that subm itted 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 Nort hwest-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, Ke waskum Auto Recyclers EPA-HQ-RCRA-2008-0329-1246 Eric E. Boyd, Seyfarth & Shaw Attorneys LL P on behalf of Jeffrey Lang, Rhodia, Inc. EPA-HQ-RCRA-2008-0329-1247 Scott Kuhn, Vice President Environmental Compliance, Cl ean Harbors Environmental
Services EPA-HQ-RCRA-2008-0329-1248 Fadi K. Mourad, Manager of Environm ental 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, Se nior Vice President, US Installer Channels, Valvoline/Ashland, Inc. EPA-HQ-RCRA-2008-0329-1251 Bill Wemhoff, Senior Principal, Environmenta l 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, Plan t 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, Envi ronmental 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 Wast e 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, Environmenta l 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 Ma nager, 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 104PART 2: Commenters Response to Comments Document -NHSM Rule

22 of 275 Document ID and Commenter Name for Each Co mment on the ANPRM and the Proposed Rule

Document ID Commenter Name (includes person that subm itted on behalf of an organization) EPA-HQ-RCRA-2008-0329-1271 Jerry W. Stewart, Director, Waste Resources Divi sion, 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 Harr is, General Counsel, NORA, An Association of Responsible Recyclers EPA-HQ-RCRA-2008-0329-1274 Tawny A. Bridgeford, Associ ate General Counsel, National Mining Association (NMA) EPA-HQ-RCRA-2008-0329-1275 Steve Schliesser on behalf of Sheila C. Holm an, 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, Regul atory 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. Pub lic 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, Al exandria 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, An thony 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, Ariz ona 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 Wast e Program Manager, NAVFAC Northwest EPA-HQ-RCRA-2008-0329-1301 Keith Brady, Chief, Surface Mining Secti on, 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 Presiden t 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. Vicker y, 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 Re mediation and Waste Management, Main Department of Environm ental 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, Pr otect All Childre n'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, LLCPART 2: Commenters Response to Comments Document -NHSM Rule

23 of 275 Document ID and Commenter Name for Each Co mment on the ANPRM and the Proposed Rule

Document ID Commenter Name (includes person that subm itted on behalf of an organization) EPA-HQ-RCRA-2008-0329-1316 K. Selock EPA-HQ-RCRA-2008-0329-1317 Sally Keating Nyren, Manager of Environm ental, Health & Safety, The Metropolitan District (MDC) EPA-HQ-RCRA-2008-0329-1318 Steven Glenn Barringer and Emil y 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 Di rector, 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 Offi cer (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, Supp lier 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 Offi cer (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, Ca lifornia 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 Depart ment 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, Distri ct Manager, Envir onmental 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 Wast e and Material Management Unit, Hazardous Materials and Waste Management Program, Co lorado 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, Conser vation Voter of Sout h 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 DistrictPART 2: Commenters Response to Comments Document -NHSM Rule

24 of 275 Document ID and Commenter Name for Each Co mment on the ANPRM and the Proposed Rule

Document ID Commenter Name (includes person that subm itted 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 A ffairs, Decorative Panels International, Inc. (DPI) EPA-HQ-RCRA-2008-0329-1363 Stephen R. Gossett, Senior Environmenta l Associate, Eastman Chemical Company (Eastman) EPA-HQ-RCRA-2008-0329-1364 Andrew S. Freeman, Presid ent, 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, Genera l Manager, Exeter Ener gy 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 Lu bes 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, Glouc ester County Utilities Authority (GCUA) EPA-HQ-RCRA-2008-0329-1372 Kwik Kar Owner's Association EPA-HQ-RCRA-2008-0329-1373 Thomas W. Sigmund, Executiv e Director, Green Bay Metropo litan Sewerage District (GBMSD) EPA-HQ-RCRA-2008-0329-1374 Martha E. Groome, NPDES Co mpliance Officer/Laboratory a nd Industrial Waste Section Supervisor, City of Greensboro Water Resources Department EPA-HQ-RCRA-2008-0329-1375 John Williams, President, Holston Envi ronmental 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, In termountain Equipment Sales Company EPA-HQ-RCRA-2008-0329-1378 Charles R. Cary, Principal, Bi omass 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 Oper ations 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 Perk iomen 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, Main e Pulp & Paper Association (MPPA) EPA-HQ-RCRA-2008-0329-1391 Mark Gandy, Executive Sale s Manager, MRO Sales Inc. EPA-HQ-RCRA-2008-0329-1392 M. H., Southwest At lanta 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 Mana ger, Merichem Company (Merichem) EPA-HQ-RCRA-2008-0329-1395 Steven R. Sliver, Chief, Solid Waste and La nd Application Section, Environmental Resource Management Division, Michig an 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 be half 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 Asso ciation 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 Co mment on the ANPRM and the Proposed Rule

Document ID Commenter Name (includes person that subm itted 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, Northw est Bergen County Utilities Authority (NBCUA) EPA-HQ-RCRA-2008-0329-1407 Bruce J. Parker, President and CEO, Nati onal 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 C ontrol Plant and Phil Bobel, Manager, Environmental Compliance, City of Palo Alto EPA-HQ-RCRA-2008-0329-1411 David Haldeman, Waste Manage ment Division Administrator and Shelley Schneider, Air Quality Division Administrato r, 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 Re mediation and Waste Management, Maine Department of Environm ental Protection (DEP) EPA-HQ-RCRA-2008-0329-1416 Wendy Roy on behalf of Arthur N. Marin, Executive Director, Northeast States for
Coordinated Air Use Ma nagement (NESCAUM) EPA-HQ-RCRA-2008-0329-1417 A. Preston Howard, Jr., President, Manufactu rers and Chemical Industry Council of North Carolina (MCIC) EPA-HQ-RCRA-2008-0329-1418 Jeffrey L. Leiter, Independent Lubr icant Manufacturers Association EPA-HQ-RCRA-2008-0329-1419 D. Kornegay EPA-HQ-RCRA-2008-0329-1420 Gregg M. Peters, Oil Ca n 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, C onsultant, 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 Envir onmental Compliance, Oil And Recycling Operations, Safety-Kleen Systems, Inc. (Safety-Kleen) EPA-HQ-RCRA-2008-0329-1437 Susan M. Walthall, Acting Chief Counsel fo r Advocacy and Keith W. Holman, Assistant Chief Counsel for Environmental Policy, Offi ce 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 Relati ons 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 Bu siness Services, Oil Distributing Company EPA-HQ-RCRA-2008-0329-1443 Gregory J. Merrill, Director, Mont gomery County Envir onmental Services EPA-HQ-RCRA-2008-0329-1444 Glen D. Petrauski, Executive Director, So merset Raritan Valley Sewerage Authority EPA-HQ-RCRA-2008-0329-1445 Cris Chirumbolo, Southwest Petroleum Waste ManagementPART 2: Commenters Response to Comments Document -NHSM Rule

26 of 275 Document ID and Commenter Name for Each Co mment on the ANPRM and the Proposed Rule

Document ID Commenter Name (includes person that subm itted on behalf of an organization) EPA-HQ-RCRA-2008-0329-1446 John Kantorek, Executive Director, Stony Br ook Regional Sewerage Authority (SBRSA) EPA-HQ-RCRA-2008-0329-1447 N. P. Burrows, Senior Envi ronmental 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 Au to Care/Expert Tire, Ka nsas 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 Presiden t, 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 Engine ering, 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 Lodderhos e, Assistant Director of Engineering, Environmental Compliance, Metropo litan 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 Harr is, 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 C ooperative, 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. SnowPART 2: Commenters Response to Comments Document -NHSM Rule

27 of 275 Document ID and Commenter Name for Each Co mment on the ANPRM and the Proposed Rule

Document ID Commenter Name (includes person that subm itted 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-DrenningPART 2: Commenters Response to Comments Document -NHSM Rule

28 of 275 Document ID and Commenter Name for Each Co mment on the ANPRM and the Proposed Rule

Document ID Commenter Name (includes person that subm itted 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 Te resa 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, Intern ational 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 be half 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 Ch air, 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, Co rporate 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 Envir onmental Protection Agency (Ohio EPA) EPA-HQ-RCRA-2008-0329-1583 Jeffrey Kendall, CEO, Libe rty Tire Recycling, LLC EPA-HQ-RCRA-2008-0329-1584 Robert V. Trapani, Environmental Engine er, Arizona Department of Transportation EPA-HQ-RCRA-2008-0329-1585 Curtis Hall, General Manager, Asphalt Operations, Inde pendence 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 Envi ronmental, Health & Safety, Temple-Inland EPA-HQ-RCRA-2008-0329-1588 Colby W. Benton, Environmental, Health, Sa fety 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 Opera tions, 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 Resear ch, Metropolitan Water Reclamation District of Greater Chicago EPA-HQ-RCRA-2008-0329-1596 Katherine Frey, Director of Envi ronmental Affairs, SierraPinePART 2: Commenters Response to Comments Document -NHSM Rule

29 of 275 Document ID and Commenter Name for Each Co mment on the ANPRM and the Proposed Rule

Document ID Commenter Name (includes person that subm itted on behalf of an organization) EPA-HQ-RCRA-2008-0329-1597 John D. Reece, Executive Di rector, Litt le Blue Valley Sewer District EPA-HQ-RCRA-2008-0329-1598 Don Olson, Solid Waste Superintendent, De partment 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, Co rporate Affairs Division, Chief Environmental Officer, Constellation Energy EPA-HQ-RCRA-2008-0329-1604 Gene Barr, Vice President, Government an d 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 an d CEO, AARON Oil Company, Inc. EPA-HQ-RCRA-2008-0329-1608 John B. Donaldson, Presid ent, BlackRock Coal, LLC EPA-HQ-RCRA-2008-0329-1609 Wayne Chagnot, President, Connect icut 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 Mo sby, Acting Director, Mi ssouri 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 Manage ment Operations, City of Tacoma, Washington EPA-HQ-RCRA-2008-0329-1614 Robert L. Kohnen, Vice Pres ident, 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 Engine er, Arizona Department of Transportation EPA-HQ-RCRA-2008-0329-1623 Gary L. King, Director of Sa fety, 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 Oper ations 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, Sout h 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, Middl e County Auto Wreckers, Inc.PART 2: Commenters Response to Comments Document -NHSM Rule

30 of 275 Document ID and Commenter Name for Each Co mment on the ANPRM and the Proposed Rule

Document ID Commenter Name (includes person that subm itted 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, Environmenta l 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, Ge neral 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), Pr esident, 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 Manuf acturing, 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 Presid ent, Regulatory Affairs, Portla nd Cement Association (PCA) EPA-HQ-RCRA-2008-0329-1685 Larry Manziek, Executive Director, Intern ational Precious Metals Institute (IPMI) EPA-HQ-RCRA-2008-0329-1686 Susan Parker Bodine, Used Oil Management Asso ciation (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 Thom as, re: Meeting with Tr eated Wood Council* EPA-HQ-RCRA-2008-0329-1716 Letter to David McIntosh, Associate Administ rator 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 Response to Comments Document -NHSM Rule

31 of 275 Document ID and Commenter Name for Each Co mment on the ANPRM and the Proposed Rule

Document ID Commenter Name (includes person that subm itted 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, Administra tor, 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 McM onagle, Oreland Auto
Service* EPA-HQ-RCRA-2008-0329-1722 Letter to Lisa Jackson, Administrator, USEPA, from Steve C ohen, 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: Meeti ng with the Staff of Representative James E. Clyburn's Office* EPA-HQ-RCRA-2008-0329-1725 Memorandum from Kimberly Cochran, re: Me eting 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 receiv ed a number of letters from members of Congr ess and various stakeholders outside the comment period, which the Agency entered into the docket as "s upporting 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 th ose 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 res ponse to comments section (Section V), refer to the appropriate secti ons in the final rule in the docket.

The rule (referenced in the comments and re sponses below) and the original comments
used for EPA review are in the docket for this final rule under Dock et ID No. EPA-HQ-RCRA2008-0329. These public submissions and other documen ts relating to this rule are available on
the www.regulations.gov web site.

Comments on the Proposed Rule (Section V of the final rule. No te: the numbering used in the ru le 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 unl ess: (1) the non-hazardous secondary material is used as a fuel
and remains within the control of the generator that meets th e legitimacy crit eria; (2) the nonhazardous secondary material is used as an ingred ient that meets the legitimacy criteria; (3) the discarded non-hazardous secondary material has been sufficien tly 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 no n-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 othe r approaches regarding the combustion of non-hazardous secondary materials. Under the firs t approach, identified in the proposal as the “Alternative Approach,” a ll non-hazardous secondary materials and ingredients that were used in
combustion facilities that were not within the co ntrol of the generator were considered a solid waste. Thus, only those non-hazardous secondary materials or ingredient s that were used in combustion facilities within control of the generato r that meet the legitimacy criteria would be considered a non-waste. However, like the pr oposed rule, traditional fuels also would not be considered a solid waste, re gardless of the generator.

The second alternative that EPA took comme nt 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 cons idered 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 generalPART 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 sec ondary materials that are discarded are
considered to be a solid waste. On the othe r hand, secondary material s that have not been discarded, for example, secondary materials that are managed within the c ontrol of the generator and meet the specified legitimacy criteria would no t be considered a solid waste. Many of the
comments discussed the definition of the term “d iscard” and instances in which the term should or should not apply.
As discussed below, environmental groups ar gue, generally, that any secondary material burned for energy recovery is a solid waste. Th ese 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 evid enced 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 opera tions. Based on these characteristics, industry commenters maintain that such secondary materials shoul d not be considered discarded. Industry
commenters also assert th at EPA cannot define something as “discarded” when transferred to a third party and express concern that the con cept 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 b een discarded in the first instance. They argue that the proposed rule effectively makes the ac t of moving materials from one party to another the equivalent of "discard," rega rdless of intent. These commen ters 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 secondar y material meets the legitimacy criteria for use as a fuel, and it is combusted as a fuel, it is no t 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 th em 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 s econdary materials burned for energy recovery
are not solid wastes. Th e 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 c opy 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.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

34 of 275 give it discretion to define “discard.” Acco rding to the comment, EPA is wrongly implying that, under case law, the meaning of “discard” is am biguous 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 la w in the proposed rule at 75 FR 31850-52 (section titled, “Case Law on Definition of Solid Wa ste”); 31858-59 (Comment/R esponse 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 obviou s inaccuracies in the comment.
First, EPA freely admits, as stated in the pr oposal, 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 opini on and the plain meaning of the statute are unmistakable. EPA
does not have the discretion to cover as solid wa ste secondary materials re cycled in a continuous industrial process, even if they are used in a combustion unit. Indeed, if EPA were to assert jurisdiction for secondary materi als recycled in a continuous pr ocess for energy recovery, it appears highly likely that the Agency’s rule w ould be invalidated in a litigation challenge.
In addition, EPA has not at any time since th e ANPRM in this proceeding stated that the term “discard” is ambiguous. It is clea r that EPA’s jurisdiction under RCRA applies unambiguously to materials that are discarded an d 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 ri se 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 und er RCRA secondary materials recycled in a continuous industrial process. On the othe r hand, EPA may have to exercise discretion to determine whether particular materials are recycled in a continuous process and whet her such materials recycled in other ways are solid wastes. Agency discreti on applies to the applic ation of the discard
definition.

Comment [3a-A1-2] : EPA’s proposal acknowledges that burning a s econdary material for energy recovery is not “traditional” recycling. Thus, EPA may not consider bu rning for energy recovery as recycling because the term , “recycling,” is not given its ordi nary meaning. See 75 FR at 31872.

EPA’s Response : EPA disagrees with the conclusion of the comm ent, but needs to corr ect 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 “traditiona l” recycling. EPA’s response noted that this regul ation specifically ap plies 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 regul ate non-hazardous secondary mate rials recycled in ways notPART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

35 of 275 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 referr ing 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 reco rd that recycling include s legitimate burning for energy recovery and this is very clearly unde rstood by almost all of the commenters. The Agency views the comment’s distinction as a sema ntic 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 fo r energy recovery of secondary materials.

Comment [3a-A1-3] : EPA effectively concedes that the “ordinar y 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 combus tion 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, accordin g to the comment, EPA is unlawfully seeking to exclude from the definition of solid waste by its discussion of the be nefits of burning the following materials: pulp and paper residuals, ag ricultural residues, food scraps, animal manure, construction and demolition waste, disaster debris, land clearing debris, scrap plastics, spent solvents, coal refuse, waste water treatm ent sludge and used oil. 75 FR at 31850.

EPA’s Response : Other responses deal with the legal argumen ts 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 acc ount that a secondary material may often be used to produce a safe fuel produc t 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 misc onceptions when it discusses whether product fuels may be processed or extracted from ma terials once discarded. EPA notes that fuel processed or extracted from discarded non-hazar dous secondary materials should not necessarily be considered solid waste, just as recycled ne wspapers, 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 th at must take place to render a
discarded material into a non-waste product. 75 FR 31877.
Finally, EPA does not understand the co mment’s citation to 75 FR 31849-50 asPART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

36 of 275 containing statements regarding the Agency’s “sens e” of discard or the fact that the Agency is seeking to exclude various materials from the defi nition of solid waste. These pages only discuss the benefits of secondary ma terial combustion without opi ning 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 C ongress did not intend EPA to exclude secondary materials that are burned for energy rec overy from the definition of solid waste. In particular, section 3004(q) directs EPA to issue regulations both for faci lities that produce fuels
from hazardous waste and for facilities that burn “f or purposes of energy recovery” any fuel that is produced from hazardous waste or any fuel th at contains any hazardous waste. Thus, EPA may not declare that hazardous wastes and hazar dous waste derived fuels are not discarded when burned for energy recovery. The comment con cedes that section 3004(q) addresses hazardous waste, but maintains that the pr ovision is strongly indicative of Congress’ intent that burning a material for energy recovery does not transform that mate rial 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 Congre ss 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. Secti on 3004(q) very clearly pr ovides that a material must be a hazardous waste, first, before it s provisions apply. EPA needs to make the
determination that material is a hazardous waste before even de aling with the restrictions under 3004(q). Thus, it does not apply to the present ru le where EPA must first determine whether the
material is a solid waste and ther e 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 EP A’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 ei ther about the ownership of a waste material that was being burned or a bout 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, trai ning, 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 attemp t to exempt facilities that recover energy from the section 129 standards and would sh rink the population of facilities covered to 175, a number far less than Congress intended.

2. Section 129(g)(1) makes clear that Congress vi ewed refuse-derived fuel as waste and
EPA includes “refuse-derived” fuel as a non-waste.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

37 of 275 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. Cong ress’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 f acilities controlled by the generator to burn non-hazardous secondary materials unde r section 112, EPA’s regulations would improperly allow hospital-owned medical wa ste 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 provi sions of the CAA are relevant to this regulation. EPA is not creating exemptions to section 129 for f acilities 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 th e 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 contenti ons are correct, secti on 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 argue s that EPA should consider the CAA when defining solid
waste under RCRA. The CAA does not direct the Agency to cons ider the language of section 129 when establishing a RCRA defin ition. 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 CI SWI rule, the standards under section 129 are valid. Therefore, we believe the commente r’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 inte rpretation. 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, toda y’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”PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

38 of 275 in this RCRA rule. The validity of EPA’ s interpretation on whether commodity fuels may be processed, or extracted, from a wa ste 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 ‘foss il 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 fu el 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 sec tion 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 ma terials burned for energy reco very 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 reject ed for purposes of combusting materials under CAA section 129 a distinction between materials bur ned for energy recovery and solid wastes. However, EPA is not making that distinction in th is 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 interp ret 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 ha ve fuel value. EPA, in this rule, is making a distinction
between materials that are discarde d and those that are not. One of the considerations is whether a secondary material is really be ing burned for destruction and is, th erefore, 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 proces s to determine if a secondary material is a waste, is that EPA evaluates, fi rst, 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 a nd the factors are not necessarily considered in any pa rticular order and one or more of the factors may render the material a waste. For example, one of the legiti macy criteria is the consideration of whether the non-hazardous secondary material has meaningful fuel value or is simply being burned for destruction – that is, incinera ted. If there is no meaningful fuel value, the non-hazardous secondary material is simp ly being destroyed.
If there is meaningful fuel va lue, other factors must be c onsidered, including whether the non-hazardous secondary material is managed as a commodity and whether contaminants
indicate that incinerati on (destruction) is the real reason for burning. A decision as to whether aPART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

39 of 275 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 n on-hazardous secondary material s 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 r ecycled on-site or with in 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 th e control of the genera tor and must pass the legitimacy criteria. By punting to its legitimacy criteria, EPA effectively concedes that its “‘onsite’ problem” renders irreleva nt the condition that non-hazardous secondary materials be burned at a facility within cont rol of the generator.

EPA’s Response : EPA disagrees with this comment. If th e non-hazardous secondary material remains within the control of the generator, it is more likel y 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 fuel s within a continuous industrial process. EPA cannot evaluate every non-hazard ous 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 pa rty that may not be a waste and EPA is attempting to deal with those categories of non-hazardous secondary materi als 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-hazar dous 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, ar e 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 releva nt 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 destru ction – referred to as “sham” recycling. The Agency is not simply "punting" to its legitimacy criteri a, 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 betw een companies for use as a fuel renders the nonhazardous secondary materials discarded. Accord ing to the comments, EPA not only makes the transfer of secondary materials an indication of discard, but tr ansfer becomes the primary and controlling condition for determini ng whether secondary materials wi ll be classified as fuelPART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

40 of 275 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 ge nerator without prior government permission.

Moreover, the commenters claim that EPA cannot make a sweeping and arbitrary assumption in categorizing these transferred mate rials 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 disc arded 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 transfer s “are hardly good indicia” of discard. If a fuel can meet all of the legitimacy crit eria (managed as a valuable commodity, have meaningful heating value, not c ontain elevated levels of contam inants), it cannot reasonably be said to be discarded just because it is sold or ot herwise 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 ma terials did not meet the legitimacy criteria and
should be treated as discarded. Such a referenc e 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 ma terials wastes when transferred to third parties for use as fuels. Stat es can make mistakes, as they did regarding used oil, which they classified as a waste, but cha nged direction after EPA pr omulgated 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 estab lish that intent. Of pa rticular significance is the principle in the common law that abandonmen t does not occur where a direct transfer of ownership to another party occurs. Where a genera tor conveys title to a s econdary material to a third-party, no abandonment occurs, whether there is pa yment for the material or not. Nor, if the material is actually recycled (i .e., used, reused, or reclaimed), w ould such material ordinarily be deemed to be “disposed of” or “thrown away.” Materials legitimately burned for energy recovery or used as ingredient s in combustion units are neither disposed of nor abandoned and do not meet the ‘plain-English m eaning’ of . . . ‘discard.’
Merely because one party has relinquished co ntrol of a secondary material does not make it a waste nor does the fact that a receiving part y 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 ge nerator’s use of a secondary material does not guarantee its proper use, yet EPA allows the legiti macy criteria to suffice in situations in which the generator retains control of the non-hazardous secondary mate rial and legitimately recycles
it.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

41 of 275 Further, EPA seems to contradict itself b ecause 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 cons idered to be more integral or akin to use in a commercial manufacturing process and thus, these non-h azardous secondary materials should not be considered discarded provided they meet the legitimacy criteria. After all, commercial manufacturing processes re quire both ingredients a nd 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 material s transferred between companies are wastes. Instead, EPA has evaluated whether certain categor ies of materials are di scarded or not. The Agency has not adopted the extremes of saying th at 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. Wa stes 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 a nd transferred to a third party for recycling, and determined whether they would be appropria tely 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 catego ries. In fact, the Agency does so with respect to scrap tires removed from vehicles and managed under the over sight of established ti re collection programs
and resinated wood residuals.
Consideration of over-accumulation of scrap ti res resulting in massive piles of discarded tires is not being cited as suppor t for the proposition th at all transfers of secondary materials result in waste treatment, but only for the proposit ion that the Agency needs to be careful in examining whether secondary materials may be tr ansferred as commodity fuels or as wastes. Further, EPA is not relying on state determina tions 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 tr ansferred scrap tires are not wastes.
Any of EPA’s decisions regard ing specific materials, if ch allenged, must stand or fall based on its individual merit. For example, re sinated wood residuals ar e routinely transferred
between either intra- or inter- co mpany 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 w ood residuals are used when gene rated 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 ma terials 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 knowle dge, an effective presumption that recycling materials for a fuel is primarily conducted within the control of the genera tor. 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 pr ocess. OCC rejects can include, and are usuallyPART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

42 of 275 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-hazar dous secondary materials may be proc essed or extracted from wastes to produce fuel commodities. Examples include tire-derived fuel proces sed from scrap tires retrieved from waste tire piles, and coal refuse retrieved from legacy piles that have been processed through the use of gri zzlies, screens, and blending to improve the quality, remove metal objects, and reduce the concen trations of various constituents. To the extent that EPA has indicated that particular categories of non-h azardous secondary materials are wastes when transferred off-site to a third party, the Agen cy provides companies with the opportunity to petition EPA for a non-waste determination; we be lieve a petition process is essential because many non-hazardous secondary materials are recycl ed and managed in many different ways, and the Agency may lack the specific details in ce rtain cases to know whether or not such nonhazardous secondary materials are or are not solid wastes.
Thus, EPA is not making a sweeping arbitrar y assumption in categ orizing transferred secondary materials as discarde d. In addition, EPA is not, in any sense, forbidding economic reuse of such materials by anyone other than th e generator without prior government permission (through the petition process). The effect of this regulation woul d 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 fu els 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 tran sferring material to another industry is not relevant for determining whether material is disc arded. The court in that case noted that “the term ‘discarded’ cannot encompass materials that "a re destined for benefici al reuse or recycling in a continuous process by the ge nerating industry itself.’” 35 F .3d at 1268. Further, “materials destined for future recycling by another i ndustry may be considered ‘discarded.’” Id. With respect to transferring material, the court only said “we have ne ver said that RCRA compels the conclusion that material destined for recycling in another industry is necessarily ‘discarded.’”
Id. Rather, the key to unders tanding the importance of Safe Food is the question “‘whether the agency’s interpretation of . . . ‘discarded’ [is] pe rmissible, 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 exam ine EPA’s interpretation based on
whether it is reasonable. No one factor will be determinative.
Thus, the comment is wrong to tr y to argue that a quotation in Safe Food regarding “vertical integration” somehow mean s that the transfer of a secondary material to another party is irrelevant for determining whether a secondary materi al is a waste. Aside from the fact that EPA
finds no evidence of the relevance of “vertical in tegration” to this re gulation and no commenter has indicated its relevance, it is plain from any r easonable analysis that tr ansfer to another party, where a generator of a secondary material relinquishes all contro l 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 cr iterion 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 Agen cy has found either discard or no legitimate recycling, it is requiring companie s to file a non-waste petition in order to allow the Agency toPART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

43 of 275 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 factor s that are relevant to EPA’s determination under this rule. In this rule, EPA needs to decide wh ether 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 th e material has not been discarde d in the first in stance, it must be handled as a valuable commodity, must have meaningful heating value, and must not have
contaminant levels that show the material is tr ansferred 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 le gitimately as a fuel (construc tion 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 no t 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 pa rty. Rather, EPA is using the le gitimacy standard for generators in order to comply with the holdings in the case law that secondary mate rial recycled within a continuous industrial process is no t a waste. As stated in th e preamble to the proposed rule, secondary materials recycled or reused legitimat ely 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, reject s the environmental groups’ argument that any combustion of secondary material is a waste. EPA has only deci ded that there is greate r likelihood that material
will not be a waste if it is under th e control of the generator. If th e 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 materi al transferred to anothe r 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 carele ss 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 statut e 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 pla ced into a Portland Cement kiln is not “combusted” – rather, it is incorporated into the cl inker product. Similarly, non-hazardous secondary materials that may be used as substitutes for mined or virgin feedstoc k become incorporated into the clinker product
and are not “combusted.”

EPA’s Response : This comment is not relevant to this regul ation, which determines whether a secondary material is a solid waste, or not a solid wa ste as defined by RCRA. Clearly, EPA has thePART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

44 of 275 authority to interpret RCRA to decide whethe r non-hazardous secondary materials are solid wastes or not. Whether EPA may cover ingredie nts 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 th e material. This logical leap defies common sense, and is not in any manner compelled by the statutor y 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, re moves it from its “discarded” venue, and takes
it with him or her for a bona fide use. S uppose 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 neverthele ss “cease to be a solid wa ste” if it were being beneficially reused, as it would no longer at that point be consider ed a “discarded material.” The comment goes on to say, however, that the cour t 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 reco ncile this position w ith 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 “criti cal” 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 ci tes no case law, and they are aware of none, in
which a court has ruled that a discarded non-h azardous 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 firs t 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 de finition 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,” so mething derived from it retains that designationPART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

45 of 275 even if it might be reclaimed and reused at some future time.” ABR at 1056.
EPA notes in a response to a comment elsewher e in this preamble th at 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” regi me is not “critical” to the court’s holding. The court only was opining on a hypothe tical 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 ba sed on other relevant case law on the subject.
EPA also acknowledges that persons may find va lue 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 comb ustors, and EPA is not evaluating other materials when beneficially used. In fact, EPA has specifi cally indicated that the Agency is not making a determination that non-hazardous secondary materi als are, or are not, solid wastes for other possible beneficial end uses. Such beneficial use determinations ar e generally made by the states for these other end uses, and EPA will conti nue to look to the states in making such determinations. Thus, EPA does not need to reso lve the hypothetical situ ation as to when the
chest of drawers becomes a non-waste. .

Comment [3a-A1-11] : In the proposed rule, the Agen cy indicated that the 2008 DSW Final Rule included a third part in the definition of “unde r the control of the generator. ” Specifically, the 2008 DSW Final Rule also applies to hazardous secondary mate rials that are generated pursuant to a written contract between a tolling contra ctor and a toll manufacturer a nd legitimately reclaimed by the tolling contractor. For purposes of that exclus ion, a tolling contractor is a person who arranges for the production of a product or intermediate made from specified ra w 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 contr actors. One commenter stated that to the extent that such arrangement s 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 in cluded. A state commented, howev er, only that tolling contracts
should not be considered under th e control of the generator.

EPA’s Response : We did not include tolling arrangements as be ing “within the control of the generator” as we viewed this as a specific type of arrangement used in th e production of secondary materials that are not being used as fuel s, and were unaware of these t ypes of contractual arrangements where both products and secondary material fuel s 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 th e statute’s two primary goals of (1)PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

46 of 275 protecting human health and the environment a nd (2) encouraging reus e and recycling. The second goal is particularly critic al in the RCRA subtitle D context. EPA’s proposal, along with the CISWI proposal, draws many lines that woul d impose major impediments on recycle/reuse. Yet EPA never attempts to justify these choices dealing with non-hazard ous secondary materials on the grounds of protecting human health and the environment.

EPA’s failure to take both of these factors in to account produces results that impede reuse and recycling of non-hazardous secondary mate rials with no benefit to health and the
environment. The commenters claim this is ar bitrary and capricious a nd a failure of reasoned decision making.

EPA’s Response:
EPA disagrees that these policy goals pr ovide the legal basis for the Agency’s determination whether secondary materials are so lid wastes – discarded within the ordinary meaning of the term. Broad policy goals stated in the statute do not substit ute 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 re asons for its decision. However, the Agency
must still follow the statute.
Yes, the Agency should encourage recycl ing, but it may not encourage that use by allowing discarded materials to be considered non-wastes. The ove rall congressional policies are limited by the substantive statutor y requirements. Yes, the Agency must protect human health the environment, but its ability to do that is li mited to its ability to re gulate material that is
discarded – material that is a solid waste. Th e Agency is establishing standards for determining if a secondary material is a solid waste, in or der to clearly id entify which combustion units are subject to CAA section 129 standards. We do not e 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 ar gues that the statutory definition of solid waste sets the outer limits of EPA's regulatory authority under RCRA. Howe ver, EPA is neither required nor authorized to go to the limits of th at 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 ma terials. EPA, therefor e, should exercise its authority to establish a definition of waste that is tailored to address th e problems at issue, and that does not impermissibly infri nge on other statutory goals.

EPA’s Response:
EPA disagrees with this comme nt. First, general congressi onal policies th at refer to encouraging recycling have no place in EPA’s dete rmination as to whether a secondary material is a waste or not. For purposes of this ru le, EPA is evaluating which non-hazardous secondary
materials are discarded under the statute. C AA section 129 requires that units burning solid waste, as defined by the Administ rator, are subject to emissions standards under that section.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

47 of 275 In deciding which non-hazardous secondary mate rials are in fact wastes, the Agency
evaluated a number of circumstances and exercise d 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 di scarded 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 s imply because it wishes to encourage recycling by making the combustion of secondary materials less expensive.
With respect to RCRA subtitle C regulati ons, 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 string ent 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 ex cluded 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 ar gued 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 legitim acy criteria in some form apply to all recycling, regardless of how it is formulated, even if ther e is a specific exclusion under RCRA subtitle C.

2. Processing Requirements.
Under the proposal, fuels or ingredients th at are produced from the processing of
discarded non-hazardous seconda ry materials are not a solid waste provided they meet the specified legitimacy criteria. Comments from en vironmental 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 co mmodity 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 requi rements generally too restrictive. Several comments requested that EP A offer further explanation as to why processing is necessary in the first instance. In partic ular, they claimed that the degree of processing required by the proposed rule is inappropriate a nd 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 material s suitable for use as a fuel or ingredient without processing are not solid wastes when co mbusted, even if they have been previously discarded. In other words, if previously di scarded, non-hazardous sec ondary materials can be used as is, as fuels or as ingr edients, then such no n-hazardous secondary materials are not solid waste. As long as the fuel or ingredient meets the legitimacy criteria, a ffected 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 GroupsPART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

48 of 275 Comment [3a-A2-1] : EPA is incorrect in defining discarded materials to be c onsidered 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 resu lting material for use as fuel in boilers. In addition, the comment cites cas es 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 th at their secondary character as recyclable material is irrelevant to that de termination. In addition, the comment cites the Owen Steel facts where steel slag recyc ling 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 th at the commenter reads too much into these cases. EPA has repeatedly stated in this rulema king that it agrees that wastes may be recycled
and that the fact of discard does not change solely because the wast e may have value. As stated earlier, EPA has specifically indi cated 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 propo sition 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 us ed oil processing into fuels that are sold is, first, not necessary to the de cisions. 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 proces sing activity for the used oil. The court was not referring to regulation of the resulting material that was so ld to boilers as a fuel. In fact, the court acknowledges that the fuel is sold to boilers a nd in no way opines on whethe r 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 wast e 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 adm itted that the mere fact of recycling does not change the nature of a secondary ma terial that has been discarded. Again, AMC I and ABR cases are not directly on point for deciding wh ether 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 mate rials used to produce steel ingots. The court found that the lead plates were wastes, but only noted that the l ead ingots made from the wastes were soldPART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

49 of 275 commercially and did not opine as to whether the ingots were wastes. EP A argues that the ingots were not wastes, since they were pro cessed into valuable commodities.

In Owen Steel , the court found that slag from stee l 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 ro adbed construction. The court was not asked to opine, nor did it, on whether the roadbed ma terial was a waste. Again, EPA argues that the cured slag could be a product produced from the waste, ev en though the processing ac tivity involved waste

treatment.

EPA does admit that the cases are not di rectly on point regarding the Agency’s determination that discarded materials may be pr ocessed into legitimate pr oduct 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 ca ses 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 discar ded 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 fu el or ingredient product would be considered a
non-waste material.

b. Comments from Industry Groups

Comment [3a-A2-2] : A number of industry comme nters object to the processi ng 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 suffi cient and that there should be no processing requirement for non-hazardous secondary materials that were discarded and could now be used as fuels or ingr edients. The general argument is that the very act of retrieving a previously discarded material for use as a fuel or an ingredient proves th at the material is once again wanted by the consumer, regardless of th e type or extent of processing which the secondary material must undergo. According to these comments, the mere act of removing the previously discarded material fr om 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 co sts associated with the recove ry of these materials.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

50 of 275 Various activities were specifically menti oned – 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 s econdary 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 wast e into a product fuel or ingredient.
In particular, the comments argue that norma l 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 a nd dirt, mud, and debris. Whole tires from newer stacks or piles often need no physic al processing whatsoever. In contrast, EPA argues that scrap tires cannot be considered sufficiently “proces sed” unless they are phys ically 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 fu el or ingredient would also have the perverse effect of applying different standa rds 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 h azardous waste regulations, only minimal processing, such as baling or sorting, is requ ired for scrap metal to be excluded from the definition of solid waste. The scrap metal, wh ich 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 materi al to a non-waste material is de pendent 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 wast e under RCRA and the fact that case law holds that a discarded
material does not lose its status as a waste sole ly 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 bene ficial policy objectives . However, EPA may not base it decision on the policy, but must evaluate whether a s econdary 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 ma terials 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 pro cessed in the same way as coal is today, the Agency would not consider the processed coal refuse a solid waste.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

51 of 275 section 112 combustors designed to recover energy and section 129 incinerators meant to destroy
materials. NRDC at 1260. The court, however, was very cl ear 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 cas e law would not prohibit the processing or extracting of products from non-hazardous secondar y 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 legitimat e fuel or ingredient product. EPA, however, does not believe it may in terpret the statute or the case law to allow a clearly discarded secondary materi al to become a non-waste solely because it has value.
EPA sympathizes with the commenters’ conc ern that the processing requirement could have the effect of applying differe nt standards to identical material s, 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. Somethi ng other than mere recycling must happen to the material before it may lose its waste designati on. The mere fact that secondary materials may have value after being discarded is no t sufficient to rehabilitate it.
Accordingly, EPA is not making any cha nges to the processing requirements for discarded scrap tires, although the Agency is prov iding 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 Ti res) 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. EP A has modified its view to provide that the discarded coal refuse that is pr ocessed 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 mini mal 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, in cluding the reasoning in those regulations. Besides, the refe rence to scrap metal in the ha zardous 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 else where 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 re gulations, 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.
B. Comments on Specific Materials Used as FuelPART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

52 of 275 1. Traditional Fuels

. 4

The following discussion describes how EPA ha s 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 anal yses and all information in the rulemaking record, explains the Agency’s deci sion 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 th ough 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, synt hetic 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 ma naged as valuable produc ts. They are unused products that have not been disc arded. The ANPRM also stated th at unadulterated or clean wood
collected from forest fire clea rance activities and trees and such wood found in disaster debris, likewise, constitute traditional fuels. This basi c 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 fo r the fuel, and technology developments. Thus, there is a category of materials that are legitim ate alternative fuels that may not have been historically used as fuels, but that are nonethel ess legitimate fuels today because of changes in technology and in the energy market. In cases wh ere these legitimate alte rnative fuels have not been discarded, EPA said that it wo uld 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 discarde d 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-deriv ed 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 screen ings; and residuals from tree harvesting) 5 , and

4 Traditional fuels are not considered secondary materials an d therefore, are not consider ed a solid waste unless they themselves have been discarded. However, because th e Agency received comments re garding “traditional fuels,” including whether certain materials should be consider ed a traditional fuel, the Ag ency is addressing those
comments in this section.

5 The ANPRM description of cellulosic biomass inadvertentl y 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.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

53 of 275 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 pr oducts 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 fuel s 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 eval uating, and continues to evaluate, to determine whether they have been discarded and whether they are legitimate a lternative fuels (e.g., construction and demolition materials, scrap pl astics, 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 recycli ng 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 cellu losic biomass and on-specification used oil (75 FR 31856). Specifically, in the proposal, "cl ean" biomass material was defined as a nonhazardous secondary material that has not been a ltered (either chemically or through some type of production process), such that it contains contaminants at con centrations normally associated with virgin biomass materials (t he description of “clean” is bei ng modified slightly for today’s rule, see discussion below). Clean cellulosic bi omass 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 mate rials), 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 fo rest fire clear ance activities,
trees and clean wood found in disa ster debris, and clean biomass from land clearing operations (75 FR 31856). Essentially, “clean” biomass was th at biomass material that was simply picked up from its environment and burned for fuel. EP A requested comment on wh ether 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 o il to the list of “tra ditional” 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 wast e materials. 75 FR 31864. The Agency stated that under 40 CFR part 279, once used oil is determ ined 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, no tification, and record tr acking shipment to on-PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

54 of 275 specification burners, the oil is no longer subject to other manageme nt 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 virg in refined fuel oil.
EPA acknowledged in the proposal that change s 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 t oday 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 defin ition of traditional fuels has been modified in today’s rule. The new definiti on 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 add itional 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). “Tra ditional fuels” is define d 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 in cluding: (1) fuels that have been historically managed as valuable fuel products rather than being manage d 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, asph alts, blast furnace gas, recovered gaseous butane, and coke oven gas) and cellulo sic 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 th ose residuals that are akin to traditional cellulosic biomass, such as forest-derived biomass (e.g., green w ood, forest thinnings, clean and unadulterated bark) sawdust, trim, and tree harvesting residuals from logging and sawmill materi als), corn stover and other biomass crops used specifically for en ergy production (e.g., ener gy 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 disast er debris, clean biomass from land clearing operations, and clean construc tion and demolition wood. “Clean” cellulosic
biomass is cellulosic biomass that does not contai n contaminants at concentrations not normally associated with virgin biomass materials. As indicated above, this de scription of clean is modified slightly in today’s rule. The prev ious description included non-hazardous secondary material that has not been altered (either ch emically 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] :PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

55 of 275 Several industry commenters suggested that EPA include off-s pec used oil, scrap tires, resinated wood products, treated wood, pulp and paper mill residues, and recycling process
residuals in its definition of trad itional fuels. They claim that these materials have histories of use as valuable fuel products. Another commen ter suggested that secondary materials from new processes to meet Renewable Fuel Standards (R FS) 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 im pact the economics of these newly developing processes, and could increase the use of conventiona l fossil fuels. This could significantly harm the prospects of reaching RFS goals.

EPA’s Response :

For a discussion of comments and EPA res ponses related to each of the individual
materials listed above and their use as traditiona l fuels, see their respec tive 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 developi ng 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 s ection 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 material s (“changes in technology ”), would suggest that materials, such as plastics, paper and pape r 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 categ ory of materials that are legitimate alternative fuels that have not b een 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 en ergy market. Such
alternative fuels would include clean cellulosic biomass, currently mined coal refuse, and onspecification used oil. See the respective subsec tions 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 ti re 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, technol ogies, markets, and fuel prices.” Thus, EPA
makes clear that the term “traditional fuels” will accommodate fuels that are anything, butPART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

56 of 275 “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 c onsidered unused products and are not secondary
materials and are not solid wastes unless dis carded. We added “alter native 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 materi als 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 pr ovide clarity in the application and the meaning of traditional
fuel.

Comment [3a-B1-4] : Other commenters suggested that, in order to further clarify th e definition of traditional fuel, if a fuel was on record as being used befo re a specific year, e.g., 19 80, that it be categorized as a traditional fuel. Still other commenters sugge sted that additional rule text is needed to clarify that non-hazardou s secondary materials used traditiona lly as fuels are not solid wastes. Finally, to address any ambiguity about which mate rials 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 fu els 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 basi s for picking a particular year would be. In addition, as we noted in the propos al, 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 te rm, “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 th ough they may be newly developed
fuels.
The Agency received only a few comment s that supported a petition process for traditional fuels. In light of the time and resour ce 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 qu alifies as a traditional fuel. Therefore, today’s rule does not include a petition process for an Agency determina tion 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 s hould be included as a traditional fuel or alternative fuel, they ma y petition EPA to request such a change throughPART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

57 of 275 rulemaking. In addition to the specific change s requested, the petition would also need to include a justification and ra tionale 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 th at 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" an d point the readers to the sections describing traditional fuel and secondary materials to determ ine 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 ta ke a position one way or the other, but rather requested comment, information and da ta on the legitimacy criteria, which are designed to determine whether a non-hazardou s secondary material when combusted is a waste. Specifically, these criteria deal with the levels of the va rious 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 manur e is processed into bi ofuels (for example, by anaerobic digesters), such biof uels would be considered a legi timate 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 manage d 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 acknowle dged, however, that we had limited data on biofuels that are produced from animal ma nures, and requested that commenters provide
additional data on the extent to which manures are currently proce ssed 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 supportin g and opposing the designation of manure as a waste. Specifically, two comme nters 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 re sponse 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 concentr ated animal feeding operation (CAFO) wastes are known to contain heavy metals, halogens, di oxins, and other hazardous compounds. They
assert chicken litter has elevated arsenic le vels and that swine wa ste 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 firedPART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

58 of 275 power plants. Another commenter referenced a 2008 report that describe d the risks associated
with CAFOs. 6 This report stated that CAFOs are site d in rural communities that bear the brunt of the harm caused by CAFOs, including the fr equent 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 prom otion, 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 dema nd for manure as a fertilizer, the excess is
treated as a waste and should be regulated as a waste unde r this rule.
On the other hand, a commenter argued that EPA should not classify poultry litter as a solid waste and provided some contaminant da ta on poultry litter generated in the United Kingdom. 7 Another commenter described how thei r 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 al l the legitimacy criteria. Specif ically, 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 coll ecting the litter on a continual ba sis 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 ar e being met by the growers. After sampling, the trucks dump the litter into a concrete reception pit within the fuel ha ll. 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 poul try litter satisfies the contaminant legitimacy criterion, but only provided data on sulfur and chlorine levels, no ting the reported chlorine levels averaged 0.7 percent (on a dry ba sis). They also provided data on the heating values of poultry litter that ranged from 3-4,000 Btu/l b, explaining that this materi al 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 proposal s 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. Addi tionally, two power plants (one in Texas and one in California), each currently mothballed, but sc heduled 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 st ates 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 de finition 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 biofue ls 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, ch lorine, and nitrogen levels of 0.35%, 0.16%, and 3.3%, respectively, and a net heating value of 4,900 Btu/lb.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

59 of 275 one state referenced a June 2009 Report to Congress 8 that reviewed the current commercial use of manure to energy systems, and found that few exis t, and that it is unlik ely in the near term future for more to be developed due to tec hnological and economic ba rriers. Another state commented that they were aware of one gasifica tion system that has been built on a pilot scale that uses chicken and poultry li tter 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. Th is commenter also noted that one very large farm in the Phoenix
area further cleans the methane and sells it to a na tural gas company whose pipeline runs next to
the farm.
A Tribe requested that EPA finalize legitim acy 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 ot her organic material, and requested that EPA either exempt biogas from the contaminant le gitimacy criterion or require that, overall, contaminants in gaseous fuels not be “significantly hi gher” in concentration than contaminants found in traditional fuel products that the combus tion 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 equivale nt or below the concentr ations found in natural gas would discourage the devel opment 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 legi timacy criteria, and t hus, if combusted “as generated,” is a solid waste. However, as we di scuss in other parts of t oday’s preamble, there are
circumstances where manure would not be consider ed a solid waste when burned as a fuel for energy recovery. We discuss these circumstance s 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 ni trogen and chlorine, in certain types of manure, as generated, may not be comparable to those levels found in traditional
fuels that otherwise would be burned. This is based on limited data found in a North Carolina State University 9 study that indicate some types of manur e 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 refere nce 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.u sda.gov/publications/ap/ap037/ap037.pdf.

9 Animal and Poultry Manure Production & Characteri zation. North Carolina Stat e University Cooperative Extension Service. Raleigh, NC. http://www.bae.ncsu.edu/programs/extensi on/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%.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

60 of 275 included as a contaminant in today’s rule, sin ce that definition focuse s on those constituents
identified in the CAA that EPA will be evalua ting to determine whether to establish emission standards (see also the di scussion 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 lim ited 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 ty pically 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 legi timacy criteria, today’s final rule requires that facilities that burn non-hazardous secondary mate rials with a heating value of less than 5,000
Btus/lb would need to demonstrate that su ch non-hazardous secondary materials have meaningful heating values by describing whethe r 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 pou ltry 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 th an 5,000 Btu/lb, as-fired, could meet this
demonstration.
We acknowledge, however, that farms or ot her facilities may ma nage manure as a valuable fuel commodity and that this manure c ould also satisfy EPA’s contaminant and heating value legitimacy criteria. Our limited data sugges ts that manure that is combusted has typically been collected, stored, and processed. Thus, toda y’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 so lid 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) wh en 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 petit ion would not need to be submitted to EPA
and is not limited to “within the control of th e 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 trad itional 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 demons tration 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 transfor m 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 modi fying the size of the material do not constitute processing for the purposes of this definition.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

61 of 275 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 dige stion or gasification processes), as suggested by commenters. This ga seous fuel would also have to satisfy the legitimacy criteria, and while we did not rece ive data on contaminan t levels of gaseous fuels that are, or could be, produced, we genera lly 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 determina tion from EPA would not be c onsidered a solid waste. This provision establishes a case-by-case pro cess 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 pa rticipants treat the manure as a fuel rather than a solid waste; (2) whether the chemi cal and physical identity of the manure is comparable to commercial fuels; (3) whet her 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 poi nt of generation to th e point just prior to
combustion of the manure are released at le vels 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 th e legitimacy criterion that would require contaminants in biofuels to either be equivale nt 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 sec ondary materials should have comparable or
lower levels of contaminants relative to traditi onal fuels used today, sin ce gaseous fuels that are produced from secondary materials have the potentia l to have elevated levels of contaminants (such as sulfur). As a resu lt, 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 contam inant 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 accepta ble range, or at lower levels, relative to the
contaminants found in the traditional fuels. T hus, 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 quali fy 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 ju st 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.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

62 of 275 Comment [3a-B2-2] :

Manure used as a fuel that would otherw ise be applied to the land covered under a nutrient management plan 14 is in no way discarded.

EPA’s Response : We recognize that manure may also be benefi cially used in other end uses, such as a
fertilizer. As we have noted elsewhere in th e preamble to today’s rule, EPA is not making any
determination whether non-hazar dous secondary materials are or are not solid wastes for other possible beneficial end uses. Such beneficial use determinations ar e generally made by the states for these other beneficial uses, and EPA will c ontinue 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 ra ther 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 result ant ash. Further, since the ash from manure combustion is still suitable as a fertilizer, the commenter also beli eves 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 combuste d. As we have stated, there are circumstances
when manure would not be considered a solid wa ste 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, eith er prior to combustion (during storage and transportation) or if they ar e not sufficiently combuste d 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 le vels relative to traditional fuels for the manure to satisfy the contaminant legitimacy criterion. As previously discusse d, 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 pr oducts 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 a ssistance 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.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

63 of 275 presumptively grant a non-waste determination for manure that is used as a combustion fuel outside the control of the genera tor 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 th e manure from the animal production operation being sold/provided to a commun ity based or regional energy pr oduction system as one of many fuel sources from that area, with the resultant ash from the ener gy production system sent back to the cropping operation as a fertilizer source. Th e commenter then explains that the cropping and animal production operator may be the same entity, a nd asserts that the tran sfer among entities in
this instance is to facilitate energy recovery, not disposal.

EPA’s Response : Unlike scrap tires and resinated wood residua ls, information and da ta were not provided that would allow the Agency to presumptiv ely grant a non-waste determination for all manure that is used as a fuel outside the control of the ge nerator. As a resu lt, 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 manage d outside the control of the generator (see Section VII.G), or, as previously discussed, pr ocess (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 loca l regulations and requirements for air and water quality should be considered to meet the “adequate cont ainment” 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 a pplicable 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 becau se 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 ca se-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 va lue legitimacy criterion since it typically has energy contents ranging from 6,0 00 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 “m eaningful heating value” legitimacy criterion. Except as otherwise noted, to satisfy the meaningful heating value criterion, the non-hazar dous secondary materialPART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

64 of 275 must have at least 5,000 Btu/lb, as fired (accoun ting 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” basi s would suggest that much of the manure, as generated, would have heating value levels of less than 5,000 Btu/l b. 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 valu e 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 a ddresses traditional fuel. Manure was discussed in the previous section (Section V.B.2), while pulp and paper sl udges and resinated wood residuals will be
discussed in more detail in Sections V.B.4 a nd V.B.6, respectively, of this preamble. This
section discusses other biomass ma terials that may be burned as a fuel, and whether or not they
would be considered a solid waste when combus ted as a fuel. Specifically, the proposed rule identified lead-based painted wood, and wood tr eated 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 ex plained 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 show ed that the mobility of contam inants indicates that p-cresol leaches at 75 percent of the hazardous waste to xicity characteristic l eaching 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 re sults 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-2008-0329-0875.1PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

65 of 275 contains between 3.00 – 11.00% naphthalene and 0.18% quinoline). Besides naphthalene and quinoline, data was also submitted for othe r 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 gr eater 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 demonstrat ed that the co-firing of creosote- and pentachlorophenol-treated wood (10/ 90 treated wood/coal mix) resu lts 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 prop ane) 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 trea ted wood (50/50 mixture of creosote- and pentachlorophenol-treated wood) than when co mbusting untreated wood. Data were also provided that indicated that pentachlorophenol and total ch lorophenols were destroyed by combustion at greater than 99.9% removal efficiency. 21

EPA’s Response:
We do not agree with comment ers that creosote-treated wood should be considered a traditional fuel (either an historically managed tradi tional fuel or an alternative fuel as codified in §241.2) solely based on the fact that it is ma nufactured 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, bu t the creosote was produced and used as a wood preservative. It is not made from virgin materi als, but is a secondary material. Creosote is derived from coal tar through a distillation process and, theref ore, 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 market s 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 th e 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 whet her 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-Scal e Air Toxics R&D Assessment of Creo sote-Treated and PCP-Treated Wood Co-firing for Pulverized Coal Utility Boiler Applicati ons.” 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 Indust ries, Inc., Grenada Plant, Ti e Plant, MS,” Submitted to the Mississippi Department of Environmental Quality, May 6.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

66 of 275 We do note that the average values and standard deviations provided fo r 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-hazard ous, the presence of hexachlorobenze, a CAA 112 HAP, as well as the other HAPs, in creosote-t reated lumber suggests that creosote-treated
wood include contaminants at leve ls 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 signifi cant destruction, which is an indication of incineration, a waste activity. Moreover, we w ould note that this con cept involving destruction is also consistent with the legi timacy criterion for contamination, which is based on the input into the combustion unit—that is, the contaminant con centration 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 c onsidered a waste when burned as a fuel.
In regards to wood treated with pentachlor ophenol, no additional contaminant data was provided that would reverse our position fr om the proposal, which determined that pentachlorophenol was a solid waste due to con cerns 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 contam inants. This is consistent w ith the legitimacy criteria, under which to be considered a non-waste fuel, the non -hazardous secondary materi al itself must have contaminant levels that are comparable to (or less than) those in traditiona l fuels. Thus, the final rule will retain the proposed appro ach, which considered wood treated with pentachlorophenol a solid waste. Of course, this assumes thatthe pentachlorophenol treatedwood is not classified as a h azardous waste. Hazardous wastes are not covered under the scope of this rulemaking.

Comments [3a-B3-2] : Comments were submitted that argued that wo od treated with borate-based compounds or copper napthenate did not contain any contaminan ts, but only contaminant data was supplied for wood treated with borate-based compounds. That st udy indicated that the mo st prevalent borate treatment, disodium octaborate tetrahydrate, c ontained 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 fr om 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-2008-0329-1569PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

67 of 275 shows that the levels of contaminants in th is material are comparable to those found in
unadulterated wood for the seven contaminants fo r which data was presented, we believe that such treated-wood meets the legiti macy criterion on the level of contaminants and comparability
to traditional fuels. Therefor e, borate-treated wood could be classified as a non-waste fuel, provided they met the other two legitimacy criteri a 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 gene rator. Finally, we are aware that some borate-treated wood is subsequently treated with ot her chemicals, such as creosote, to provide an insoluble barrier to prevent the borate compound s from leaching out of the wood. We did not
receive data on the contaminant levels of the re sulting 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 consid ered a solid waste when burned as a fuel.
We do not have information generally about th e 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 ru le, borate-treated wood would need to be burned as a fuel for energy recovery within the control of the generator. With that sa id, we encourage the use of the non-waste determination petition process to addr ess those instances where transfer of the nonhazardous secondary material to a different co mpany 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 na pthenate, no additional contaminant data was provided that would reverse our position in th e proposed rule, which considered wood treated with copper napthenate a solid wa ste because of concerns of elev ated levels of contaminants. 25 We acknowledge today, as we did in the propos ed 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 su fficiently processed the ma terial, that person can handle its copper napthenate tr eated-wood as a non-waste fuel.

Comments [3a-B3-3] : Commenters argued that, a lthough C&D-derived wood is di scarded by construction and demolition sites, it is sufficiently processed into a non-waste fuel. It is re ceived at a mixed C&D processing facility as part of loads from construction and demolition sites. Potential contaminants are removed as much as possible be fore it enters the plan t. Clean C&D wood is then separated out from the rest of the inco ming stream one of two ways; either through mechanical means or through humans sorting alo ng 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 a nd density per the specification of the plant using the biomass product. The creation of natu ral wood products follows a similar processing

25 75 FR 31863

26 75 FR 31863PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

68 of 275 path, except that C&D wood is more carefully pr epared because of the chemical analysis the C&D product undergoes.

Commenters also stated that C&D-deri ved 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 c onsidered 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 da ta on C&D-derived wood that is utilized at their plant in order to de monstrate that the material meets the legitimacy criterion for contaminants. The results of this analysis found that the chemical const ituents were comparable to or lower to those found in coal (of unknown sour ce or type). See Table 1 below for the results of this study.
Table 1. Comparison of contaminant concentra tions 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 le gitimacy criterion for contaminants compares concentrations per mass of the material (not per the heatin g value of the material), all concentrations reported inpounds 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).PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

69 of 275 Some commenters discussed studies that co ncluded that the use of appropriately processed C&D wood is similar in its emission pr ofile to that of virg in wood, although some
older studies indicated an increa se 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 ga s emissions. This study found that combusting all C&D wood generated in New Hampshire per year (280,000 tons) will off-set energy from the northeast power grid and, therefore, result in 70,000 – 130,000 tons less of carbon emissions, 600 tons/year less of particulate matter, 430 tons/yr less of NO
x , 2,300 tons/yr less of SO
x , 890 tons/yr less of CO, and 10 pounds/y r less of lead. Even when compared simply to the combustion of virgin wood, it was found that th e combustion of C&D-derived wood had lower impacts: 16,700 metric tons of carbon equivalents were offset, 50 tons/yr less of particulate matter, 200 tons/yr less of NO
x , 485 tons/yr less of SO
x , and 69 tons/yr less of CO. 29

EPA’s Response : The proposed rule included clean co nstruction wood in the definition of traditional fuels

. The final rule retains this conclusi on, although clarifies the definition of traditional fuels to include alternative fuels. Clean cellulosic biom ass is an alternative fu el as they are clean cellulosic materials that are indistinguishabl e 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 pro cessed 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 bur ning, producing material that likely meets the processing and legitimacy criteria for contaminants. (We would also note that the technology in use today to remove contam inants 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 Prepar ed In Support of the Proposed Rulemaking –Identification of Nonhazardous Secondary Material s That Are Solid Wast e: 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. Techni cal 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 Manage ment,” University of New Hampshire, Durham, NH,
December 5.

30 EPA-HQ-RCRA-2008-0329-0461.21PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

70 of 275 With respect to those comments that argued that C&D derived wood have an emissions profile similar to that of virg in wood and that it would decreas e greenhouse gas emissions, as we have noted previously, the criter ion or test for determining whet her a material is burned as a waste or a commodity fuel is the level of the contaminant in the s econdary material itself – that is destruction of contaminants indicates a waste treatment activity rather than a commodity fuel. This is also consistent with the legitimacy cr iteria 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 material s 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. Additiona lly, they also argued that wh ile 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 re jects, 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 burn ed 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 th at they did not belie ve 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 m eet 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 le gitimacy criterion for contaminants compares concentrations per mass of the material (not per the heatin g value of the material), all concentrations reported in pounds per billion Btu (lb/billion Btu) were converted into parts per million (ppm) with the assumption that OCC rejects have a heating value of 3,700 Btu/lb (as fired) and that sub-bituminous and bituminous coal (the most common types of coal to be utilized in combustion units) have a heating value of 8,500 – 14,000 Btu/lb (per Preliminary Characterization Study Prepared In Support of the Proposed Rulemaking –Identification ofPART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

71 of 275 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 ma naged 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 re jects 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 pl ants that burned 4.4 – 30% OCC rejects with 70% - 95.6% wood and comp ared it to emissions from the same three plants when they only burned wood. Emissions we re tested for total pa rticulate matter (TPM),
SO 2 , NO
x , CO, and HCl. The results found that burn ing OCC rejects did not result in increased emissions of TPM, SO 2 , NO
x , 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.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

72 of 275 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 materi al, consisting of recycled paper and paper products, has not historically been ma naged as a fuel—that is, the recycling of OCC and the subsequent use of OCC rejects is a rela tively recent activity, nor is it made from virgin materials. However, we believe that these ma terials 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 dem onstrates that OCC rejects are managed as a valuable commodity as they are managed in th e same manner as the analogous fuel – bark.
With respect to the OCC rejects that are sh ipped off-site for use by another company, the limited information provided indicates that this ma terial is burned in municipal or commercial energy facilities (which appears to be municipal or commerc ial incinerators) and thus, would clearly indicate discard, or pr ocessed 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 produc e a legitimate fuel product, or if a person submits and is granted a non-waste determination fo r 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 sludge 35 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 th at 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 cr iteria or criteria-related polluta nts, forty-eight organic compounds,
and metals.
However, given the limited data, EPA re quested additional comment on contaminant levels and the appropriateness of considering thes e 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.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

73 of 275 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 tr aditional 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 sh ould be considered a traditional fuel. While some portion of the pulp and paper industr y 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 pa per 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 pape r 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 dete rmine 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 approac h, which considered pulp and paper sludges that remain within the control of the genera tor—whether burned at th e 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 th e legitimacy criteria to demonstrate that these non-hazardous secondary materials are “legitimate fu els” 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 sludg es 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 c ontained and burned in th e 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/r rr/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 A lternative: Principles and Practice of Residuals Use

. University of Washington College of Forest Resources Publication, Seattle, WA, p. 193-207.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

74 of 275 site and is, therefore, not a waste.

EPA’s Response : We agree that the use of secondary material s off-site (which we assume the commenter means not within the control of the generator) is not always indicativ e 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-wa ste 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 percenta ge 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 pa per 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 peti tion process to address those in stances where tr ansfer of the non-hazardous secondary material to a different company meets the releva nt 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 sludge s 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 dewa tering. In fact, 84% of all pulp and paper sludges are dewatered using belt f ilter presses or screw presses. 39 One state commenter stated that some mills further process pulp and paper sl udges into dried pellet products for use as a fuel.

EPA’s Response : We do not agree that dewatering alon e meets our definition of processing. 40 While dewatering does improve the fuel ch aracteristics of the material, this action is not sufficient to make the material sufficiently processed into a no n-waste fuel as it is generally part of normal waste management activities (e.g., prior to landfilli ng, 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 determ ination on whether this would be considered sufficient processing. However, if the pelletizin g process is used to process the sludge into a form that improves its fuel value, we would agree th at 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 activ ities 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 characteriza tions 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 31878PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

75 of 275 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 pul p 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 le vel 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 maxi mum 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 pp m and a maximum among individual analyses of 8,800 ppm (both on an as-is basis, which has <10% mois ture). 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). Comment ers 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 fo r their constituents that are beneficial to the combustion or manufacturing process; more ofte n, 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 subm itted 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 commod ity as they are dewatered to increase their energy value, collected on a continual or freque nt 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 pl ant that utilizes pulp and paper sludge generated less than a mile away st ated that the material is loaded onto trucks for the short haul to the steam boilers, dump ed 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 appr oach—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 specifi cally requested data on the issue in order to make a determination of whether pulp and paper sludge s meets the third crit erion of comparable
contaminant levels to traditional fuels. The information we received indicates that these nonhazardous secondary materials meet the contamin ant legitimacy criterion. While commenters

42 Document EPA-HQ-RCRA-2008-0329-1395; National Counc il 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.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

76 of 275 compared contaminant levels in pulp and paper sludges to those in coal and found lower levels, we also found it appropriate to compare the cont aminant concentrations to untreated wood since wood is also burned in pulp and paper mills. Sinc e levels of chlorine in untreated wood are as high as 11,890 ppm, even the high end of the rang e 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 bitumi nous and sub-bituminous coal are 1,200 ppm and 140 ppm, respectively. Thus, the average chlorine le vels reported in most pulp and paper sludge are likely to be comparable with average ch lorine levels found in bituminous coal. 43 We note that there is one sample in the submitted data set th at has a chlorine concentration of 16,550 ppm. We do not consider this to be comparable to th e levels found in coal a nd, 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, respectiv ely, 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 sludge s. 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 le gitimacy 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 hea ting 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 sludge s generally meet the meaningf ul heating value legitimacy criterion. Also, since pulp and paper sludges ar e 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 ag ree 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 fo r 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 di fferent studies on the emissions from the combustion of pulp and paper sludges. Some studi es 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 Pape rs for Pulp and Paper Sludges and for Traditional Fuels that are located in the docket for today’s ru le (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.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

77 of 275 emission impacts. However, two studies stated th at dioxin and furan emissions could result from the burning of pulp and paper sludges and that th e levels of these compounds in the emissions are directly relevant to the amount of chlorine in the sludges. T hus, 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 legi timate 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 al so recognize that high chlorine le vels are an indicator that the combustion of such materials may result in increa sed emissions of dioxins and furans, such that if chlorine levels in pulp a nd paper sludges are excessively high, it may be an indication that the burning of those sludges is more reflective of wast e management. Thus, chlorine levels in pulp and paper sludges should particularly be mon itored and evaluated as part of a plants determination that their pulp and paper sl udges meet the contaminant legitimacy criterion.

5. Scrap Tires

. In the proposal, EPA stated that whole us ed 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 legitim ate fuel or ingredient (e.g., sh redded/chipped with steel belts removed) were considered a solid waste. EPA acknowledged that whole tir es can be legitimately burned as a fuel, but because they have been disc arded, 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 di scard interpretation stated in the ANPRM regarding scrap tires that are managed under the oversight of a state tire collection program, such that th ese non-hazardous secondary mate rials 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 c ontaminant data on whole tires or tire-derived fuel (TDF) chips as compar ed to coal, the replacement fuel. In order to clarify the cont ext of the proposed rule commen ts, 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 “altern ative” 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.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

78 of 275 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 cont ain contaminants that ar e significantly higher in concentration when compared to traditional fuel products (see Materials Characterization Paper on Scrap Tires in the docket for today’s rule fo r a complete discussion on contaminants in TDF [EPA-HQ-RCRA-2008-0329]). We not ed that in many cases, scrap tires that are collected pursuant to state tire oversight programs (e.g., scrap tires from tir e dealerships that are sent to used tire processing facilities) are handled as valuable commodities, a nd, therefore, have not been abandoned, disposed of, or thrown away (not discarded). We also noted that because State Agencies typically regulate thes e programs under their state solid waste authorities, it was not the Agency’s intent to undercut the states’ aut hority in this area. We , therefore, requested comment on whether scrap tires co llected pursuant to st ate tire oversight programs have been discarded, and whether an EPA designation specif ying that scrap tires, for example, managed pursuant to state tire collection programs are not solid wastes, w ould 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 th at non-hazardous secondary materi al 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 theref ore should appropriately be considered wastes. Scrap tires, regardless of whether they were co llected 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 th ere may be some number of sec ondary materials that would not be considered discarded even if the original gene rator 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 ge nerator are solid wastes unless they were processed into non-waste fuel products or a case-by-case non-wa ste 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 unde r state tire collection programs as non-waste as described above. We r econsidered 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 wa stes.... EPA may issue a final ru le 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, scra p 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.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

79 of 275 (1) Scrap tires that are re moved from vehicles and co llected and managed under the oversight of established tire collection programs (as codifi ed at §241.2) are non-waste fuels 49

when burned as a fuel in a combustion un it. 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, indepe ndent of whether they have b een 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 th e approach for whole scrap tires in the ANPRM (described previously in this secti on) 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 th at we made in the proposed rule that offsite/third party use of scrap ti res equated to discard. Other comments on “transfer to third parties” apply to other non-h azardous 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 ti re shop. These tires are destined for a beneficial use and are managed as a valuable product. Co mmenters disagreed with EPA’s statement in the proposal that scrap ti res are “discarded” wh en 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 suggest s that if transfer to a third party does not equate to discard for hazardous secondary materi als 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 cont rast 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 dama ges arising from cases of hazardous material recycling. EPA then shaped its transfer-based exclusion from the defini tion 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 no t "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, sh redded, or fully processed TDF at their discretion (provided they meet the legitimacy criteria). Regardless, most types of combustors require TDF chips, cement kilns ar e the notable exception.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

80 of 275 regulate only transfers where discard is taking pl ace. See 73 FR at 64677-78. In contrast, with respect to non-hazardous sec ondary 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 ANP RM, EPA did not assume that all non-hazardous secondary material that is transf erred outside the control of the generator is discarded. Instead, as in its Subtitle C regulations, EPA was gui ded 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 perhap s less demanding determination woul d 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 re gulated in similar manner from industry to industry makes distinc tions between industries uniquely hard to justify. EPA offers no persuasive evidence to overcome these considerat ions. As noted earlier, EPA says only that it
“believes” that such materials have been disc arded 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 th is issue in any detail. Furthermore, EPA’s approach ignores the fact that there is an esta blished 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 es tablish 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 w ill 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 precauti ons to evaluate where their materials are going as part of risk management.”
Commenters also disagreed with our assu mptions that led to the Agency’s discard position in the proposal with regard to third party use of scrap tires as follows.

• They disagreed that third party handlers would lack an incentive to manage them
as a useful material 50 because, scrap tire derived ma terials have an exceptionally high rate of use in various markets and are sold as valuable products.

• Commenters also disagreed th at scrap tires have the same market incentives for misuse as does hazardous waste, wh ich 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 se condary material fuels are transferred to another party, we generally believe that th e 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 ot her 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 tran sfers taking place under the transfer based exclusion for hazardous secondary materials that ar e 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 th e proposal at 75 FR 31844, page 31875.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

81 of 275 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 ti res do not have the environmental and
economic risks associated with hazardous waste.

• Furthermore, commenters disagreed that th ere was currently a pattern of discard at third party scrap tire reclaimers 52 that can be processed and generating stockpiles as possible evidence of the lack of incentive to perform actual recycling).

• Commenters did acknowledge that there we re problems in the past with tire dumps, but since tires are now effectivel y managed and brought to markets, the over-accumulation, disposal, and dumping that occurred in the past (as mentioned in the proposal 53 ) is less of an issue now. In justifying this statement, many
commenters discussed the success of elimin ating 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 numbe r of tires discarded in tire dumps is being reduced annua lly, not increasing due to the improper management which the proposal postulate d 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 wast es. Refer to Section V.A.1 for the discussion on related comments (not speci fic 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 comm ents 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 evaluate d whether certain categor ies 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 di fferences 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 pr imarily 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 sometime s little incentive to perform actual recycling.”

53 See EPA’s statement in the proposal at 75 FR 31844, page 31875.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

82 of 275 Between these broad parameters, EPA has examined a number of specific materials, recycled on-site and transferred to third parties for recycling, a nd 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 re spect to scrap tires harvested from vehicles and resinated wood residuals. Any of EPA’s decisions regarding spec ific 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 program s (e.g., scrap tires from tire dealerships that are sent to used tire pro cessing facilities) are collected and handled as valuable commodities, and, therefore, have not b een abandoned, disposed of, or thrown away.
The ANPRM had indicated that there are instan ces where non-hazardous secondary materials
would not be considered discarded even if the or iginal generator sent them to another entity
outside of its control.
The proposed rule took an approach that a ssumed non-hazardous secondary materials that are used as fuels and are managed outside the co ntrol of the generator are solid wastes, unless they were processed into legitimate non-wast e fuel products or a non-waste determination petition was granted by EPA. However, in th e proposed rule, the Agency was open to an alternate interpretation and re quested 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 e ither set of provisions depending on information received in the comment period and other information available to the Agency.”

After careful consideration of the comments a nd all the material in the rulemaking record, including documents cited in the ANPRM and th e preamble to the proposed rule, the Agency agrees that a system where scra p tires are removed from vehicles 54 and are collected and managed under the oversight of established tire collection progr ams are not “discarded in the first instance.” Such tires (including both whole ti res and tires that have b een shredded - with or
without metal removal 55 ) 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 criteri on in today’s rule at §241.3(d)(1)(i).

Consistent with other non-haza rdous secondary materials that are considered to be nonwastes, scrap tires also meet th e rest of the legitimacy crite ria for fuel. They meet the requirement for meaningful heati ng 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 m eant 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 pro cessed per the standards in today’s rule, but they can be converted to rough shreds or processed in to 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.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

83 of 275 Scrap tires also meet the requirement spec ified at §241.3(d)(1)(iii) for the non-hazardous secondary materials to have comparable (or lowe r) levels of contaminants as compared to the traditional fuel it is replacing. Refer to the spec ific response to comments on contaminants.
Established tire collection pr ograms 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. Th ese established tire collection programs together with state bans on landfilling in most states 56 effectively result in the be neficial reuse of tires (as
fuel or used in other scra p tire markets) as the sole 57 end use option for scrap tir es in those states.
While the Agency recognizes that there will be differences between the various
established tire collectio n programs, at a minimum, the following components would need to be included as part of any establ ished tire collection program: (1) a comprehensive system that prevents tires from being abandoned when the scrap tires are harves ted 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; an d (2) standards for the scrap tires to be managed as a valuable commodity. These programs s hould ensure storage does not exceed reasonable time frames, the scrap tires are managed in a ma nner consistent with the analogous fuel (coal), and a system is in place to prevent scrap tire s from being discarded (according to the plain language definition) en route to the combustor (a nd during any processing prior to combustion).
An example of this type of program is a ti re 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 ha ve specifications for track ing 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 whil e in transit. The definition of an established tire collection programs is codified in toda y’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 ti re collection programs.
It is the combustor’s responsibility to conf irm that the whole tires are not discarded and were handled appropriately under the establis hed tire collection progr am. Notification and recordkeeping requirements with regard to th e use of non-hazardous secondary materials under CAA 112 and 129 rules, including whole tire s 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 establis hed 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 cons idering revoking their tire landfill ban if combustors are no longer choosing to use tires for fuel based on the outcome of this rule.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

84 of 275 fuel is more independently su stainable in the free market. 58 In the event the combustor is disposing via combustion (i.e., not utilizing the ener gy 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 auto matically involve discard. As commenters noted, the mere relinquishing of ownership doe s not make something a waste.

Furthermore, as EPA notes below, the fact th at states may consider tires as wastes under state programs does not affect EPA’s determination in this rule that cert ain 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 fina l position on scrap tires is different from the proposal and is more in line with our orig inal position in the ANP RM As we noted many commenters disagreed with the basis for the positi on 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 regard ing 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 c ontaminants that are found in tire-derived fuel TDF chips (or whole tires) are comparable (o r 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 th e 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 result s showed a trend that the contaminants were generally comparable to or lower than coal, th e replacement fuel, (although individual tests and comparisons vary). In addition to independe nt data, some commenters referenced EPA’s Materials Characterization Papers (used to suppo rt 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 followi ng TDF concentrations for CAA section 112(b) HAP (some are also CAA 129 pollutants): 60, 61

• cadmium—less than 5 up to 6 ppm (a lso on the CAA 129 pollutant list);

• calcium—3,780 ppm (although listed as “ca lcium 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 us ed as a fuel. This is not the case for the tires we are calling non-waste that are annually gene rated 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 gl obally 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. Sin ce TDF is usually co-fired with coal,
the results can include contaminants that originated from the coal.

61 Refer to the Materials Characterization Papers fo r traditional fuels in the docket for today’s rule.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

85 of 275 • chlorine—non-detect to 1,490 ppm (also li sted in the CAA 129 pollutant list as “hydrogen chloride”);

• chromium—less than 5 up to 97 ppm 62 ;

• lead—51-65 ppm (also on the CAA 129 pollutant list);

• manganese—less than 100 ppm 63 ; and

• mercury—non-detect up to levels in low-mercury coals (also on the CAA 129 pollutant list).
These contaminant levels, the commenters argue, ar e at or below documented levels in coals. Although barium and zinc are not CAA 129 polluta nts or HAP, commenters also mentioned that
barium was non-detectable and one commenter mentioned that da ta available from the USGS
database showed coal can have mu ch higher concentrations of zinc 64 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 sm all amount of steel wire in t ypical 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 n eeds to have the exposed wire re moved so that it is “flowable” like coal. One commenter went on to say th at they can recycle metals from TDF postcombustion. A large number of commenters stat ed that the metal from tires is a necessary ingredient in the formation of clinker in cemen t 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 compar able or lower emissions for the following CAA 129 pollutants according to their tests: carbon monoxide (some higher some lower, but comparable), dioxins/dibenzofurans (some commen ters stated no significa nt difference, while
others claimed emission reducti ons), hydrogen chloride (specifi cally mentioned reduction in cement kilns), oxides of nitrogen (usually combus tors witness the greatest reductions in this pollutant when using TDF 66 ), and sulfur dioxide (usually reduced when using TDF). Many commenters thought that we should also take in to consideration the reduction in greenhouse gases and the emissions improvements. 67 On the other hand, a numb er 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 reporte d by a commenter: “In 2008, PCA member companies completed a study on th e 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 exp ected to be released during typical boiler combustion.

63 If this is present from the steel wire, it is not exp ected 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 us ing 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 deta iled summary of the contaminant data for TDF, including data provided by commenters.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

86 of 275 presently firing TDF. Dioxin-fu ran emission test results indicat ed that kilns firing TDF had emissions approximately one-third of those kiln s firing conventional fuels – this difference was statistically significant. Emissi ons 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 kiln s 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 kiln s. However, none of the differences in the
emission data sets between TDF versus non-TDF fi ring kilns for sulfur dioxide, nitrogen oxides, total hydrocarbons, carb on monoxide, and metals were statistica lly significant. Separate studies conducted by governmental agencies and engineeri ng 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 slightly 69 between test results for the scrap tires a nd 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 (o r 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 Char acterization Papers on Traditional Fuels and on Scrap Ti res in the docket for today's ru le 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 sma ll 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 handlin g, than for emissions. We would also note that
the steel wire in the whole tires used in cement k ilns 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 prod uction are no longer used, those ma terials 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 fo r deciding whether a material is a waste or a commodity, we do recognize the value of the gree nhouse 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 sligh tly higher in some tests and lower in others. Overall, we
find that TDF and coal have a co mparable 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.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

87 of 275 improvements using scrap tires as stated in th e 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 associ ated with the combustion of scrap tires is approximately 0.09 MTCO 2 E 71 per million Btu of scrap tires combusted, while the GHG emissions rate for coal is approximately 0.094 MTCO 2 E per million Btu. Combined with the avoided extraction and pr ocessing emissions 0.006 MTCO 2 E/million Btu for coal, the total avoided greenhouse gas is 0.019 MTCO 2 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 da ta demonstrate that, while emission rates vary over different TDF levels at different faciliti es, criteria pollutant emissions from combusting TDF have been found a majority of the time to be reduced or not significantly different than t hose from other conventional fossil fuels, provided combustion occurs in a well-designed, well-ope rated and well-maintained combus tion device. In fact, results from a dedicated tires-to-energy (100% TDF) f acility indicate that it is possible to have emissions much lower than those produced by ex isting solid-fuel-fired boi lers (on a heat input basis) with a specially designe d combustor and add-on controls. 72 Typically boilers use a mix of TDF and coal; they have comparable emissions w ith or without TDF with the same air pollution control device. We are not aware any small area s ources that are able to use TDF for fuel. (See the Materials Characterization Papers in the do cket for further details on these GHG estimates,
and other estimates of avoided emissions asso ciated with burning tires and other secondary materials as fuel.)
Finally, we would also note that the use of secondary material s, such as use as a fuel in industrial processes may also result in other be nefits, including reduced fuel imports, reduced mining impacts, and reduced negative envir onmental 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 pr oposed 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 fina l rule concerning scrap ti res that are collected as part of an established tire collection program , we anticipate that ther e will be no or minimal

71 M etric tons of carbon dioxide equivalent (MTCO 2 E)

72 See, for example, Reisman JI (1997) Air Emissions from Scrap Ti re Combustion, Appendix: Em issions Data from Controlled Tire Burning. Technical Report prepared for USEPA. Office of Research and Developmen t, Washington, DC EPA 1997 at http://www.epa.gov/ttn/catc/dir1/tire_eng.pdfPART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

88 of 275 changes, to the current system that prevents scra p tires from being discarded. Thus, the costs for the tire retailers are not exp ected 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, typi cally preferred EPA to consider scrap tires a
waste at least until it arrives at the combusti on unit (or otherw ise 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 a nd were concerned with the negative impacts and possible interference to the su ccess of their beneficial use programs (typically for noncombustion determinations) and requ ested clarification on the scope and impact of this rule for all non-hazardous secondary materials, including scra p 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 cl arify the implications to a state program if the scrap tires are
considered non-waste when used as fuel for fe deral 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 establishe d 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 c eases to be a waste solely by the fact that it is beneficially used. Wastes may be used beneficially. A ccordingly, 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 expr essed the belief that case law would not prevent wastes from being processe d into materials that are no longer wastes. However, that would require changing the materi al sufficiently so that a new fuel product is
created.
In response to the states que stion concerning conflicting and c oncurrent interpretations of state and federal waste status (when used as fu el), EPA would like to clarify that non-hazardous secondary materials may be simulta neously 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 ma terials 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 seconda ry 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 pream ble, this rule only addresses those non-hazardous secondary materials that ar e burned in combustion units as a fuel orPART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

89 of 275 ingredient. Thus, we are not making any determination that non-hazardous secondary materials
are or are not solid wastes for ot her possible beneficial uses. Such beneficial use determinations are generally made by the states for these other be neficial 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 incine rators, kilns, boilers, et c. 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 commenter s were opposed to the combustion of any nonhazardous secondary materials as a fuel, includ ing 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 addre ssing in this rule is whethe r the burning of non-hazardous secondary materials, including scrap tires (wheth er whole or as TDF) is considered waste management. This is critical sin ce the status of scrap tires—that is, whether they are a waste or not, determines which CAA emission standards th e non-hazardous secondary material would be subject to. With that said, EPA supports the br oad 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 valuab le 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, othe r recycling markets may not be available if TDF was not used a fuel. For example, in the standa rd process of shredding ti res for tire-derived fuel (TDF), finer pieces are created as a by-product ap propriate 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 fo r 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 scra p 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 co nsumed on a per tire basis. 73 Of the scrap tires that are collected annually and used in beneficial us e end markets, about half are used for their fuel value, while the remainder are used in value-added recyclin g processes as the commenter preferred. We recognize that regionally, there are sometimes scra p tire shortages in an area that could support more non-combustion uses (as comp ared to the market demand for scrap tire usages). That is, some states are net importers and have very he althy 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/conser ve/materials/tires/index.htm ).

Comment [3a-B5-6] :

73 These tire figures are compiled by RMA and are develope d 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/

.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

90 of 275 EPA describes coal and petr oleum coke as traditional fuel . Based on the extensive use developed over the last 20-30 year s in the industry, many of the al ternative fuels, such as TDF
can also be considered traditi onal. A number of commenters ci ted 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. Th e cement industry’s goals have emphasized use of
alternate fuels and raw material s 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 optio ns. In fact, commenter s have argued that the number of major industrial boilers and cement pl ants utilizing TDF as a supplemental fuel has risen dramatically over the last 19 years and decr eased the dependence on vi rgin fuel sources.
Other commenters mentioned that the compone nts of tires are derived from hydrocarbons (like fossil fuels, such as coal, oil, and natural gas) and natura l “biogenic” sources (the rubber), and therefore, they should be considered a tr aditional 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 argu ed 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 scra p 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 identifie d scrap tires as a traditional fu el. 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 so urce. 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 combusti on of non-hazardous secondary materials, including scrap tires, as wast e disposal and therefore the co mbustion unit that burns these secondary materials should be regulated as an incinerator. Another commenter was concerned with a combustor accepting fees to accept non-ha zardous 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 ta ke 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 whethe r 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 dete rmined 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 fu el, have not been discarded and are not solid wastes. These secondary materials are more akin to non-waste fuels in these instances. Thus,PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

91 of 275 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 plai n meaning of discard) via com bustion, 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 f ee and operate the unit without a product being dried, they ar e in effect destroying the scrap tire s. 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 transacti ons always constitute waste management. For example, the tipping fees could encourage over-acc umulation 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 whethe r 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 envir onmental 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 associat ed with cement kiln sites. The commenter provided an analysis that they said showed a decreased chan ce of impacting environmental justice communities based on the demographic anal ysis at cement kilns versus the alternative sites. The commenter claimed that the pro cessing 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 indicat ed 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 mate rials 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 vividl y 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 alrea dy 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 co mmenter 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 a nd mentioned the risks of fires and mosquito born vectors at tire piles.

EPA’s Response :

74 EPA’s “Review of Environmental Justi ce Impacts” that the commenter referen ced, can be found in the docket for today’s rule (EPA-HQ-RCRA- 2008-0329-0519). Cement kilns and ot her 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).PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

92 of 275 In the evaluation regarding the use of whole scrap tires (predominantly used as a fuel in cement kilns) and whether or not th ey should be considered solid wastes if collected as part of an
established tire collect ion program, we considered the envi ronmental justice demographics and impacts that would result at cement kilns. Base d on our review of the demographics at cement kilns, on average, they are located in areas wi th fewer minorities and less poverty than RCRA subtitle D disposal sites, pro cessing sites, and facilit ies assessed to become CISWI CAA section 129 incinerators.
Whole scrap tires can be used as a non-wa ste fuel in cement k ilns under today’s rule when they were harvested from vehicles and ma naged 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 th at sending whole tires to cement kilns as a non-waste fuel is not expected to have a negati ve impact on environmental justice communities. In fact, it appears that it would have benefits since RCRA su btitle D disposal sites, processing sites, and facilities assessed to become CISWI CAA 129 incinerato rs (the sites that would be accepting scrap tires if not burned as a fuel in ce ment 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 import ant that its decision w ould lessen the impacts on environmental justice communities.

Comment [3a-B5-9] : EPA never explains why it belie ves that, in the cont ext of a secondary material that does not need processing or perhaps needs only minima l processing to serve as a wholly bona fide fuel, that scrap tires cannot be considered su fficiently “processed” unl ess 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 minima l 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 e xplains why it thinks this much processing is necessary for tires to escape th e “discard” rubric and serve as bona fide fuels in portland cement
kilns. The result of this fau lty logic is that beneficial reuse of significant amounts of nonhazardous secondary materials will be greatly di scouraged, 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 ar bitrary and capricious rulemaking.”
The portland cement industry simply cannot afford to jeopardize its product by using alternate fuels that affect cement quality. EPA ju stifiably had a concern (r eflected 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 re gime 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 situ ation in which non-hazardous secondary materials are being burned in fully regulated industrial furnaces such as portland cement kilns.
Ironically, EPA has long rec ognized that products from portland cement kilns burning hazardous waste fuel are not adversely affect ed in any manner. In 1995, after reviewing exhaustive data presented in a petition file d 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 be cause EPA found there was no difference inPART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

93 of 275 contaminant levels (or risks) in the product. 60 FR 39169 et seq., August 1, 1995. As recently as 2007, EPA’s Assistant Administrator for So lid Waste and Emerge ncy 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 ha zardous 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 wate r storage tanks. These studies have uniformly concluded that
there is no statistical difference in contaminants between clinker or pr oducts made from kilns burning hazardous waste fuel as compared to kilns using only fossil fuels.
The commenters representing cement kilns also no ted that a cement kiln is not a boiler or
an incinerator. One of the commenters we nt 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 us e “ingredients,” and they make no product. Moreover, in all the rulemaking a nd litigation that prompted this proposed rule – culminating in
the NRDC case ... EPA, the parties, and the Court we re focused exclusively on incinerators and boilers. Like incinerators, boilers do not use “i ngredients.” Unlike in cinerators, boilers may burn waste materials for energy recovery purposes . But the only product they make is steam, and the steam that they make never come s in contact with the fuel they burn.
A portland cement kiln is significantly differe nt 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 manu facturing process. The product th e kilns produce must meet strict quality standards. EPA’s RCRA regulations ha ve long recognized these key distinctions among industrial furnaces, boilers, and incinerators . The commenter referred to 40 CFR 260.10.
Despite the fact that ther e was absolutely no issue with portland cement kilns producing ingredients in the deve lopment of CAA section 129 or the ru lemaking and litigation leading to this rulemaking, the commenter stated that port land cement kilns have been included in this proposal in a manner that could have very a dverse 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 r ecognize the key differences betw een 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 dispos ed 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” no r were designed to be “incin erators,” 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 “pro cessing,” EPA’s inten tion is to provide a standard for turning clearly disc arded 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 aPART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

94 of 275 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 a nd 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 regu lated under CAA 129. If the kiln is regulated under CAA 129, no processing is needed for a waste scra p tire to be burned as a bona fide fuel.
Given the statutory provisions and case law, EPA is constrai ned to argue that discarded
materials are solid wastes and would need to be burned under CAA section 129 standards. EPA notes that environmental groups w ould argue that all un its combusting tires must be subject to emissions standards issued under section 129 of th e 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 standard s issued under section 129 of the CAA would discourage burning of tires as an environmentally bene ficial replacement for non-renewable fuels, yet environmental groups woul d 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 commen ters had different in terpretations 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 ar gued that the proposed processing requirements for units that use TDF chips were unrealistic a nd would dramatically in crease 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 f act, a number of commenters, including some state agencies, questioned the value of requiring unnecessarily costly processing of whole sc rap 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 com bustion in cement kilns. Other commenters noted that the presence of steel in the whol e 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 co al 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 standa rd. 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 th e industry for years” sin ce this would accurately

75 Although we recognize th at some states have systems in place wh ere materials lose the waste status if beneficially used according to the state’s standards.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

95 of 275 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 wei ght.” 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 inch es) are seen as a waste material (not a product) by those states. The size restriction is more prev alent in specification fo r 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 th at creates a “product”
called TDF. Another commenter mentioned that a necessary component in the processing of shredded tires is to remove the protruding wire fro m 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 test ed by spreading out the TD F 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 commen ters 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 befo re whole scrap tires can be burned properly in any particular combustion unit?
However, the question that EPA needs to an swer is how much processing is sufficient before whole scrap tires are cons idered a non-waste fuel where the scrap tires are not collected as part of a scrap tire collection program? Ex amples of sufficient processing for other nonhazardous secondary materials include the proce ssing 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 materi als), and sizing it. In all these instances, the non-haza rdous secondary material is be ing 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 wast e-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 accor ding 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 mate rials, the Agency contends that a sufficient amount of processing must occur to produce a n on-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 recove red and recycled (not disposed in emissions). However, whether or not the metal from the wire (post-combustion) can be recycled does not goPART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

96 of 275 to the question of whether or not the non-hazardous secondary ma terial 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, th e 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 th e appropriate amount of wire removal for different unit types under the t opic titled “Handling Considerati ons 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 leve l of processing in varied terms (“relatively wire free,” “processed to the Standard Practi ce 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 mate rial would be a waste, or not, EPA in the proposal was suggesting that such material woul d be sufficiently processed to render the new material a commodity fuel. Thus, to be consider ed sufficiently processed, there has to be metal removed and, it should be at the level of wire re moval that is specific to the combustion unit as mentioned above. EPA agrees with the comm enter 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 standar d, 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 th e removal of free wire (as described by the commenter) is a necessary component of processi ng scrap tires into a non-waste product for the purposes of this rule, but that alone, may not be su fficient to meet our defi nition of processing. It could qualify if, according to product specificati ons appropriate for the particular combustion unit, it is processed into TDF chips and enough wi re is removed from the TDF and the loose free wire is removed (to the degree prac tical) appropriate to the unit.

However, we would also note, as is th e 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, descri bes 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 character ization analyses. The standards also address the size of the tire pieces and metal content in order to optimize com bustion. 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 Consider ations Conveying, Grate and Ash.” In summary,

76 ASTM Standard D6700-01, 2006, “Standard Practice for Us e 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 Sectio n 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 mate rials, except used oil (1 7,800 Btu/lb), and higher than typical coal values. Contaminants of potential concern have been measured for both materials: the constituents are comparable.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

97 of 275 EPA considers that previously discarded tires th at have been made into TDF (shredded/chipped, sized, sorted, and with a signifi cant portion of the metal belts or wire removed, at a level appropriate for the unit), meets the de finition 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 collecti on 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 processo rs typically enter
into contracts with the end user s of these products th at specify that the processed tires meet certain specifications (i.e., size of chips and po ssibly other considerations ) to ensure that the product that is produced consistently meets the need s of that particular end use. Boilers, unlike cement kilns, 79 benefit from TDF that has been proce ssed 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 “flowa ble” like coal in the combustion unit.
EPA notes that merely harvesting tires from vehicles does not rende r 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 legi timacy criteria, they would be wastes.

6 . Resinated Wood Residuals

. The proposed rule described resinated w ood products as those generated during the manufacture of particleboard, medium density fibe rboard, and hardboard a nd 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 wh en 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 seco ndary material would meet the legitimacy criterion for contaminants. In order to gath er additional information on which to base our decision, we requested comment and data on the c ontaminant levels contained in these secondary materials, as well as the appropriatene ss 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, how ever, 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 re levant to rendering secondary material a non-waste, even if burned under th e 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, th e 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).PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

98 of 275 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 r ecycled on-site or with in 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 c ontinuous process are not wastes and are not subject to EPA’s jurisdiction as solid wastes. The case is actu ally 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 wast es or non-wastes. 216 F.3d at 57.

As the various definition of solid waste cas es 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 Pr ocedure 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, re ject 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 ba sed on the circumstances
under which the material is handled and combuste d. Merely keeping material on-site will not render it a non-waste, nor will mere tran sfer make the material a waste.

Comment [3a-B6-2] : Trim, sawdust, shavings, sander dust and othe r 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 be gan 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 cr eates and would not be able to operate as designed without this material. The commenters argue that there ar e 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 just ification to accept resina ted 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, howev er, that much of the resinated wood residuals are used as a product fuel, and th at the plants have been design ed to catch and then burn these residuals to supply energy and h eat to other parts of the plan t. EPA recognizes that some specific types of non-hazardous secondary materials, such as resinated wood residuals, are morePART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

99 of 275 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 resina ted wood residuals used as a fu el in a combustion unit as not being a solid waste, provided these materials satisf y the specified legitimacy criteria for fuels.

Comment [3a-B6-3] : Commenters argued that resinate d 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 tr ansferred between either intra- or inter- company
facilities and used as either “furni sh” (i.e., raw materials) or fuel at the receiving facilities. Intercompany transfers are typically managed throug h buy-sell contracts that likely do not specify
how the materials will be used because the receiv ing facility likely mixes the purchased material with self-generated materials. Those combined ma terials 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 fu rnish 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 material s between companies or facilities does not necessarily mean that the material has been di scarded. As resinated w ood 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 resi nated 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, resina ted 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 chippi ng 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, methylen e di-isocyanate and epichlorohydrine are HAP. However, these individual components react comple tely within the resin cu ring process, leaving,PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

100 of 275 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 th e 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 Boar d (CARB) Composite Wood Air borne Toxic Control Measure (ATCM) is implemented nationwide, per the new Public Law No: 111-199 (which establishes consistent standards for wood products across th e country). Further, since formaldehyde is found in natural wood, it should not be consid ered a contaminant in resinated wood.

EPA’s Response : The proposed rule acknowledged a general l ack of data regarding the levels of formaldehyde in these non-hazardous secondary mate rials and specifically requested data on this issue. While we received only limited contam inant information during the comment period, the data we do have suggests that the levels of form aldehyde in these resinate d 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 ne w 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 tr aditional fuels. Specifically, we have limited
data that natural wood has betw een 0.6 and 8.5 ppm of formaldehyde, 80 but we have no data on formaldehyde levels in other traditional fuels, su ch as coal, oil, and natural gas. We do know, however, that organic materials produce formalde hyde. 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 demons trate that such residua ls meet the legitimacy criteria. Thus, they would need to show that the levels of form aldehyde, 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 le ast 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. Steinw ender, 2009. “Wood-borne fo rmaldehyde 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.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

101 of 275 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 w ood, 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 spec ifically utilize these residuals th at the process creates and would not be able to operate as de signed 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 criter ion as it is greater than the heating value of unadulterated wood. We also agr ee with the commenters that resi nated wood residuals meet the legitimacy criterion for being managed as a va luable 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 addi tion, wood product manufacturers have designed their plants to use their residuals (including placing the material in silos and transf erring 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 mana ged as a valuable commodity.

Comment [3a-B6-7] :

Commenters referred to studi es that show that the co mbustion of resinated wood residuals does not produce adverse air emissi ons. Specifically, EPA’ s “Wood Products in the
Waste Stream—Characterization an d 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 mate rials 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, tr eated wood (including CCA-treated wood), resinated w ood residuals, and painted wood (i ncluding lead-based paint). The study concludes that organic compounds th at are emitted include aldehydes, benzene, phenol, and polynuclear aromatic hydrocarbons (PAH). These compounds are formed as products of incomplete combustion and did not a ppear to be a function of the woods composition or source. Instead, they app ear to be an indicator of co mbustion inefficiency. “Good” combustion conditions appear to minimize orga nic 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 th is could be a result of the in clusion 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, chlori nated 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 adhe sives will convert to carbon dioxi de, 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 conditio ns that normally occur in industrial wood combustion units. Thus, the products of combustion from wood are the same from the adhesives.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

102 of 275 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 c ould be produced from the adhesives than from wood and that more of certain types of compounds might be produ ced from one fuel or another, there does not appear to be any scientific basis for a presump tion that emissions from incompletely combusted
adhesives are more harmful than emissions from incompletely combusted wood. In fact, the results of toxicity st udies commissioned by National Forest Products Association in response to New York State law which requires manufacturers to provide data on the t oxicity 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 pol ymers, 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 a nd NOx emissions from burning sander dust that was not yet published. Emi ssions from five combustion syst ems that burned a combination of sander dust and hog fuel were sampled. On e test was run only using hog fuel (which consisted primarily of bark). Results are presen ted in Table 3. The commenter argued that these results prove that HCl and NO
x emissions from the combustion of resinated wood residuals are comparable to the combustion of hog fuel alone. In fact, the three samples that contained the lowest percentages of sander dust (0%, 15%, and 25%) produced the greatest percentages of chloride in the fuel emitted as HCl and nitrogen in the fuel that was subsequently emitted as
NO
x . Table 3. Emissions data from six combustors th at 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

NO
x 26 53 31 45 48 53

Emissions (lb/MMBtu) HCl 0.0024 0.0038 0.0017 0.0012 0.0015 0.0023

NO
x 0.38 1.08 0.69 0.62 0.64 0.75PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

103 of 275 % 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 NO
x 16.1% 19.3% 15.7% 10.1% 9.7% 11.2%

EPA’s Response : We recognize that the studies have shown th at 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 consider ed 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 bur ned. Thus, while the Agency recognizes that such emissions data can be usef ul in determining whether or not burning such material presents a risk to huma n health or the environment, we believe it says nothing in terms of whether or not the non-hazardous secondary mate rial is a legitimate non-waste fuel (see also Section V.D.3 discussion on legitimacy criteria).
In response to some of the specific comm ents made, we would note that none of the studies or data provided information on formalde hyde 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 re sinated 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 ma y 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 a ddresses our concern regarding formaldehyde emissions. However, given that Public Law No. 111-199 will decrease formaldehyde levels in the resinated wood residu als, 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-sp ecification (or “off-spec”) used oil that is collected from repair shops is generally t hought to be originally discarded, but that onspecification (or “on-spec”) used oil was consider ed 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.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

104 of 275 and the proposal, EPA modified its view of on-spec used oil and iden tified it as a traditional fuel because the Agency had decided that the on-spec us ed oil is similar in composition to virgin fuel oil and has been historically managed as a va luable 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 consider ing 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-spec ification used oil. 85 Used oil may be rendered on-specificati on, therefore, either by being genera ted that way or by being processed under existing EPA regulations. Th ese circumstances are not changed by EPA’s issuing today’s
rule.

On the other hand, based on the information r eceived 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, o ff-spec used oil can only be used in limited devices, as identified in 40 CF R 279.61, including small oil-fire d 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 regul ations 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 fina l rule that used oil combusted in an oil-fired space heater that meets the provisions of 40 CFR 279.23 need not be te sted to establish whethe r 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-your self” or “DIY” oil) that are burned in such units. This is because the CISWI regulations promulgated else where in the Federal Register today do not establish emissions limits for such units, and theref ore 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 o il, 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 th at 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, 31877PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

105 of 275 can be burned with energy recovery. Neither RCRA nor any of the case law interpreting RCRA lends the slightest s upport 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 elsewh ere in the preamble, such used oil contains contaminants at levels that are not comparable to (or lower than) in traditi onal virgin refined fuel oil. In fact, off-spec used oil may contain cont aminants at levels that are significantly higher than those in traditional virgin refined fuel o il. On the other hand, used oil that has been determined to be on-spec contains contaminan ts 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 CF R part 279, once used oil is determined to be on-spec, it is no longer regu lated under the used oil management standards. 87

We also disagree that we are defining the use of used oil as fuel oi l 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. Additiona lly, 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 materi al as a commodity and not a waste. We are also simply not opining on other situations where us ed oil is used beyond its use as fuel as it does not matter for federal law. States may make their own decisi ons 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 th e statute and EPA regulat ions, 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 wast e and instead established a separate regulatory program for used oil. This section provide s EPA with authority to regulate used oil that is recycled, indepe ndent 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 re gulations in 40 CFR part 279 state "EPA presumes that used oil is to be recycled unless a used oil ha ndler disposes of used oil, or sends used oil for disposal." 40 CFR 279.10(a). Th e 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” becau se the two terms are mutually exclusive.
In addition, the 40 CFR part 279 regulations alre ady 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-s pec and the marketer complies with th e 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 regulatio ns in place that regulate onspec used oil.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

106 of 275 recycling under section 3014 of RCRA, which includes recyc ling of off-specification used oil with appropriate environmental safeguards. EP A 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 chemi cal 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 re covery unless the commercial chemicals are
themselves fuels. Commercial chemicals that are themselves fuels are not wastes when burned for energy recovery. According to the commen ts, even off-specification variants of the commercial chemical products may be burned as fuel s 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 consid ered 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 stat ute and regulations show s that off-specification used oil is not a solid waste. The Agency ag rees 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 wa ste or a commodity. As EPA ha s 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 an d may be recycled, but th ey 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 wast e. 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 materi al is “discarded” in the plain meaning of
the word.
Similarly, Part 279 does not provi de that the terms, “recyclin g” and “solid waste,” are mutually exclusive. Secti on 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 part icular, 40 CFR part 279 restricts th e burning of off-specification used oil to industrial furnaces, industrial boilers , utility boilers, certain used oil-fired space heaters, and hazardous waste incinerators and sp ecifically excludes non-industrial boilers, such as those located in apartment and office buildings , schools, and hospitals. For a more detailedPART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

107 of 275 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 concentrati ons 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 statut e and regulations do not aff ect these determinations.
Section 261.33, also, does not affect EPA’s interpre tation 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 co mment. In any event, however, section 261.33 provides that chemicals manufactur ed 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 origin al 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 natu re of the CAA regulations for any facilities that burn used oil and EPA is not amending 40 CFR part 279 to state wh ether any used oil is a waste or not. Based on the current provisions of 40 CFR part 279, it is en tirely reasonable for the Agency to find that on-specification used oil is not a waste, while o ff-specification used oil is a waste. Also, we would note that off-spec used oil may still be burn ed in the same types of facilities provided in 40 CFR part 279, but the CAA must determine how th ey 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 o ff-specification used oil as a waste, it will no longer be covered by the Part 279 Used Oil Management St andards. As EPA noted when it promulgated the Part 279 Used Oil Management Standards, s ection 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 wa ste would still be subject to 40 CFR part 279. The commenter is conflating the cl ear disposal of used oil – thro wing it in a landfill, for example – with the concept of “d iscard.” “Discard” is not used in 40 CFR part 279 and “disposal” is not a congruent term to “discard.” That is, the re gulations 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 prot ects human health and the environment.
Also, as noted repeatedly in the rulemaking r ecord, 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 ar e burning it as a waste and they will be subject to the appropriate CAA authoritie s. 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-sp ecification used oil as a product, it will be in violation of the Congressional mandate to promulgate regulations that “do not discoura ge the recovery or recycling of used oil, consistent with the prot ection of human health and the environment.” 42 U.S.C. 6935(a).

EPA’s Response :PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

108 of 275 EPA disagrees with this comment. The Agen cy 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 fina l 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 promulga ted 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 Sec tion 129 standards have been addressed for this population of combustion units.

Comment [3a-B7-5] : Commenters argued that contaminant concen trations found in “off-spec used oil” is comparable to traditional fuels. While commente rs submitted studies that looked at both on-spec and off-spec used oil to support this assertion, Table 4 only summ arizes 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 facilitie s 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 fo r cadmium. The researchers identified the offspec used oil for total halogens was an industr ial oil that contains non-hazardous chlorinated paraffin and the other was from a military opera tion. 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 la boratory. 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 – specif ically 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 lubric ant manufacturers) in industrial oils designed to encounter high pressure. The rese archers did not speculate on the reasons for the high levels of chromium. Table 4 presents th e data on the off-spec samples, only. In the Canadian study, 230 samples of used oil were collected from vari ous 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 ar senic. Table 4 presents the results of the analysis of the four off-spec samples.

Table 4. Contaminant Concentrations in O ff-spec Used Oil and Traditional Fuels

Material U.S. Study

1 88 U.S. Study

2 89 Canadian Study 90 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.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

109 of 275 # 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 appr opriate comparison for used oil si nce 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 oi l and the risks posed by those contaminants. The data submitted states that the average total hal ogen content of off-spec used oil from one study is 9,409 ppm (with the on-spec concen tration of 4,000 ppm maximum). Also, off-spec used oil contains as much as 21 ppm of Cr, on averag e, (with the on-spec c oncentration of 10 ppm maximum). Thus, off-spec used oil does not meet the legitimacy criterion for contaminants.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

110 of 275 When EPA created the specifica tion levels set in 40 CFR 279.11, it identified those levels as being comparable to fuel oils. EPA maintain s 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 leve ls set in 40 CFR 279.11) is
deemed to have more contaminants than fuel o ils 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 insi gnificantly higher than those found in traditional fuels hardly imply a purpose of disposal, assumi ng 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 pres ume 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 full y assess if its use in a combustion unit is truly a waste activity. As a result of our investigation, it is clear from th e 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 haza rdous secondary material is a solid waste, EPA recognizes that legitimate r ecycling can occur even if the material has higher levels of toxics than virgin materials. To show this, th e 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 th an virgin sand. However, because the sand is part of an industrial process where there is li ttle 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 legitim acy 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 hazardou s waste. In any event, the discussion of foundry sand contamination, even though it would be a hazardous waste w ithout application of the legitimacy criteria for that rule, presents what appears to be a vastly different recycling situation. In this rule, co mbustion 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 th e 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 sandPART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

111 of 275 loop for mold-making being part of a continuous industrial process. 93 However, the letter also
made clear that the letter did not address th e 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 processi ng of off-spec used oil is cont rary 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 oi l as a viable and not discarded fuel. That is, if off-sp ec used oil is blended with virgin oil or on-spec used oil to meet the 40 CFR part 279 used oil specs, the resulti ng oil should be considered a legitimate fuel product.
Other commenters argued, however, that when thes e materials are distilled into fuel, they are still wastes, regardless if th ey have been blended or processe d to obtain an on-spec material. Wastes are always wastes a nd their status cannot be cha nged through simple processing.

EPA’s Response : Whether or not processing of used oil is cont rary to the goals of energy efficiency, offspec used oil contains more contaminants than tradit ional 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 co mmenters 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 th e 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: ble nding used oil with virgin petroleum products, blending used oils to meet the fuel specificati on, 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 commenter s that processing of off-sp ec used oil into on-spec used
oil still renders it a waste. EPA’s regulations at 40 CFR 279.11 st ate that, once oil is determined to be on-specification in accordan ce with the regulations in Part 279, the used oil regulations do not apply to the material. On-sp ecification 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 bur n them under CAA section 112, along with other on-spec used oil. Comments base this determination on the elimination of leaded gasoline. Commenters also supplie d 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; EP A-HQ-RCRA-2008-032 9-1273.1; EPA-HQ-RCRA-2008-
0329-1686PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

112 of 275 EPA’s Response : The data provided in the comments indicates th at 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 traditi onal fuel). This does not allow us to make a broad classification that, because only a small portion of used oil is o ff-spec, used oil can be generally classified as on-spec. On the other hand, the data in the st udies 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 determina tion petition if they be lieve that their used
oil is not a waste.

Comment [3a-B7-10] : Many commenters stated that th ere are numerous auto repair shops that use used oil to fuel their space heaters, which do not (or woul d not likely) meet the air pollution controls required by the CAA section 129 standards. The co mmenters 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 us ed oil to determine if it is on-s pec 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 heat ers 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 dis posing of their used oil.

EPA’s Response : In this rule, EPA determined whether off-sp ecification 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 Ag ency is not promulgating emission standards for
such units.
In particular, EPA is specifically clarifying in th is final rule that used oil combusted in an oil-fired space heater that meet s the provisions of 40 CFR 279.23 need not be tested to establish whether or not such oil is on or off-spec. Th is includes used oil gene rated by small facilities such as auto repair shops and machine s hops that have such units, and used oil generated by homeowners who change their own oil (referred to as “do-it-yours elf” or “DIY” oil) that are
burned in such units. This is because the CI SWI regulations promulgated elsewhere in the Federal Register today do not establish emi ssions 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 th is 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 anal yses. Specifically, the existing regulation under 40 CFR 279.72 states that used oil fuel can be determined to be on-specPART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

113 of 275 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 co al cleaning operations. Coal refuse is generally defined by a minimum ash c ontent 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 th e era in which it was mined. Due to advances in coal preparation technology over th e past century, the processing of coal has evolved such that materials that are now generated in the coal mi ning process, which would have been considered coal mining rejects in the past and discarded in waste piles, ar e now handled and processed as coal. In the early twentieth centu ry, coal preparation involved simp le 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 reje cts in discarded coal refuse piles. Today, however, coal preparation plants are much more capable of separating coal from mineral matter through processes, such as densit y separation and froth flotation. 96

Thus, the proposed rule differentiated between co al refuse that is cu rrently 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 so lid waste. On the other hand, the proposed rule stated that coal refuse placed in legacy pile s 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-hazard ous secondary material as involving separation through the use of screens or grizzlies, blen ding, crushing, or drying. Although we understand that virgin coal is similarly processed, the propo sal 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 mini mal 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 lega cy 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 cr iterion. However, the proposed rule noted that although coal refu se can contain metals concentra tions that are higher than found in virgin coal, data also show that emissions levels from some facili ties burning coal refuse (namely those equipped with circ ulating fluidized beds (CFBs)) are lower than most existing

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

96 See National Research Council of the National Academ ies (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.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

114 of 275 pulverized coal utility boilers. For the proposed rule’s characteri zation of coal refuse, see 75 FR
31865-6.
Accordingly, the Agency seems to have f aced 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 opera tions today and used as fuel differently from coal refuse mined from the “leg acy” piles, which seem to be no different.

Comment [3a-B8-1] : Responding to EPA’s request for comment rega rding whether other fuels in use today
should also be classified as trad itional 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 bei ng 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 re fuse 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 ma y 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 othe r non-hazardous secondary materials addressed in this rulemaking, as it is generated in the proces s 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 opera tion is itself fuel, we consider coal refuse to be more akin
to a raw material that is subse quently processed and utilized to produce a fuel. In other words,
coal refuse is different from ot her non-hazardous secondary materi als, such as used tires or resinated wood residuals, in that it is generated in the pr oduction 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 qua ntities 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 fi rst 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 produc e a fuel, but may now be used itself as fuel. Therefore, coal refuse is fundame ntally different from tires, as well as the other non-hazardous secondary materials that are discu ssed in the preamble to this final rule.

97 Referenced citation can be found at 75 FR 31856.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

115 of 275 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 informa tion useful, but not determinative in our analysis of whether or not coal refuse m eets our definition of a traditional fuel. However,
the fact that coal refuse has been used and mana ged as a fuel for thirty years when coupled with
the fact that coal refuse is uni que from other non-hazardous seconda ry materials in that it is a byproduct of fuel production processes and is itself a ra w material that can be used as a fuel leads
us to determine that coal refuse that is cu rrently generated and used as a fuel should be
considered a traditional “alternative fuel.” Howe ver, coal refuse that has been abandoned long ago in legacy coal refuse piles would not be cons idered a traditional fuel that is not subject to coverage and assessment in this rule, since it is cl early 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 tradit ional 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 th irty years combined with the fact that we find coal refuse to be distinctive among the other non-hazardous secondary ma terials at issue in today’s rule; i.e., coal refuse is in fact raw mate rial coal that is genera ted 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 ha s been placed in legacy piles would not meet the definition of traditional fuels, as they clearly have not been historical ly 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 furthe r discussed in the comment response below. Thus, coal refuse that has been placed in legacy pi les 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 consid ered a “fuel,” regardless of when the coal refuse is generated and urged EP A 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, whichPART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

116 of 275 states that “Coal means...coal refuse...” 98 and argues that this defi nition in the regulation has nothing to do with when the coal refuse was ge nerated 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 refu se that is generated currently, as this fails to acknowledge that such coal refuse has been di scarded. 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 th e term “discard,” is to have the ordinary, plainEnglish meaning (i.e., “disposed of,” “thrown away,” or “abandoned”). As co al refuse placed in legacy piles have clearly been abandoned, we can not ignore the fact thatthese materials have been discarded in the first instance and, therefor e, do not agree with the contention that this construct represents a “false distinction.” The re sulting distinction may lead to results that some may find illogical, but we are faced with the defini tion 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 materi als, 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 tec hnology 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 r easons stated above, we cannot ignore that coal refuse that has been placed in legacy piles ha ve 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 th at EPA has previously defined coal to include coal refuse, we note that this information wa s helpful, but disagree the cited regulatory definitions control in this rulemaking. The cite d definitions, which are included in the standards of performance for new stationary source regulat ions, 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 reemphasi zes that the distinction is not between “fuel” and “waste,” but between fuel that is a co mmodity (not a waste because it has not been discarded) and waste fuel that has va lue, but is still a waste.
In the same CFR sections cited by commenter s 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, et c.) 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 pe rcent, 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 (incorpo rated 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 60.41bPART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

117 of 275 refuse and in fact support the distinction we ar e 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 co nsider coal refuse to be a “waste-product” or “byproduct” of coal mining operations. EPA’s ev aluation that coal refuse that is currently generated and used as a fuel has never been dis carded and should be considered an alternative fuel, while discarded coal refuse should be cons idered a solid waste, is consistent with these regulatory definitions.

Comment [3a-B8-3] : Most commenters addressing the issue of proces sing coal refuse stated that coal refuse from legacy piles is processed th e 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 su lfur content, and reduce concentrations of
various constituents. These comments maintained that this level of processing should satisfy EPA’s definition of “processing” because the proce ssing 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 a dditional activities than are used to prepare virgin materials for use. This commenter provides the example of a company that recove rs coal refuse from previously discarded piles, screen the refuse to remove large pieces of slate and rock, conducts a chemical analysis to identify Bt u, ash, and sulfur characteristics, hauls the coal refuse to its preparation plant where it is cleane d just like mined coal, and then sold as is or blended with
mined coal to meet contractual orders. Th is commenter argues that EPA did not provide adequate justification in the pr oposed rule for why this process would be insufficient to turn a once discarded non-hazardous secondary ma terial 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 re fuse available to be burned in the boiler. In other words, considerations for use of the coal re fuse as a fuel precede facility construction and directly impact boiler design and ap plication. Therefore, coal refu se from legacy piles that is processed in this manner (i.e., in the same manner as currently ge nerated 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 ma terial into a non-wast e 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 ope rations; chemically improve the as-fired energy content; or improve the ingred ient 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.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

118 of 275 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 processe s 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 us ed itself as fuel, we agree with the commenter
who stated that it would be ill ogical to require a different level of processing for discarded coal refuse than is used for virgin coal. Therefore, co al refuse that is recove red from legacy piles and used as fuel that is subjected to the types of operations that are us ed to process virgin coal, which serve to both increase energy values as well as reduce contaminants, wo uld meet our definition of processing and would not be considered so lid waste, provided thes e materials satisfy our legitimacy criteria, which they do since currently mi ned 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 contamin ant 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 co ntent of coal refuse, CFBs typically capture between 90-99 percent of mercury and other me tals. 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 comp arison in concentrati on levels of various contaminants between coal refuse and regional co al samples. A selection of the specific data provided by the commenter is re plicated 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,
PA 102 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 bo ilers are often newer than many existing pulverized coal utility boilers and may be eq uipped 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 Su rvey—National Coal Resources Data System. For more information, see http://energy.er.usgs.gov/coalqual.htm ).PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

119 of 275 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 c onsistently higher in the coal refuse samples than the regional virgin co al, 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 refu se from legacy piles are suffic iently processed, this commenter asserts that coal refuse would pass the contamin ant legitimacy criterion and should therefore not
be classified as a solid waste.

EPA’s Response : Regarding the contaminant levels in coal refu se in legacy piles, we agree with those commenters who acknowledged that coal refuse can have higher concentrati ons of some metals than is found in virgin coal. As noted in the proposed rule, at l east 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 co mmenter. 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 curren tly mined coal that would have been placed into these piles in the past. We also recognize th at 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 curre ntly 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 th e legitimacy criteria in order to be considered
a non-waste fuel. As coal refuse is recovered from legacy piles ar e subject to the same processes as currently-generated coal refu se in order to meet the same fuel specificati ons, 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 contam inant data provided by the one commenter demonstrates that there are also examples of co al refuse taken from legacy piles satisfying the contaminant legitimacy criterion when directly co mpared to contaminant levels in coal. Given

103 Data provided by the commenter indicated that the av erage 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 Refu se, located in the docket for today’s final rule.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

120 of 275 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 al though emissions comparisons ar e not a direct indicator of whether these materials satisfy the contaminan t 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 manage ment of coal refuse at mining sites is already regulated under the Surface Mining Cont rol and Reclamation Act of 1997 (SMCRA) and that defining coal refuse as a solid waste w ould 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 RC RA 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 cite d section 1006(c) of RCRA and argued that regulation of coal refuse found in le gacy 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 is sue 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 form s that are categorized by the process in which they are generated. The pr oposed rule differentiated between CCRs (which include such secondary material s as fly ash, bottom ash, and boile r slag), that are currently generated from those CCRs that have been previ ously disposed of (such as, mined landfill ash)
and are used as fuels in combustion units. U nder 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 pr ovided the CCRs were
burned in units within the contro l of the generator. For exam ple, the proposal described a
situation where curre ntly 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 co al-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 us e 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 la ndfills and surface impoundments. For more information on the coal combustion residual proposed rule, s ee 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.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

121 of 275 existing boilers is burned within the control of the generator at pow er generating stations. On the other hand, CCRs recovered from landfills or othe r disposal units woul d clearly have been
discarded in the first instance and would therefor e have to be sufficiently processed into a nonwaste fuel product and meet the legitimacy criteria in order not to be co nsidered a solid waste
when used as a fuel.
The proposed rule also noted comments re ceived 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 CC Rs 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 fu els. The commenters often conte nded that classifying all CCRs as ingredients would simplify waste determinati ons 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 i ngredient legitimacy criteria a pply based on the primary purpose of the secondary materials). Some commenters acknowledged, however, that CCRs can be combusted (e.g., by electric utilit ies) for energy recovery of its carbon content or combustion in carbon burn-out (CBO) units for proce ssing 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 typica lly integrated with power plants. The CBO unit combusts fly ash from the power plant in a fluidized bed, extrac ts the residual energy content of the fly ash to fuel the CBO, and returns useful heat to the powe r 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. Th is 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 c ondensate stream, which re duces the amount of extraction steam required. In reasoning that th is high-carbon fly ash s hould be considered an ingredient, however, the commenter notes that energy generated from burning the secondary material is of secondary importance to the pr oduction 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 i ngredients. As some commenters acknowledged, some CCRs are indeed used for their fuel value as opposed to th eir ingredient value, es pecially when re-burned,
as in the case of their use in combustion units by electric ut ilities. Therefore, we cannot categorically classify CCRs as i ngredients when it is clear that, in some cases, these secondary materials are being burned for their fuel value an d/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 notPART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

122 of 275 be considered a solid waste. In other words, to the extent that CCRs are used as fuels, these secondary materials must remain within the cont rol of the generator a nd meet the legitimacy
criteria for fuels or be sufficien tly processed into a new fuel produc t in order not to be considered a solid waste. We note, however, that s ources may petition the Agency for a non-waste determination for secondary materials managed ou tside the control of th e 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 pr oduce an ingredient. It is less clear, however, whether this activity repr esents a legitimate use of these seco ndary materials as fuels or should be considered a type of waste management. The commenter states that bur ning 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 i ndicates that the burning of the fly ash could constitute a legitimate use as a fuel. On the other hand, the same comment er 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 s uggest that the fly ash is being burned as a waste activity (i.e., the destruction of the unwan ted 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 be ing destroyed or whether it is act ually used for its fuel value. In other words, the CBO unit is either "des troying" the carbon, which would make these materials a solid waste, or the carbon is being r ecovered and used as a fu el, in which case these
materials would not be considered a solid waste provided they meet the le gitimacy criteria.
While the CBO units are burning the ash to cr eate a marketable product, in so doing they may also be utilizing the separate d carbon for its fuel value. The commenter indicates that use of high carbon-fly ash in these CBOs may have more th an marginal energy value and can even be a source of additional power to an adjoining pow er plant. While we do not have sufficient information to make a categorical determination re garding 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 bur ned 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 woul d meet our definition of a legitimate energy recovery device. For a discussion of legitimat e 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 criteri on. See also Section VII.I,PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

123 of 275 which discusses the types of notification and recordkeep ing requirements, including
documentation as to how the non-hazardous seconda ry material meets the legitimacy criteria, that a facility using these secondary materials as fuels that remain with in the control of the generator are subject to.
Finally, we note that the resulting lo w-carbon fly ash would be considered a new secondary material, which would be considered an ingredient if it is late r 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 crite rion) 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 technica l consideration when in troducing 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 fo r 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 fo r fly ash that is re-burned to not be a solid waste under today’s final rule, it w ould need to either remain with in the control of the generator and meet the legitimacy criteria for fuels, includi ng the meaningful heating value criterion, or, if discarded, be processed into a ne w, legitimate fuel product. So me commenters stated that the energy content of fly ash when burned is return ed as useful heat. Based on the comments received, however, it is unclear whether the fly ash in that inst ance would meet the meaningful heating value criterion, as these comments do not include enough inform ation 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 de termine whether the fly ash meets the legitimacy criteria, including whether the fly ash has meaningf ul heating value and is used as a fuel in a combustion unit that recovers energy.
We also note that we are not establishing a br ight 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 va lue 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 ener gy recovery unit can co st-effectively recove r 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 betweenPART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

124 of 275 facilities and retrieved from la ndfills because it is being benefi cially 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 ow ns. This same commenter also not ed 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 no t. The Agency has not adopted the extremes of saying that all burning of secondary material, rega rdless of ultimate use, is waste treatment or that any secondary material that is recycled fo r 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 transfe rred for recycling, and determin ed whether they would be appropriately placed within the waste or non-wast e 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 Ag ency does so with respect to scra p tires harvested from vehicles
and resinated wood residuals.
Commenters discussing scrap tires and re sinated wood residual s, however, provided specific information regarding how these sec ondary materials were managed when they no longer remained within the contro l 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 di stinguish between materials that ar e being used as a raw material and those that are being used as a fuel).
On the other hand, commenters discussing the us e of CCRs as fuels outside the control of the generator did so only in general terms. Co mmenters provided legal arguments that case law
holds that transfer of such materials between co mpanies were irrelevant for determining whether a recycled material was properly viewed as a soli d waste. See Section V.A.1 for our response to these legal arguments on the issue of “transfer” as it relates to th e concept of discard. However, these commenters did not specify how the prop osed 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 suffici ent 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 contro l 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 cer tain 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.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

125 of 275 Regarding the commenter who described how one of its power plants re-burns coal ash that it receives from two other pow er plants it also owns, we woul d expect that such a situation
would fall within the definition of “within the control of the gene rator,” as codified in §241.2. For the purposes of today’s final rule, “within the cont rol 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 combusti ng the non-hazardous secondary ma terial is controlled by the generator; or both the generating facility and the facility combusting the non-hazardous secondary material are under the control of th e 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 contra ctors who operate facilities on behalf of a different person as defined in this section shall not be deemed to “control” suchfacilities. See §241.2. As the commenter states that it owns the other two plants, such intracompany movement would ensure that the materi als 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 landf ills must be sufficiently processed in order to no longer be considered a solid waste.

Comment [3a-B9-4] : We received a few comments regarding th e extent to which CCRs are mined from landfills (i.e., recovered from the discard envi ronment). One commenter asserted that it was unaware of any recovery of CCR from dis posal sites, while one another commenter acknowledged that while it could utilize recovere d landfill fly ash, it was not currently doing so.
Still another commenter stated it removes CCRs fro m landfills and that such removal for either energy recovery or beneficial re use was facilitated by a regulato ry innovation program sponsored by the state and endorsed by EPA. Consequentl y, 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 beneficia lly 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 coul d be recovered from th e discard environment— for example by the one commenter citing its pa rticipation in a state regulatory innovation program. Although we recognize the benefits as sociated with recovering CCRs from landfills, these non-hazardous secondary materials have clear ly been discarded in the first instance and would have to be sufficiently processed into a ne w fuel product (or ingredie nt product) to not be
considered a solid waste when used in combus tion 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 imp act other potential bene ficial uses of CCRs, such as using these secondary materials as a base material to replace stone or gravel under roads, parking lots and buildings.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

126 of 275 Comment [3a-B9-5] : EPA received comments on the ANPRM stating th at there are at least four patented processes for removing unwanted carbon from fly a nd 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 proce sses for using CCRs recovered from landfills. However, neither of these commenters provide d specific details regarding how the CCRs are actually processed.

EPA’s Response : Unfortunately, EPA did not receive suffici ent 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 re ferenced in the proposed rule would meet the definition of processing being prom ulgated 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 opera tions are currently being utilized to recover CCRs from the discard environment that would likely meet our de finition of “processing.” For example, we are
aware of at least one electric ut ility 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 produc t is then recovered by density separation using concentrating spirals. A fine carbon-fuel pr oduct is also recovered with flotation cells. 108 We believe that this type of proces sing operation is likely to meet our definition of processing, as it appears that these operations in fact remove cont aminants 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 pro cessing, 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 re gulatory solid waste excl usion for sewage sludge when burned in incinerators in order to preser ve 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 ru le stated that the Domestic Sewage Exclusion (DSE) under RCRA (see 261.4(a)) does not apply to the sludge ge nerated 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 re cover 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 Com bustion 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 mate rial 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.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

127 of 275 to be legitimate energy recovery devices, bu t rather these combusti on 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 meta ls at levels that are significan tly 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 th e discretion to exclude or exempt sewage sludge from this rulemaking and should exercise th at discretion in order to preserve the current framework for regulating the burning of se wage 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-discretiona ry duty to consider all environmental laws to prevent duplication when promulgating regulations under s ection 1006(b) of RCRA and that deeming sewage sludge a solid waste to be re gulated under section 129 of the CAA violates EPA’s non-discretionary duty to harmonize environm ental laws because emissions from sewage sludge incinerators (SSIs) are already comprehensively regula ted under other statutes.

EPA’s Response:
We agree with the commenters that secti on 1006(b) requires EPA to integrate the RCRA requirements with the requirement s 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 ex pressed 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 re gulate 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 combus ted under emissions standards developed under section 112 or 129 of the CAA. Sewage sl udge 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 st ates 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 th at section 405 of the CWA does not preempt other regulation. Therefore, we believe today’s fi nal rule is consistent with th e 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 incine ration is strictly regulated unde r the CWA and that the current regulatory structure under both the CWA and secti on 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.”PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

128 of 275 EPA’s Response:
Today’s final action is defining solid wa ste under RCRA and as such we are not addressing the definition of POTW under th e CWA or the requirements of the CAA.

Comment [3a-B10-3] : Several commenters reiterated the positi on that the DSE applies to sewage sludge generated by POTWs and, therefore, stated that se wage 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 indicate d 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 ci tes the 1990 Petroleum Refinery Primary and Secondary Oil/Water/S olids Separation Sludge Listings Rule (1990 Listings Rule),
which states “It should be noted that if wastewaters generate d at petroleum refineries are discharged to a POTW and such wastewater s are mixed with domestic sewage from nonindustrial sources, the sludge s generated in the POTW ar e 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 gene rated from the treatment process. EPA has long viewed sewage sludge generated from PO TWs as a solid waste, beginning with the 1980 Identification and Listing of Hazardous Waste rulema king. In that final rule, EPA stated that the DSE is “only applicable to non-dom estic wastes that mix with sani tary waste in a sewer system leading to a POTW.” 113 In that same rule, EPA further sa id 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 a nd Listing of Hazardous Waste rulemaking referenced by the commenter states that on ce the regulations are pr omulgated under section 405(d) of the CWA, sewage sludge will be exem pted 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 defin ition 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 expressi ons, 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, an d thus, sewage sludge that exhibits any of the characteristics of hazardous waste must be manage d as a hazardous waste. S ee 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 re gulation. 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 sludg e will not be specifically excluded from Subtitle C.”PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

129 of 275 subtitle D program under RCRA.
Regarding the citation from the 1990 Listings Ru le, this footnote is in error and is
inconsistent with our historic interpretation of the scope of th e DSE, as discussed both in the proposed rule and today’s final rule. Thus, the DSE does not apply to th e sludge generated from the treatment process.

Comment [3a-B10-4] : Several commenters stated that sewage sl udge has meaningful heating value and that EPA should re-evaluate its description of this criterion. Commenters argued that EPA’s
determination that waste heat boi lers do not qualify as combusti on units that recover energy is arbitrary and does not recognize th e significant value of waste heat boilers and their role in energy generation. One commenter, a regional sewe r district that estimated roughly 93 percent of its sewage sludge was “incinerat ed,” stated that four of its boilers had produced a total of 2.5 billion pounds of high pressure steam over a tw enty-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 recogni ze 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 th e fact that the unit co mbusting the non-hazardous secondary material is primarily an incine ration unit burning waste for disposal purposes.
Further, the Agency does not regard waste he at boilers as legitimate energy recovery devices because they receive their energy input fr om 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 bo iler or an industrial furnace. 116 Among other criteria, a boiler’s combustion chamber and primary energy recovery sect ion(s) must be of in tegral 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 recupera tor/heat exchanger) does not qualify as a legitimate energy recovery device.
Unlike boilers, which are specifically designe d to recover the maximum amount of heat from a material’s combustion, waste heat recove ry units are designed to cool the exhaust gas stream, and/or to recover, indirectly, the usef ul 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 primaril y 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, EP A 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, se e 40 CFR 260.10.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

130 of 275 Regarding the contaminant levels in sewage sludge, a number of commenters noted that the pretreatment standards have reduced contam inants (particularly metals) in sewage sludge, with a few commenters providing more recent c ontaminant 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 Ta rgeted National Sewage Sl udge 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 se wage 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 a nd site-specific data provided by several commenters. We agree that in most cases, th e specific data provided by commenters indicates
that contaminant levels for most contaminants is not as high as previous ly 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 sludgewould 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 Bi osolids Partnership’s 2005 “National Manual of Good Practices for Biosolids,” and coal data taken from a 1 998 U.S. EPA report entitled, “Development of Comparable Fuels Specifications.” May 1998.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

131 of 275 reference to pathogens, pathogens are not included as a contaminant in today’s rule since that
definition focuses on those constituents identifie d in the CAA that EPA will be evaluating to
determine whether to establish emission st andards (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 rule making would have no regulatory effects or impacts for sewage sludge that is not incinerated (e.g., land app lication). On the other hand, one commenter requested that the Agency designa te sewage sludge as a solid wa ste regardless of the manner that it is managed for disposal (land application, su rface disposal, co-disposal in a municipal solid waste landfill, or incineration).

EPA’s Response:
We disagree with the one commenter who reque sted 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 frame work 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 th ese regulations should not dictate to state programs how to characterize and/or regulate this material (as well as any other nonhazardous secondary material), particularly sinc e EPA does not have authority to regulate the beneficial use of non-hazardous secondary mate rials 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 a nd 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 fa ts are a traditional fuel as they are not discarded and are legitimate fuel products. Specif ically, they argue that th e 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 fo r industrial boilers. The commenters also note that processed fats are a primary pr oduct of the rendering process and not secondary materials or byproducts, are derived from inedible animal produc ts, which are the primary products of value and sale of the meat industry and not a secondary ma terial or by-products, and are therefore not a solid waste since it or its primary feedstoc k have never been a wa ste or discarded.
Processed fats also are managed as valuab le 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 heat ing 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,” Univ ersity of Georgia, Athens, GA.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

132 of 275 commenters argue, also have a comparable comp osition to traditional fuel products. In fact, processed fats contain considerably less c ontaminants (e.g., <0.010% sulfur by weight, 0.022% ash by weight) and burn cleaner than many traditi onal 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. Commente rs also stated that processed fats have fewer contaminants than No. 6 residual oil (2% sulfur co ntent), 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 emi ssions 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 us e 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 trea ted 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 facilit ate 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 fo r 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 proce ssed fats as fuel. As a practical matter, this outcome is contrary to longstanding federal pol icy encouraging the de velopment and use of clean, renewable fuels in place of petroleum and other fossil fuels.

EPA’s Response : We disagree that process fats are a traditi onal fuel. Process fats are secondary materials as they are produced from inedible parts of anim als 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 contam inants than traditional fuels 119 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 some times not managed within the control of the generator (i.e., the butcher, the rest aurant, etc.), questions could be raised as to whether they are
discarded if not burned in a com bustion unit within the control of the generator. However, we would note that the rendering pro cess “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 es tablishes these non-h azardous secondary materials, after being

119 See the Preliminary Characterization Study Prepared In Support of the Proposed Rulemaking –Identification of Nonhazardous Secondary Mate rials 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,” Un iversity of Georgia, Athens, GA.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

133 of 275 processed, as a non-waste fuel.
C. Comments on Specific Materials Used as Ingredients

The ANPRM identified a number of non-hazard ous 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 mate rial groups are CKD, CCRs, foundry sand, and blast furnace slag/steel slag. The proposed ru le did not assume that ingredients used in
combustion units that are not mana ged within the contro l of the generator are discarded materials (as is the case for most non-hazardous secondary material fuels), sinc e 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 direc tly used (or in the cas e of previously used materials, reused), function as effective s ubstitutes (i.e., as raw materials) in normal manufacturing operations or as pr oducts 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 mate rials used as ingredients described below, we again note the overarchi ng comment that was rais ed by some commenters that the Agency has no authority under section 12 9 of the CAA to regulate the use of secondary materials as ingredients, as EP A’s section 129 authority is limite d to “solid waste incineration units,” which the statute defines as units that “c ombust” solid waste. As discussed in Section V.A of today’s final rule, we belie ve that this comment is not re levant to this regulation, which determines whether non-hazardous secondary mate rial is a solid waste, or not under RCRA. EPA has clear authority to inte rpret RCRA to decide whether non- hazardous secondary materials
are solid wastes or not.

1. Cement Kiln Dust

. CKD is a fine-grained, solid, highly alkali ne 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 va rious stages of burning, and part icles 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 dis card, 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 commenterPART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

134 of 275 explains that while CKD may have been previ ously placed in storage piles or even permitted solid waste management units (SWMUs), the te chnology did not exist prev iously 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 materi als (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 th e CKD has remained on-site, the intent or purpose of placing CKD in storage piles or SW MUs was to dispose of them (i.e., discard). Additionally, CKD that has been pl aced 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 stor age 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 co mbustion unit, unless the non-hazardous secondary material is processed in to a non-waste ingredient product.) CKD that has not been discarded in the first instance, how ever, and satisfies the legitimacy criteria would
not be considered a solid waste wh en used as an ingredient.

2. Coal Combustion Residuals. 121

CCRs are formed during the coal-burning pr ocesses in power plants and industrial boilers, and are produced in vari ous forms (i.e., fly ash, bottom ash, and boiler slag) that are categorized by the process in which they are ge nerated. The proposed ru le indicated that CCRs used as ingredients in combusti on units would not be considered solid wastes, provided they
were not discarded in the first instan ce 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 ou r characterization that the primary use of CCRs in cement kilns is genera lly for their ingredient value, as opposed to
their fuel value.
The proposal also indicated th at when CCRs are used for th eir 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 fi rst instance, they would have to be processed into a non-waste ingredie nt 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 co al-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 us e 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 la ndfills and surface impoundments. For more information on the coal combustion residual proposed rule, see Docket ID No. EP A-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.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

135 of 275 ash for use in concrete appear to satisfy our processing requirement , we requested that commenters provide additional information expl aining how this processing is conducted, and whether this type of fly ash is used as an i ngredient in the clinker production process. The proposed rule also requested comment on the ex tent 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 co al 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 vanadi um, zinc, copper, chromium, nickel, lead, arsenic, and mercury, 124 the proposed rule noted th at in a 2008 Report to Congr ess addressing the use of these secondary materials as ingredients in cement and concrete a pplications, the overall conclusion reached with respect to the perceived safety health ri sk barriers was a positive one, in that the risk analyses did not identify signifi cant risks to human health and the environment
associated with these uses. 125

The proposed rule also noted that the Agency is studying the possibl e effects of new air emission control technologies and configurations on the composition of CCRs and requested
comment on whether advanced emission contro l technologies, such as carbon control technologies for mercury and NOx, are resulti ng 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 comme nters further asserted that all CCRs, when used in combustion units, shoul d 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 ener gy value that is recovere d is secondary to its value as an ingredient, and ar gued that classifying CCRs always as ingredients would simplify
the waste determinations for thes e non-hazardous secondary materi als by clearly establishing the appropriate legitimacy criteria th at apply (i.e., facilitie s would not need to determine whether the fuel or ingredient legitimacy criteria apply based on the pr imary purpose of the secondary materials).

123 For more information on the different types, or ranks, of coal, please refer to the Ma terials 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 Characterizati on.” 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 benefici al 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.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

136 of 275 Some commenters were also c oncerned that if cement k ilns burned high-carbon content fly ash (which has more pronounced fuel content), th e provisions of this rule applying to fuels would be triggered, even though thes e secondary materials have near ly identical characteristics, is managed in an identical manner, and is com busted 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 ingr edient. However, we disagree w ith 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 S ection 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 un its by electric utilities. Therefore, we cannot categorically classify CCRs as ingredients when it is clear th at, in some cases, these nonhazardous secondary materials are being burned fo r their fuel value and/or to produce a new secondary material (i.e., low-car bon fly ash). In cases where th e primary purpose of using CCRs is for their fuel value and not for their ingredie nt value (e.g., by electric utilities), the secondary materials must meet the requirements for fuels, including the legitimacy crit eria, in order not to
be considered a solid waste.
With respect to the issue of high-carbon fly ash burned in cemen t 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 th at 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 subs titute ingredient in Portland cemen t 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 oppos ed to their value as an ingredient, these secondary materials would be subject to the re quirements 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 fl y 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 regard s to its use in utility boilers and CBO units— where there is clearly not an ingred ient value, as is the case with burning fly ash in cement kilns. Comment [3a-C2-2] : EPA received comments on the ANPRM stating th at there are at least four patented processes for removing unwanted carbon from fly a nd 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 proce sses 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 pr oduction. Another commenter argued that the same processes used for currently generated fly ash to separate high-carbon ash from mineral ashPART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

137 of 275 could be applied to reclaimed fly ash and pr oduce similar secondary ingredients. This commenter argued that the processes produce two mate rials that are chemically distinct from the reclaimed fly ash and should therefore sa tisfy our proposed processing requirement.

EPA’s Response : Unfortunately, EPA did not receive informa tion 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 w ould 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 cu rrently being
utilized to recover CCRs from the discard enviro nment that would likely meet our definition of “processing.” For example, we are aware of at le ast one electric utility that recovers ash from ponds or landfills and then separates this seconda ry material into its fundamental components: carbon, silicates, and high-density, iron-rich mate rials. 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 a ppears that these processes in fact remove contaminants and improve the ingredient characte ristics of these recovered CCRs. Thus, a determination would need to be made as to whether such processes meet the definition of pr ocessing, 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 envi ronment and used as ingredients in cement kilns. We received a few comments regardi ng the extent to which CCRs are mined from landfills (i.e., recovered from the discard enviro nment). Most of these comments did not specify, however, whether these recovered CCRs were subse quently used for their fuel or ingredient
value.

EPA’s Response :
Based on the comments, it does not appear that it is a co mmon practice for CCRs to be recovered from the discard environment (e.g., land fills) 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 techno logies are resulting
or will result in increased levels of contaminan ts in CCRs, one commenter stated that there was no credible way to know or anticip ate 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 in creased contaminant levels.

126 See “Materials Characterization Paper on Coal Com bustion Residuals-Coal Fly Ash, Bottom Ash, and Boiler Slag.” A copy of this document has been placed in the docket for today’s rule.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

138 of 275 One state commenter, however, stated that it ex pects the mercury content of coal fly ash to increase significantly in upcom ing years. Consequently, this state commenter described its current efforts to remove a generic, pre-determin ed beneficial use determ ination for coal fly ash as an ingredient in cement manufacturing. A dditionally, another commenter stated that when using the CBO process to combust fly ash, esse ntially 100 percent of th e mercury entering the
CBO unit as feed ash leav es with the product ash.

EPA’s Response:
EPA recognizes that it is difficult to anticipat e what contaminant levels in coal fly ash will result from implementation of future technol ogies. We also believe, however, that it is important to be studying and an ticipating 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 publis hing 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 cap ture mercury and other polluta nts) 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 as h used as an ingredient would need to pass the contaminant legitimacy criterion for ingredients in order to not be c onsidered a solid waste. 128

3. Foundry Sand

. Foundry sand is an industrial material ge nerated 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 cas tings and is either dis posed of in landfills or beneficially used in other appl ications, including use as an in gredient 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 discarde d in the first instance and satisfies the legitimacy criteria for ingred ients. Whether foundry sand remains within the control of the generator or is tr ansferred to another person is not in and of itself indicative of discard, as discussed previousl y. If foundry sand has been di scarded, 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 th e characterization of foundry sand in the proposed rule. One commenter discussed how f oundry 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 – Leachi ng and Characterization Data.” EPA-600/R-09/151. December 2009. Ongoing work to comple te this research includes: (1) pr obabilistic assessmen t 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 re search, and (3) test methods for th e 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.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

139 of 275 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 foundr y sand reused on-site within the sand loop for mold making is part of a continuous industria l 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 return ed to the mold- and core-making process.
Commenters also discussed a variety of other benefi cial uses for foundry sand.

EPA’s Response : The foundry sand uses evaluated as part of th is rulemaking only include their use as an ingredient in combustion, such as cement kilns. We do not consid er 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 rath er as a type of benefici al use that is routinely employed by foundries in the production of metal pr oducts. 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 therma l 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 foundr y sand can be re-used. As such, the burning of foundry sand in a thermal reclamat ion 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 wher e 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 ru lemaking.

4. Blast Furnace Slag/Steel Slag

. Blast furnace slag and steel furnace slag (ste el slag) are by-products of iron and steel manufacturing in both iron and steel mills. Slag s are used as ingredients in cement clinker manufacturing, bituminous concre te, 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 generato r or is transferred to a nother person is not in
and of itself indicative of discar d, as previously discussed. Howe ver, 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 criteri a in order to be classified as a nonwaste ingredient. However, we solicited co mments on the level of processing that these materials undergo before determining whether such operations would m eet 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 th is 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.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

140 of 275 We received few comments specifically on bl ast furnace and steel slag. One commenter discussed the use of blast furnace slag as a ra w 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 pr eviously discarded and th e processing that these non-hazardous secondary materials go through. Specifically, such processing includes extraction, passing the slag through grizzlies, rem oval of iron bearing scrap using magnets, and then screening to size the aggreg ate. Some commenters also asse rted that because these slags are reused as part of a continuous process, the applicati on of the legitimacy criteria are inappropriate.

EPA’s Response : We agree with the commenters that blast furn ace and steel slag that are reused as an ingredient, either in the iron a nd steel making processes or in th e manufacturing of glass, are not solid wastes provided they have not been discarde d in the first instance and meet the legitimacy criteria. However, we disagree with the comm enters, 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 recyclin g of secondary materials, both hazardous and non-hazardous, including as part of a continuous industr ial process, must be legitimate. The legitimacy provisions in today’s ru le are designed to distinguish be tween real recy cling activities and “sham” recycling, an activity undertaken by an entity to avoi d certain requirements, which in this case would be to avoid triggering th e section 129 CAA requirements for solid waste
incinerators. Because of the economic adva ntages 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, whe n, 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 pr ocess, must satisfy all of the le gitimacy criteria in order to not
be considered a solid waste.
Regarding the description provided by th e commenter on the extent of processing conducted on slags that have been previously di scarded, it appears that this level of processing would meet our definition of pr ocessing, 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 proce ssed slag meets the legitimacy criteria for ingredients, the slag resulting from the pro cessing 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 consider ed 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 le vels comparable to or lower than those in
traditional fuels which the combustion unit is de signed 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.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

141 of 275 Under the proposed rule, non-hazardous sec ondary 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 rel eases 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 tradit ional 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 s econdary material. In addition to requesting comment on this criterion, the Agency solicited comment on whethe r 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 “containe d” standard, which is a general performance standard, provides sufficient direction to the re gulated community or whether the Agency should include specific technical standards or limit th e types of units in wh ich 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 reasona ble time frame of stor age of non-hazardous secondary materials is impractical and arbitrary, since the definition of wh at is “reasonable” will vary by secondary material, industr y, and facility. Instead, they ar gued that facilities should be allowed to determine what constitutes the most reasonable time frame, based on what is most economical. The most appropriate time fr ame 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 s econdary material is generated continuously, then use and storage is predictable and can be kept consistent. However, some non-hazardous secondary materials are stored fo r 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 desi gn process rate be stored at any given time and no more than 49 percent of the inventory be in st orage 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-h azardous secondary material. Other commenters recommended a time frame of one year, consistent with th e hazardous waste requirements for speculative
accumulation.

EPA’s Response : After further evaluation, EPA agrees with th e 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 invo lved. The “reasonable time frame” is an appropriate standard considering the large num ber of non-hazardous materials that may be subject to this rule, and is flexible enough to allow accumulation of these materials to be cost-PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

142 of 275 effective. In addition, persons will need to document in their record s the “reasonable time
frame” selected and the basis for such time fram es. (See Section VII.I for further discussion on documentation of legitimacy decisions.) The Ag ency did not receive information that such flexibility would lead to non-hazardous s econdary 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 tech nical standards or (3) limiting the types of units in which such non-haza rdous secondary materials may be managed, in
order for them to be considered to be “managed as a valuable commodity.”

Several commenters recommended that the de finition of “contained” be clarified and to include the concept of maintaini ng the recyclability of the non-haza rdous secondary material. In contrast, other commenters stated that the pr oposed “contained” standard provides sufficient direction to the regulated commun ity and that the definition of “c ontained” in the proposed rule adequately describes how and when a non-hazar dous secondary material will be considered “contained.” They asserted that industry will use this definitio n as a general guideline for the safe handling and storage of non-hazardous seco ndary materials and that further “specific” definitions or other approaches would not be bene ficial 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 dis carded. They argue that the st andard does not explain what adequately contained means nor does it account for differences in th e 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 ther e is an analogous fuel pr oduct to the non-hazardous secondary material, then the non-hazardous seconda ry material must be stored in a similar manner and, since it is indeed a valuable mate rial, EPA could reasonabl y 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 contributi ng 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 othe r hand, the recycler does not manage the nonhazardous secondary materials as it would a valuab le fuel, that behavior may indicate that the non-hazardous secondary materials may not be bur ned as fuel, but rather released into the environment and discarded. This criterion's prim ary focus is on storage in a manner consistent with the analogous valuable raw material.
However, EPA realizes that in some processe s, there is not a raw material that can be called “analogous” and, in order to allow facilities with thos e processes to evaluate the legitimacy of their recycling, EPA added the requ irement 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. Furthermor e, EPA has explained what it means to bePART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

143 of 275 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 s econdary material. Thus, we are finalizing the contained standard, as proposed.
Nevertheless, the Agency recognizes that pr oviding greater clarity to this definition may be useful to the regulated community and the pu blic. 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 deta ils). One of the issues that EPA will be evaluating as part of that propos al is the “contained” standard, as promulgated in that rule. 131

Comment [3a-D1-3] : Several commenters expressed uncertainty a bout the meaning of “valuable commodity,” noting that the definition of valuable commod ity should be clarified, or requested that EPA specify clear criteria for determining whether a non-hazardous secondary ma terial 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 develo p specific technical standards. The Agency is using this criterion: materials must be manage d as analogous raw materials or, if there are no analogous raw materials, the materials must be ad equately 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 a nd the environment consid ering 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 n on-hazardous secondary materials and industries. As an example, resinated wood re siduals are adequately c ontained since they are pneumatically transferred through enclosed ducts, stored temporar ily 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 th e same manner as materials that have been purchased or obtained at some cost, just as fuel s or raw materials are. We expect non-hazardous secondary materials that are used as fuels or ingredients to be ma naged effectively and efficiently in order that their full value to the combustion pr ocess is realized. The standard for management of the non-hazardous secondary materials is reasonab le 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 Secti on 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 publ ic meeting on the Definition of Solid Waste under the hazardous waste provisions of RCRA, we specifically identified the defini tion 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 performa nce or storage standards as a condition of the transferbased exclusion. Finally, EPA could address this concer n by developing more detailed guidance on what might constitute “contained,” for different types of units or management practices.”PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

144 of 275 scrap tires and form established collection in frastructures 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 mana ged consistent with the management of an analogous ingredient and used within a reasonab le time frame) are irrelevant because solid wastes are managed in ways similar to commodi ties (i.e., solid wastes and solid commodities are stored in piles on the ground, liqui d wastes and commodities are stor ed 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-hazardou s secondary material as a valuable commodity.

EPA’s Response : We disagree with the commenter that this criterion is irreleva nt because we cannot determine (nor does our experi ence 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. So lid 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 th at 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, th e over-accumulation of sc rap tires is well known and has resulted in massive piles of discarded ti res 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 breedi ng ground for mosquitoes and rodents.
As discussed previously, given the nature of this legitimacy criter ion and the need to apply it to a variety of non-haza rdous secondary materials that ar e managed in various ways, we are not identifying specific standards or prac tices 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 mate rial or a raw material commodity, is mismanaged in a manner that releases significant mate rial 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 co mmodities, if non-hazardous secondary material is being released to the environmen t, 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 pro posed 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 Valu e and Use as a Fuel.

132 See 51 FR 21054, June 10, 1986.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

145 of 275 Under the proposed rule, the non-hazardous secondary material must have a meaningful heating value and be used as a fuel in a combus tion unit that recovers en ergy. 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 meaningf ul heating value in an effort to provide greater certainty to both the re gulated community and regul atory 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-hazar dous secondary material is being burned for destruction as opposed to energy recovery. Under this approach, non-hazardous secondary
materials between this lower le vel and 5,000 Btu/lb (assuming ther e is a difference) could pass this criterion provided the fac ility demonstrates the energy re covery unit can cost-effectively recover meaningful energy from the non-hazardous s econdary 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 a nd 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 expr essed 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 othe r industries from using altern ative fuels to recover energy. Another commenter echoed oppositi on to a bright-line test sin ce the use of a non-hazardous secondary material with any heat ing value reduces the use of fo ssil fuels, indicating that any value for the bright line test w ould be arbitrary and would result in costly impacts to current production systems and would stifle technologic al 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 ha ve 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 provi sion in the rule that w ould 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 agen cies requested that EPA lower the minimum Btu threshold from 5,000 Btu/lb to 4,000 Btu/lb, but an other State agency supports th e 5,000 Btu/lb threshold. Still
another state commenter recomme nds that if EPA establishes a lower threshold, below which the non-hazardous secondary material w ould not be considered to have a meaningful heating value, that this value be based on innovation in energy recovery technologies fr om secondary materials with lower heating values. Due to the continuing evolution of energy reco very technologies, this commenter argues that EPA should include a "safe harbor" cut-o ff level in the rule with a provision for case-by-case approvals based on th e most current proven technology. Another
commenter recommends that if such a lower thre shold is established, that it be based on the high moisture content of wood products that preven t 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 co uld hamper advances and innovation in energyPART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

146 of 275 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 establis hing this legitimacy criterion.
As discussed in the proposed rule, th e 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 th an 5,000 Btu/lb may generally be said to be burning for energy recovery; how ever, hazardous wastes with a lower Btu content could conceivably be burned for energy re covery due to the devices’ gene ral 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 guidel ine, 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 sec ondary 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 meani ngful heating value is derived from the non-hazardous secondary materi al 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 determin ing whether an energy recovery unit can costeffectively recover energy from the non-hazardous secondary ma terial 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 othe rwise 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 belo w 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 seconda ry 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 ba sed on a direct comparison of the contaminant levels in the non-hazardous secondary material to the traditional fu el itself. Contaminants were defined under the proposal as any constituent in non-hazardous secondary materials that will result in emissions of the air pollutants identifi ed in CAA section 112(b), and the nine pollutants listed under CAA section 129(a)(4) when such seconda ry 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 comme nts on how EPA should interpret the “comparable to or lower than” standard. For ex ample, should comparable mean the same as or lower, taking into consideration natural variations in sampling even ts? Also, instead of requiring that contaminant levels in non-hazardous secondary materials be comparable to traditional fuels, the Agency also requested comment as to wh ether to adopt a “not significantly higher” standard—that is, contaminants in non-hazardou s secondary material used as a fuel inPART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

147 of 275 combustion units could not be significantly high er in concentration than contaminants in traditional fuel products.
The Agency also solicited comment on wh ether 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 determini ng 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 sc ientific 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 base d on an established “b right line” level of
contaminants to those contai ned in traditional fuels.

Comment [3a-D3-1] : Several commenters addressed the “compara ble” standard and the “not significantly higher” standard. Many of these comments stat ed 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” standar d, most preferred the latter, stating that it is more consistent with the approach used by EPA for hazardous wast e 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 mate rial 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 overal l 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-h azardous 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 contam inant is controlled by
the emission control device in th e incineration unit, there should be a process to see whether the
material can still be considered a fuel. Sim ilarly, another commenter also recommended using the “comparable” standard as an initial determin ation step, with the “not significantly higher” standard being used as a secondary determinatio n 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 mean s any contaminants present in non-hazardous secondary materials that are within a small acceptable range, or lower than, the contaminant inPART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

148 of 275 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 sugge sts that contaminants can be present in non-hazardous secondary materials at levels that could reflec t discard, especially since we are addressing nonhazardous secondary materials th at are being combusted.
EPA recognizes that combustion is an inherently destructiv e process, even when energy is recovered. If a non-hazardous secondary ma terial 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 wast e combustion units, then it follows that discard is occurring.
The contaminants in these cases could not be cons idered a normal part of a legitimate fuel and are being discarded, either through destruction in the combustion un it or through releases into the
air. Units that burn such materials are ther efore most appropriatel y regulated under the CAA section 129 standards for so lid waste incinerators.
In response to those commenters requesti ng 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 consider ed comparable (since it falls within a small acceptable range) and thus, would meet this fact or. If, on the other ha nd, 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 th at 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 si nce it falls within a small acceptable range. If, however, the barium were at much highe r levels in the non- hazardous secondary material (such as 50 ppm), the levels woul d 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 eval uating the constituent concentrations in non-hazardous secondary materials, that the total enviro nmental impact should be considered, rather than comparing each constitue nt 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 contam inants together, althou gh significantly higher levels for one or more contaminants may be pres ent such that they are destroyed or discarded by means of combustion. This, we have determine d, 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 seco ndary material has been discarded.
We also disagree with comment ers who believe that the comp arable standard should only be used as an initial step to determine if the ma terial is a legitimate fu el, 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 cont aminants pose a threat to human health and the environment.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

149 of 275 Therefore, the Agency will finalize the proposed a pproach of evaluating a ll of the contaminants to ensure that they are present in the non-haza rdous secondary material at levels that are comparable to (or lower than) the concentrations found in trad itional fuels that the combustion unit is designed to burn.

Comment [3a-D3-2] : Many comments discussed whether contaminan ts, 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 commen ters argued that comparing contaminant levels would impose an unnecessary burden on emissions s ources that are already stringently controlled under the CAA regulations. Other comments indi cated that it would be more appropriate to compare emissions profiles from the combustion un its 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, wast e-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 issu e. One state contends that using the list of contaminants in CAA section 129(a)(4) is in adequate because it does not address all heavy metals or organic hazardous air pollutants. A nother commenter argued that while section 112 of the CAA and Appendix VIII of 40 CFR part 261 woul d 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 eval uating different issues relate d to those contaminants.
Other commenters suggested that EPA narrow th e list of contaminants considered in the legitimacy criteria. One commenter recommends th at those constituents that contribute to the secondary material’s value as a fuel be exclude d from the contaminant list. Another commenter
states that the list of contamin ants should be limited to only th e subset of HAP and pollutants listed in CAA section 129 that have the potential of being present in th e emissions from burning the non-hazardous secondary materials. Broade ning the list and requiring the evaluation and analysis of more constituents would be unneces sary and a waste of resources. The commenter, therefore, recommends that the lis t of contaminants be limited to only those pollutants found in section 112 of the CAA. Furthermore, this co mmenter argued that organic HAP do not need to be included in the legitimacy criteria because the rule is inte nded to define which non-hazardous secondary materials are non-wastes, as opposed to which HAP emission standards should be developed. The commenter furthe r notes that the Boiler and Process Heater MACT will ensure that the organic HAP are properl y controlled. Finally, althou gh 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 confirmi ng the presence of pathogens in certain varie ties of chicken
litter.

EPA’s Response :PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

150 of 275 EPA is defining the term “contaminant,” as c onstituents that will result in emissions of the air pollutants identified in CAA section 112(b) and the nine po llutants listed under CAA section 129(a)(4)) when such non-hazardous secondary materials are burned as a fuel or used as ingredients, including those const ituents that could generate products of incomplete combustion.
EPA has decided that these constituents are a ppropriate for the comparisons required by this
criterion because these are the contaminants iden tified in the CAA that are to be considered by EPA in evaluating which contaminants to establis h emission standards. Thus, we disagree with
those commenters who believe that the list s hould be narrowed, including the commenter who argued that those contaminants that contribute to the material’s va lue as a fuel be excluded from the list of contaminants, as well as all orga nic 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 be ing discarded, and thus, subject to the section 129 CAA standards.
We also disagree with the commenters w ho 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—tha t is, we should be focusing, in general, on those contaminants
identified in the CAA that EPA will be evalua ting to determine whether to establish emission standards. The Agency also disagrees that A ppendix VIII to 40 CFR Part 261 is an appropriate list for determining which contaminants to cons ider 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 t hose commenters who argue that we should not be considering the contaminants in the non-hazardous secondary ma terials themselves as part of the legitimacy criteria, but, if considered nece ssary, compare the emissions profiles from the combustion units.
In order for a non-hazardous second ary material to be considered a non-waste fuel, it must be similar in composition, whereas co mparing the emissions profiles between combustion units that
burn traditional fuels and non- hazardous secondary material s only tells one how well the combustion unit is operating, not what the second ary 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 pro cess, even if there is a beneficial use. Therefore, the Agency need s to be cautious in evaluating whether burning a non-hazardous material for energy recovery, also has a waste de stroying intention.

Comment [3a-D3-3] : Some commenters believe the approach of measuring contaminants per Btu was more scientifically sound, while one commenter argued th at comparisons of contaminants should focus on the loading of contaminants to the process rath er than concentrations, which they believe is similar to measuring contaminants per Btu in ingr edients. For example, the commenter indicates that coal fly ash is utilized in place of bauxite in cement manu facturing. Because coal fly ashPART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

151 of 275 may contain only 20 percent of the alumina foun d in bauxite, the process requires five times more coal fly ash than alumina for a given quantit y 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 ch anged to require a comp arison of loading rates
rather than concentrations.
Another commenter argues that any comparison between contaminant levels in the nonhazardous secondary material and contaminant le vels 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 concentr ations of others, relative to traditional fuels. Thus, decisions regarding legitimacy will not alwa ys 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 ma terials, solid waste determinations which requires a comparison, should allow for such variability in a reasonable manner. The commenter supports the method th at looks at constituent concentrations (e.g., percent by weight or ppm by weight) as a reas onable approach that limits the impact of variability, whereas using lb/MMBtu compounds th e 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 ra nge of material loading scenarios. At this time, however, the Agency lacks sufficient lb/MMBtu information for all non-hazardous secondary materials under consideration. Accordi ngly, 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 ru le, 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-h azardous secondary material to
the contaminant levels in traditional fuels base d on the total level of contaminants, and not on contaminants per Btu of heat value. This a pproach is most appropriate because contaminant information is readily ava ilable to the respondent.
The Agency recognizes that variability in constituent levels ex ist in non-hazardous secondary materials and traditional fuels, ge nerally based on the source and geographic region that the material came from. Thus, we agree that such considerations ca n be taken into account in a reasonable manner when comparing consti tuent 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 th at contaminants can be present in the non-hazardous s econdary material at levels that are not comparable in
concentration to those contained in traditional fuel products, whic h could result in contaminants being combusted as a means of discarding them.

Comment [3a-D3-4] :PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

152 of 275 Commenters disagreed about whether to impl ement 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 contam inant concentrations between non-hazardous secondary materials and traditional fuels based on a bright line appro ach. 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 th an emissions testing from combustion units, given
that emissions controls and limits are establishe d in permits. Other co mmenters also disagreed
with the establishment of a br ight-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 a nd arbitrarily assigns le vels of contaminants without accounting for differences in materials and/or facilities.

EPA’s Response : EPA recognizes that the “bri ght line” approach may pr ovide greater clarity and predictability to the regulated community, but that in both case s, 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 considere d, should be considered legitimate. Based on the comments received on those approaches, we are convi nced that they would not be workable. On the other hand, case-by-case comp arisons by each person evaluating this legitimacy criterion can take into account the wide variety of non-haza rdous secondary materials, as well as the appropriate traditional fuel to wh ich it is being compared. Because this factor must apply to various different recycling ac tivities and industrie s, the case-by-case approach is most appropriate.

E

. Comments on Legitimacy Criteria for Ingredients
In the proposed rule, non-haza rdous secondary materials us ed 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 valuab le commodity, must provide a useful contribution to the production or manufacturing process, mu st 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 sec ondary materials.

1. Managed as Valuable Commodities.
Because the criterion “managing as a valu able commodity” for non-hazardous secondary materials used as an ingredie nt (storage not exceeding reas onable time frames, manage it consistent with an analogous ingr edient 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 resp ect to those non-hazardous secondary materials that are used as fuels, we would likewise make the same change s 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 th e type of criteria for fuels) are appropriate for ingredients.

Comment [3a-E1-1] :PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

153 of 275 As discussed in the section on legitimacy crite ria for fuels, one commenter suggested that the criterion that a non-hazardous secondary mate rial be managed as a valuable commodity (determining if it is managed consistent with th e management of an analogous ingredient and
used within a reasonable time fr ame) is irrelevant because soli d 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 mana ging a non-hazardous secondary material as a valuable commodity and the kinds of practices a facility must impl ement to demonstrate that it is managing the material as a valuable commodity.

EPA’s Response : The final rule will retain the proposed appr oach 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 al ways managed in a similar manner. That is, commodities, on the one hand, are ha ndled specifically to preven t the loss of the material because of its value. Solid wastes, on the ot her hand, when they are not highly regarded for a beneficial reuse, are often not managed in a way th at 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 mana ged 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 th ere is an analogous ingredient), or otherwise be ade quately contained so as to preven t releases to the environment. For example, non-hazardous seconda ry 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 ingred ient” is defined as a manufacturing process ingredient for which the secondary material su bstitutes 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 e nvironment. 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 pr oposed rule states that a non-hazardous secondary material can add value and usefully cont ribute to a recycling pr ocess (based on criteria initially developed for hazardous secondary materi als): (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 cons tituent 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 co mbustion scenarios. We requested comment, however, on whether the non-hazardous secondary ma terials we are assessi ng as ingredients can provide useful contributions in other ways.

Comment [3a-E2-1] :PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

154 of 275 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 proce ss, 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 prov ide for accurate assessments. Thus, the final
rule will continue to maintain that non-hazardous secondary materials contri bute valuable ingredients to a product or intermediate and that non-hazardous secondary materials are used as an effective substitute for a commercial product w ill be used to determine if a material provides a
useful contribution as an ingredient.

3. Quantifying an Ingredient’s Contributio n to Production/Manufacturing Activity.
Not all of the constituents or components of the non-hazardous secondary material have
to make a contribution to th e production/manufacturing activit y. EPA solicited comments on whether the Agency should quantitatively defi ne 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 materi al there would need to be before the nonhazardous secondary material would not be co nsidered to provide a useful contribution.

Comment [3a-E3-1] : Generally, commenters disagreed with the esta blishment of a quantitat ive definition as to how much of a material must pr ovide a useful contribution. On e state agency is opposed to a quantitative definition because the numbers will vary by non-hazardous secondary material. Similarly, another state comment er also opposed a nationwide definition or percentage stipulating what constitutes a “useful contribu tion” because of the different possible reuse processes that may vary in terms of the amount of material that is deem ed 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 usef ul components, but the ability to use those components is dependent on the available manufacturing proces s or technology type. This variation would make it difficult and inefficient to apply a ge neral quantitative rule of useful contribution.

EPA’s Response : We agree with the commenters that qu antifying 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 combus tion 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 determ ined through a bright-line test, and remain appropriate across industries, di fferent recycling processes, and a variety of recycled nonhazardous secondary materials are too great fo r the Agency to design in a simple and straightforward manner so as to be used in maki ng such determinations. In addition, legitimacy determinations are best made on a case-by-case ba sis, with the facts of a specific situation in hand. Thus, we have not defined a quantitative amount that non-hazar dous secondary materialsPART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

155 of 275 must contribute.
In general, the regulated community should look to typical industr y recovery rates in similar manufacturing processes to determine if the recycling recovery rates are reasonably efficient in terms of the ingredient making a us eful contribution to the recycling process or product. In addition, it should be noted that EP A would generally look at the quantity required, the duration, and the exte nt of processing, and/or the rate of recovery of the ove rall process, not the recovery rate of a single step in the process, when analyzing this crite rion for legitimacy. For example, if one step in the process recovers a sm all 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 dete rmining whether the non-hazard ous secondary materials are providing a useful contribution. This assumes that there is enough of the target constituent or component present in the non-haza rdous secondary materials to c ontribute meaningfully as an ingredient to the recycling process.
In addition, the Agency is reiterating its l ongstanding position that not every constituent or component in a non-hazardous secondary materi al 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 th is 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 ingredie nts. That is, since contaminant comparisons for the contaminant legitimacy crite rion apply to a comparison of products rather than to the nonhazardous secondary material, we requested comment on whether a di fferent list of contaminants should apply or whether we should generically defi ne 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 compari ng the products derived from non-hazardous secondary materials and traditiona l raw materials, the Agency be mindful of the fact that the concentrations of contaminants can vary geogr aphically. In terms of cement production, a few commenters said that the current stringent produc t standards effectively keep cement kilns from using contaminated ingredients. One state suppor ts the use of the same contaminant list for nonhazardous secondary material fuels and ingredient s, 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. A nother commenter said that since all processes differ, the states should be a llowed to establish a petition pro cess for ingredients where industry can demonstrate that the higher contamination in a given non-hazardous secondary material will
not result in harm to human heal th or the environment (i.e., th rough either risk assessment or handling restrictions). Another commenter argued that using the list of contaminants in CAA section 129(a)(4) is inadequate be cause it does not address all heavy metals or organic hazardous air pollutants. Still, another commenter sugge sted 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 differe nt issues related to those contam inants. Finally, one state agency recommends the Agency develop a list of currently acceptable non-hazardous secondaryPART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

156 of 275 materials used as ingredients for quick referen ce 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 materi als are burned as a fuel or used as an ingredient, including those constituents that could ge nerate products of incomplete combustion. These constituents are appropriate fo r 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 genera lly be the same that EPA is to consider in establishing emission standards. Thus, we disagr ee with the commenter who argues that this list is not broad enough because it does no t address all heavy metals or orga nic 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 so lid 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 ag rees with the commenter s that variability in
constituents exist between non-hazardous s econdary materials based on the source and geographic region that it may come from. Thus, su ch 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 co mments is described in Section IX. “State Authority.” Finally, with respect to the comm enter 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 seconda ry materials on this list, we have made some general conclusions throughout the preamb le on which non-hazardous secondary materials when used as an ingredient in a combustion proc ess would generally meet the legitimacy criteria. Persons may also refer to the various Materials Ch aracterization 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 criteri a 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 pr oducts, 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 withou t the non-hazardous secondary material.

Comment [3a-E5-1] : A number of commenters disagree with th e contaminant comparison criteria for nonhazardous secondary material ingredients to the final product. One commenter asserts that EPA
should not use the term “contaminant” in connecti on with the legitimacy criteria for ingredients.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

157 of 275 Instead, the Agency should refer to constituents that may actually be a co ncern with respect to the product that is produced. The same comment er also recommends that the “toxics along for the ride” criterion only should be considered and not required, a nd that the Agency should adopt a “not significantly higher” sta ndard. Also, while the Agency should retain the focus of the “toxics along for the ride” crite rion upon products, that criterion shoul d refer to constituents that may actually be a concern with respect to the products that ar e produced and should not use the
defined term “contaminant.”
Other commenters oppose any limits on contaminan ts in ingredients. It was argued that portland cement is manufactured to meet stri ct chemical and performance specifications under such organizations as ASTM and the American Association of State Highway and Transportation Officials (AASHTO). Thes e 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 objecti ves. 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 f ound 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 traditio nal material is being us ed 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 comp arison process. Variability needs to be considered because multiple sources of a single tr aditional material are typically available to a facility

EPA’s Response : In today’s action, EPA is finalizing this crite rion 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 dis carded—that is destroyed, in the name of legitimate recycling. EPA is al so retaining the requireme nt that the recycling process must result in products th at contain contaminants at leve ls that are comparable to (or lower than) concentrations found in traditional products that are manufactured without the nonhazardous secondary material. Establishing “compar able to or lower than” contaminant levels more closely reflects its intent that non-hazardou s secondary materials that are legitimately used
must have levels of contaminants within a sm all acceptable range of those found in traditional products than the phrase “not sign ificantly 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 materi als 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 variabil ity that needs to be considered in making such a comparison.
With respect to the comment requesting that EPA change the word “contaminant” toPART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

158 of 275 “constituent” when referring to the legitimacy cr iteria, EPA is retaining the use of the word
“contaminant” in this criterion as it has been defi ned in this rule and ac curately 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 c hosen 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 cr iterion. However, EPA cannot rely solely on product spec ifications to cover all possible situations and is including the contaminant comparison between products as a cr itical 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 r eceiving a formal determination from the EPA Regional Administrator that non-h azardous secondary materials that are burned as a fuel in a combustion unit and have not been managed within the control of the gene rator, have not been discarded in the first instance, and are indisti nguishable 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 submitte d 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 pr ocess would be difficult to implement since the requirements are vague, and too resource intensive. Many comm enters 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 f ound at §241.3(c).

Comment [3a-F-1] : A large number of commenters (including ma ny 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 th at 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. Ma ny commenters expressed a preference for the approach currently used by States to determine th e acceptability of used materials for beneficial use whereby specific classes of non-hazardous sec ondary 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 requireme nts. State procedures for beneficial use determinations vary, some requiring more extensiv e characterization of materials and uses than others, and some requiring a de gree of processing and others not. Some beneficial use designations are more stringent than others since they are material-specific.
Many commenters, including state agencies we re still concerned that this rule could jeopardize or interfere with the State beneficial use designations and pr ocedures and requestedPART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

159 of 275 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 in terfere with their ongoing programs to allow and encourage the beneficial use of secondary ma terials which otherwise would be waste.

EPA’s Response :

CAA section 129 states that th e term ‘‘solid waste’’ shall ha ve 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 munici pal 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 deci sions 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 th e non-hazardous secondary material when used as a fuel or an ingredient in combustion units. Th ese state beneficial use programs have been developed to encourage recyc ling and reuse, provided that the uses maintain the specified state’s acce ptable level of risk, protect human health and the environment, and are managed in accordance with the cond itions of the determination.
Generally, when a state benefi cial use determination has be en granted (thus no longer a solid waste within that state), it may have chem ical and physical properti es that are comparable to the raw material it is replacing or, when incorporated into a produc t, its use is beneficial to the final product. Assuming the data to support the be neficial 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’ so lid 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 ad dition, 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 ma king 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 pr ocess does not consid er potential scheduling issues regarding compliance with the section 11 2 Boiler MACT or the 129 CISWI standards.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

160 of 275 Therefore, the non-waste determination petiti on process should include deadlines for both petition submissions and rulings from regulat ors 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 (includi ng many state agencies) also expressed concern that EP A 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 commen ters questioned the envi ronmental benefits of shifting the burden of determin ation to EPA instead of the generators in question.

EPA’s Response : EPA is not imposing deadlines for the peti tion decisions, either for the submission of such petitions or on EPA making decisions on pe titions 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 su ch draft decisions. Se tting a time limit may
make it difficult to make such informed decisions . Nevertheless, EPA commits to work with the State (where the combustor is lo cated) 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 fi nal rule should maintain nationa l consistency, while recognizing the state’s interest and expertise in this area. Comment [3a-F-3] : If EPA maintains authority for non-waste de terminations, commenters request that EPA Regional offices notify States when requests and determinations ar e made. In addition, several environmental groups requested th at the public notification be re quired 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 draf t decisions will be available to the public for comment. In addition, although not in the regulations, EPA will in form the State Agency of a petition request in their states, and work with th em, 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-mak ing authority under the petition process.

EPA’s Response : EPA agrees that it would be appropriate fo r EPA to maintain a database that is a compilation of decisions made on non-h azardous secondary ma terial non-waste
determinations. This would allow decisions ma de 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 na tional consistency and minimize redundant efforts. Thus, the Agency expects to put together such a database and wi ll make it available not only to its Regions, but will also make such a database publicly available.PART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

161 of 275 Comment [3a-F-5] :

Some commenters said States (or non-State Agencies) s hould 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 privat e 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 petiti on 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 appa rent that the non-hazardous secondary material is not discarded and that it complies with the le gitimacy criteria and thus, is not a solid waste under RCRA. Those requirements would be doc umented in addition to the other petition requirements. This would provide the needed assu rance that it is an a ppropriate 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 th e 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 comme nters mentioned that they preferred the clarity in state dete rminations where they have criter ia specific to each secondary material they regulate or make sp ecific beneficial use determinati ons, 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 thatare submitted must clearly explain how the nonhazardous secondary material has not been disc arded and meets the other relevant criteria, including the legitimacy criteria. All draft deci sions will also be subject to notice and comment, so any particular issues or concer ns 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 Approac hes for Defining Solid Wastes
In addition to the proposed approach, EPA also identified and so licited comment on two other approaches for defining which non-hazardou s secondary materials are solid wastes whenPART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

162 of 275 combusted. One approach, which was called the “alternative approach,” was intended to be broader than the proposed appro ach, but still consistent, in th e 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 consid ered solid wastes, unless such non-hazardous secondary materials would remain within the c ontrol of the generator and meet the legitimacy criteria; in this limited instance, the non-hazardou s secondary materials would not be considered solid wastes. Thus, under the alternative approac h, fuels and ingredients that are generated from the processing of discarded non-hazardous seconda ry materials would be considered a solid waste, as well as non-hazardous s econdary materials used as ingredients that are combusted at
facilities that are not within the control of the generator. In ad dition, the alterna tive approach did not provide for a non-waste determination petitio n process, as described elsewhere in this preamble. The proposed rule note d 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 co mment 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 second ary 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 cas e 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 seconda ry 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 stro ngly 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 wast e and therefore, subject to the CAA section 129 requirements. These commenters argue that non-hazardous secondary
materials that are burned in combustion units fa ll within the unambiguous meaning of the term “discarded material,” and theref ore, both EPA’s proposed and alte rnative approach are unlawful, as well as arbitrary and capricious.
On the other hand, industry commenters ge nerally 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 propos ed approach’s classification that non-hazardous secondary materials used as fuels which did not remain within the contro l of the generator are solid waste unless granted a non-wa ste determination, strongly oppos ed 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 entitie s 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 st rongly disagreed with the other appr oach on which the Agency solicitedPART 3a: Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

163 of 275 comment—that is, the approach th at would characterize all non- hazardous secondary materials
as solid waste when burned in a combustion unit fo r energy recovery or as an ingredient. These commenters argued that this would exceed the Agency’s authority to regulate secondary
materials that have no t been discarded.

EPA’s Response : Although some commenters supported a broader definition of solid waste than described in the alternative approa ch, the Agency did not receive any support for the alternative approach,
and has therefore decided not to adopt it in this final rule. Re garding 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 wa ste, EPA has replied to this comment above in Section V.A. The Agency presumes that th ese 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-haza rdous 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 interpre tation of the statutory
definition of discard to consider that non-hazardous secondary ma terials 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 ar e legitimately used as fu els or ingredients are not solid waste, that non-haza rdous secondary materials that are legitimately burned as ingredients are not solid wastes, and that fuels and ingred ients that are produced from the processing of discarded non-hazardous sec ondary materials are not solid wastes.PART 3b: Other Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

164 of 275 PART 3b: Other Comments on the Pr oposed 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 com bustion units as regulated by fe deral 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 st atutory or regulatory definition of solid
waste;
d) The EPA should clarify and specify that the fuels may be simultane ously 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 S ection “IX. State Authority” under “C. Clarifications on the Relationship to State Programs:”

a) State Agencies that responded to the proposal requested further clarif ication in the final rule. Specifically, the Federa l rule applies only to the RCRA subtitle D definition of solid waste for determining use as fuel or i ngredients in combustion units (as regulated by the CAA).

b) Correct, the rule “does not alte r the federal definition of "solid waste" found at 40 C.F.R § 257.2.”

c) Today’s rule does not preempt a State’s statut ory or regulatory definition of solid waste, and only applies for purposes of determining wh ich facilities must comply with the CAA section 129 standards.

d) Non-hazardous secondary materials (NHSM) may be simultaneously regulated as a nonwaste fuel or ingred ient for use in combustion units under §241.3, but as a solid waste by the State’s solid waste programs for state ma nagement 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 material s” as “any material th at is not the primary product of a manufacturing or co mmercial process, and can include post-consumer material, offspecification commercial chemical products or manufacturing chemical intermediates, postindustrial material, and scrap.” Propos ed 40 C.F.R. § 241.2, 75 Fed. Reg. at 31,892. ThisPART 3b: Other Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

165 of 275 definition is much broader than the defi nition provided in the Final DSW Rule.

In the Final DSW Rule, EPA defined “hazar dous secondary material” as “a secondary material (e.g., spent material, by-product, or sludg e) 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 fa cilities, 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 propo sed definition does not even recognize that there ma y 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 s econdary 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 produc t 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 mate rial" in its final regulat ions, or, if it believes that some definition is necessary, define the term to include "spent materials," "byproducts, " and "sludges, " as those terms are defi ned 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). Th e two definitions cite different examples but are not fundamentally different. Sludges, by-produc ts, and spent materials ar e also considered to
be included in the definition of secondary materials.

Comment [3b-A1-4] :

The NEWMOA-member states are concerned wi th 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 syst em whereby an NHSM that meets the legitimacy requirement and is managed by the generator (w ho 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 wa ste, resulting in the combustion facility thatPART 3b: Other Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

166 of 275 wants to use it being regulated under Secti on 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 cont rol 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 arbitr ary assumption in categorizing transferred secondary materials as discarded. Instead, EPA has evaluated whether certain categories of materials are discarded or not. The Agency ha s not adopted the extremes of saying that all burning of secondary material, regardless of ul timate use, is waste treatment or that any secondary material that is recycled for legitimat e fuel value is a commodity and not a waste. Wastes may have value, but are st ill wastes. EPA has decided that it is appropriate to be cautious when deciding that a material transferred for co mbustion is a waste or not due to the inherent
destructive nature of co mbustion – even if used for energy recovery.
Between these broad parameters, EPA has examined a number of specific materials, recycled on-site and transfe rred for recycling, and determin ed whether they would be appropriately placed within the waste or non-wast e categories. EPA would consider transferred
materials not to be wastes if it could make th e appropriate findings for those categories.
In fact, the Agency does so with respect to resinated wood resi duals. Commenters discussing resinated wood resi duals provided specific inform ation regarding how these secondary materials were managed when they no longer remained within the control of the generator and the frequency with which these mate rials were collected and transferred off-site. For example, resinated wood residuals are routinel y transferred between ei ther intra- or intercompany facilities and used as either “furnish” (i.e., raw materi als) or fuel at the receiving facilities. The material being transferred off-s ite 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 mate rial and those that are being used as a fuel).
The preamble to the final rule also discu ssed 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 ha ndling system, conveyed to covered storage where it is
contained and burned in the boiler al l 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 ak in to use in a commercial manufacturin g process and thus, these non-hazardous secondary materials would not be considered discar ded provided they satisfy the legitimacy criteria.PART 3b: Other Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

167 of 275 within the control of the genera tor) is not always indicative of waste activity and would generally agree that the case provides an ex ample 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 determinat ion 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 c ontrol of the generator. Commenters provided legal arguments that case law holds that transfers between companies were irrelevant for determining whether a recycled material was prop erly 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 dis card. 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 ar e 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 suffici ent 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 contro l 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 petiti on 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 di scussion of non-waste determination petitions, see Section VII.G of today’s rule.

Comment [3b-A1-5] :
In the rule, contained is defined as meani ng 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 clau se, should be delete d. The last phrase “considering the nature and toxicity of the materi al” 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 ot her hazards to human health and the environment considering the nature and toxi city 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 toxici ty 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, a nd the degree of toxicity of the ma terial are directly relevant to the degree of containment required. For exam ple, pulp and paper sludges are contained in
aerated stabilization basins with frequent removal of the biosolid s. Proper containment of scrap tires is important to prevent tire fires that may cause contamination of soil, ground and surfacePART 3b: Other Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

168 of 275 water, and air, and may also produce thousands of ga llons of oil from the pyrolysis of tire rubber. Air pollutants from tire fires incl ude black smoke containing toxins such as polycyclic aromatic hydrocarbons (PAHs), heavy metals, CO, SO 2 , and NO
x . 134

Comment [3b-A1-6] : Several commenters argue that when a materi al 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 st ate 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 augmente d with purchased biomass that is identical in nature. Therefore, if EPA will not remove the ar tificial distinction between generator and thirdparty generated traditionally-used fuels, then EP A 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 fu els 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 a nd are not solid wastes unless discarded. Accordingly, the provisions in §241.3 relating to whether ma terials combusted outside the control of the generator are wast es or non-wastes, as well as pr ovisions relating to the non-waste petition process are not applicable to units combusting traditional fuels.

Under the other scenario de scribed by the commenters, a non-hazardous secondary
material is combusted outside the control of the generato r by a third party that is identical to a non-hazardous secondary material that is generate d 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 tr ansferred to another party, we generally find that the material is discarded since the gene rator has relinquished c ontrol of the secondary material and the entity receivi ng such materials may not have the same incentives to manage them as a useful product, which results in the ma terials being discarded. EPA has decided that it is appropriate to be cautious wh en deciding that a material tran sferred for combustion is a waste
or not due to the inherent dest ructive nature of com bustion – even if used for energy recovery. Beyond this broad parameter, EPA has examined a number of specific materials, recycled onsite and transferred for recycl ing, and determined whether they are discarded and would be appropriately placed within the waste or non-wast e categories. EPA would consider transferred
materials not to be wastes if it could make th e 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 th e short haul to the steam boilers, dumped into the wood handling system, conveyed to covered storag e where it is contained and burned in the

134 U.S.EPA Description of No n-Hazardous Secondary Material Events that Resulted in Adverse Environmental Impacs (Docket # EPA-HQ-2008-0329) September 2009.PART 3b: Other Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

169 of 275 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 indi cative 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 additi onal 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 sim ilar in nature to those generated on site. The petition process remains a valuable tool for a facility to address t hose instances where transfer of the non-hazardous secondary material to a differe nt 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. Base d on the definition of processing and the Agency's description of sufficient proces sing steps, EPA appears to suggest that actually chemically processing previously discarded materials is necessary before the Agency will find the processing requirement is satisfie d. 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 in to 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 char acteristics of the materi al, e.g., sizing or drying the material in combination with other opera tions; chemically improve the as-fired energy content; or improve the ingredie nt 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” impr oving 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.PART 3b: Other Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

170 of 275 In order to clarify the definition of suffi cient processing, exampl es of sufficient processing for other non-hazardous secondary ma terials 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, th e 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 ma y vary for different types of non-hazardous secondary materials, a sufficient amount of processing must occur to produce a non-waste product from secondary material s. 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 de finition of processing is insufficient and that its implementation across states will not be c onsistent. The commenter suggested that a list
of activities that constitute ade quate 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 proce ssing procedures that ar e sufficient to render a material a non-waste (provided it meets the legitimacy criteria). The basic principle that must be
satisfied is that the discarde d 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 processi ng in fact includes a list of operations that
would meet the definition: “Pro cessing includes, but is not lim ited to, operations necessary to: remove or destroy contaminants; significantly imp rove the fuel characteristics of the material, e.g., sizing or drying the material in combination with other oper ations; chemically improve the as-fired energy content; or impr ove 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 processi ng for purposes of this definition.”
In order to clarify the definition of suffici ent processing further, several examples of sufficient processing for other non-hazardous s econdary materials were discussed in the preamble to the final rule, includ ing: processing of used oil to produce on-specification used oil
and also the construction and de molition (C&D) wood processed into fuel by sorting to remove contaminants (e.g. lead-painted wood, treated w ood, non-wood materials), and sizing it. In all these instances, the secondary material is being sufficiently changed, either chemically o r physically to produce a non-waste product. While th e extent of processing that may be required may vary for different types of non-hazardous sec ondary 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 provi ded a sufficient list of examples to illustrate what types of operations would and would not meet our definiti on of processing.

We also direct the commenter to Section VII.F of the preamb le, which discusses the types of notification and recordkeep ing requirements, including do cumentation as to how the nonhazardous secondary material would satisfy our de finition of processing, that a facility using discarded secondary materials that have undergon e processing to produce a legitimate fuel orPART 3b: Other Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

171 of 275 ingredient are subject to.

Comment [3b-A2-3]:

One commenter discussed the unique proper ties of biomass feed stocks that often originate as residues from industr ial 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 wh at types of secondary material s the commenter is discussing. We assume that by “unadulterated” the commente r means “clean” and that such materials would
fit within the definition of “clean cellulosic biomass.” In toda y’s final rule, clean cellulosic
biomass includes those residuals th at are akin to traditional cellulosic biomass such as forestderived biomass (e.g., green wood, fo rest thinnings, clean and unadu lterated bark, sawdust, trim, and tree harvesting residuals from logging and sa wmill 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 fu el,” which is included within the definition of
“traditional fuels.”

It is also unclear from the comments how th ese materials are discarded. As noted above,
we believe that unadulterated w ood would be considered an alte rnative fuel and within the definition of traditional fuel. As such, to the ex tent 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 fina l rule would not consider such transferring of traditiona l fuels to be indicative of discard, as traditional fuels do not have the potential incentives for sham recycl ing 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 discarde d, we refer the commenter to Section V.B.3 of today’s final rule for a response to comments c oncerning “Other Biomass. ” We also note that Section V.A.1 and V.A.2 responds to comments re garding 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 envi ronmental impact of the fuel stream, and either have fuel valu e or do not detract from fuel va lue. Therefore, the commenter urges EPA to allow the burning of such incidental materials as part of the fuel stream.

EPA’s Response :PART 3b: Other Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

172 of 275 EPA notes that secondary material streams that contain incidental material must pass the legitimacy criteria described in th e final rule. If the "incidental materials" cause them to fail the legitimacy criteria for contaminants, they are co nsidered 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

Commen t [3b-B1-1]:
The final rule should confirm that the examples given in the rule do not constitute an exhaustive list of all qualifying cl ean cellulosic biomass materials.

EPA’s Response : The Agency acknowledges that the descripti on of clean cellulosic biomass found in the definition of traditional fuels (codified at §241.2) ma y not be an exhaustive list of every material that may conceivably fall under the clean cellulo sic biomass category. The Agency believes, however, that the definition together with th e preamble discussion s hould 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 pe rson believes that additi onal materials should be
included as a traditional fuel or alternative fu el, they may petition EPA under that provision to request such a change through rulemaking. Th e petition would also need to include a justification and rationale for the change.

Comment [3b-B1-2] : Commenters request that EPA include info rmation 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 Fu els Paper, identified as comi ng from Stultz and Kittoo, 1992 describes the components of “bark only” as a fu el and provides no info rmation on unadulterated wood. Additionally, while the ta ble 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 w ood. European data on the emissions of these inorganics indicate that levels of these inorganics in unadultera ted 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 generato rs and users of the wood information to allow them (and EPA in an enforcement proceeding) to determine whether the wood is a traditionalPART 3b: Other Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

173 of 275 fuel or merely a waste material being burned. Th e 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 m eeting the legitimacy criterion relating to
contaminant levels.

Comment [3b-B1-3] : EPA should clarify that traditional fuels tran sferred to a third party are not waste and therefore do not have to go thr ough the petition process. The pr oposed 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 pe tition process has been established for materials that do not meet the legitimacy requirements. Presumably, that includes those materials that would not satisfy the generator-con trolled 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 al one would require it to go through the petition process despite the fact that it is a traditional fu el 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 co mpeting 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, st ates that traditional fuels are not secondary materials and are not so lid wastes unless discarded. Accordingly, the provisions in §241.3 relating to non-hazardous seconda ry materials that are used within the control of the generator, pr ocessed into new fuel products from discarded non-hazardous secondary material or are subject of a non-waste peti tion 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 cell ulosic biomass definition to dead trees and
wood residues.

EPA’s Response :
Under the final rule, forest-derived biom ass, including green wood, forest thinnings,
clean and unadulterated bark and tree harvestin gs residuals, is considered an alternative traditional fuel. The categories would encompa ss 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 distincti ons in the biomass category of fuels, it is important to note that within manure there are differences between dry manures and wetPART 3b: Other Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

174 of 275 manures. The commenter suggests that EPA estab lish a separate category of “non-cellulosic dry manure biomass fuel” to which the generato r control requirement is inapplicable.

EPA’s Response : Although we recognize that there are diffe rences 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.” Wh ile 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 woul d 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 distinct ions are not necessary, as all manure, regardless of whether it is wet or dry, must meet the legitim acy criteria in order to
not be considered a solid waste.
Further, the commenter does not provide su fficient information to support the argument that dry manure should be presumed not to be discarded if burned outsi de the control of the generator. In fact, the commenter provides no ra tionale 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 biom ass fuel.” Unlike the general information provided in these comm ents, commenters discussing scrap tires and resinated wood residuals provided specific information regarding how these secondary materials were managed when they no longer remained w ithin the control of the generator and the frequency with which these materials were coll ected and transferred off-site. Consequently, today’s final rule has determined that these seco ndary 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 tr eated 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 pa int 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 standardsPART 3b: Other Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

175 of 275 and diverting useable building products and leachable lead away from landfills for useful, legitimate, recycling.

EPA’s Response :

We note that discarded C&D-de rived wood that is not clean would be considered a solid waste under today’s rule. C&D-de rived wood, however, can be classi fied as a non-waste fuel if it has been sufficiently processed and meets th e legitimacy criteria. C&D-derived wood is typically sorted to remove contaminants (e.g. lead-painted w ood, treated wood, non-wood materials), and size reduced prio r 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 w ood 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 - Traditiona l Fuels and Key Derivatives, Prep ared In Support of the Final Rulemaking –Identification of Nonhazardous Secondary Material s That Are Solid Waste.” A complete determination, however, would also include the comparison of As and Cr
concentrations. As with other NHS Ms, 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 propos ed rule indicates that chipping and drying of a wood product would not be sufficient to allo w for a “discarded secondary material” such as logging slash or wood left on a log landing after a ha rvest to be re-classified as a fuel and not a solid waste. Commenters request that EPA define re-sizing, sor ting and/or drying as sufficient
treatment to convert unadulte rated “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 la nguage 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 biom ass should be considered to be legitimate fuels and not waste. In particular, clean biomass in the form of bark, saw dust, shavings and trim generated in peeling and manufact uring operations at wood preservi ng facilities may serve as an environmentally friendly fuel. The combustion of this material produces no net addition of CO 2 since the CO 2 emitted is equal to the CO 2 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 shoul d be considered a legitimate fuel as somePART 3b: Other Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

176 of 275 forms of biomass may be discarded and/or not m eet 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 biom ass (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 cr ops 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 activ ities, trees and clean wood found in disaster debris, clean biomass from land clearing opera tions, and clean construction and demolition wood. Such historically managed traditional fuels and alternative tr aditional 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 virg in biomass materials. This de finition 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 th at 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 tr ee trimmings, stumps, and related forest-derived biomass from urban settings, while ot hers include a mixture of both.
For commenters referring to urban wood as wh at EPA would describe in the Final Rule as forest-derived biomass (e.g., green wood, fore st 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 th erefore, 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 commente r to the discussion of C&D-derived wood and forest-derived wood in the Final Rule (S ections 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 or iented 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 conde mn all wood to being checked
before classified as a fuel. The commenter also notes that resizing, sor ting and/or drying should
be sufficient treatment to convert unadulterated wood into fuel.

EPA’s Response : We agree with the commenter that unadultera ted wood and bark are traditional fuels.PART 3b: Other Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

177 of 275 Both are clean biomass, which is considered a tr aditional fuel under the final rule. We refer the
commenter to Section VII.A of the final rule fo r our definitions of trad itional 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-p ainted wood, treated wood, non-wood materials) and reducing its size prior to burning produces a material that likel y meets the processing requirements of the rule.

Comment [3b-B3-7]:
Information on the composition of unadultera ted 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: “Mater ials Characterization Paper in support of the Final Rulemaking: Identification of Nonhazardous Se condary Materials That Are Solid Waste - Traditional Fuels and Key Derivatives.” The co mposition data presented in this paper helped inform the development of the final rule.

Comment [3b-B3-8] :

Several commenters asserted that “contami nated” construction and demolition materials and chromate copper arsenate (CCA) treated wood can be processed to be vi able 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 rega rding the application of the rule to C&D material, the proposed rule included clean construc tion wood in the definition of traditional fuels and the final rule retains this conclusion (see th e 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 cr iteria. C&D-derived wood is typically sorted to remove contaminants (e.g. lead-painted w ood, treated wood, non-wood materials), and size reduced prior to burning, producing material th at likely meets the processing and legitimacy criteria for contaminants and management as a valuable commodity. As with other NHSM’s, sufficiently processed C&D-de rived 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 ar gument 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]:PART 3b: Other Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

178 of 275 Because EPA’s plans to consider clean cellulosi c biomass as a traditional fuel not subject to the Proposed Rule are addressed in the prea mble to the Proposed Rule rather than the Proposed Rule itself, some comment ers requested that EPA reiterate in the preamble to the final rule (“Final Rule”) that it will treat clean cellu losic 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 th at the drying of otherwis e clean biomass material
does not cause it to lose its status as a traditional fuel.
For this reason, the commenter encourages EP A to utilize a definition of clean biomass similar to that in Section VII.C.5.a of the preamb le 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 contami nants 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 request s 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 us e a standard similar to its first definition of clean biomass, the commenter respectfully requests th at 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 fu el 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 st atus as a traditional fuel. Th e definition of traditional fuels and clean biomass has been changed from the pr oposed 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 a dded 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 a nd are unused products that have not been discarded and therefore, are not solid wast es, including: (1) fuels that have been historically managed as valuable fuel pr oducts 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 ga s, recovered gaseous butane, and coke oven gas) and cellulosic biomass (virgin w ood); and (2) alternative fuels developed from virgin materials that can now be us ed as fuel products , including used oil which meets the specifications outline d 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 re siduals that are akin to traditional
cellulosic biomass such as forest-der ived biomass (e.g., green wood, forest thinnings, clean and unadulterated bar k, sawdust, trim, and tree harvestingPART 3b: Other Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

179 of 275 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 tradi tional fuels and altern ative 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 contamin ants at concentrations not normally associated with virgin biomass materials.”

As indicated above, this descri ption of clean is slightly m odified from the proposal. The definition in the proposal include d non-hazardous secondary materi al that has not been altered (either chemically or through some type of production process), such that it contains
contaminants at concentrations no rmally associated with virgin bi omass 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 produc ts as solid waste. The use of cellulosic fuels may significantly reduce greenhous e 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-wa ste fuels outlined in today’s fina l 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 tr aditional 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 Ag ency was willing to expand the category
of cellulosic biomass that would not be consider ed solid waste to include painted and treated
wood.

EPA’s Response : Similar to other NHSMs, painted or treat ed 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.PART 3b: Other Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

180 of 275 Comment [3b-B3-12] :

Some commenters asserted that pellets produced at its faci lities 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 pelletizi ng 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 en ergy content. Pellets go through a full range of manufacturing processe s which can involve debarking, chipping, drying, and hammer-milling. Basically, pellets are pr oduced 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 thr ough a die producing a pellet to the required specifications. The high pressure of the press caus es the temperature of th e wood to significantly increase, and the natural lignin in the wood binds th e pellet together as it cools. Because the wood fibers are broken down by the hammer mill, th ere 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 part ies 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 biom ass exhibit Btu/lb values well above the 5,000
Btu/lb threshold listed in the proposed rule. Finally, the co mmenter notes that, with the exception of the deposition of atmospheric dus ts, woody biomass is, for the most part, considered clean (uncontaminated material). The residues created by processing are also considered clean unless they have been chemical ly treated in any manner. The commenter adds that wood that has been chemically treated is specifically prohibit ed for use by its densified fuel certification program, as are feedst ock materials with a high level of probability of contamination (including construction waste debr is, 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 chlo ride 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 fu el 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 coul d be some "incidental" contamination in the material. Under the definition of clean biomass, if the material contains contaminants at concentrations not normally asso ciated with virgin biomass ma terials, the material would no longer be considered clean, and thus not an alternative tradit ional 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 thanPART 3b: Other Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

181 of 275 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 biof uels 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 toda y’s final rule. Owners and opera tors 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 combus ted. Non-hazardous secondary materials that no longer meet these legitimacy criteria would be c onsidered 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 amo unt and quality of the data used by EPA. According to the commenter, EPA should collect mo re data and perform additional analyses in order to develop a better grasp of the way in wh ich certain materials are currently used within and among related industries, particularly the wood products industry. Su bsequent to further data collection and analysis, EPA should consid er treating resinated w ood 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 in formation, 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 regulati on do not take into account several new developments in the scrap tire market. The regul ation deals with two extremes (shred and whole tires), but excludes, in particular, types of processes lik e 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 purch ase the electricity generated on-site from the gasses released in the microwaving process and th e oil condensed from the gas. New regulationPART 3b: Other Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

182 of 275 will severely harm markets for such emergi ng 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 discusse d 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 build ing block for other chemical manufacturing processes). Synthesis gas can meet the requirements of a fu el product produced from processing of discarded non-hazardous secondary materials, provided th e syngas has been adequately processed to
remove contaminants.
In general, the Agency would require addi tional information on new technologies, such as reverse polymerization to determine whether th ese 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 convert ed into a synthesis gas or synthesis oil that meets legitimacy criteria including specific proc esses 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 prev ent tire consumers from avoiding recycling fees, a mandatory environmental f ee should be charged for each ti re 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 establ ishment of a mandatory recycl ing 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 so lid waste under their state law a nd did not want a rule that
interfered with their rules a nd enforcement, but in the res ponse to the pr oposal said,

“After further reflection, one way to en sure that scrap tires are headed for the user instead of a tire pile is us e of a full manifest system... where the individual manifest is returned to th e original generator after receipt by the recycler. In the case of scrap tire s, this would usually be the processor returning the signed manifest or electr onic document to the tire retailer. This system has been used in Texas for over 15 years and provides a checkable paper trail without an und ue paper burden on the regulatoryPART 3b: Other Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

183 of 275 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 checki ng copies at a receiving location (for instance, a cement kiln).”

The Texas Commission on Environmental Qua lity (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 manife st system for scrap tires or any other NHSMs under this final rule, but not es that this could be a com ponent of an “Established Tire Collection Program” (defined at §241.2).

Tires that are collected from vehicles under th e oversight of an established tire collection program are non-waste (see the full requirement s at §241.3(b)(2)(i) of today’s rule. The legitimacy criteria need to be met in order for th e scrap tires to be non-wast e. 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 trad itional 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 cont end that a system where by dedicated, hired trucking haulers are contracted by the receiving user, su ch as a kiln, to bring tires or other NHSMs exclusively from the generator to the end user, that this s hould 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 consid ered with regard to wh ether they satisfy the regulatory requirements of an “es tablished tire collection progra m,” as defined at section 241.2 and described in the preamble.

Comment [3b-B4-5] : Many commenters claim that the proposed ru le would make it financially difficult or impossible to dispose of scrap tires in an e nvironmentally friendly ma nner. Specifically, the proposed rule would create barriers to the beneficial use of scra p 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 ti res, hurting established markets that have been responsibly built up over the last several decad es. The proposed rule would undo the years of progress that has been made in developing market s for scrap tires. Co mmenters 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.PART 3b: Other Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

184 of 275 EPA’s Response : The answer to these related comments are larg ely addressed in the response to comments in the final rule (Section V.B.5).
The commenters are referring to annually generated tires coll ected from tire retailers and other auto-related shops. In regard to the specif ic comment on “the proposed rule would create
barriers to the beneficial use of scrap tires in certain markets th at 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 antic ipate 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 estab lished 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 ti res are classified as solid waste and the commenter will be subject to the CISWI standard s 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 id entify the requirements and proce dures for the identification of solid wastes used as fuels or ingredients in combustion units under sec tion 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 th is 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 relati ve to combusting natural gas, dies el fuel, or virgin fuel oil at facilities. In addition, off-spec used oil is more efficient by pe rhaps 6% than natural gas which forms water vapors when burnt and therefore de livers less energy. Fina lly, burning off-spec oil reduces imports and provides a needed market fo r material that presentl y does not have another
market.

EPA’s Response : We recognize that there can be benefits as sociated with burning non-hazardous secondary materials that are solid wastes. However, we ha ve determined that off-spec used oil is a solid
waste when burned in combustion devices.PART 3b: Other Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

185 of 275 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 qua lity. Both categories of used oil fuel will generally have the same Btu content (approximately 140,000 British Th ermal Units per gallon) the equivalent of virgin petroleum oil if the water content is the sa me. Commenters also ar gue that less fuel is used as there are more Btu’s per gallon (more heat ) as compared to many ot her 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 Se ction 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 pr esume 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-sp ec used oil, including for burning. The off-spec used oil would, therefore, be a solid waste. The current non--hazardous s econdary material rule- -is not separately evaluating each provision of part 279. On-spec used oil, on the other hand,
could be burned with no restricti ons, in the same method as oil th at 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 count ry’s transportation infrastructure.
Many commenters expressed concern that the proposed regulation will reduce the available recycling markets for used oil and unra vel the success of the Fe deral recycling program without justifying any environmental benefits. Fewer outlets and less in centive to recycle in today's stressed economy will invite wildcat dum ping, 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 us ed oil market EPA helped foster is very effective and they are concerned th at this rule would impair that. Due to this effective process and because used motor oil is cleaner than in pr evious decades, there exists no justification for changes in how this used commodity is regulated.

EPA’s Response :PART 3b: Other Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

186 of 275 The purpose of this rule is to establish cr iteria 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. Regardle ss, the commenter has not provided data to show the infrastructure problems. On-spec used o il 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. Fo r CISWI applicability to un its that use used oil, like space heaters, refer to the response under 3b-B 5-5. 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 Sec tion V.B.7 of the preamble for additional
information on used oil.

Comment [3b-B5-5] : Many commenters urge EPA to con tinue allowing used oil to be used as a viable fuel for small space heaters. Otherwise, the rule w ould 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 sma ll business fast lube operators, (2) the unraveling of 40 CFR Part 279 such that used oil-fired sp ace 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-sp ec used oil in space heaters, nor changing part 279 regulations. The effect of this rule woul d be that space heaters burning off-spec used oil are burning it as a solid waste and would theore tically 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: Th e 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 ener gy recovery. Kindly refer to Subpart H of the Standards for the Management of Used Oil a nd 40 CFR 279.61. We be lieve our current air permits meet their stated goal of protecting th e environment under the ex isting 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 ar e the devices that may burn off-spec used oil,
but there is no determination under the CAA whethe r those devices are to be subject to CAA 112 or 129. As has been discussed in the preambl e, today’s final rule does not change thePART 3b: Other Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

187 of 275 requirements under RCRA regulations. Thus, s ection 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 o ff-specification used oil to produce onspecification used oil is not feasible for significan t 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 addi tion, 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 observe d 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 wi th 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 fr om 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 th is case has such high levels of contaminants that turning it into a marketable product is not ec onomically 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 wa ste under the rationale that used oil is a commercial chemical product. These comments cl aim that, since commercial chemical products
are not a solid waste when burned fo r energy recovery if they are th emselves fuels, this principle should apply to off-spec used oil, even if the oi l 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 ch emical products. They also cite 50 FR at 614, 616n.4 and 618-19 (Jan 4, 1985), as well as 50 FR at 14219 (A pril 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 wa ste regulations. However, the Agency also wishes to
note that there is no “exclusion” from the definition of soli d waste for commercial products that are fuels. The effect of the Agency regulatory and preamble statements on commercial chemical pro ducts 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.PART 3b: Other Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

188 of 275 oil as a waste is inconsistent with EPA’s prio r interpretations of what is a fuel, citing the following four letters and me mos from the Agency in support of this contention.
1. An August 8, 2002 letter from Elizabeth Co tsworth, then Director of the Office of Solid Waste, to Richard Wasserstrom of the American Forest & Paper Association (AF&PA), which found that crude sulfat e 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 tu rpentine 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 hist ory of use as a commer cial fuel source. The comment claims that used oil, whethe r on-spec or off-spec, meets both of those tests, as it is has both pres ent commercial use and an established history of use as a
commercial fuel source.
3. A December 30, 1992 letter from Sylvia Lowr ance, 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 th at 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 Ste phens of the Aaron Oil Company from then Director Cotsworth, which discusse s 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-sp ecification commercial chemical products.

EPA’s Response : As stated numerous times on the record of this proceeding, EPA is not revisiting its Subtitle C regulations. Neverthe less, our determination that off- specification used oil is a solid waste is consistent with our pr evious interpretations of what is a solid waste under Subtitle C regulations. In general, the referenced letter s stand for the propositi on that for commercial chemical products to not be considered a solid wa ste when burned for energy recovery they must themselves be fuels. In essence, we are talki ng about materials that neve r become wastes in the first place – not secondary materials. 136 All of the materials discusse d in the cited letters (crude sulfate turpentine, a propellant mixture contai ning 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 actua lly 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.PART 3b: Other Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

189 of 275 memorandum lays out the requirements to consider whether a commercial chemical product is a fuel with the same basic reasoning that this regu lation uses to decide wh ether 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 establishe d 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 produc t fuel. It would be a waste fuel.
The letter on propane and butane very clearl y states that these materials are normally

used as fuels and “when unused” can be burned as fu els. 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 manufact ured as propellants, were not us ed, but could now be used as
fuels.
The letter discussing petroleum products rec overed from absorbent pads states quite plainly that the “recovered products are never dispos ed of” and are used as fuels, which was their intended purpose. The reference to off-specifi cation commercial chemical products is rather
unclear in the letter. Neverthe less, 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-c ontact) 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 (U sed Oil MCP, p. 7), asserting that the data presented are based on only one sample and ar e 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 addi tional data from objective tests (representative of used oil) provided by the commenters.
During the public comment period for the ANP RM and proposed rules, EPA collected additional data and information on NHSMs currently burned as fuels and i ngredients. 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 fina lized 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 creat e an “exemption,” but merely state a fact that certain material does not become a waste in the first place.PART 3b: Other Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

190 of 275 environmental benefits associated with reclaiming legacy coal piles. The benefits of reclaiming
this coal refuse include elimination of unstable and eroded steep slopes, e limination 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 Regi ster 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 p iles in southwest Virginia to exceed $150 million. Classifying legacy piles as solid wast e will inhibit removal of “gob” piles due to prohibitive cost without offs etting 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 environmen tal benefits associated with reclaiming legacy coal piles. Regarding coal refuse placed in le gacy piles, we acknowledge the significant impacts that these legacy piles can have on the environmen t, 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, howev er, hinges on whether or not the material at issue has been
discarded in the first instance. EPA is constr ained by the statutory definition of solid waste
under RCRA. Mere beneficial reus e of a discarded material does not change its status. Wastes may be beneficially reused. Allowing certa in non-hazardous seconda ry materials to be
combusted as a fuel under the section 112 standa rds of the CAA may have beneficial policy objectives. However, EPA may not base it deci sion 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 acco unting, 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 stat utory definition of solid waste under RCRA, which hinges on
whether or not the material is discarded. In the ca se 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 essent ially 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 re fuse than is used for virgin coal. Under the final rule, coal refuse that is r ecovered 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 proces sing 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 legi timate fuel and is the same as those from the legacy piles. While the final rule continues to cons ider coal refuse that has been placed in legacy piles to be considered a solid wa ste as it has clearly been discarde d, so long as this discarded coal refuse is subjected to the same processing as vi rgin coal and meets the legitimacy criteria, such processed coal refuse would not be considered a solid waste.PART 3b: Other Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

191 of 275 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 e nough to classify as a “waste” and as a “solid waste” relatively small amounts of coal that ar e 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, return ed to the coal pile, and dried for use as fuel with the rest of the coal in the storage pile. Th is residual coal has a redu ced Btu value due to the higher soil content than typi cally exists in mined coal, but the Bt u content of this material is still approximately 8,000 to 8,500 Btu/lb, higher than th e average Btu value of mined lignite, which is approximately 6,300 to 8,300 Btu/lb. This resi dual coal is used as a fuel in the normal combustion process to produce electricity a nd clearly is not “discarded,” “abandoned,” “disposed,” or managed in any other way that wa rrants 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 natu ral occurring part of virgin coal piles that are located at combustion faciliti es. As such, we agree with the commenter
that these materials are essent ially “residual coal” and are no t 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 fine s that are contained in le gacy coal refuse piles would clearly be discarded and would have to be processed to not be cons idered 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, su ch 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" cr iteria because the process destroys pathogens
and bacteria. The commenter states that it coul d be argued that pelletiz ing 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 comme nter 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 :PART 3b: Other Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

192 of 275 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 ru le discussed sewage sludge processed into fuel pellets as an example of adequate processing. However, the proposed rule also noted that although we consid er sewage sludge processed in to fuel pellets to meet our definition of processing, the fuel pellets would s till 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 ar e 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 turni ng sewage sludge into fu el 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 pr ovide additional inform ation 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 pr ior to burning the sludge for disposal in an incinerator). The commenter states that it could be argued that pelletizin g 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 solid s. The resulting biosludge is pressed with
wide fabric belts into sheets a nd 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 cons ider that these types of operations to meet our definition of processing, but again note that th e 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 sewa ge sludge. Today’s final rule codifies “processing” as meaning any operations that tr ansform discarded nonhazardous secondary material into a non-waste fuel or non-waste ingredient product. Processing includes, but is not limited to, operations n ecessary to: remove or destroy contaminants; significantly improve the fuel char acteristics of the material, e.g., sizing or drying the material in combination with other operations; chemically imp rove the as-fired ener gy content; or improve the ingredient characteristics. Minimal operations that result only in mo difying the size of the material by shredding do not constitute processi ng for purposes of this definition. We use the examples listed in this final defi nition of processing to guide our determination of whether or not any particular material has been sufficiently processed.
For example, one commenter provided a de tailed 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 remove d 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 th e size of the aggregate, it may need to be crushed at several stages, rescreened and it ag ain passes over magnets to remove metals for further separation or non-magnetic me tal may be picked from the slag.PART 3b: Other Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

193 of 275 In determining that such operations would cons titute sufficient processing, we noted that the processing of the discarded sl ag includes not only rigorous opera tions to extract the slag from the discard environment, but also the concer ted removal of contaminants through magnetic separation. In other words, the operations de scribed by commenters a ppear to both remove contaminants as well as improve the ingredient ch aracteristics of the slag. This is the same
criteria and rationale for not onl y sewage sludge processed into fu el pellets, but the processing of any non-hazardous secondary material.

Comment [3b-B7-2] : One commenter expressed concern that the language in the pr oposed rule appears to be a permanent determination and that no lo cal entity can self-implement some other, different site-specific determinati on with respect to sewage sludge:

"EPA is not proposing to list specifi c 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 possi ble, which non-hazardous secondary materials used in fuels or ingredient s 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 mate rials as either wastes or non-wastes in regulatory language in rec ognition 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 ma y 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 possi ble, 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 in cluded several specific non-hazardous secondary materials (e.g., scrap tires co llected and managed under the ov ersight of established tire collection programs and resinated wo od residuals) in the regulatory text of the final rule where we have determined that such a designation is ap propriate. 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 wast e determinations for as many non-hazardous secondary materials as possible based on all info rmation 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 de termined that sewage sludge when used as a fuel in a combustion unit is a solid waste. In short, this determination isPART 3b: Other Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

194 of 275 based on our findings that sewage sludge w ould 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 natu re in that owners and operators of affected facilities combusting non-hazardous secondary ma terials that are not considered solid wastes must ensure that the non-hazardous secondary materi als 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 fo r an NHSM burned as a fu el or ingredient if they are able to demonstrate th at the material meets the legitimacy criteri a and, if previously discarded, has been sufficiently processed to create a legitimate fuel or in gredient. 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 preambl e, which discusses the types of notification and recordkeep ing requirements, including do cumentation 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 genera tor are subject to.

Comment [3b-B7-3]:
One commenter argued that incineration is an important option for sewage sludge management. According to the commenter, POTW s have a limited number of options available for management of sewage sludge materials, an d they are under constant pressure to find a workable approach that fits th eir operational needs and budget. Th e commenter believes that the incineration of sewage sludge is a cost-effective and safe manage ment option. If EPA designates sewage sludge as a solid wast e and requires sewage sludge com bustion units to comply with CAA §129, many POTWs lack the financ ial ability to upgrade their inci nerators 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 recove ry, 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 wast e, any combustion unit burning sewage sludge must be subject to the requiremen ts 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 Ru le being promulgated under section 129 of the
CAA. For more information on this relate d rulemaking, see Docket ID No. EPA-HQ-OAR2009-0559.

Comment [3b-B7-4]:PART 3b: Other Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

195 of 275 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 hi storically it has been beneficially used for its nutrient and organic value in la nd application which demonstrat es 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 ther efore would still be cons idered solid waste.
EPA has emphasized during this ru le that it is not examining th e solid waste status of any
material other than that used in a combusti on unit. EPA is articu lating a framework for determining whether a non-hazardou s secondary material is or is not a solid waste when burned as a fuel or ingredient in a combustion unit. Mo reover, even if a secondary material has value in applications other than combustion, that is not re levant to the determina tion whether the material meets the legitimacy criteria for combustion.

Comment [3b-B7-5]:
One commenter notes that EPA acknowledge s gasification processes, which produce syngas, to be an adequate process for produc ing a non-waste fuel pr oduct. As such, EPA acknowledges that sewage sludge would be a legitimate fuel and not a solid waste when processed by gasification. The commenter reco mmends 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 provi de sufficient data and information to determine if this close-coupled gasification sy stem would constitute sufficient processing. The commenter noted that our discussion of gasifi cation includes the provis ion that the syngas has been adequately processed to remove contaminan ts. 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 resulti ng 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 cr iterion 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] :PART 3b: Other Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

196 of 275 In response to EPA’s request for comment on slag processing in the proposed rule, one commenter provided a detailed description of sl ag 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 griz zly feeder and hopper where oversi zed steel slag is removed from the process for further size reduction. The slag that passed through the gr izzly is then conveyed over a magnet to remove iron-bearin g 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 fu rther separation, or non-magnetic metal may be picked from the slag. Finish product is conve yed to individual stockp iles 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 combus tion process to make cement. Except for the metal separation process, comparable processe s are employed at natura l aggregate pits or quarries.

EPA’s Response : Today’s final rule codifies “processing” as meaning any operations that transform discarded non-hazardous secondary material in to 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 char acteristics of the materi al, e.g., sizing or drying the material in combination with other opera tions; chemically improve the as-fired energy content; or improve the ingredie nt 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 di scarded, it appears that this level of processing would meet our definition of pr ocessing, as the processing includes not only rigorous operations to extract the slag from the discard environment, but also the concerted re moval of contaminants through magnetic separation. In other words, th e 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 ingredient s, 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 th e 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 ba sis for proposing legitimacy criter ia 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-hazar dous waste regulation do
not create incentives for sham r ecycling. Finally, materials will generally be burned in tightly regulated combustion processes, wh ether they are classified as wa stes or as fuels, and may well be subject to tighter pre-combustion standards as fuels than as wastes.PART 3b: Other Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

197 of 275 All these factors point toward a legitimacy framework that gives more weight to promoting recycling than is the case for hazar dous substance regulation. Yet EPA proposes to regulate the reuse of these non-h azardous 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 thr ee 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 th e 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 crit eria would amount to triple jeopar dy. 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 designe d to ensure that non- hazardous secondary materials are not being combusted as a means of disposal but rather for their use as an ingredie nt 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 dispos al and that would be a “solid waste” NHSM.
Management prior to combustion does not automatically indicate that the secondary material has meaningful heating va lue. 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. Th ey are irrelevant to determine
whether material is a waste or not in the first instance.

Comment [3b-D-3]:

One commenter recommends that EPA establ ish a representative minimum value for meeting the heating value legitimacy criteria. This minimum value shou ld 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-effectiv ely burned within industry, including pulp and paper sludge, recycled fl y ash, and some waste coals.PART 3b: Other Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

198 of 275 EPA’s Response:
The 5,000 Btu/lb limit is a general guideline, whic h is being adopted in this final rule, but allows some flexibility. To allow such flexibi lity for facilities with energy recovery units that use non-hazardous secondary materials as fuels w ith an energy content lower than 5,000 Btu/lb, as fired, a person may demonstr ate (see Section VII.I Determining That Non-Hazardous Secondary Material Meets the Legi timacy Criteria) that a meani ngful heating value is derived from the non-hazardous secondary material if the energy recovery uni t can cost-effectively recover meaningful energy from the non-hazard ous secondary materials used as fuels.

Please see additional details about this discussi on in the response to comments final rule in Section “V.D.2. Meaningful H eating Value and Use as a Fuel.”

Comment [3b-D-4] : Regarding the contaminant legitimacy criter ion, 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 requir ed to test for all possible contaminants (189 HAPs under CAA 112 and 9 pollutants under CAA 129) and can in stead use their expert knowledge of the secondary materials to determine if testing is nece ssary to ensure complian ce with this aspect of
the rule. In the case of an enfo rcement action, facilities may be required to explain to EPA their reasoning in determining which contaminants wo uld be of possible concern for a secondary
material.
The testing expectations expressed here co mport 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 cont ain higher contaminant levels. Some alternative fuels may contain higher conc entrations of some contaminants, yet lower
concentrations of others. This should be taken into account when determining whether a materials exhibits "comparable" levels of contam inants. In some instances, the fractional heat input of the alternative fuel may be a small perc entage of the total heat input to th e 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 in consequential.

EPA’s Response : This comment implies that the contaminan t legitimacy criterion should consider the emissions profile of NHSMs rather than constitu ent concentrations in these materials. WePART 3b: Other Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

199 of 275 disagree. In order for a non-hazardous secondary material to be considered as a non-waste fuel, it must be similar in composition, whereas comp aring the emissions profiles between combustion
units that burn traditi onal fuels and non-hazardous secondary materials only tells one how well the combustion unit is operating, not what the materi al is that is being bu rned. Thus, while the Agency recognizes that such data can be usef ul in determining whet her or not burning such material presents a risk to huma n health or the environment, we find it says nothing in terms of whether or not the non-hazardous secondary ma terial is a legitimate non-waste fuel.

E. Comments on Legitimacy Criteria for Ingredients

Comment [3b-E-1] :

The commenter states that the definitions sec tion of the rule should explicitly state that “ingredients” are associated with combustion units, and not with other proce sses. The proposed rule explicitly addresses seconda ry materials used as fuels or ingredients in combustion units. We believe that describing an ingredient in the proposed rule as “ingredie nt 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 awar eness of the limitation to ingredients used in combustion units. As we understand, the propos ed rule does not apply to non-combustion processes, so feedstocks for non-combustion pr ocesses 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 conti nues to be limited to “ingredients used in combustion processes”.

EPA’s Response : Section 241.3(b)(3) explicitly refers to “i ngredients used in co mbustion units.” The Agency disagrees with the commenter that additi onal 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 regula tion does. Whether a st ate 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 determ ination 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 re fine these presumptive determinations on an ongoing basis using the information they receive in the petition process.

EPA Response:PART 3b: Other Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

200 of 275 EPA will record petition decisions on specific NHSMs in an effort to make subsequent petition decisions on similar NHSMs more effici ent. EPA intends to also record EPA’s decisions and supporting materials regarding NHS M non-waste determination petitions, and will
make the information available on the intern et for reference in future decisions.
Due to the wide range and va riability in non-hazardous seco ndary materials and their use as fuels or ingredients, the Agency has not co dified a presumptive determination for specific broad categories of materi als within the petition process in the final rule.
Today’s rule does decide that scrap tires a nd resinated wood may be transferred to third parties under certain conditions and be non-waste without under going the petition process (See 241.3(b)(2) in today’s rule). The preamble to th e final rule also discusses how EPA may make other non-waste determinations for specific catego ries 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 th e petition process, refe r to the response under comments in the petition section (comment 3b-I1-1).
Today’s rule does codify the definition of tr aditional fuels which reduces inappropriate petition applications fo r 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 fa cilities must stop burning NHSMs considered to be solid wastes to avoid CISWI requirements, we refer the
commenter to the CISWI ru le (EPA-HQ-OAR-2003-0119).

G. Comments on Implem entation of the Rule

Comment [3b-G-1] : One commenter requests that the EPA establis h a viable process of updating the rule and the legitimacy requirements for fuels and ingr edients to take into account changes in technologies, prices and the environmen tal 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 NH SMs as non-waste fuels, as technologies and markets change over time. The Agency has designe d the Final Rule to be self-implementing to give the regulated community the flexibility to adapt to these ch anges and foster the development of new technologies. As mentioned several pl aces in the preamble (see sections V.D.2 onPART 3b: Other Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

201 of 275 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 dete rmination of what materials are considered legitimate non-waste fuels and ingredients and which are considered so lid 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 deci sions as to which fuels to use, to install the appropriate pollution control equi pment, and to conduct test burns in a timely manner. The commenters question whether a smooth implemen tation 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 flexib ility 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 deve lopments of the NHSM final rule and CAA final rules have been closely coordinate d throughout the rulemaking process.

Comment [3b-G-3]:
State agencies and environmental groups e xpressed concern that the proposed rule establishes a self-determination process that wi ll impose significant challe nges to inspection and compliance staff at the local and state level. Specifically, the rule includes no mechanism that ensures a facility is appropriately determining wh ether the material is a secondary material or a
solid waste. Nor is there a mechanism to confir m 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 bur den while providing a vehicle to enforce combustor’s compliance with the criteria establishe d 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 inci nerators (§60.2175(v)). In those regulations, facilities must comply with reporting or recor dkeeping provisions rela ted to compliance with applicable §241 requirements. For more deta iled information, please see Section “VII. I Determining that Non-hazardous Secondary Material s Meet the Legitimacy Criteria” in the final
rule. Refer to the respective air rules for the full discussion on enforcement andPART 3b: Other Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

202 of 275 implementation.

H. Comments on Economic and Environmental Impacts

Comment [3b-H-1] : Many commenters argued that classifyi ng 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 bur ned as a fuel or ingred ient would either incur higher emissions control costs under CAA Sec tion 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 re quirements. 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 ch art in the supporting documentation for the proposed rule. In California, for example, it is su bstantially more difficult, if not impossible, to site an incinerator of any kind, but especially a Sec tion 129 incinerator, if for no other reason, because of the stigma that th e moniker "Section 129" carries.
The additional numerical limits of the speci fied eight compounds in addition to other Section 112 (b) compounds that may be regul ated, coupled with the periodic monitoring requirements of Title V, while difficult and expens ive 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 pub lic health or the environment," criteria which are almost impossible to meet in California . Handling of ash from additional Section 129 incinerators is also an expe nsive 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 costs 138 or benefits. This rule is published as part of a four-rule package that in cludes the Boiler MACT and CISWI rules. Costs to the regulated community and corresponding benef its to human health and the environment are captured under these rules. As such, the Ag ency has not prepared a separate economic assessment in support of this final rule.

The costs and benefits indi rectly associated with th is action are the corresponding impacts assessed in the regulatory impact analys es prepared in support of the Boiler MACT and CISWI rules. These independent regulatory imp act analyses measure, among other factors, the estimated net change in social we lfare associated with these actions . In the development of these

138 Excluding minor administrative burden/cost (e.g. rule familiarization) and voluntary petition costs.PART 3b: Other Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

203 of 275 analyses, EPA worked to ensure that the met hodologies and data applied in these assessments captured appropriate RCRA related costs (e.g., secondary material diversions). These assessments were designed to adhere to Ag ency 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 allo w an untold number of facilities to burn nonhazardous secondary materials without emissi ons 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 wi th 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 PM 2.5 reduction. There is no analysis of any true benefit between compliant, well-managed Section 112 incinera tors and Section 129 incinerators or a comprehensive health risk assessment analysis between the two scenario s 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 opti ons, potential impacts on landfill and landfill emissions, etc. The cost/benef it analysis "disclaime r" [31889] should address these phenomena as a direct result of this rulemaking and not defer it to future NESH APS/NSPS/EG incinerator rulemaking analyses.

EPA’s Response :

This final rule alone does not directly invoke any costs 139 or benefits. This rule is published as part of a four-rule package that in cludes the Boiler MACT and CISWI rules. Costs to the regulated community and corresponding benef its to human health and the environment are captured under these rules. As such, the Ag ency has not prepared a separate economic assessment in support of this final rule.

The costs and benefits indi rectly associated with th is action are the corresponding impacts assessed in the regulatory impact analys es prepared in support of the Boiler MACT and CISWI rules. These independent regulatory imp act analyses measure, among other factors, the estimated net change in social we lfare associated with these actions . In the development of these analyses, EPA worked to ensure that the met hodologies and data applied in these assessments captured appropriate RCRA related costs (e.g., secondary material diversions). These assessments were designed to adhere to Ag ency 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.PART 3b: Other Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

204 of 275 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 c onsidering the economic impacts of today’s final rule on small entities, EPA certifies that this action will not ha ve 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 sect ors 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 decad es 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 whil e others have watched to xic emissions escalate to dangerous levels with no abatement in sight. Advocates for environmental justice have been fighting an uphill battle against industrial and co mmercial facility operators and state regulatory agencies that have not ensured that all commun ities 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 ju stice communities, the commenter urges EPA to promulgate the most protective definiti on possible. By excluding any NHSMs from the regulatory definition of “solid waste,” the EPA’s rule would ex empt thousands of industrial
facilities that burn these materi als from the monitoring and siti ng requirements that Congress enacted to protect communities from the to xic emissions that wa ste burning is known to generate.
EPA’s Response:

Under the final rule, if a non-h azardous secondary material is not discarded in the first instance and is legitimately recycled, it is not co nsidered a solid waste. While the Agency is constrained by the statute and case la w in defining what is a solid waste under this final rule, we recognize and are sensitive to envi ronmental justice concerns. As such, we have prepared an environmental justice summary paper 140 designed to assess the poten tial for unequal protection
of sensitive communities. This document summar izes the overall environmental justice (EJ)

140 “Summary of Environmental Justice Impacts for the No n-Hazardous Secondary Materi al (NHSM) Rule, the 2010 Commercial and Industrial Solid Waste Incinerator (CIS WI) Standards, the 2010 Major Source Boiler NESHAP,
and the 2010 Area Source Boiler NESH AP,” January 2011.PART 3b: Other Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

205 of 275 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 justi ce impacts that may result from th e four rules are likely to be related to the following: emissions from re gulated combustion units, emissions from the diversion of non-hazardous secondary materials from their current fuel or ingredient use applications to disposal or othe r beneficial uses, and potential other impacts related to material diversion (e.g., noise, aestheti cs, water pollution, etc.).

Based on our assessment of the emissions ch anges and other environmental impacts of the rules, and the demographics of populations near affect ed 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 in gredient 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 l ead to adverse and disproporti onate 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 th e 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 propos ed, would adversely aff ect the financing of integrated recycling programs. In many areas, th e 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 base d 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 th is final rule and are not making solid waste determinations that apply to ot her beneficial uses. States ma y employ their own definition of
solid waste either for this rule or for othe r purposes. However, the state solid waste
determination would not affect whether materi als are burned in 112 or 129 units. This rule applies to those materials.

141 (1) Standards of Performance for New Stationary Sour ces and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration (C ISWI) Units (the CISWI Rule); (2) National Emission
Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, a nd Institutional Boilers (the area source Boilers Rule); (3) National Emission Standards for Hazardous Air Pollutants for
Industrial/Commercial/Institutional Boilers and Process Heater s (major source Boilers Rule); and (4) Identification of Non-hazardous Secondary Materials that are Solid Wa ste (the NHSM rule).PART 3b: Other Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

206 of 275 Comment [3b-H-6] :

One commenter noted that the Obama Admini stration has pressed Executive Order 12898 to be a key consideration in government deci sion-making, recommitting the Federal government to addressing environmental justice in minor ity and low-income populations. The commenter claims that the anticipated effect of the pr oposed rule has serious implications for the Administration’s overarching efforts to allevi ate environmental injustice. Vulnerable populations will confront even greater environmental injustice in the wake of this purposed rule. The environmental burdens of land disposal units a nd material recovery facilities will be greater
as increased utilization of th ese entities will be accompanie d 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 minor ity or low-income populations. The four-rule package that consists of this rule plus the three CAA rules 142 will generally result in an improved level of environmental protection. No dispropor tionately high and adverse human health or environmental effects on any population, at a na tionwide level, including any minority or lowincome population, is expected.

Comment [3b-H-7] : One commenter argues that the proposed ru le will create greater dependence on foreign fuel, not less. Although EPA has not undertaken a calculation of this fu el 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 acti on 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 a ffect energy use or use patterns.

142 National Emission Standards for H azardous Air Pollutants for Area Sour ces: Industrial, Commercial, and Institutional Boilers; National Emission Sta ndards for Hazardous Air Pollutants for
Industrial/Commercial/Institutional Boilers and Process Heater s; and, Standards of Perf ormance for New Stationary Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration (CISWI) Units

143 National Emission Standards for H azardous Air Pollutants for Area Sour ces: Industrial, Commercial, and Institutional Boilers; National Emission Sta ndards for Hazardous Air Pollutants for
Industrial/Commercial/Institutional Boilers and Process Heat ers; and Standards of Perf ormance for New Stationary Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration (CISWI) Units.PART 3b: Other Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

207 of 275 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 l ead 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 co mmenter 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-de rived 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 unde r the rule, le t alone the
other NHSMs diverted from their current fuel or ingr edient uses as a result of the rule. According to the commenter, EPA has not adequate ly 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 estab lish which non-hazardous secondary materials are solid wastes for the purpose of combustion unde r 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 as sessment 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 blen ding occurs, this could significantly reduce the
amount of used oil diverted from its current fu el 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 gene rated 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 mate rials were a waste or a non-waste or were
a traditional fuel. Commenters al so requested that EPA create a lis t of wastes and non-wastes in
the final rule.

EPA Response : Usage of the “regulatory framework”PART 3b: Other Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

208 of 275 In the preamble of the fina l rule, we list most of the commonly used NHSMs, the available data for the NHSMs, and discuss the wa ste status based on the available information.
In order to determine if it is a traditional fuel, refe r 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 regul ations, including the
notification and record-k eeping requirements discussed in the preamble to today’s rule. See
Section VII in the final rule under “I. Dete rmining 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 a nd material processes, EPA is not finalizing a list of specific non-hazardous secondary ma terials as either wastes or non-wastes in regulatory la nguage, but is rather specifying the crit eria 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-h azardous secondary material meets the various
criteria will have to be base d on site-specific information; a national designation that in all circumstances, a particular non-hazardous secondar y material is or is not a waste may not be possible.
EPA has gathered data in a series of Materi al 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 di scussed 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 Characteriza tion Papers were developed using the best
available data and data from comm enters (that relied on professi onal judgment for inclusion). The papers have been offered for comment dur ing public comment periods for the ANPRM and for the proposed rule and have been update d 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 dispos e of materials.

2. Questions on Waste Status of Substances used as Fuel in General

Comment [3b-I2-1] :PART 3b: Other Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

209 of 275 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 S ubtitle C hazardous waste regulations when
combusted under certain conditions and that EPA therefore has no intentio n of regulating black liquor solids as a solid waste under the Clean Ai r Act (CAA) requirements of Section 129. The commenter supports EPA’s intention not to consid er 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 m ill, allowing the recovery of chemicals and the generation of steam for process use or electric ity generation. Black li quor solids are clearly a valuable fuel product and not a waste material

EPA’s Response : EPA has stated that secondary materials ex cluded from the definition of solid waste under the RCRA subtitle C regulations for haza rdous waste will remain non-wastes under this rule. We are not reopening the RCRA subtitle C ru les. 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 pr eserve the seed and colorants in tended to classify the seeds. The fungicides currently used as active ingredient s (subject to change) in clude certain chemicals which may contain chlorine or fluorine. The quan tity of fungicides used on seeds is measured in terms of ounces of material pe r 100 pounds of seeds treated. Th e total quantity of material applied is generally no more than one to two perc ent 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 tr eated seeds is less than 0.039 % chlorine by weight and 0.0014 % fluor ine by weight. The commenter notes that these levels are
lower than contaminant levels in coal.

The commenter also provided information that treat ed corn seed has an average heating value of 7,245 Btu per pound (as received). Because of the s ubstantial 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 ba gged until they are fed in a combustion unit so
as to avoid contamination from other mate rials, minimize losses and reduce exposure to moisture. Obsolete seeds are managed as a va luable commodity reflecting its valuable heat

content.

EPA’s Response :PART 3b: Other Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

210 of 275 The commenter has not provided sufficient in formation 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 determinatio ns. 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. Specifica lly, 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 pro cessing of the material would be required. EPA
would also need additional information aboutthe 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 suggest s 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 ma terial 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 instan ces, facilities will combust tall oil in place of fuel oil. The
Commenters view tall oil as a valuable comm odity 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 cull et being classified as a solid waste or that would result in glass melti ng furnaces being subject to regulation under CAA § 129. Such a result would be counter to the CAA's pur poses 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 pl ants 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 crite ria 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 asPART 3b: Other Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

211 of 275 a valuable commodity or contains contaminants in higher concentrations than virgin fuels. We disagree. As indicated in the fi nal 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 de terminative of whether the combustor is to be regulated under CAA 112 or 129.
In regard to plastics, (as st ated 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 discar ded and therefore solid waste. The commenter is concerned that, if such streams are considered "d iscarded" 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 be ing 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 co mbusted 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 t oday’s rule at §241.3. Th e 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 un equivocally "traditional fuels" and are not solid wastes if they are combusted in any type of boiler. The comment er 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 substant ial 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 bu t they would have to m eet all the requirements necessary to be considered a processed commodity fuel.PART 3b: Other Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

212 of 275 Comment [3b-I3-3] :
Syngas -- Creosote-treated wood may be beneficia lly used as an ingredient in other products. While the most common current reuse of tr eated 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 po les and will this ye ar begin production of
ethanol.

• American Cogeneration, LLC has licen sed technology from the Energy and
Environmental Research Center at the Un iversity of North Dakota to gasify wood biomass, including creosote treated crosstie s, to produce syngas for heat and power production. A plant utilizing out of service ti es from the Canadian Pacific Railway is
under construction.

• Engineered wood products, such as glue-lam inated 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 di scussed use of creoso te treated wood as ingredient in a gasifica tion process. As indicated in the fi nal 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 build ing block for other chemical manufacturing processes). Synthesis gas can meet the requirements of a fu el product produced from processing of discarded non-hazardous secondary materials, provided th e syngas has been adequately processed to remove contaminants. In general, however, the Agency would require additional information on the specific gasification process, and in par ticular, how the carbonace ous material (creosote wood) is chemically converted into a synthesis ga s 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 pr oducts of a plant util izing out-of-service treated wood, additional information on the ma nufacturing 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 in dicated that the final rule should
contain a definition of “containe d gaseous material.” The stat utory 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 “c ontained gaseous material” to include gases in containers, but not gases flow ing through pipes to combustion units. Under the June 4, 2010PART 3b: Other Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

213 of 275 proposed revisions to the CISWI rule, the existing definition of solid wa ste 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 languag e 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 pur poses in applying the legitimacy criterion concerning contam inants, 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 bu rned in such unit, while for gas-fired boilers, the level of contaminants in the non-hazardous secondar y material fuels would be compared to natural gas. ”

The commenter assumes that EPA does not inte nd 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 cont ainer 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 bo ilers 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 in terchangeably in some boilers. The preamble statement, however, only applies to a seconda ry 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 ga s 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 wast e. 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, whet her gases in pipelines are contained. The Agency needs to evaluate whether the non-hazar dous 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 in terpretations that only gases in containers may be considered “contained.” Based on the fa cts of this case, EPA cannot see how gaseous secondary material that is generated in any partic ular 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 de finition of solid waste, which EPA does not concede in this rulemaking. This would mean th at a clean gas-fired boiler could still burn under CAA 112 secondary material that is handled through a seriously leaking pipe line, has little to noPART 3b: Other Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

214 of 275 real fuel value, and is full of dirty contaminati on, 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 me tal-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 stor ed 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 ha s been conveyed directly back to the smelting furnaces in order to recover its gold values.

Slag -- Slag, the primary gold-bearing material st ream 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 hardeni ng, 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 car bon to carbon regeneration kilns in order to drive off the impurities so that th e carbon can be used an ew in gold production operations. The regenerated car bon is used as a substitute fo r carbon that the commenter would otherwise have to purchase if it did not regenera te its used carbon. The used carbon is thus a valuable commodity. Another commenter said th at carbon regeneration is a long-established and standard part of gold benefi ciation, and has been investig ated and documented on numerous occasions by EPA while developing its RCRA rule s and in other rulemakings. The carbon is recycled continuously and is not discarded. The commenter believe s the proposed rule as drafted would not apply to carbon regenera tion 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 re generation kilns qualify as “material recovery facilities,” as defined in Sec tion 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 pro cessed 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 consid er carbon used in carbon regeneration unitsPART 3b: Other Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

215 of 275 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 framewor k 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 valu e and the results of th e 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 th ermal destruction of the sample to generate the analytical result (e.g., ash anal ysis, flame ionization dete ction, 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 laborator y analysis units, please see the applicability under the CAA Secti on 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 app licability of CAA section 129 requirements for laboratory equipment, refer to the revised CISW I applicability under 40 CFR 60.2025.
As noted by the commenter, the purpose of comb usting 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 repa irs, 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 materi als are solid wastes when burned as a fuel or ingredient.

Comment [3b-J-2] :PART 3b: Other Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

216 of 275 The commenter asserts that the rule will undo regulations that exempt F006 sludge from hazardous waste regulatory restrictions. The ne w definition of solid waste facilitates more recycling of electroplat ing waste water treatment sludge, i.e ., the listed hazardous waste, F006. Under the revised definition of solid waste, sludg e that is reclaimed for metals recovery would not be “discarded” for regulatory purposes, and would not, therefore, be subject to hazardous waste regulations – provided th at the recycling is legitimate and that plating facilities and
reclamation facilities meet the se t of conditions regarding the ma nagement and recycling of the sludge. Excluding the recycling of F006 sludge from the RCRA hazardous waste regulatory restrictions can encourage more recycling of th e sludge and save small metal finishing operations money. EPA cannot use this rulemaking to und o these established re gulatory provisions.

EPA’s Response : As discussed throughout the preamble to the fi nal rule, EPA is not reopening any subtitle C regulations, including the 2008 DSW Final Rule. Th e result of this rule will have no effect on the RCRA subtitle C hazardous waste program becau se it does not address hazardous waste. In addition, see other responses about hazardous wast e. Nevertheless, the DSW rule deals only with reclamation not burning for energy recovery.

Comment [3b-J-3] : One commenter argued that EPA’s designati on of lead-based paint shavings as a hazardous waste is inhibiting the use of technolog y to recover paint and other materials from
C&D debris.

EPA’s Response : This comment addresses regulations for hazardous waste esta blished 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 ar gued that 60 days does not provide the time required to fully review and pr ovide comment on a proposed rule . One commenter argued that additional time is necessary to pe rform a thorough review of the da ta used in the emissions floor
calculations.

EPA’s Response : EPA disagrees that 60 days was an insuffici ent period of time to review the Proposed Rule and prepare comments. The duration of th e public comment period for the Proposed Rule
was consistent with that of other rules developed under EP A's authority under RCRA. In addition, given the court-ordered deadline for th e 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 no tes that this comment is not re levant to this rulemaking, the purpose of which is to establish criteria for determining which non-hazardous secondary
materials are solid wastes when combusted as fuel s or ingredients. We refer the commenter toPART 3b: Other Comments on the Proposed Rule and EPA Responses Response to Comments Document -NHSM Rule

217 of 275 the air rules proposed in conj unction with this rulemaking (see docket numbers EPA-HQ-OAR2002-0058, EPA-HQ-OAR-2006-0790, a nd EPA-HQ-OAR-2003-0119).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

218 of 275 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 pr oposed 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 th e preamble to the proposed rule. Those major comments and EPA responses contained in the pream ble of the proposed rule are repeated verbatim here.

These responses do not reflect changes that we re made from proposal to the final rule; see Sections 3a and 3b for those changes. Th e 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 competi ng suggestions and recommendations based upon different state program s and experiences.

Comment :

Some states did not want EPA to define what is or is not a wa ste at the federal level if it impacts or limits the scope of what states curr ently regulate under their solid waste management authority. Some states noted a potential problem related to existing “s tringency provisions” in some state laws. For example, if a solid waste dete rmination is made at the federal level, it could be argued that the state is less stringent through their issued exem ptions and the state rule must be rescinded. Conversely, some states argued th ey 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 fede ral definition. Many states said we should defer
the determination of whether those non-hazar dous secondary materials used as fuels or ingredients are solid wastes to the states and ur ged 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 th at the term “solid waste” shall have the meaning established by the Administrator purs uant to the Solid Waste Disposal Act. Accordingly, EPA must define which non-hazar dous 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 emi ssions standards to be issued under CAA section
112 and the CISWI emissions standards to be issu ed under CAA section 129. See section VIII ofPART 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

219 of 275 today’s proposal for a discussion on the appli cability of state solid waste definitions and beneficial use determinations, as well as a discussion on state adopti on of this rulemaking.

Comment :

Many states commented that they had l ong-standing “waste” management programs regulating non-hazardous secondary materials, that no one had questioned the legitimacy of their regulatory programs in the past, a nd that it was inappropriate and c ontrary to the intent of RCRA for EPA to exclude this material, which had b een considered “waste” for many decades, from regulation under RCRA.

On the other hand, other states were concerne d a federal designation that some of these non-hazardous secondary materials are “wastes” would disrupt existi ng recycling markets by creating a deterrent from using th ese non-hazardous secondary material s as fuels or ingredients. These states emphasized the importance of promot ing beneficial use of non-hazardous secondary
materials and were concerned that regulation of certain material s (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/reg ulate 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 th ese 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 recommende d 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 atte mpted to balance and address the concerns raised by the states regarding potential imp acts on their existing solid waste programs in determining which non-hazardous secondary materi als 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 wa y 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 unde rstand that today’s proposal coul d impact existing state solid waste management programs, as well as states’ be neficial 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 us ed 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 Pr ograms.” This resolution, which wa s 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.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

220 of 275 comment on how today’s proposal imp acts or could impact such state programs. For example, does the proposed approach impact the ability of the states to con tinue to regulate the management of secondary material s prior to their final end use.

Comment : Some state commenters s uggested that the Agency address CAA section 129 implementation issues by subcategorizing energy recovery units that bu rn 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 pr oposes 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 “...a ny garbage, refuse, sludge from a waste treatment plant, water supply tr eatment plant, or air po llution control facility
and other discarded material ... resulting from industrial, co mmercial, mining, and agricultural operations, and from community activities...” ( RCRA section 1004 (27) (emphasis added)). The ANPRM provided a thorough discussion on th e definition of solid waste, including a summary of relevant case law. See also Secti on VI.B in today’s preambl e. Further, the ANPRM highlighted the importance of the concept of “dis card,” noting that the de finition of solid waste turns on the meaning of the phrase, “other discar ded 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 defi ning the term “solid wa ste” for the purpose of establishing the appropriate st andards for combustion units u nder CAA sections 112 and 129.

EPA’s Response :

EPA agrees with the premise of using the “pla in meaning” of discard, as this position is
consistent with case law on the issue (for a more detailed disc ussion, please refer to the ANPRM
and section VI.B of t oday’s preamble).

Comment :

Some commenters noted that th e same rationale and princi ples related to “discarded materials” should apply whether these materials are regulated under RCRA subtitles C or D, as

146 Id. ECOS Resolution 09-7 presents this position as an a lternative to excluding whole tires from the definition of solid waste for the purposes of combustion.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

221 of 275 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 re lative 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 a pplies to both RCRA subtitles D and C. However, EPA is not proposing in today’s action any revi sions to its hazardous waste regulations.

Comment :

Some commenters argued that a ny secondary materials that ar e beneficially reused or recycled are not waste, regardless of whether or not the reuse or recyc ling is conducted in the
same or different location or indus try (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 mate rial 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 recycl ing 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 w ith the statutory purpose.” Id . Thus, EPA has disc retion 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 transferre d 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 unde r the control of the ge nerator and meet the legitimacy criteria are not solid waste, but th at non-hazardous seconda ry 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. Ingredie nts, on the other hand, are determined not to be solid waste even if they are managed outside th e 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 wa ste 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 toPART 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

222 of 275 point out that under the ANPRM ap proach, EPA is interpreting the definition of solid waste to mean that burning of non-hazardous secondary ma terial, under appropriate conditions, is not “discard” under RCRA. According to the comme nt, the ANPRM is inconsistent with the interpretation in 40 CFR 261.2. Regardless of wh ether 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 ex clude such materials. EPA’s Response :

EPA disagrees with this comment and does not believe the regulations are inconsistent. The hazardous waste definition may be consider ed 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 haza rdous wastes); 261.4(a)(6 )(“black liquor” in pulping processes); 261.4(a)(7) (spe nt 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 in serted into the refining process).

Regardless of the appropriateness of thes e exclusions, or whether the Agency may appropriately exclude any secondary materials from the solid waste definition, consistency between the regulations for haza rdous and non-hazardous secondary materials is not an issue. This proposed rule, which identifies certain se condary 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 regul ations. Conditions apply to a ll of the secondary materials being considered for determinations as to whethe r they are solid wastes. The legitimacy criteria apply to all of the secondary materials.

It is reasonable and within EPA’s discre tion 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 mate rials 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 mi sconception 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 mana ged is a key factor that determines discard. Contaminant levels are part of th at 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 c ontaminants. Thus, EPAPART 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

223 of 275 could reasonably presume that burning such secondary material s, even if burned for energy recovery, is likely a waste activity. This was th e 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 th e comparable fuels exclusion from the definition of solid waste for hazardous secondary material s, the Agency stated that these hazardous secondary materials (comparable fuels) are lowe r in hazardous contaminants than the normal hazardous wastes and that burning of the compar able fuels “does not present the element of discarding hazardous constituents through combustion that underlies the typi cal 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 al so evaluates whether materials burned for energy recove ry 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 cons ideration in this case dealt specifically with material “reclaim ed” in a continuous process. Th at 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 reus ed 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 specifi cally found that non-hazardous secondary materials may, under certain circumstan ces, be burned and not c onstitute 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 treatmen t even in the absence of energy recovery. We believe, therefore, that burning material for a nother 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 wastewater s are wastes (216 F.3d at 55-58 ) and upheld conditions imposed by the Agency in excluding petrochemical recove red oil from the definition of solid waste (216 F.3d at 58-59). Both of these materials are retu rned 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 defin ition of solid waste. For purposes of the issue of concern in today’s proposal, th is decision supports EPA’s disc retion to determine whether or not a secondary material used as a fuel product is a solid waste or not, in li ght of factors relevant to determining whether the material is discar ded. Therefore, EPA is not prevented from exercising its discretion to deci de that issue either way.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

224 of 275 C. General Approach

EPA received several comments on the genera l 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 comm enters supported the general regulatory structure that included: (1) a recognition th at certain materials are inhere ntly fuel products, (2) a selfimplementing approach for identifying those non-hazardous secondary materials that are not considered solid waste pursuant to general crite ria and (3) a petition pr ocess for receiving a nonwaste determination from the Agency. 147

Comments :

Several commenters discussed whether to in clude a list of wastes and/or a list of nonwastes in the regulations. One commenter recomme nded that a list of secondary materials that are considered wastes be identified, rather th an a list of secondary materials that are not considered wastes, while other commenters ur ged 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 additiona lly include a list of secondary materials that
are considered wastes in order to remove any uncertainty. Thos e commenters who urged that the regulations include a list of sec ondary materials not considered a waste when used as a fuel or ingredient also cautioned that such a list shou ld not be all-inclusive in order to account for changes in technology and new secondary material s and processes that ar e not yet developed.

EPA’s Response :

In recognition of changes in economies, t echnologies, markets and material processes, EPA is not proposing to list spec ific non-hazardous s econdary materials as either wastes or nonwastes in regulatory langua ge, 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-h azardous secondary material meets the various
criteria will have to be base d on site-specific information; a national designation that in all circumstances, a particular non-hazardous secondar y material is or is not a waste may not be possible. However, it is EPA’s goal in this pr oposal, 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 c opy of this letter has been placed in the do cket 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 ex ceptions, non-hazardous secondary materi als 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 12 9 standards. For more information on the alternative approach, see section VII.E of this proposed rulemaking.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

225 of 275 criteria. As several commenters also noted, any approach must be flexible enough to account for changing technologies and new seconda ry materials that could, in th e future, be viable fuels or ingredients. The proposed approach allows for th ese changes, not by codifying a list of specific non-hazardous secondary materials that are or not waste, but rath er by adopting a selfimplementing approach that can consider s ite-specific informati on, if necessary.

Comment :

A few commenters noted a preference for cat egorical 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. Th e proposed rule discusse s 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 mate rials, 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-implemen ting 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 re gulatory criteria are based on f our categories of non-hazardous secondary materials that are managed under vari ous scenarios, including: (1) non-hazardous secondary materials that remain within the cont rol of the generator and meet the legitimacy criteria and used as fuel; (2) non-hazardous seconda ry materials that meet the legitimacy criteria and are used as ingredients; (3) fuel or ingredient products th at 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 mana ged outside the control of the generator.

More detailed information on these categorie s 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 mate rials qualify as alternative fuel s should be self-implementing
and not involve the need for individu al regulatory determinations.

EPA’s Response :

The non-waste petition process th at 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 ma terials would be a solid waste, unless they arePART 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

226 of 275 granted a non-waste determinati on 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 informa tion, if necessary (i.e., fa cilities will make a
self-determination of whether the non-hazardous secondary ma terial in question meets the regulatory criteria). We again note it is EPA’s in tention to indicate in the preamble, as clearly as possible, which non-hazardous materials used as fu els 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 Produ ce a Non-Waste Product From Discarded Waste Material

In the ANPRM, we stated that if a non-hazar dous secondary material is processed into a legitimate fuel or ingredient product, then the processed mate rial would not be a discarded
material. We listed various non-hazardous seconda ry 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, shoul d be considered to have undergone adequate processing, such that it would be rendered a non-waste.

Comments :

Most commenters generally agreed with th e concept, but had differing views on what level of “processing” would rende r a discarded material a legitim ate non-waste product fuel or ingredient product. Their views ranged from not requiring any proces sing, to specifying a minimum level of processing if processing criteria are retained. These commenters argued that any management activity associated with r ecovering the non-hazardous secondary material
would be sufficient. Commenters who indicate d that the non-hazardous secondary material should not be required to “undergo processing” be fore 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 re covered from the discard environment; these commenters provided examples of non-hazardous secondary mate rials, such as whole tires, biomass, and coal fly ash. Also, some comme nters stated that the act of recovering or “extracting” the material from th e “discard environment” should c onstitute the requisite degree of processing needed. Commenters who ar gued 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 requir ed 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 gene rally argued that no le vel of processing or even a minimum level of processing should be sufficient to produce a non-waste fuel or ingredient. We likewise disagr ee with those commenters who ar gued that the act of recovering or “extracting” secondary material from the di scard environment should be sufficient to be considered processing. Rather, the Agency believ es that sufficient processing of the secondaryPART 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

227 of 275 material (e.g., changing the mass, chemical ma ke-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 ingr edient product. Thus, our positio n 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 mate rial into a new fuel or new ingredient product. Minimal operations, such as operations th at result only in modi fying the size of the material by shredding, do not constitute processi ng 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 ma terial in combination with other operations; chemically improve th e as-fired energy content; and improve the ingredient characteristics..” See the proposed definition in §241.2.

We believe the proposed definition is specifi c 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 belie ve that discarded non-hazardous secondary materials must be sufficiently processed in order to render a sec ondary material into a non-waste product. Without sufficient processin g, 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 C AA section 129 requirements. The Agency specifically requests comme nt on these points.

See section VII.D.4 for a discussion of the proce ssing of discarded non-hazardous secondary materials into non-wast e fuel or ingredient products. That section describes EPA’s rationale for why this processed material is no longer considered a so lid 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 bei ng used as fuels and ingredients. We solicited comment on additional information, including: the composition or characteristics of nonhazardous secondary materials; how much of th e 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-- bioma ss, used tires, used oil, coal refuse, and sewage sludge.

a. Traditional Fuels. The ANRPM described traditiona l fuels to include: coal, oil, natural gas, and their derivatives (e.g., petroleu m coke, bituminous coke, coal tar oil, refineryPART 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

228 of 275 gas, synthetic fuel, heavy recycle, asphalts, bl ast furnace gas, recovered gaseous butane, and coke oven gas), as well as cel lulosic biomass (e.g., wood). We requested comment on whether
there are other fuels that should be considered as traditional fu els 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 bi omass crops similar to bagasse (e.g., energy cane and other fast growing grasses) grown specifically for fuel producti on, agricultural seeds, woody biomass, and wood
collected from forest fire cl earance activities, land clearing biomass, trees, unadulterated wood from pallets, and uncontaminated wood from disast er debris were suggested as materials that should qualify as traditional fuels. Last, severa l 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 th e 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 qua lify as a traditional fuel, cellul osic 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 associ ated with virgin biomass materials, to ensure that the material being burned does not introdu ce 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 una dulterated bark; sawdust; trim; and tree harvesting residuals from logging and sa wmill 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, agricultura l seeds); wood collected from forest fire clearance activities; trees and clean wood found in disast er debris; clean biomass from land clearing operations; and clean construction wood.

In regard to used oil, for th e reasons discussed later in se ction VII.D.4, we are including on-spec used oil in the list of traditional fuels beca use we believe it meets our view of what is a traditional fuel (i.e., fuels that have been histor ically 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.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

229 of 275 b. Biomass. Biomass includes a wide range of secondary materials which can be divided into two categories, cellulosic a nd 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 a nd 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 ar e typically used on-site to either make composites or are used as fuel. One commenter st ated that “[i]t is also important to note the quantity of formaldehyde actually pr esent in these resonated wood fuel s. It is minute. As the resins cure, virtually all of the formaldehyde in the adhesive is cr oss linked into polymers and no longer exists as formaldehyde. Current extract ion tests on the highest formaldehyde content products show levels to be less than 0.02%, us ing the standard industry extraction test for formaldehyde from composites, EN 1203.” Co mmenters also point out that formaldehyde is a common product of incomplete combustion, sugg esting that trace amounts of formaldehyde would be present in the emissi ons 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. Commen ters 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 re siduals are not significa ntly different than burning wood absent the resinated materials. 149 Specific to panel trim, one commenter argued that emissions are not expected to be any di fferent from those generated from unadulterated
wood and traditional fuels like co al and oil that contain concen trations of Part 261, Appendix
VIII constituents that are orders of ma gnitude higher than in panel trim.

One commenter discussed the use of pulp a nd 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 cr iteria-related pollutants, such as NOx, SO 2 , 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” ce llulosic 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.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

230 of 275 with bleached kraft mill wastewater treatment residuals (around 12 percent of total heat input) in
four wood-fired boilers showed no discernible differences in emi ssions of these organics when
the residuals were co-fired. A similar co mparison was conducted for metals, showing no discernable impact when burning these sludges.

Another commenter stated that treate d wood (e.g., pentachlor ophenol, 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 derivativ e and burning creosote would likel y result in emissions no greater than burning coal. Creosote is a distille d 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 resi dues (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, specif ically in regard to formaldehyde and emissions comparisons relative to burning wood that do no t contain these resinated materials. Although emissions comparisons are not a direct indicato r 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 comment s received on the ANPRM, we have decided to classify resinated wood residuals as non-wastes fo r purposes of this propo sed rule, if they are used as fuels within the control of the generato r. (As we discuss in section VII.E of this preamble, the Agency is considering resinated wood residuals under the al ternative approach as
solid wastes when burned under th e control of the generator fo r 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 request ing data and information both on the contaminant levels of these materials, as well as the a ppropriateness of categoriz ing 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 up date 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.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

231 of 275 Based on the data and informati on 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 th e ANPRM about contaminants associated with these secondary materials. Si milar 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. (L ike resinated wood residuals, the Agency also decided to classify pulp and paper sludges as so lid wastes when burned under the control of the generator for energy recovery unde r the alternative approach be ing 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 r eceived to classify pulp and paper sludges as
solid waste when burned under th e control of the generator in a combustion unit for energy recovery when the rule is promulgated.

Although limited information was submitte d in regard to painted wood or pentachlorophenol, copper-based and borate-base d compound treated wood materials and their contaminant concentrations, we believe these se condary materials contain elevated levels of contaminants relative to traditional fuels, and th us 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 ma terials are identified as a ha zardous waste, it would not be eligible to be burned in a non-h azardous waste combustion unit.) In regard to creosote treated lumber, we believe there is still a fair amount of uncertainty associat ed with the level of contaminants (e.g., levels of polycyclic arom atic hydrocarbons present in creosote) in comparison to traditional fuels. We, theref ore, are requesting that commenters provide
additional data on contaminant levels associated with these non-hazar dous secondary materials relative to traditional fuels that are in use today as fuels.

Comments: Non-cellulosic Biomass

One commenter stated that animal manure shou ld not be categorically excluded from the definition of solid waste because it is inherently waste-like, is discarde d, 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 an d managers within NCEA and across EPA. EPA will release a draft for public comment and independent expert scien tific peer review, with a National Academy of Sciences (NAS) panel review expected to commence in late April 2010, which will coincide wi th a formal public comment process through the Federal Register.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

232 of 275 The same commenter acknowledged that manure can be recycled for use as bioenergy,
but cautioned that it should not au tomatically be exempt from the definition of solid waste. In support of its position that manure re cycled into bioenergy and used as fuel is still a solid waste, the commenter cites the regulati ons at 40 CFR 261.2(e)(2)(ii), whic h lists materials burned for energy recovery, used to produce a fuel, or contai ned fuels among materials that are solid wastes, even if recycling of those material s involves use, reuse, or return to the original process. Overall, the commenter is concerned with the large volu mes of animal manure cu rrently being generated at animal feeding operations and the lack of overs ight at recycling facili ties to ensure that recovery is immediate and happens without releasing any pollutants into the environment. Based on the commenter’s observations, current regulati ons (i.e. the 2008 CAFO NPDES Rule) still are
not sufficient to assure that CA FO operations will meet the tw o benchmarks of immediacy and
environmental care that define a “valuable commod ity.” 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 th e 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 legi timate 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 comment ers have argued that manure shoul d be considered a traditional fuel, and if not, should at least be considered a non-waste fuel since th ey believe that manure meets the legitimacy criteria. While we appreci ate 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 whethe r manure would meet this legitimacy criterion.

In addition, EPA has limited data on the cont aminant concentrations and Btu value of
manure to determine whether it would meet thes e legitimacy criteria. Therefore, we are requesting that commenters provi de 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 legitim acy criteria, including the contaminant levels— that is, they contain contaminants at levels comp arable to traditional fuel s 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 dete rmination 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 dr y, ash free heating value of 8,5000 Btu/lb, while other research demonstrates the energy value of manure (as rece ived) to be much lower (bet ween 2,710-5,764 Btu/lb).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

233 of 275 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, ha s a meaningful heati ng 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 additiona l data on the extent to which manures are currently processed into biofuels, as well as data to support whether these material s meet our legitimacy criteria, including contaminant leve ls and heating content.

c. Used Tires. We discussed in the ANPRM that tires used as legitimate alternative fuels can be categorized as a non-wa ste fuel if they have not been previously disc arded (i.e., if
the used tires have not been ab andoned and thrown away). The ANPRM further stated that used tires collected and managed pursuan t to a state tire oversight progr am, are not considered to be discarded. The ANPRM also explained that discar ded used tires that have been processed to make a legitimate fuel product (such as TDF) w ould not be a solid waste. Furthermore, we requested comment on whether used tires that fall within the cate gory 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 wast es. Several commenter s responded that tires
should be excluded from the defi nition 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 whethe r they have been previously discarded. Others
stated that extraction and reclamation from a wa ste tire pile should be sufficient processing to classify a tire as a le gitimate non-waste fuel.

EPA’s Response :

As discussed in section VII.D .2, we now believe that whole us ed 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 pa per 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., “Comme nts from State Agencies.”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

234 of 275 legitimately burned as fuel, but because they have been discarded, whole tires would be considered solid wastes and subject to the C AA section 129 requirements unless processed into a non-waste fuel product. See section VII.D.2 fo r 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 f acility or person can apply for a non-waste determination for secondary materi als that are not managed within the control of the generator. As outlined in section VII.D.5, the purpose of th e 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 demons trate 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 as pects from a product or intermediate.

d. Used Oil. As indicated in the ANPRM, we cons ider off-specification (or “off-spec”)
used oil that is collected from repair shops to have been discar ded. Used oil that meets the onspecification (or “on-spec”) leve ls 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 devices 156 should be considered a le gitimate non-waste fuel.

Comments :

Most commenters believe that off-spec (and on-s pec) 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. Designa tion as a solid waste would lead to costly burning in hazardous waste incinerators, burning in uncontrolled sp ace heaters, and more undesirable disposal methods. Many commenters also referred to Congre ss’ 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 neith er disposed of, thrown away, nor abandoned, but is collected and containe d. Used oil is a valu able product that is subject to EPA’s recycling presumption. Btu cont ent 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 slig htly different view, a number of commenters argued that on-spec

155 The petition process for a non-waste determination woul d also require the petitioner to describe how the nonhazardous secondary mate rial satisfies the criteria outlined in the pe tition process, which incl udes whether it meets the legitimacy criteria.

156 Devises include industrial boilers located at fac ilities 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.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

235 of 275 and off-spec used oil should be included in th e list of traditional fuels. Since neither is discarded, the presumption is that it is recycle d. 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 traditiona l 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 ma ximum 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 envi ronment 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) pres ent in on-spec used oil are either at the same
concentration or a lower concentrat ion 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 exclude d from the definition of solid waste certain recycled materials used to make zinc fertilizers (and the fertili zers themselves) as long as they were not speculatively accumulated, met certain handling, storage and reporting conditions, and
were “identical” to fertilizers made from raw ma terials, i.e., they had concentration levels for certain chemicals that fall below specified th resholds. 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 bur ned in specific types of combustion devices. 159 Although off-spec used oil may be managed within the control of the gene rator, 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 le gitimacy criteria. Therefore, today’s proposed rule considers off-spec used oil as a solid wast e subject to the CAA section 129 requirements, as

157 Once used oil is claimed to be on-s pec and the marketer complies with th e 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 ru le 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 part iculate control equipment (as required by CAA permits). Nonindustrial boilers (e.g., those located in apartment an d office buildings, schools, and hospitals), on the other hand, were found to pose sign ificant 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.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

236 of 275 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 us ed oil that the owner or operator generates or used o il 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 am bient 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 hum an health and the environment. 160 However, consistent with our determination that off-spec used oil be cons idered a solid waste when burned as a fuel, we believe that off-spec used oil managed within th e control of the genera tor would not qualify for the generator controlled excl usion when burned in a used oil fired-space heater, since contaminant levels are not comparable to traditiona l fuels. Therefore, we are proposing that offspec used oil combusted at a unit that is within th e 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 identifie d 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 ar e 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 clas sify an alternative fuel or ingredient as a solid waste merely because it does not have to undergo so me type of processing before being used. The same commenter also indi cated 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, a nd chemical analysis to identify Bt u, ash characteristics and sulfur content). Given the significant costs associated w ith the extraction of these materials, including excavation and handling, as well as the nearly iden tical 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 conten t 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 take s 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 pa tented processes for removing unwa nted carbon from fly ash that

160 Used Oil Final Rule, 50 FR 49194 (November 29, 1985).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

237 of 275 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 th e 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 co als can have up to four times more mercury and chromium, and three times mo re lead than other coals.

EPA’s Response :

As discussed in the Material Characterizat ion 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 la te 1970s. Beginning in the late 1970s, laws were enacted that, for the first time, required stabilization and recl amation of mining sites, including coal refuse disposal piles and fills. Current mining operatio ns continue to generate the material, though likely at lower rates than in previous decades.

For purposes of this proposal, we are theref ore differentiating between coal refuse that was generated in the past and placed into "leg acy" piles, and the current generation of coal refuse. Legacy piles of coal refuse would cl early 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 pile s, the processing of coal refuse for use as a fuel or ingredient involves sepa ration through the use of screens or grizzlies, blending, crushing, and some drying. Although we understand that virg in coal is similarly processed, we believe that such operations would cons titute “minimal processing” a nd would not meet the processing definition as proposed. See secti on VII.D.4 for a discussion of wh at does and does not constitute “processing” as defined in this proposal. Theref ore, because coal refuse from legacy piles has
been discarded and does not under go a sufficient level of processi ng, it is considered a solid waste and would be subject to the CAA 129 requi rements if burned in a combustion unit.

We note that one commenter contended that co al refuse contained elevated levels of mercury, chromium, and lead when compared to ot her coals. We recognize that available data show that coal refuse generally has higher metals concentrations than non-refuse coal concentrations. Although coal refuse can contai n metals concentrations that are higher than found in virgin coal, data also show that emi ssions 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 le gacy piles satisfies the contaminant requirement

161 CFBs ability to achieve lower emissions levels is due to several factors: (1) CFB bo ilers are often newer than many existing pulverized coal utility boilers and may be eq uipped 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 SO 2 emissions, which results in greater metal fixation to the ash.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

238 of 275 of the legitimacy criteria, given th at we believe that such coal refu se 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 ge nerally characterize as co al 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 pro cessed 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 ad ditional information, we are not in a position to indicate that such processing is sufficient to produce a non-wast e fuel. Therefore, we are requesting that commenters provi de additional information expl aining how this processing is conducted, and the extent to which these high carbon fuels are produced nationwide. With respect to high-carbon fly and botto m ash taken directly from exis ting boiler units and burned at power generating stations, we belie ve that such secondary materi als are not discarded and would
not be considered a solid waste if it was managed within the contro l 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 w ith 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 pr ocessing requirement of this proposal. Although we recognize that sizing of materi als 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 treat ment sludge” as referred to in the ANPRM, was one of several non-ha zardous secondary materials that we solicited comment as to whether it is a legitimate alternative fuel and th us 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 speci fically pointed to the RCRA statutory definition of solid waste, stating that C ongress 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.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

239 of 275 be regulated comprehensively under the Clean Wate r Act (CWA), or to the extent necessary to meet CAA obligations, EPA should regulate th e 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 th e Agency to exempt sewage sl udge from the definition of solid waste, that the Agency provide a regulatory ex clusion for sewage sludge burned in incinerators in order to preserve the current framework fo r 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 purpos es (e.g., land application).

Two commenters stated that sewa ge sludge meets all three legitim acy 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 commen ter stated these materials have meaningful heating value, given that it r ecovers a net energy value of 4,300,000 Btus/hour of useable thermal energy from its combustion. Also, the CWA sec tion 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 signif icant health risk.

EPA’s Response :

We agree with commenters that the RCRA st atutory definition of solid waste excludes
the solid or dissolved material in domestic sewage. This is evidenced by the RCRA hazardous waste regulations that extend th is 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 generate d 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 inci nerator is discarded, and thus a solid waste. Further, the Agency is not proposing to provide a regulatory solid wast e exclusion for sewage sludge burned in incinerators th at 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 with in our discretion. Regarding the commenter’s concerns about possible impact s 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 de finition of which non- hazardous secondary
materials are or are not solid wast e 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 Listin g of Hazardous Waste rulemaking. In this fi nal 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 de finitions of “solid waste” and “sludge” was clear. (See 45 FR 33101).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

240 of 275 secondary material end uses. In EPA’s view, these regulations should have no effect on state programs that choose to regulate th is material in different ways and under different authorities.

Two commenters indicated that many POTWs rec over energy in the form of usable heat from the incineration of sewage sludge via wast e 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 recove ry 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 on e that meets the definition of a boiler or an industrial furnace (see 40 CFR 260.10). Among ot her 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 ex emption. Thus, a combustion chamber that is connected by a duct to a waste heat boiler (or re cuperator/heat exchanger) does not qualify as a legitimate energy recovery device. The CAA pr ogram views waste heat recovery units (i.e., external to the combustion chamber) similarly. Wa ste heat recovery units are designed to cool the exhaust gas stream, and/or to recover, indirectly, the useful h eat remaining in the exhaust gas from a combustion unit that has some other pr imary purpose (such as an institutional waste incinerator). The presence of a waste heat reco very unit on the exhaust gas does not change the fact that the unit combusting the secondary mate rial is primarily an incineration unit burning waste for disposal purposes. See Other Solid Wa ste 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 th e meaningful heating value legi timacy criteria and would thus be considered to be burning solid waste (for mo re 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 trad itional fuels (e.g., coal and fuel oil). See the table below for a compar ison of the concentration of certain toxics of municipal wastewater treatment sludges to coal.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

241 of 275 Comparison of Toxics of Municipal Wastewa ter Treatment Sludges to Traditional Fuels 164

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 trea tment works, receiving seconda ry treatment or better, and which may include sewage sludge processed to meet the land a pplication standards.

The Agency does not believe that sewage sludge would meet the legitimacy criteria for contaminants. Therefore, the Agency is propos ing 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-hazard ous 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 as h, 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 le gitimacy criteria, and requested additional data and/or information supporting whether these secondary materials are legitimate ingredients. The majority of comm ents 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 pr oduction process.

Comments :

One commenter responded that they st rongly 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 wh ere the ingredient is maintained prior to use.

164 More information on the composition of municipal wastew ater 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.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

242 of 275 EPA’s Response :

As explained in section VII.D.3, we are pr oposing 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 th at ingredients used in combustion units that arenot 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 interp retation regarding the use of CKD must allow for access of the material irrespective of where the i ngredient 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 woul d not be considered a
solid waste whether it remains unde r the control of the generator or is transferred to another person, so long as it meets the legi timacy 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 secti on 129 requirements), unless it has been processed (as defined in section VII.D.4) to produce a non-wast e ingredient.

b. Coal Combustion Residuals. The ANPRM identified what was considered to comprise
the CCR group: fly ash, bottom ash, and boiler slag. Si milar to CKD, it was stated that coal fly ash that is handled as a commodity within cont inuous commerce when it is marketed to cement
kilns as an alternativ e ingredient is not discarded. Under the ANPRM approach, if the CCR product was previously discarded, such non-haza rdous secondary materials would be solid wastes, unless they were processed into a legitima te ingredient product. However, we solicited
comment on the situation where a discarded mate rial is recovered from the environment and directly used as an ingredient (i.e. without processing). A dditionally, we solicited comment on the extent to which non-hazardous secondary mate rials 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 descri ptions of the types of processi ng 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 ingredie nt. As an ingredient, the constituents within the fly ash are similar to those required from natu ral materials (such as shale, marl or limestone) in that they contain fractions of silica, iron and aluminum needed in the kiln. As a fuel, thePART 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

243 of 275 relatively high carbon content im parts energy through its combus tion, reducing the need for some portion of fossil or other fuels for the kiln.

EPA’s Response :

As discussed above (and as further discusse d in Section VII.D.6.b), we are proposing that non-hazardous secondary materials used as ingredient s 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 kil n. With respect to CCRs, we believe the primary purpose of their use is as an ingredient; thus, pr ovided 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 proc esses 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 in to 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 materi als 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 anal ysis to identify Btu, ash charac teristics and sulfur content). Finally, one commenter disagree d with our position on CCRs. The commenter believes that
CCRs are wastes due to their high concentration of contamin ants, 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 ma terial is a solid waste, unless it undergoes a sufficient level of processing to pr oduce a legitimate fuel product or ingredient.

165 We note that used tires provide both fu el 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 determinin g whether the materials are discarded and legitimate.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

244 of 275 As discussed in detail in sect ion VII.D.4, when a non-hazardous secondary material has been discarded, unless sufficient processing occurs to ch ange 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-hazar dous 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 ingr edient, 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 th at are used as fuels, it appears that the patented processes described by the commenter th at separates carbon from the fly ash to produce technically compliant fly ash for use in conc rete would satisfy the processing requirement included in this proposal; however, we are re questing that commenter s provide additional information explaining how this processing is conduc ted, and whether this type of fly ash is used as an ingredient in the c linker 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 w ith 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 screeni ng, sizing, and chemical an alysis by itself is a sufficient level of processing that would render a discarded materi al into a non-waste ingredient product. As we noted previously in Section VII.C.5.e., while we rec ognize that screening, sizing, and chemical analysis can be important for pr oducing 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 under go 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. Howe ver, we request that commenters provide additional information as to the extent to which CCRs are recovered from the discard environment (e.g., landfill s) and used as ingredients in cement kilns, and if so, we request commenters provide more detailed info rmation on the extent to which these CCRs are processed, and thus, might satisfy our proposed de finition 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 no ting that the chemical properties of CCRs are influenced to a great extent by those of the coal burned, the type of co mbustion unit, and the air pollution controls applied. 166 We are also aware that fly as h may contain various levels of metals, such as vanadium, zinc, copper, ch romium, nickel, lead, arsenic, and mercury. 167 However, in a recent Report to Congress that addr essed the use of these secondary materials as ingredients in cement and concre te applications, the overall conclusion reached with respect to

166 For more information on the different types, or ranks, of coal, please refer to the Ma terials 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 Back ground Document for the Report to Congress on Removing Wastes from Fossil Fuel Combustion: Waste Characterization.” U.S.EPA. March 15, 1999.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

245 of 275 the perceived safety health risk barriers was a positive one, in that the risk analyses did not identify significant risks to human health a nd the environment associated with these uses. 168

The Report to Congress also identifies severa l industry stakeholders and state agencies that have recognized that regulatory programs fo r the control of mercury and NOx in electric utility air emissions (and the necessary new emi ssion 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 th e ash as a supplementary cementitious material. 169 Consequently, EPA is studying the possible effects of new air emi ssion control technologies and configurations on the composition of CCRs and publishing its findi ngs 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 resu lt 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 discu ssed ingredients, we requested data and/or information supporting whet her foundry sand is discarded and if not discarded, whether it meets the legitimacy criteria.

Comment :

One commenter responded and stated that found ry sand meets all four legitimacy criteria for ingredients. The commenter offered severa l examples of applica tions for foundry sand in support of why it should not be a solid waste; however, very lit tle 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 s ituations 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 di rectly relevant. However, a s 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 benefici al 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 – Leachi ng and Characterization Data.” EPA-600/R-09/151. December 2009.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

246 of 275 that non-hazardous secondary materials used as ingred ients 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 sl ag 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 aggregat es (though drilling and blas ting practices are not required for recovery). In part icular, iron and steel slag aggreg ates 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 ar e 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 app ears 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 rega rding the level of proce ssing that occurs.

G. Legitimacy Criteria

The ANPRM discussed the following legitimacy cr iteria 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 valu able product; and (4) the product does not contain contaminants that are significa ntly higher in concentr ation than traditional products. We requested comment on the criteria th emselves and whether they are reasonable for non-hazardous secondary materials.

a. General

Comments: Application of Legitimacy CriteriaPART 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

247 of 275 Commenters provided various viewpoints on the appropriateness of the legitimacy
criteria for non-hazardous seconda ry materials that are used as fuels or ingredients. Several commenters disagreed with the application of th e 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 pr ices and should not be more onerous than the legitimacy test codified at 40 CFR 260.43. Commen ters 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 ther e are two questions that the Ag ency 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 di scarded and is therefore a soli d waste, which includes wastederived fuels or ingredients a nd (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 ingr edient product are being legitimately and beneficially us ed and not simply being discar ded via sham recycling. The definition of legitimate recycling developed fo r 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. Like wise, 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 legitim acy criteria that use the same basic framework that has been established for the subtitle C hazardous waste regu lations, but that are also tailored specifically for application to non-hazardous secondary material s 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 th e non-hazardous secondary materials legitimacy provisions (including comparisons to the DSW le gitimacy provision) is discussed in section
VII.D.6.

Commenters also suggested that the legitim acy criteria must be flexible to account for increasing use and changes in commodities, tech nologies, markets, and fuel prices and should not be more onerous than the legitimacy defini tion codified at 40 CFR 260.43. We agree with these commenters and have proposed qualitative crit eria that we believe provide the flexibility needed in evaluating these secondary material s that will accommodate such changes. The legitimacy criteria are structured to distinguish between legitima te reuse/recycling and disposal (i.e., sham recycling), while at the same ti me not impose restrictions on the types of non-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

248 of 275 hazardous secondary materials that may be of valu e in the future. For a detailed discussion of the proposed legitimacy crit eria, see section VII.D.6

.

In regard to the commenters who requested clar ification on whether all criteria need to be met, we believe that each of the criteria is importa nt 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 regardin g the legitimacy criteria for ingredients. The commenter argued that the dete rmination 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 system s do not manage solid waste.

EPA’s Response: Ingredients (General)

We generally agree with the commenter. That is, to the extent th at the non-hazardous secondary material has not been discarded in th e first instance, which we presume it would not be as part of a closed-loop system, and such s econdary material meets the legitimacy criteria, it
would not be considered a solid waste when co mbusted. Thus, as an example, where CKD is recycled back into the cement kiln, and meets th e legitimacy criteria, it is not solid waste.

b. Fuels or Ingredients Being Managed as Valuable Commodities

Comments :

For this criterion, most commenters genera lly 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 ma ndatory part of the criteria. One commenter suggested that rather than focus on contai nment, 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-haza rdous secondary material should be stored in a manner that preserves their economic value and a voids 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 legitimac y 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 ne ed not be met because the Agency is aware of situations where a legitimate r ecycling process exists, but may not confor m to one or both of these factors.
For further discussion of the legitimacy factors in the h azardous waste rules, see sec tion 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 to day’s proposed rule must both be considered and met.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

249 of 275 Another commenter thought that EPA should lo ok to state requirements for containment, handling, and storage. Similarly, another comm enter suggested that EP A should recognize that if a non-hazardous secondary material is manage d pursuant to federal requirements that also apply to raw materials (e.g., coal refuse comp ared 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 ma terials to make recovery economical and thus, is not an appropriate criterion to concl ude that a non-hazardous s econdary material isn’t being reused and is a solid waste.

EPA’s Response :

We generally agree with those commenter s who argued that a specific containment system should not be required a nd, therefore, are proposing a qualita tive approach in line with the same principle as the commenter who sugge sted 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 proposi ng that where there is an analogous fuel or ingredient, the nonhazardous secondary material used would be require d to be managed in a manner consistent with the management of the analogous fuel or ingredie nt or otherwise must be adequately contained so as to prevent releases to the environm ent. As explained in section VII.D.6, an “analogous ingredient or fuel ” is an ingredient or fu el 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 adeq uately 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 sec ondary material. In regard to the comment on speculative accumulation, we are not proposing a sp ecific timeframe, because states already require varied timeframes and we will l eave 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 be nchmark with a case-by-case analysis. No commenters recommended deleting the criterion. Commenters em phasized that innovations and advancements in technology can efficiently produce energy from non-hazardous secondary
materials with lower heati ng value content.

EPA’s Response :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

250 of 275 We are proposing a qualitative approach fo r a meaningful heati ng 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 ar e clarifying in this proposal , that non-hazar dous 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 sec ondary materials with a heating value lower than 5,000 Btu/lb, as fired, may also be considered to have a meaningful h eating value if the unit can cost-effectively recover m eaningful energy. See section VII.D.6.a

. for an explanation of the factors that may be considered in determin ing whether an energy recovery unit can costeffectively recover energy from a non-hazardous secondary materi al. Also, as outlined in the same section, this criterion is an appropriate factor, since it expresse s 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 consiste nt with determinations expres sed in previous RCRA and CAA rulemakings, including the RCRA comparable fu els 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 ma terials would not be considered to have meaningful heating value and thus, woul d be a solid waste by definition.

d. Fuel/Ingredient Contaminant Levels. To address the possibl e presence of waste-like contaminants in non-hazardous secondary materi als, the ANPRM stated that such secondary
materials used as fuels should not contain contam inants that are signific antly higher than thosecontained in traditional fuels. For ingredients, the ANPRM stated that products that use nonhazardous secondary materials as ingredient s in combustion units should not contain contaminants that are significantly higher in co ncentration than the pr oduct produced without the non-hazardous secondary material. For both ingred ients and fuels, the ANPRM suggested that a qualitative approach may be more appropriate to use than numerical specif ications. In addition, we requested comment on whether the contaminants evaluated should be the hazardous constituents listed in Appendix VIII to 40 CF R part 261, or whether a different list of contaminants would be more appropriate.

Comments :

Commenters were evenly divided on whethe r the presence of contaminants was an appropriate legitimacy criterion. For commenters favoring the crit erion, most believed that a qualitative approach was preferable ; stating that little risk exis ts 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 thatPART 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

251 of 275 comparative contaminant concentrations are inap propriate, 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 alternativ e 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 i ngredients in combustion units, one commenter agreed that the assessment should involve the final recycled product and not the ingredient itself. However, another commenter c ountered 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 virg in materials. This commente r reasoned that combustion will destroy many of the substances that EPA c onsiders possible contam inants and basically eliminates any environmental concern. Anot her 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 comment s, we believe it appropriate to include contaminant levels as a legitimacy criterion. Th us, we do not agree with those commenters’ that assert that contaminant comparisons are not appr opriate to require as pa rt 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 w ould 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 ar senic (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-combus tion 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 contam inants that were significantly higher than traditional fuel products. For ingredients, the no n-hazardous secondary material could not result in products that contain contaminants that are si gnificantly higher in conc entration than found in traditional products.

Under today’s proposed rule, non-hazardous s econdary material used as fuels in combustion units must contain contaminants (d efined as HAP listed under CAA section 112(b)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

252 of 275 and the nine pollutants listed under CAA secti on 129) at levels “comparable” to those in traditional fuels which the combustion unit is designe d to burn. For use as an ingredient, the non-hazardous secondary material mu st result in products that contai n contaminants at levels that are “comparable” in concentrati on to those found in tr aditional products th at 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 comparab le to traditional fuels would ensure that the burning of any secondary materials in combustion un its will not result in di scard of materials and
will not result in increased releases to the e nvironment 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 prot ective 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 atlevels that are significantly higher than traditional fuel products.

Similar to the ANPRM, the assessment of wh ether the non-hazardous secondary material used as a fuel has contaminants comparable to tr aditional 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 produc ts can be made by a comparison of contaminant levels in the ingredients themselves to traditional ingred ients 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 haza rdous waste) five ways 172 in which a secondary material can add value and usefully contribute to a recycling pr ocess 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 sec ondary material uses (i.e., processes not considered recycling) since us ing the criteria for hazardous wa ste as a model is too limiting.

172 The five ways include: (i) the secondary material cont ributes 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 th at there is some interest in broadening those criteria for non-hazardous secondary material use, but the commente r did not provide any information to merit the development of a sepa rate or additional criteria for non-hazardous secondary material use to describe how they can “add value and usefu lly contribute to a recycling process” (or broaden to non-recycling uses as suggeste d by the commenter). However, the Agency solicits comments on this point; in part icular, 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 valu able if it is (i) sold to a third party or (ii) used by the recycler or generator as an effec tive 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/inte rmediate is an appropriate way to consider this criterion in the context of non-hazardous secondary ma terials used as ingredients.

Comments :

One commenter responded that they support th is criterion, but caution that it be broad enough so that it addresses the va lue obtained by both its use on-site and off-site by a third party. The commenter also suggested th at the provision be interpre ted broadly to also include traditional recycling markets and the products gene rally 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 in clude traditional recy cling markets and the products in which the secondary materials are utilize d, we do not agree that it would be appropriate. Specifically, this rule is addressing a part icular issue within the cont ext 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 cr iteria 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 be yond 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 betw een 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 identi cal to the comment stat ed. 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 vers ion 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 c ode “3a-A1-1”).

Refer to the commenter list in PART 2 fo r 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, th e rest of the rule shoul d 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 crosswal k 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 1263PART 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, 1663PART 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, 1315PART 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, 1395PART 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, 1567PART 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, 1682PART 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, 0991PART 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, 1606PART 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, 1684PART 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, 0374PART 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 0346PART 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,
0402PART 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-A2-4PART 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 0346PART 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, 0387PART 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