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[Federal Register: June 4, 2010 (Volume 75, Number 107)]
[Proposed Rules]               
[Page 31843-31893]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04jn10-24]                         

[[Page 31843]]

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Part II

Environmental Protection Agency

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40 CFR Part 241

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Identification of Non-Hazardous Secondary Materials That Are Solid 
Waste; Proposed Rule

[[Page 31844]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 241

[EPA-HQ-RCRA-2008-0329; FRL-9148-2]
RIN 2050-AG44

 
Identification of Non-Hazardous Secondary Materials That Are 
Solid Waste

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: On January 2, 2009, the Environmental Protection Agency (EPA 
or the Agency) issued an Advanced Notice of Proposed Rulemaking (ANPRM) 
to solicit comment on which non-hazardous secondary materials that are 
used as fuels or ingredients in combustion units are solid wastes under 
the Resource Conservation and Recovery Act (RCRA). The meaning of 
``solid waste'' as defined under RCRA is of particular importance since 
it will determine whether a combustion unit is required to meet 
emissions standards for solid waste incineration units issued under 
section 129 of the Clean Air Act (CAA) or emissions standards for 
commercial, industrial, and institutional boilers issued under CAA 
section 112. CAA section 129 states that the term ``solid waste'' shall 
have the meaning ``established by the Administrator pursuant to 
[RCRA].'' EPA is proposing a definition of non-hazardous solid waste 
that would be used to identify whether non-hazardous secondary 
materials burned as fuels or used as ingredients in combustion units 
are solid waste. EPA is also proposing that non-hazardous secondary 
materials that have been discarded, and are therefore solid wastes, may 
be rendered products after they have been processed (altered chemically 
or physically) into a fuel or ingredient product. This proposed rule is 
necessary to identify units for the purpose of developing certain 
standards under sections 112 and 129 of the CAA. In addition to this 
proposed rule, EPA is concurrently proposing air emission requirements 
under CAA section 112 for industrial, commercial, and institutional 
boilers and process heaters, as well as air emission requirements under 
CAA section 129 for commercial and industrial solid waste incineration 
units.

DATES: Comments. Comments must be received on or before July 19, 2010. 
Under the Paperwork Reduction Act, comments on the information 
collection provisions are best assured of having full effect if the 
Office of Management and Budget (OMB) receives a copy of your comments 
on or before July 6, 2010.
    Public Hearing. We will hold a public hearing concerning this 
proposed rule and the interrelated proposed CAA rules, discussed in 
this proposal and published in the proposed rules section of today's 
Federal Register, on June 21, 2010. Persons requesting to speak at a 
public hearing must contact EPA by June 14, 2010.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
RCRA-2008-0329, by one of the following methods:
    http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     E-mail: Comments may be sent by electronic mail (e-mail) 
to: rcra-docket@epa.gov, Attention Docket ID No. EPA-HQ-RCRA-2008-0329. 
In contrast to EPA's electronic public docket, EPA's e-mail system is 
not an ``anonymous access'' system. If you send an e-mail comment 
directly to the docket without going through EPA's electronic public 
docket, EPA's e-mail system automatically captures your e-mail address. 
E-mail addresses that are automatically captured by EPA's e-mail system 
are included as part of the comment that is placed in the official 
public docket, and made available in EPA's electronic public docket.
     Fax: Comments may be faxed to 202-566-9744, Attention 
Docket ID No. EPA-HQ-RCRA-2008-0329.
     Mail: Proposed Rulemaking--Identification of Non-Hazardous 
Secondary Materials That Are Solid Waste, Environmental Protection 
Agency, Mailcode: 28221T, 1200 Pennsylvania Ave., NW., Washington, DC 
20460. Please include a total of 2 copies. In addition, please mail a 
copy of your comments on the information collection provisions to the 
Office of Information and Regulatory Affairs, Office of Management and 
Budget (OMB), Attn: Desk Officer for EPA, 725 17th St., NW., 
Washington, DC 20503.
     Hand Delivery: Deliver two copies of your comments to 
Proposed Rulemaking--Identification of Non-Hazardous Secondary 
Materials That Are Solid Waste, EPA/DC, EPA West, Room 3334, 1301 
Constitution Ave., NW., Washington, DC 20460. Attention Docket ID No. 
EPA-HQ-RCRA-2008-0329. Such deliveries are only accepted during the 
Docket's normal hours of operation and special arrangements should be 
made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-RCRA-
2008-0329. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. For additional instructions on submitting 
comments, go to the SUPPLEMENTARY INFORMATION section of this document. 
We also request that interested parties who would like information they 
previously submitted to EPA to be considered as part of this action, to 
identify the relevant information by docket entry numbers and page 
numbers.
    Public Hearing: We will hold a public hearing concerning the 
proposed rule on June 21, 2010. Persons interested in presenting oral 
testimony at the hearing should contact Ms. Odessa Bowling, Program 
Implementation and Information Division, Office of Resource 
Conservation and Recovery, at (703) 308-8404 by June 14, 2010. The 
public hearing will be held in the Washington DC area at a location and 
time that will be posted at the following Web site: http://www.epa.gov/osw/nonhaz/definition.htm. Please refer to this Web site to confirm the 
date of the public hearing as well. If no one requests to

[[Page 31845]]

speak at the public hearing by June 14, 2010 then the public hearing 
will be cancelled and a notification of cancellation posted on the 
following web site: http://www.epa.gov/osw/nonhaz/definition.htm. 
Information regarding the interrelated CAA proposals referenced can be 
found at http://www.epa.gov/airquality/combustion.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the RCRA Docket, EPA/
DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. 
The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday 
through Friday, excluding legal holidays. The telephone number for the 
Public Reading Room is (202) 566-1744, and the telephone number for the 
RCRA Docket is (202) 566-0270.

FOR FURTHER INFORMATION CONTACT: George Faison, Program Implementation 
and Information Division, Office of Resource Conservation and Recovery, 
5303P, Environmental Protection Agency, Ariel Rios Building, 1200 
Pennsylvania Avenue, NW., Washington, DC 20460-0002; telephone number: 
703-305-7652; fax number: 703-308-0509; e-mail address: 
faison.george@epa.gov.

SUPPLEMENTARY INFORMATION: 

A. Does This Action Apply to Me?

    Categories and entities potentially affected by this action 
include:

----------------------------------------------------------------------------------------------------------------
                          Generators                                                  Users
----------------------------------------------------------------------------------------------------------------
                                                                 Major boiler type and
       Major generator category                 NAICS*              primary industry              NAICS*
                                                                        category
----------------------------------------------------------------------------------------------------------------
Iron and Steel Mills.................  331111.................  Industrial Boilers:
                                                               -------------------------------------------------
                                                                Food Manufacturing.....  311, 312
                                                                Pulp and Paper Mills...  3221
                                                                Chemical Manufacturing.  325
Other Rubber Product Manufacturing...  32629..................  Petroleum Refining.....  32411
                                                                Primary Metal            331
                                                                 Manufacturing.
                                                                Fabricated Metal         332
                                                                 Manufacturing.
Logging..............................  113310.................  Other Manufacturing....  313, 339, 321, 333,
                                                                                          336, 511, 326, 316,
                                                                                          327
Sawmills and Wood Preservation.......  32111..................
                                                               -------------------------------------------------
Veneer, Plywood, and Engineered Wood   32121..................  Commercial Boilers:
 Product Manufacturing.
                                                               -------------------------------------------------
Pulp, Paper, and Paperboard Mills....  3221...................  Office.................  813, 541, 921
Cattle Ranching and Farming..........  1121...................  Warehouse..............  493
Hog and Pig Farming..................  1122...................  Retail.................  442-454
Poultry and Egg Production...........  1123...................  Education..............  611
Sheep and Goat Farming...............  1124...................  Social Assistance......  624
Horses and Other Equine Production...  112920.................  Lodging, Restaurant....  721, 722
Crop Production......................  111....................  Health Care Facilities.  621
Support Activities for Crop            11511..................  Other..................  922140, others
 Production.
Food Manufacturing...................  311....................
                                                               -------------------------------------------------
Beverage and Tobacco Product           312....................  Common Non-Manufacturing Boilers:
 Manufacturing.
                                                               -------------------------------------------------
Construction of Buildings............  236....................  Agriculture (crop &      111, 112, 115
                                                                 livestock production).
Site Preparation Contractors.........  238910.................  All Mining.............  212
Landscaping Services.................  561730.................  Construction...........  236
Iron and Steel Mills.................  331111.................
                                                               -------------------------------------------------
Fossil Fuel Electric Power Generation  221112.................  Other Boilers:
                                                               -------------------------------------------------
Cement Manufacturing.................  327310.................  Electric Utility         2211
                                                                 Boilers.
Bituminous Coal and Lignite Surface    212111.................
 Mining.
Bituminous Coal Underground Mining...  212112.................  Non HW Burning Cement    327310
                                                                 Kilns.
Anthracite Mining....................  212113.................
Sewage Treatment Facilities..........  221320.................
Solid Waste Collection and Solid       562111, 562212.........
 Waste Landfill.
Metal-casting industry...............  331522.................
Glass and Glass Product Manufacturing  3272...................

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Packaging............................  32611..................
Plastic manufacturers................  325211.................
Electrometallurgical Ferroalloy        331112.................
 Product Manufacturing.
Recycling Services for Degreasing      325998.................
 Solvents Manufacturing.
Solvent Dyes Manufacturing...........  325132.................
Solvents Made in Petroleum Refineries  324110.................
Automotive Repair and Replacement      811111.................
 Shops.
Recyclable Material Wholesalers......  423930.................
Engineered Wood Members Manufacturing  321213.................
All Other Miscellaneous Chemical       325998 ................
 Product and Preparation
 Manufacturing.
----------------------------------------------------------------------------------------------------------------
* NAICS = North American Industrial Classification System.

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be impacted by this 
action. This table lists examples of the types of entities of which EPA 
is aware that could potentially be affected by this action. Other types 
of entities not listed could also be affected. To determine whether 
your facility, company, business, organization, etc., is affected by 
this action, you should examine the applicability criteria in this 
rule. If you have any questions regarding the applicability of this 
action to a particular entity, consult the person listed in the 
preceding section: FOR FURTHER INFORMATION CONTACT.

B. What Should I Consider as I Prepare My Comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through 
http://www.regulations.gov or e-mail. Clearly mark the part or all of 
the information that you claim to be CBI. For CBI information in a disk 
or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM 
as CBI and then identify electronically within the disk or CD ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
the procedures set forth in 40 CFR part 2.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date, and 
page number).
     Follow directions--The agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree, suggest alternatives, 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible.
     Make sure to submit your comments by the comment period 
deadline identified.
    3. Docket Copying Costs. Many documents are available only in the 
original and, therefore, must be photocopied. Patrons are allowed 100 
free photocopies. Thereafter, they are charged 15 cents per page. When 
necessary, an invoice indicating how many copies were made, the cost of 
the order, and where to send a check will be issued to the patron.
    Documents also are available on microfilm. The EPA/DC staff assist 
patrons locate the needed documents and operate the microfilm machines. 
The billing fee for printing microfilm documents is the same as for 
photocopying documents.
    Patrons who are outside of the metropolitan Washington, DC, area 
can request documents by telephone. The photocopying and microfilming 
fee is the same as for walk-in patrons. If an invoice is necessary, 
EPA/DC staff can mail one with the order.

Preamble Outline

I. Statutory Authority
II. List of Abbreviations and Acronyms
III. Introduction
IV. Background
    A. What Is the History of CISWI, CISWI Definitions, and Boiler 
Rulemakings?
    B. Why Is the Court's Decision Affecting the CAA Rules Relevant 
to RCRA?
    C. What Do Sections 112 and 129 of the CAA Require?
V. Use of Secondary Materials
    A. Introduction
    B. Secondary Materials Use and Benefits
VI. History of the Definition of Solid Waste
    A. Statutory Definition of Solid Waste
    B. Case Law on Definition of Solid Waste
    C. The Concept of Legitimacy
VII. ANPRM Discussion, Summary of the Proposed Approach, Comments 
Received on the ANPRM, and Rationale for and Detailed Description of 
the Proposed Rule
    A. Summary of the ANPRM Approach
    1. Traditional Fuels
    2. Guiding Principles Used To Determine if Secondary Materials 
Used in Combustion Units Are Solid Wastes
    3. Secondary Materials Used as Legitimate ``Alternative'' Fuels 
That Have Not Been Previously Discarded
    4. Secondary Materials Used as Legitimate ``Alternative'' Fuels 
Resulting From the Processing of Discarded Secondary Materials
    5. Secondary Materials Used as Legitimate Ingredients
    6. Hazardous Secondary Materials That May Be Excluded From the 
Definition of Solid Waste Under RCRA Subtitle C Because They Are 
More Like Commodities Than Wastes
    7. Additional Areas for Comment in the ANPRM

[[Page 31847]]

    a. Fuels or Materials That Have Been Discarded That Are 
Generally Considered To Be Solid Wastes
    b. Other Approaches for Determining Whether Secondary Materials 
Are Fuels and Not Solid Wastes
    c. Materials for Which State Beneficial Use Determinations Have 
Been Made
    d. Biofuels
    B. Summary of the Proposed Approach
    1. Changes From the ANPRM Approach
    2. General Proposed Approach
    3. Legitimacy Criteria
    4. Traditional Fuels
    5. Circumstances Under Which a Non-Hazardous Secondary Material 
Would Not Be Considered a Solid Waste
    6. Petition Process
    C. What Were the Major Comments on the ANPRM?
    1. Comments From State Agencies
    2. Meaning of Discard
    3. General Approach
    4. Level of Processing Needed to Produce a Non-Waste Product 
From Discarded Waste Material
    5. Comments on Specific Materials Used as Fuels
    a. Traditional Fuels
    b. Biomass
    c. Used Tires
    d. Used Oil
    e. Coal Refuse/Coal Combustion Residuals
    f. Sewage Sludge
    6. Comments on Specific Materials Used as Ingredients
    a. Cement Kiln Dust
    b. Coal Combustion Residuals
    c. Foundry Sand
    d. Blast Furnace Slag/Steel Slag
    7. Legitimacy Criteria
    a. General
    b. Fuels or Ingredients Being Managed as Valuable Commodities
    c. Fuels Must Have Meaningful Heating Value
    d. Fuel/Ingredient Contaminant Levels
    e. Ingredients Must Provide Useful Contribution
    f. Ingredients Must Produce a Valuable Product
    8. De Minimis Concept
    D. Rationale for, and Detailed Description of, Proposed Approach
    1. Non-Hazardous Secondary Materials Used as Fuel Within the 
Control of the Generator
    a. Scope and Applicability
    b. Restrictions and Requirements
    2. Non-Hazardous Secondary Materials Used as Fuel Outside the 
Control of the Generator
    3. Non-Hazardous Secondary Materials Used as Ingredients in 
Combustion Units
    4. Non-Hazardous Secondary Materials Processed Into Non-Waste 
Fuel/Ingredient Products
    a. Proposed Definition of Processing
    b. Rationale for Processing Discarded Material Into Non-Waste 
Product
    c. Examples of Adequate Processing
    d. Examples of Minimal Processing That Would Not Meet Proposed 
Definition of Processing
    e. Alternative Approach for Addressing Non-Hazardous Secondary 
Materials That Are Processed Into Non-Waste Fuels or Ingredients
    5. Non-Waste Determination Process
    6. Legitimacy Criteria
    a. Legitimacy Criteria for Fuels
    b. Legitimacy Criteria for Ingredients
    E. Alternative Approach
    F. Effect of Today's Proposal on Other Programs
    1. Clean Air Act
    2. Renewable Energy
    3. Subtitle C Hazardous Waste Program
VIII. State Authority
    A. Applicability of State Solid Waste Definitions and Beneficial 
Use Determinations
    B. State Adoption of the Rulemaking
IX. Cost and Benefits of the Proposed Rule
X. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution or Usage
    I. National Technology Transfer Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations

I. Statutory Authority

    The U.S. Environmental Protection Agency (EPA) is promulgating 
these regulations under the authority of sections 2002(a)(1) and 
1004(27) of the Resource Conservation and Recovery Act (RCRA), as 
amended, 42 U.S.C. 6912(a)(1) and 6903(27). Section 129(a)(1)(D) of the 
CAA directs EPA to establish standards for Commercial and Industrial 
Solid Waste Incinerators (CISWI), which burn solid waste (section 
129(g)(6) of the Clean Air Act (CAA), 42 U.S.C. 7429). Section 
129(g)(6) provides that the term, solid waste, is to be established by 
EPA under RCRA. Section 2002(a)(1) of RCRA authorizes the Agency to 
promulgate regulations as are necessary to carry out its functions 
under the Act. The statutory definition of ``solid waste'' is provided 
in RCRA section 1004(27).

II. List of Abbreviations and Acronyms

ANPRM Advanced Notice of Proposed Rulemaking
ASME American Society of Mechanical Engineers
Btu British Thermal Unit
CAA Clean Air Act
CAFO Concentrated Animal Feeding Operations
CCA Chromated Copper Arsenate
CCR Coal Combustion Residuals
CFR Code of Federal Regulations
CISWI Commercial and Industrial Solid Waste Incinerator
CKD Cement Kiln Dust
CWA Clean Water Act
DSE Domestic Sewage Exemption
DSW Definition of Solid Waste
EG Emission Guidelines
EGU Electric Utility Steam Generating Unit
EPA U.S. Environmental Protection Agency
GACT Generally Available Control Technology
GHG Greenhouse Gas
HAP Hazardous Air Pollutant
IWI Institutional Waste Incinerator
LCA Life Cycle Analysis
MACT Maximum Achievable Control Technology
NESHAP National Emission Standards for Hazardous Air Pollutants
NSPS New Source Performance Standards
OSWI Other Solid Waste Incinerator
PC Portland Cement
PIC Product of Incomplete Combustion
POTW Publicly Owned Treatment Works
PVC Polyvinyl Chloride
RCRA Resource Conservation and Recovery Act
SWDA Solid Waste Disposal Act
TDF Tire Derived Fuel
VSMWC Very Small Municipal Waste Combustor

III. Introduction

    In 1990, Congress added section 129 to the CAA to address emissions 
from solid waste incinerators. CAA section 129 directs EPA to 
promulgate emission standards for categories of ``solid waste 
incineration units.'' 42 U.S.C. 7429(a)(1). The term ``solid waste 
incineration unit'' is defined, in pertinent part, to mean ``a distinct 
operating unit of any facility which combusts any solid waste material 
from commercial or industrial establishments * * *'' Id. at Sec.  
7429(g)(1). The CAA specifically excludes the following types of units 
from the definition of ``solid waste incineration unit'': (1) 
Incinerators or other units required to have a permit under section 
3005 of RCRA; (2) material recovery facilities (including primary and 
secondary smelters) which combust waste for the primary purpose of 
recovering metals; (3) qualifying small power production facilities, as 
defined in section 3(17)(C) of the Federal Power Act, or qualifying 
cogeneration facilities, as defined in section 3(18)(B) of the Federal 
Power Act, which burn homogeneous waste (such as units which burn tires 
or used oil, but not including refuse-derived fuel) for the production 
of electric energy or in the case of qualifying cogeneration facilities 
which burn homogeneous waste for the production of electric energy or 
steam or forms of useful energy (such as heat) which are used for 
industrial, commercial, heating

[[Page 31848]]

or cooling purposes, or (4) air curtain incinerators, provided that 
such incinerators only burn wood wastes, yard wastes and clean lumber 
and that such air curtain incinerators comply with the opacity 
limitations to be established by the Administrator by rule. Id.
    CAA section 129 further states that the term ``solid waste'' shall 
have the meaning ``established by the Administrator pursuant to the 
Solid Waste Disposal Act'' Id. at 7429(g)(6). CAA section 129 refers to 
the Solid Waste Disposal Act (SWDA). However, this act, as amended, is 
commonly referred to as RCRA. Thus, the term ``RCRA'' is used in place 
of SWDA in this Notice. RCRA in turn defines the term ``solid waste'' 
to mean ``* * * any garbage, refuse, sludge from a waste treatment 
plant, water supply treatment plant, or air pollution control facility 
and other discarded material, including solid, liquid, semisolid, or 
contained gaseous material resulting from industrial, commercial, 
mining, and agricultural operations, and from community activities, * * 
*'' Section 1004 (27).

IV. Background

    The discussion below was previously included in the Advanced Notice 
of Proposed Rulemaking (ANPRM). However, because it is also pertinent 
to the development of today's proposal, it also is included here for 
the benefit of the reader. The entire record for the ANPRM is included 
in the record for this rulemaking. To the extent there are any 
inconsistencies or differences between the ANPRM and this proposal, the 
statements in this proposal apply.

A. What is the history of CISWI, CISWI definitions, and boiler 
rulemakings?

    EPA promulgated a final rule setting forth performance emissions 
standards for Commercial and Industrial Solid Waste Incineration Units 
(referred to as the ``CISWI Rule''). 65 FR 75338 (December 1, 2000). 
Under CAA section 129, the emissions standards for new sources must be 
at least as stringent as the emissions control achieved in practice by 
the best-controlled similar source. For existing sources, the emissions 
standards must be at least as stringent as the average emissions 
limitation achieved by the best-performing 12 percent of units in the 
category. CAA section 129 (a)(2). This level of stringency is commonly 
referred to as the maximum achievable control technology (MACT) 
``floor.'' EPA must also consider more stringent ``beyond-the-floor'' 
emissions controls, taking into account cost, energy, and non-air 
quality environmental impacts. The Administrator may also distinguish 
among classes, types (including mass-burn, refuse-derived fuel, modular 
and other types of units), and sizes of units within a category in 
establishing such standards. Id. at 7429(a)(2).
    The CISWI Rule established emission limitations for new and 
existing CISWI units for the following pollutants: Cadmium, carbon 
monoxide, dioxins/furans, hydrogen chloride, lead, mercury, oxides of 
nitrogen (NOX), particulate matter (PM), sulfur dioxide 
(SO2), and opacity. In addition, the rule established 
certain monitoring and operator training and certification 
requirements. See 65 FR 75338 for a more detailed discussion of the 
CISWI Rule.
    The CISWI Rule was challenged in Sierra Club v. EPA (No. 01-1048) 
(DC Cir.). After promulgation of the CISWI Rule, the DC Circuit issued 
its decision in a challenge to EPA's MACT standards for the cement kiln 
industry. Cement Kiln Recycling Coalition v. EPA, 255 F.3d 855 (DC Cir. 
2001) (``Cement Kiln''). As a result of the courts decision in Cement 
Kiln, EPA requested a voluntary remand of the CISWI Rule, in order to 
address concerns related to the issues that were raised by the court in 
Cement Kiln. The court granted EPA's request for a voluntary remand and 
remanded, without vacatur, the CISWI Rule back to EPA. Because the 
CISWI Rule was not vacated, its requirements remain in effect. See 
Sierra Club. v. EPA, 374 F. Supp.2d 30, 32-33 (D.D.C. 2005).
    On September 22, 2005, EPA issued revised definitions of ``solid 
waste,'' ``commercial or industrial solid waste incineration unit,'' 
and ``commercial or industrial waste'' (the ``CISWI Definitions 
Rule''). See 70 FR 55568. In the CISWI Definitions Rule, EPA defined 
``commercial and industrial solid waste'' to exclude solid waste that 
is combusted at a facility in a combustion unit whose design provides 
for energy recovery or which operates with energy recovery. Therefore, 
a unit combusting solid waste with energy recovery was not considered a 
CISWI unit.
    The CISWI Definitions Rule was vacated by the DC Circuit in NRDC v. 
EPA (489 F.3d 1250 (DC Cir. 2007)). The court stated that the statute 
unambiguously requires any unit that combusts ``any solid waste 
material at all''--regardless of whether the material is being burned 
for energy recovery--to be regulated as a ``solid waste incineration 
unit.'' Id. at 1260. In the same decision, the court also vacated and 
remanded EPA's emissions standards for commercial, industrial, and 
institutional major source boilers and process heaters (the Boiler MACT 
Rule), concluding that the universe of sources subject to that rule 
would be much smaller if it did not include units that combust solid 
waste for the purposes of energy recovery.

B. Why is the court's decision affecting the CAA rules relevant to 
RCRA?

    In responding to the court's vacatur and remand of the CISWI 
Definitions Rule and the Boiler MACT Rule, EPA is establishing, under 
RCRA, which non-hazardous secondary materials \1\ are ``solid waste.'' 
This is necessary because, under the court's decision, any unit 
combusting any ``solid waste'' at all must be regulated as a ``solid 
waste incineration unit,'' regardless of the function of the combustion 
device. If a non-hazardous secondary material (also referred to as 
secondary materials in this notice) is not a ``solid waste'' under 
RCRA, then a unit combusting that material must be regulated pursuant 
to CAA section 112 if it is a source of HAP. Alternatively, if such 
material is a ``solid waste'' under RCRA, then a unit combusting that 
material must be regulated under CAA section 129.
---------------------------------------------------------------------------

    \1\ A secondary material is any material that is not the primary 
product of a manufacturing or commercial process, and can include 
post-consumer material, post-industrial material, and scrap. Many 
types of secondary materials have Btu or material value, and can be 
reclaimed or reused in industrial processes. For purposes of this 
notice, the term secondary materials include only non-hazardous 
secondary materials. See also American Mining Congress v. EPA, 824 
F.2d 1177 (DC Cir. 1987) in which the U.S. Court of Appeals for the 
District of Columbia Circuit discussed secondary materials.
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C. What do CAA Sections 112 and 129 require?

    CAA section 112 requires EPA to promulgate regulations to control 
emissions of 187 \2\ hazardous air pollutants (HAP) from sources in 
each source category listed by EPA under section 112(c). The statute 
requires the regulations for major sources \3\ to reflect the maximum 
degree of reduction in emissions of HAP that is achievable taking into 
consideration the cost of achieving the emission reduction, any non-air 
quality health and environmental impacts, and energy requirements. For 
existing sources, the emissions standards must be at least as stringent 
as the average emissions limitation achieved by the best-

[[Page 31849]]

performing 12 percent of units in the category or subcategory for 
categories and subcategories with at least 30 sources, and by the best-
performing five sources in the category or subcategory for categories 
and subcategories with fewer than 30 sources. For new sources, the 
emissions standard must be at least as stringent as the emissions 
limitation achieved by the best-performing similar source. CAA section 
112(d)(3). This level of stringency is commonly referred to as the MACT 
``floor.''
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    \2\ EPA has delisted 3 of the 190 HAP initially listed in 
section 112(b)(1): Methyl ethyl ketone, glycol ethers, and 
caprolactam.
    \3\ A ``major source'' is any stationary source that emits or 
has the potential to emit considering controls, in the aggregate, 10 
tons per year or more of any HAP or 25 tons per year or more of any 
combination of HAP. CAA section 112(a)(1).
---------------------------------------------------------------------------

    Like the CAA section 112 standards, the CAA section 129 standards 
are based on a MACT floor. Also, as with the section 112 standards, 
above-the-floor standards may be established where EPA determines it is 
``achievable'' taking into account costs and other factors. Although 
CAA section 129 ``establishes emission requirements virtually identical 
to section [112's],'' Nat'l Lime Ass'n v. EPA, 233 F.3d at 631, the two 
sections differ in three primary respects. First, CAA section 112 
requires that MACT standards be established for major sources of HAP 
emissions, but provides discretionary authority to establish standards 
based on ``generally available control technology'' (GACT) for area 
sources of HAP emissions.\4\ On the other hand, under CAA section 129, 
EPA must issue MACT standards for all solid waste incineration units in 
a given category regardless of size. Second, CAA section 129 requires 
that numeric emission limitations must be established for the following 
nine pollutants, plus opacity (as appropriate): cadmium, carbon 
monoxide, dioxins/furans, hydrogen chloride, lead, mercury, NOx, 
particulate matter (total and fine), and SO2.\5\ These nine 
pollutants represent the minimum that must be regulated; EPA has the 
discretion to establish standards for other pollutants as well. Third, 
CAA section 129 includes specific requirements for operator training, 
pre-construction site assessments, and monitoring that are not included 
in CAA section 112. See CAA section 129(a)(3), (c) and (d). Rather, CAA 
section 112's implicit authority and CAA sections 113 and 114's 
explicit authority is relied upon to include provisions as necessary to 
assure compliance with and enforcement of the section 112 emission 
limitations. It is important to note that CAA section 129(h)(2) 
specifies that no solid waste incineration unit subject to the 
performance standards under CAA sections 111 and 129 shall be subject 
to the standards under CAA section 112(d).
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    \4\ An ``area source'' is any stationary source of HAP that is 
not a major source. CAA section 112(a)(2). Area sources may be 
regulated under CAA section 112(d)(2) standards if the Administrator 
finds that the sources ``presen[t] a threat of adverse effects to 
human health or the environment (by such sources individually or in 
the aggregate) warranting regulation under this section.'' Section 
112(c)(3). Certain categories of area sources must be regulated in 
accordance with section 112(c)(3) and (k)(3)(B).
    \5\ Of these nine pollutants, cadmium, dioxins/furans, hydrogen 
chloride, lead, and mercury are also regulated HAP pursuant to CAA 
section 112, and particulate matter and carbon monoxide are commonly 
used as surrogate emission standards to control specific CAA section 
112 HAP (e.g., CAA section 112 HAP metal and organic emissions).
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V. Use of Secondary Materials

A. Introduction

    The U.S. is pursuing an approach to materials management that 
employs the concepts of life cycle assessment \6\ and full cost 
accounting.\7\ Within the context of RCRA,\8\ this proposal aims to 
facilitate materials management to the extent allowed by the statute, 
through the establishment of a regulatory framework that guides the 
beneficial use of various secondary materials, while ensuring that such 
use is protective of human health and the environment. EPA, in 
conjunction with the states, seeks to further facilitate this objective 
through research, analysis, incentives, and communication. The Agency 
recognizes that secondary materials are widely used today as raw 
materials, as products, and as fuels and/or ingredients in industrial 
processes. We expect these uses will continue and expand in future 
years as effective materials management becomes more critical to a 
sustainable society. The use of materials from a variety of non-
traditional sources, including the use of energy-containing secondary 
materials, is expected to play an important role in future resource 
conservation efforts.
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    \6\ The terms ``life cycle analysis'' and ``life cycle 
assessment'' are commonly used interchangeably. Life cycle 
assessment is a system-wide analytical technique for assessing the 
environmental (and sometimes economic) effects of a product, 
process, or activity across all life stages.
    \7\ Full cost accounting is an accounting system that 
incorporates economic, environmental, health, and social costs of a 
product, action, or decision.
    \8\ RCRA Section 6901(c)--Materials: The Congress finds with 
respect to materials, that--(1) Millions of tons of recoverable 
material which could be used are needlessly buried each year; (2) 
methods are available to separate usable materials from solid waste; 
and (3) the recovery and conservation of such materials can reduce 
the dependence of the United States on foreign resources and reduce 
the deficit in its balance of payments.
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    The use of secondary materials as alternative fuels and/or 
ingredients in manufacturing processes using combustion not only 
recovers valuable resources, it is known to contribute to emission 
reductions. For example, both greenhouse gas (GHG) and particulate 
matter (PM) emissions have been reduced as a co-benefit of the use of 
secondary materials.\9\ The use of secondary materials, such as use as 
a fuel in industrial processes may also result in other benefits. These 
may include reduced fuel imports, reducing negative environmental 
impacts caused by previous dumping (e.g., tires), and reduced methane 
gas generation from landfills.
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    \9\ For example, the GHG rate associated with the combustion of 
scrap tires is approximately 0.081 MTCO2E per MMBtu of 
scrap tires combusted, while the GHG emissions rate for coal is 
approximately 0.094 MTCO2E per MMBtu. Combined with the 
avoided extraction and processing emissions 0.006 MTCO2E/
MMBtu for coal, the total avoided GHG is 0.019 MTCO2E per 
MMBtu. Substituting tire-derived fuel for coal would also avoid an 
estimated 0.246 Lbs/MMBtu of PM associated with extraction and 
processing of the coal. Please see the Materials Characterization 
Papers in the docket for further details on these estimates, and 
other estimates of avoided emissions associated with burning tires 
and other secondary materials as fuel.
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    Secondary materials may, in most cases, be more appropriately 
defined as ``by-products,'' \10\ reflecting their inherent resource 
recovery value in the generation and production of heat, energy, and/or 
marketable products. These secondary materials can provide micro (firm 
level) and macroeconomic benefits when legitimately used as an 
effective substitute for, or supplement to primary materials. Economic 
efficiency can be improved with the use of secondary materials, when 
substituted for increasingly scarce primary materials, because the use 
of such materials often results in an equivalent level of output at 
lower overall resource use, or in turn, more output could be generated 
using the same amount of resource inputs. When this occurs, monetary 
savings resulting from reduced resources would, theoretically, be 
applied to a higher and better use in the economy. This helps advance 
economic growth as a result of improved industrial efficiency,\11\ 
which, in turn, helps move the country toward material sustainability 
and energy self sufficiency, while protecting human health and the 
environment.
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    \10\ For purposes of this action, we define by-product as a 
secondary or incidental material derived from the primary use or 
production process that has value in the marketplace, or value to 
the user.
    \11\ Opportunities for improved economic efficiency are 
recognized through the Action Statement of the U.S. Business Council 
For Sustainable Development: ``Promoting Sustainable Development by 
Creating Value Through Action Establishing Networks and 
Partnerships, and Providing a Voice for Industry.''
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B. Secondary Materials Use and Benefits

    A wide and diverse range of secondary materials are currently used 
as fuels and/or ingredients in

[[Page 31850]]

manufacturing or service processes. Based on our research conducted in 
support of the January 2, 2009 ANPRM, we identified eight non-hazardous 
secondary material fuels or fuel groups and six non-hazardous 
ingredients, or ingredient groups. The eight fuel source materials 
were: The biomass group (pulp and paper residuals, forest derived 
biomass, agricultural residues, food scraps, animal manure, and gaseous 
fuels); construction and demolition materials (building related, 
disaster debris, and land clearing debris); scrap tires; scrap 
plastics; spent solvents; coal refuse; waste water treatment sludge, 
and used oil. The six secondary material ingredients were: blast 
furnace slag; cement kiln dust (CKD); the coal combustion product group 
(fly ash, bottom ash, and boiler slag); foundry sand; silica fume; and 
secondary glass material. The ANPRM discussed and described these key 
secondary materials. In addition, we developed comprehensive Materials 
Characterization Papers for each of these fuel and ingredient 
materials. These papers were included in the docket for the ANPRM, 
which as we note above is incorporated into the docket for this 
proposed rule.
    Based on our review of the public comments submitted in response to 
the ANPRM, plus further research, we have identified three additional 
secondary materials not addressed in the ANPRM. These additional 
secondary materials are auto shredder residue, purification process 
byproducts, and resinated wood products. We have prepared Materials 
Characterization Papers for these newly identified secondary materials, 
which are also included in the docket for today's proposed rule. In 
addition, we have updated and revised nearly all \12\ of the existing 
Materials Characterization Papers to incorporate commenter information, 
as appropriate, plus relevant information derived from the 2008 
combustion survey database (OMB Control Number 2060-0616). We believe 
that our newly defined list of secondary fuels and ingredients accounts 
for the vast majority of all secondary materials used in combustion 
processes in the U.S. However, as part of this proposal, we again 
solicit comment on these and any other non-hazardous secondary 
materials potentially used as fuels and/or ingredients. Comments 
containing detailed, quality controlled data are welcome and will be 
very useful as we move forward in this rulemaking effort. Information 
on the annual quantity of material generated, used, and stored; major 
uses (i.e., fuel v. non-fuel); management practices; major markets; 
processing requirements; contaminants; and life cycle inventory data 
would be most helpful.
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    \12\ The materials characterization paper on Silica Fume was the 
only paper not requiring updating.
---------------------------------------------------------------------------

VI. History of the Definition of Solid Waste

A. Statutory Definition of Solid Waste

    RCRA defines ``solid waste'' as ``* * *any garbage, refuse, sludge 
from a waste treatment plant, water supply treatment plant, or air 
pollution control facility and other discarded material * * * resulting 
from industrial, commercial, mining, and agricultural operations, and 
from community activities * * *'' (RCRA section 1004 (27) (emphasis 
added)). The key concept is that of ``discard'' and, in fact, this 
definition turns on the meaning of the phrase, ``other discarded 
material,'' since this term encompasses all other examples provided in 
the definition.
    The ANPRM provides a complete discussion on the concept of discard, 
as well as a description of the solid waste program under RCRA subtitle 
D, and the hazardous waste program under RCRA subtitle C. We refer the 
reader to the ANPRM for a detailed discussion on these subjects 
regarding the definition of solid waste. The ANPRM also includes a 
detailed discussion on the case law on the definition of solid waste, 
which we repeat below, and on the concept of legitimacy, or legitimate 
recycling. That discussion is relevant to this proposal and is 
incorporated into this rulemaking. We are repeating parts of the 
discussion on legitimacy below to the extent it helps in understanding 
this proposal.

B. Case Law on Definition of Solid Waste

    Partly because the interpretation of the definition of solid waste 
is the foundation of the hazardous waste regulatory program, there has 
been a great deal of litigation over the meaning of ``solid waste'' 
under RCRA subtitle C. From these cases, a few key principles emerge 
which guide our thinking on the definition of solid waste.
    First, the ordinary plain-English meaning of the term, ``discard'' 
controls when determining whether a material is a solid waste. See 
American Mining Congress v. EPA, 824 F.2d 1177 (DC Cir. 1987) (``AMC 
I''). The ordinary plain-English meaning of the term discarded means 
``disposed of,'' ``thrown away,'' or ``abandoned.'' The DC Circuit in 
AMC I specifically rejected a more expansive meaning for discard that 
would encompass any materials ``no longer useful in their original 
capacity'' even if they were not destined for disposal. 824 F.2d at 
1185-87. The Court further held that the term ``discarded materials'' 
could not include materials ``* * * destined for beneficial reuse or 
recycling in a continuous process by the generating industry itself. 
(824 F.2d at 1190).
    Subsequent to AMC I, the DC Circuit discussed the meaning of 
discard in particular cases. In American Petroleum Institute v. EPA, 
906 F.2d 729 (DC Cir. 1990) (``API I''), the court rejected EPA's 
decision not to regulate recycled air pollution control equipment slag 
based on an Agency determination that waste ``ceases to be a `solid 
waste' when it arrives at a metals reclamation facility because at that 
point it is no longer `discarded material.' '' 906 F.2d at 740. 
Instead, the court held that the materials were part of a mandatory 
waste treatment plan for hazardous wastes prescribed by EPA and 
continued to be wastes even if recycled. 906 F.2d at 741. Further, a 
material is a solid waste regardless of whether it ``may'' be reused at 
some time in the future. American Mining Congress v. EPA, 907 F.2d 1179 
(DC Cir. 1990) (``AMC II'').
    One of the more important holdings of a number of court decisions 
is that simply because a waste has, or may have, value does not mean 
the material loses its status as a solid waste. See API I, 906 F.2d at 
741 n.16; United States v. ILCO Inc., 996 F.2d 1126, 1131-32 (11th Cir. 
1993); Owen Steel v. Browner, 37 F.3d 146, 150 (4th Cir. 1994). ILCO 
and Owen Steel, however, recognize that products made from wastes are, 
themselves, products and not wastes.
    The DC Circuit's decision in Association of Battery Recyclers v. 
EPA, 208 F.3d 1047 (DC Cir. 2000) (``ABR'') reiterated the concepts 
discussed in the previous cases. The Court held that it had already 
resolved the issue presented in ABR in its opinion in AMC I, where it 
found that ``* * * Congress unambiguously expressed its intent that 
`solid waste' (and therefore EPA's regulatory authority) be limited to 
materials that are `discarded' by virtue of being disposed of, 
abandoned, or thrown away'' (208 F.2d at 1051). It repeated that 
materials reused within an ongoing industrial process are neither 
disposed of nor abandoned (208 F.3d at 1051-52). The court also 
explained that the intervening API I and AMC II decisions had not 
narrowed the holding in AMC I (208 F.3d at 1054-1056).
    Notably, the Court in ABR did not hold that storage before 
reclamation automatically makes materials ``discarded.'' Rather, it 
held that ``* * * at least some of the secondary material EPA seeks to 
regulate as solid waste (in

[[Page 31851]]

the mineral processing rule) is destined for reuse as part of a 
continuous industrial process and thus is not abandoned or thrown 
away'' (208 F.3d at 1056). In this regard, the court criticized all 
parties in the case--industry as well as EPA--because they ``presented 
this aspect of the case in broad abstraction, providing little detail 
about the many processes throughout the industry that generate residual 
material of the sort EPA is attempting to regulate * * *. '' (Ibid).
    American Petroleum Institute v. EPA, 216 F.3d 50, 55 (DC Cir. 2000) 
(``API II''), decided shortly after ABR and considered by the court at 
the same time, provides further guidance for defining solid waste, but 
in the context of two specific waste streams in the petroleum refining 
industry. The court overturned EPA's determination that certain 
recycled oil bearing wastewaters are wastes (216 F.3d at 55-58) and 
upheld conditions imposed by the Agency in excluding petrochemical 
recovered oil from the definition of solid waste (216 F.3d at 58-59). 
In the case of oil-bearing wastewaters, EPA had determined that the 
first phase of treatment, primary treatment, results in a waste being 
created. 216 F.3d at 55. The court overturned this decision and 
remanded it to EPA for a better explanation, neither accepting EPA's 
view nor the contrary industry view. The court noted that the ultimate 
determination that had to be made was whether primary treatment is 
simply a step in the act of discarding or the last step in a production 
process before discard. 213 F.3d at 57. In particular, the court 
rejected EPA's argument that primary treatment was required by 
regulation, instead stating that the Agency needed to ``set forth why 
it has concluded that the compliance motivation predominates over the 
reclamation motivation'' and ``why that conclusion, even if validly 
reached, compels the further conclusion that the wastewater has been 
discarded.'' 213 F.3d at 58.
    The court also considered whether material is discarded in Safe 
Food and Fertilizer v. EPA, 350 F.3d 1263 (DC Cir. 2003) (``Safe 
Food''). In that case, among other things, the court rejected the 
argument that, as a matter of plain meaning, recycled material destined 
for immediate reuse within an ongoing industrial process is never 
considered ``discarded,'' whereas material that is transferred to 
another firm or industry for subsequent recycling must always be solid 
wastes. 350 F.3d at 1268. Instead, the court evaluated ``whether the 
agency's interpretation of * * * `discarded' * * * is, reasonable and 
consistent with the statutory purpose* * * .'' Id. Thus, EPA has the 
discretion to determine that a material is not a solid waste, even if 
it is transferred between industries.
    We also note that the Ninth Circuit has specifically found that 
non-hazardous secondary materials may, under certain circumstances, be 
burned and not constitute a solid waste under RCRA. See Safe Air For 
Everyone v. Waynemeyer (``Safe Air''), 373 F.3d 1035 (9th Cir., 2004) 
(Kentucky bluegrass stubble may be burned to return nutrients to the 
soil and not be a solid waste).

C. The Concept of Legitimacy

    An important element under the RCRA subtitle C definition of solid 
waste (and an important element of today's proposal) is the concept of 
legitimate use and recycling. Under RCRA subtitle C, some hazardous 
secondary materials that would otherwise be subject to regulation under 
RCRA's ``cradle to grave'' system are not considered solid wastes if 
they are ``legitimately recycled'' or legitimately used as an 
ingredient or substitute for a commercial product. The principal 
reasoning behind this construct is that use or recycling of such 
materials often closely resembles normal industrial production, rather 
than waste management. However, since there can be considerable 
economic incentive to manage recyclable materials outside of the RCRA 
hazardous waste regulatory system, there is a clear potential for and 
historical evidence of some handlers claiming they are recycling, when 
in fact they are conducting waste treatment and/or disposal in the 
guise of recycling. EPA considers such ``sham'' recycling to be, in 
fact, discard and such secondary materials being sham recycled are 
solid wastes.
    To guard against hazardous secondary materials being discarded in 
the guise of recycling, EPA has long articulated the need to 
distinguish between ``legitimate'' (i.e., true) recycling or other use 
and ``sham'' (i.e., fake) recycling; see the preamble to the 1985 
hazardous waste regulations that established the definition of solid 
waste under RCRA subtitle C (50 FR 638; January 4, 1985). A similar 
discussion that addressed legitimacy as it pertains to burning 
hazardous secondary materials for energy recovery (considered a form of 
recycling under RCRA subtitle C) was presented in the January 9, 1988 
proposed amendments to the definition of solid waste (53 FR 522). Then 
on April 26, 1989, the Office of Solid Waste \13\ issued a memorandum 
that consolidated the various preamble and other statements concerning 
legitimate recycling into a list of questions to be considered in 
evaluating the legitimacy of hazardous secondary materials recycling 
(OSWER directive 9441.1989(19)). This memorandum (known to many as the 
``Lowrance Memo,'' a copy of which is included in the Docket to today's 
preamble) has been a primary source of information for the regulated 
community and for overseeing agencies in distinguishing between 
legitimate and sham recycling.
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    \13\ On January 9, 2009, the Office of Solid Waste was renamed 
the Office of Resource Conservation and Recovery.
---------------------------------------------------------------------------

    On October 30, 2008, EPA finalized several exclusions from the 
definition of solid waste for hazardous secondary materials being 
reclaimed and a non-waste determination process for persons to receive 
a formal determination that their hazardous secondary materials are not 
solid wastes when legitimately reclaimed.\14\ In that action, EPA 
codified in 40 CFR 260.43 the requirement that materials be 
legitimately recycled as a condition for the exclusion for hazardous 
secondary materials that are legitimately reclaimed under the control 
of the generator (40 CFR 261.2(a)(2)(ii) and 40 CFR 261.4(a)(23)) and 
as a condition of the exclusion for hazardous secondary materials that 
are transferred for the purpose of legitimate reclamation (40 CFR 
261.4(a)(24) and 40 CFR 261.4(a)(25)). As part of that final rule, EPA 
also codified a legitimate recycling provision specifically as a 
requirement or condition of these exclusions and the non-waste 
determination process (40 CFR 260.34).
---------------------------------------------------------------------------

    \14\ See 73 FR 64668.
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    Although this proposed rule does not address the Agency's hazardous 
waste regulations, EPA believes the concept of legitimacy is an 
important one in determining when a secondary material is genuinely 
recycled and not discarded under the guise of recycling. Therefore, the 
Agency is including the following discussion in today's preamble to 
provide the context in which EPA has integrated the concept of 
legitimacy into the recently promulgated hazardous waste exclusions 
from the definition of solid waste.\15\
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    \15\ The hazardous waste exclusions from the definition of solid 
waste became effective on December 29, 2008. On January 29, 2009, 
the Sierra Club submitted a petition under RCRA section 7004(a), 42 
U.S.C. 6974(a), to the Administrator of EPA requesting that the 
Agency repeal the revisions to the definition of solid waste rule 
and stay the implementation of the rule. In addition, the Sierra 
Club and the American Petroleum Institute have filed petitions for 
judicial review of a rule with the United States Court Of Appeals 
for The District Of Columbia Circuit. One of the issues that EPA 
will consider is the definition of legitimate recycling. However, 
until that occurs, the final rule, including the definition of 
legitimate recycling remains in effect until and unless EPA goes 
through another rulemaking process (proposed and final) to repeal or 
amend it.

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[[Page 31852]]

    The legitimacy provision in the October 2008 final rule, which 
applies specifically to hazardous secondary materials excluded under 
the rule, has two parts. The first part includes two factors: (1) the 
hazardous secondary materials being recycled must provide a useful 
contribution to the recycling process or to the product or intermediate 
of the recycling process, and (2) the product or intermediate produced 
by the recycling process must be valuable. These two legitimacy factors 
make up the core of legitimacy, and, therefore, a process that does not 
conform to them cannot be a legitimate recycling process, but would be 
considered sham recycling.
    The second part of the legitimacy provision consists of two factors 
that must be considered when determining if a particular hazardous 
secondary material recycling process is legitimate for the purposes of 
the exclusion. These two factors are: (1) The generator and the 
recycler should manage the hazardous secondary material as a valuable 
commodity, and (2) the product of the recycling process does not 
contain significant concentrations of hazardous constituents that are 
not in analogous products. EPA believes these two factors are important 
in determining legitimacy, but has not made them factors that must be 
met because the Agency is aware of situations where a legitimate 
recycling process exists, but may not conform to one or both of these 
two factors. In making a determination that a hazardous secondary 
material is legitimately recycled, persons must evaluate all factors 
and consider legitimacy as a whole. If, after careful evaluation of 
these other considerations, one or both of the non-mandatory factors 
are not met, then this fact may be an indication that the material is 
not legitimately recycled. To evaluate the extent to which these 
factors are met and in determining the legitimacy of a recycling 
process that does not meet one or both of these factors, persons can 
consider the protectiveness of the storage methods, exposure from 
toxics in the product, the bioavailability of the toxics in the 
product, and other relevant considerations.
    EPA stated in the preamble to the October 2008 final rule that, 
although the Agency was only codifying the legitimacy provision as part 
of the new hazardous secondary materials recycling exclusions and non-
waste determination process, it was stressing that EPA retains its 
long-standing policy that all recycling of hazardous secondary 
materials must be legitimate and that the four legitimacy factors 
codified at 40 CFR 260.43 are substantively the same as the Agency's 
long-standing legitimacy policy, as stated in the 1989 Lowrance Memo 
and in various definition of solid waste rulemakings.
    EPA believes the same principle of ``legitimacy'' is likewise an 
important element in the recycling of non-hazardous secondary 
materials. That is, the concept of legitimate recycling is crucial to 
determining whether a non-hazardous secondary material being recycled 
is truly being recycled or is, in fact, being discarded through sham 
recycling. In the January 2, 2009 ANPRM, the Agency sought comment on 
the appropriate construct for determining when such non-hazardous 
secondary materials are legitimately burned as a fuel or used as a 
legitimate ingredient in an industrial process that involved combustion 
(see Section V, 74 FR 53-9). A general discussion of the comments EPA 
received follows in Section VII.C.

VII. ANPRM Discussion, Summary of the Proposed Approach, Comments 
Received on the ANPRM, and Rationale for and Detailed Description of 
the Proposed Rule

A. Summary of the ANPRM Approach

    In the ANPRM, the Agency considered various scenarios in evaluating 
the usage of secondary materials (e.g., as fuels or ingredients) and 
whether these materials should be considered solid wastes under RCRA 
when used in combustion devices, such that units burning these 
secondary materials would be subject to regulation under CAA section 
129, rather than subject to CAA section 112. Specifically, the ANPRM 
identified several cases where such non-hazardous secondary materials 
are not solid wastes when combusted, and thus, subject to CAA section 
112. These were: (1) Traditional fuels, (2) secondary materials used as 
legitimate ``alternative'' fuels that have not been previously 
discarded, (3) secondary materials used as legitimate ``alternative 
fuels'' resulting from the processing of discarded secondary materials, 
(4) secondary materials used as legitimate ingredients, and (5) 
hazardous secondary materials that may be excluded from the definition 
of solid waste under RCRA subtitle C because they are more like 
commodities than wastes. All other cases where non-hazardous secondary 
materials are combusted would be considered ``solid wastes'' and 
subject to CAA section 129.
1. Traditional Fuels
    The ANPRM categorized cellulosic biomass (e.g., wood) and fossil 
fuels (e.g., coal, oil, natural gas) and their derivatives (e.g., 
petroleum coke, bituminous coke, coal tar oil, refinery gas, synthetic 
fuel, heavy recycle, asphalts, blast furnace gas, recovered gaseous 
butane, coke oven gas) as traditional fuels that have been burned 
historically as fuels and have been managed as valuable products, and 
stated that they are considered unused products that have not been 
discarded and therefore are not solid wastes. The ANPRM further stated 
that wood collected from forest fire clearance activities and trees and 
uncontaminated wood found in disaster debris would not be discarded if 
managed properly and burned as a legitimate fuel, and therefore not a 
solid waste.
2. Guiding Principles Used To Determine if Secondary Materials Used in 
Combustion Units Are Solid Wastes
    The ANPRM explained key factors in determining if alternative fuels 
or ingredients are solid wastes under RCRA, including whether they have 
been discarded, and if they have been discarded, whether they have been 
processed to produce a fuel or ingredient product that would not be 
considered a solid waste. The ANPRM further explained that the plain-
English meaning of the term discard applies to the RCRA definition of 
solid waste. That is, a material is discarded if it is disposed of, 
thrown away, or abandoned. Moreover, the ANPRM stated the term 
``discarded materials'' could not include materials `` * * * destined 
for beneficial reuse or recycling in a continuous process by the 
generating industry itself,'' and that determining whether a secondary 
material is used in a continuous process is important because certain 
materials under consideration are produced and managed in a continuous 
process within an industry (e.g., cement kiln dust that is recycled in 
cement kilns). The ANPRM went on to say that even if the secondary 
material is not used in a continuous process, if it is used as a 
legitimate fuel or ingredient, these secondary materials are not solid 
wastes if they were not previously discarded.
    For alternative fuels or ingredients not to be considered 
discarded, and thus not to be solid wastes, the ANPRM stated that they 
must be legitimate fuels or ingredients. It then described EPA's 
criteria for determining if a secondary

[[Page 31853]]

material is a legitimate fuel or ingredient. The Agency explained that 
it generally considers secondary materials to be legitimate non-waste 
fuels if they are handled as valuable commodities, have meaningful 
heating value, and contain contaminants that are not significantly 
higher in concentration than traditional fuel products. If these 
criteria are not met, sham recycling may be indicated and the secondary 
material might be a solid waste. Similarly, for non-hazardous secondary 
materials to be considered a non-waste ingredient, the ANPRM stated 
that it would generally consider secondary materials to be non-waste 
ingredients if the secondary material is handled as a valuable 
commodity, the secondary material provides a useful contribution, the 
recycling results in a valuable product, and the product does not 
contain contaminants that are significantly higher in concentration 
than traditional products.
3. Secondary Materials Used as Legitimate ``Alternative'' Fuels That 
Have Not Been Previously Discarded
    For legitimate ``alternative'' fuels that have not been previously 
discarded, the ANPRM stated that the question of what constitutes a 
legitimate ``fuel'' reflects the availability of fuel materials 
generally, the demand for fuel, and technology developments. Thus, in 
addition to traditional fuels, the ANPRM stated that there is a 
category of secondary materials that are legitimate alternative fuels; 
that is, there are secondary materials that may not have been 
traditionally used as fuels, but that are nonetheless legitimate fuels 
today because of changes in technology and in the energy market. In 
cases where these legitimate alternative fuels have not been discarded, 
EPA said that it would not consider them to be solid wastes. We stated 
that much of the biomass currently used as alternative fuels are not 
solid waste since they have not been discarded in the first instance 
and are legitimate fuel products, noting that biomass can include a 
wide range of alternative fuels, and can be broken down into two 
different categories--cellulosic biomass and non-cellulosic biomass. 
Cellulosic biomass was described to include forest-derived biomass 
(e.g., green wood, forest thinnings, clean and unadulterated bark, 
sawdust, trim, and tree harvesting residuals from logging and sawmill 
materials), food scraps, pulp and paper mill wood residuals (e.g., hog 
fuel, such as clean and unadulterated bark, sawdust, trim screenings; 
and residuals from tree harvesting), and agricultural residues (e.g., 
straw, corn husks, peanut shells, and bagasse). Non-cellulosic biomass 
was described to include manures and gaseous fuels (e.g., from 
landfills and manures).
    The ANPRM stated that biomass, especially cellulosic biomass, has a 
comparable composition to traditional fuel products due to the nature 
of the plants and animals (i.e., they would not be considered to have 
additional ``contaminants''). Thus, if they are managed as valuable 
commodities and have meaningful heating value, they would not be 
considered solid wastes.
    The ANPRM also noted that tires used as tire-derived fuel (TDF), 
which include whole or shredded tires, that have not been previously 
discarded, are legitimate fuels if they meet the legitimacy criteria 
i.e., they are handled as valuable commodities, have meaningful heating 
value, and do not contain contaminants that are significantly higher in 
concentration when compared to traditional fuel products (see Materials 
Characterization Paper on Scrap Tires in the docket for today's rule 
for a complete discussion on contaminants in TDF [EPA-HQ-RCRA-2008-
0329]). We noted that in many cases, used tires that are collected 
pursuant to state tire oversight programs (e.g., used tires from tire 
dealerships that are sent to used tire processing facilities) are 
handled as valuable commodities, and, therefore, have not been 
abandoned, disposed of, or thrown away. We noted that because states 
typically regulate these programs under their state solid waste 
authorities, it is not the Agency's intent to undercut the state's 
authority in this area. We requested comment on whether tires collected 
pursuant to state tire oversight programs have been discarded, and also 
requested comment on whether an EPA designation specifying that used 
tires, for example, managed pursuant to state collection programs are 
not solid wastes, would adversely impact a state's ability to manage 
such a program. EPA notes that it is considering a change regarding the 
issue of tires collected under state programs, which is discussed later 
in the preamble. In particular, the Agency proposes that tires 
collected under these recycling programs are discarded and are solid 
wastes. EPA proposes this formulation for tires, but is asking for 
further comment on the ANPRM formulation that secondary material 
collected and sent for legitimate use as fuels are not discarded and 
are not solid wastes. For more discussion, see sections VII.C.5.c. and 
VII.D.2 of today's proposal. EPA may issue a final rule containing 
either set of provisions depending on information received in the 
comment period and other information available to the Agency.
    The ANPRM described other non-traditional alternative fuels in use 
today that we are evaluating to determine whether they have been 
discarded and whether they are legitimate alternative fuels (e.g., 
construction and demolition materials,\16\ scrap plastics, non-
hazardous non-halogenated solvents and lubricants, and wastewater 
treatment sludge). The ANPRM then described secondary materials we 
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 \17\ in 
concentration than those in traditional fuel products to the degree 
that sham recycling is indicated. The 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.
---------------------------------------------------------------------------

    \16\ EPA is completing a study evaluating the use of a mobile 
unit for the combustion of vegetative and construction and 
demolition debris generated from natural disasters. This study 
includes monitoring of the source and ambient emissions, and a 
screening risk assessment. Results are projected to be available 
later in 2010. Extreme care needs to be taken to exclude specific 
materials in C&D debris, especially regulated-asbestos containing 
materials (RACM). Additionally, the wiring, plastics, and painted 
surfaces may contribute to emissions of concern and might not equate 
to traditional fuels. Upon publication, this study will be available 
at EPA's National Risk Management Research Laboratory (NRMRL) 
publications Web site at http://www.epa.gov/nrmrl/publications.html.
    \17\ In determining whether the concentration of contaminants in 
secondary materials is ``significantly higher,'' the Agency stated 
in the ANPRM that it could use a qualitative evaluation of the 
potential human health and environmental risks posed. A contaminant 
concentration could be elevated without posing unacceptable risk, 
and therefore may not be considered ``significant'' for the purposes 
of determining whether the secondary material is a legitimate fuel.
---------------------------------------------------------------------------

4. Secondary Materials Used as Legitimate ``Alternative'' Fuels 
Resulting From the Processing of Discarded Secondary Materials
    The ANPRM also stated that legitimate fuel products may be 
extracted, processed, or reclaimed from non-hazardous secondary 
materials that have been discarded in the first instance and that such 
products would generally not be considered solid waste. Once processed 
to make a legitimate non-waste fuel product, such a product

[[Page 31854]]

would not be discarded and therefore would not be a solid waste, 
provided it met the general principles discussed in today's preamble 
for being a legitimate fuel. However, until a legitimate product has 
been processed, the secondary material that has been discarded is a 
solid waste, and must comply with any federal, state or local 
regulations. In addition, any waste generated in the ``processing'' of 
these materials would need to be managed properly and comply with the 
appropriate requirements. The ANPRM described various secondary 
materials that can be processed into fuels, including discarded biomass 
(e.g., with dewatering/drying techniques to increase the Btu/lb, or 
stripping the paint off wood to produce clean biomass), coal fines, 
used oil, tires,\18\ landfill ash, and secondary materials that are 
mixed and processed into pellets (or other forms) that have the 
consistency and handling characteristics of coal (e.g., K-Fuel, N-
Viro). The ANPRM stated that the degree of processing necessarily will 
vary depending on the specific material, but the objective remains the 
same--the product from the processing must be a legitimate fuel (i.e., 
a material with meaningful heating value, with contaminants that are 
not present at significantly higher concentrations than those of 
traditional fuel products, and managed as a valuable commodity).
---------------------------------------------------------------------------

    \18\ Turning scrap tires into TDF can involve two physical 
processing steps: Chipping/shredding and in some cases metal 
removal. The ANPRM stated that, at that point, the Agency's view was 
that tire shredding/chipping alone (without metal recovery), as well 
as in combination with metal recovery, are legitimate processing 
activities sufficient to convert a discarded material into a fuel 
product.
---------------------------------------------------------------------------

    Although the ANPRM stated that forest-derived biomass is not 
considered to have been discarded, we requested comment on whether any 
forest-derived biomass that was determined to have been discarded and 
was subsequently processed by chipping or sorting prior to use as a 
fuel through combustion would be considered to have undergone adequate 
processing to convert the discarded material into a fuel product. We 
also requested comment on whether mined landfill power plant residuals 
that is crushed, screened, and/or separated into its fundamental 
components through density separation is adequately processed to 
convert it into a fuel product or ingredient (under the assumption that 
it meets our previously described legitimacy criteria).
    With respect to used oil, the ANPRM stated that off-specification 
used oil that is collected from repair shops is generally thought to be 
originally discarded, but that on-spec used oil was considered to be a 
product fuel, not a waste. We also requested comment on whether off-
specification used oil managed pursuant to the 40 CFR part 279 used oil 
management standards which are burned for energy recovery should be 
considered to be discarded, and thus whether such off-specification 
used oil should be considered a non-waste fuel. We stated that although 
off-specification used oil may contain contaminant levels that are 
higher in concentration than traditional (virgin) fossil fuels, they 
still are managed within the constraints of the used oil management 
standards, and may only be burned in specific types of combustion 
devices.
5. Secondary Materials Used as Legitimate Ingredients
    For secondary materials used as ingredients, the ANPRM also stated 
we must determine whether alternative ingredients, such as CKD, bottom 
ash, boiler slag, blast furnace slag, foundry sand, and secondary glass 
material have been discarded, or whether they are being used as 
legitimate non-waste ingredients. For example, the ANPRM stated that 
coal fly ash is handled as a commodity within continuous commerce when 
it is marketed to cement kilns as an alternative ingredient, and would 
not be considered a waste if it met the legitimacy criteria.
    The ANPRM also stated that secondary materials used as ingredients 
that were previously discarded could be processed into legitimate non-
waste ingredients.
6. Hazardous Secondary Materials That May Be Excluded From the 
Definition of Solid Waste Under RCRA Subtitle C Because They Are More 
Like Commodities Than Wastes
    In the ANPRM, the Agency explained that, under the hazardous waste 
regulations, EPA has evaluated a number of hazardous secondary 
materials that are legitimately used or recycled and determined that 
such materials, while they either met a listing description or 
exhibited one or more of the hazardous waste characteristics, were not 
``solid wastes'' for purposes of the subtitle C hazardous waste 
regulations. Specifically, black liquor, spent sulfuric acid, and 
comparable fuels may be burned under certain conditions and would not 
be solid wastes. The ANPRM discussed EPA's interest in extending this 
determination so that these materials are not considered solid wastes 
under RCRA subtitle D as well.
7. Additional Areas for Comment in the ANPRM
a. Fuels or Materials That Have Been Discarded That Are Generally 
Considered To Be Solid Wastes
    The ANPRM explained that secondary materials that have been 
previously discarded and not subsequently processed into legitimate 
fuels or ingredients are considered solid wastes under RCRA. However, 
the Agency requested comment as to whether these discarded materials--
once recovered from the discard environment--should no longer be 
considered solid waste (assuming they are in fact valuable fuels or 
ingredients and otherwise meet the legitimacy criteria once recovered). 
EPA recognized that waste can be burned for energy or material 
recovery. Such materials, once they have been discarded, generally are 
considered ``solid wastes'' and units that burn these materials would 
be subject to the CAA section 129 incineration standards if they have 
not been processed into a legitimate non-waste ingredient or fuel. 
However, the ANPRM explained that as prices for primary materials have 
increased, in many cases, the economics of using secondary materials as 
a substitute for primary materials has shifted, changing how the 
secondary materials are considered in commerce. In addition, new 
technologies can expand the universe of secondary materials that could 
be considered legitimate fuels.
    The ANPRM therefore requested comment on those situations where 
discarded materials (e.g., used tires and coal refuse) 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. (Note that the Agency only requested comment on these 
secondary materials at the point they have been removed from their 
``discard'' environment and managed as valuable commodities. Materials 
that have been disposed of in abandoned piles or landfills are clearly 
discarded while they remain in those environments and are subject to 
appropriate federal, state and local regulations.)
b. Other Approaches for Determining Whether Secondary Materials Are 
Fuels and Not Solid Wastes
    The ANPRM requested comment on an approach, as presented to the 
Agency by industry representatives, for determining when non-hazardous 
secondary materials are fuels and thus, not solid waste, and how the 
process

[[Page 31855]]

may be implemented.\19\ Industry representatives suggested that non-
hazardous secondary materials should be evaluated, on a case-by-case 
basis, to identify which criteria have been satisfied and determine 
whether the material is legitimately handled as a fuel. Criteria 
identified by industry stakeholders include: handling and storage of 
materials to minimize loss, use of materials within a reasonable period 
of time, material value (e.g., whether there is a market for the 
material as a fuel, internal or external to the company), material 
managed and treated as a commodity, and processing of material to 
enhance fuel value. Under the industry recommended approach, the 
secondary material would not necessarily have to satisfy all criteria. 
To implement the aforementioned concepts for determining when or which 
secondary materials are fuels, the ANPRM described two methods 
presented by industry, which were not meant to be mutually exclusive. 
One method is self-implementing, by which an owner or operator of a 
combustion device must determine that the secondary material meets the 
criteria set forth and maintain records to demonstrate that these 
criteria are met. The other method is not self-implementing, but would 
allow an owner or operator to petition EPA or the state to specifically 
list a secondary material as a legitimate non-waste fuel (in addition 
to a pre-established list of materials). In the petition, the owner or 
operator would use the criteria as the basis for proposing that EPA or 
the state list the secondary material, or the owner or operator could 
submit additional information to demonstrate the environmental 
equivalence of the material to other listed fuels.
---------------------------------------------------------------------------

    \19\ A copy of this industry-recommended approach entitled, 
``Outline of Regulatory Approach to Determine Materials Considered 
Fuels--not Solid Wastes--under RCRA,'' is included in the docket to 
today's proposed rule.
---------------------------------------------------------------------------

c. Materials for Which State Beneficial Use Determinations Have Been 
Made
    The ANPRM explained that states regulate the management of non-
hazardous solid waste, including secondary industrial materials, and 
that many states have a process or promulgated regulations to determine 
when these materials are no longer wastes because they can beneficially 
and safely be used as products in commerce. Materials are no longer 
subject to the state's solid waste regulations under the state rules 
when the state determines that the secondary materials are no longer 
solid wastes when beneficially used. The ANPRM further explained that 
the states are the lead Agencies for implementing the non-hazardous 
waste programs and, as such, the Agency wanted to make sure that state 
programs are not adversely affected by any decisions that are made by 
EPA, noting that we see a benefit to deferring to state decisions, 
which are able to consider site-specific information. As a result, the 
Agency requested comments on whether to consider secondary materials 
that receive a state beneficial use determination for use as a fuel or 
as an ingredient as not a solid waste, also not be considered a solid 
waste under federal law.
d. Biofuels
    Biofuels can be generally described as a gas or liquid fuel made 
from biological materials, including plants, animal manure, and other 
organic sources. The ANPRM noted that biofuel production has increased 
dramatically in the past few years and is expected to continue 
increasing over the coming years, and stated that biofuels produced 
from secondary materials, such as ethanol and biodiesel, are not 
considered to be solid wastes themselves, but rather are viewed as 
legitimate fuel products. Secondary materials associated with biofuel 
production can be viewed to include both the feedstock materials that 
are used to produce biofuels, as well as the byproducts generated from 
the production of biofuels. The ANPRM stated that these materials are 
considered legitimate alternative fuels when they have meaningful 
heating value, do not contain contaminants that are significantly 
higher in concentration than traditional fuels, and are handled as a 
valuable commodity.

B. Summary of the Proposed Approach

1. Changes from the ANPRM Approach
    While many of the concepts and provisions that were discussed in 
the ANPRM are included in this proposal, including discard and the 
legitimacy criteria, the basic framework is different based partly on 
the approach taken in the Definition of Solid Waste (DSW) final rule 
promulgated on October 30, 2008 (see 73 FR 64668) under subtitle C of 
RCRA, based partly on the comments received (see section VII.C for the 
comments and EPA's response), as well as on our interpretation of 
whether these secondary materials are considered to be discarded (see 
section VII.C.2 for the comments and EPA's response).
    The ANPRM indicated that there may be a number of secondary 
materials that would not be considered discarded even if the original 
generator sent them to another entity outside of its control. For 
example, used tires collected from automobiles at tire dealerships and 
managed pursuant to state tire collection programs were not viewed as 
solid wastes in the ANPRM. Comments received from some states suggested 
that non-hazardous secondary material fuels that are transferred to a 
third party have entered what is traditionally considered to be the 
``waste stream'' (and have been regulated by the states as wastes) and 
therefore should appropriately be considered wastes (e.g., scrap tires) 
unless/until they are processed into non-waste fuel products. As 
discussed below, this proposal assumes that non-hazardous secondary 
materials that are used as fuels and are managed outside the control of 
the generator are solid wastes unless they are processed into non-waste 
fuel products. (Note: The same non-hazardous secondary material that is 
burned for energy recovery under the control of the generator and meets 
the legitimacy criteria would not be considered a solid waste since the 
non-hazardous secondary material would not be considered discarded.)
    We are also proposing, as discussed below, a non-waste 
determination petition process. That process will allow those persons 
who burn non-hazardous secondary material fuels that are not managed 
within the control of the generator (that this proposal would consider 
to be solid wastes), to petition EPA for a determination that such non-
hazardous secondary materials are not discarded and therefore, are not 
solid wastes (assuming these materials have met the applicable 
legitimacy criteria). While the Agency recognizes that a petition 
process can be resource intensive, we also believe it necessary and 
appropriate to provide an opportunity for persons to demonstrate to EPA 
that their non-hazardous secondary material fuels would not be 
considered ``discarded'' under RCRA and therefore, not solid waste.
    Furthermore, some other important changes were made between the 
ANPRM and this proposal based on comments received and further 
investigation. One of the differences is the classification of 
``clean'' biomass and on-specification used oil as a traditional fuel 
(see section VII.C.5.b.). In addition, EPA is only addressing non-
hazardous secondary materials in this rulemaking, and thus, has decided 
not to address hazardous secondary materials that have been excluded 
from the definition of solid waste under subtitle C of RCRA in this 
rulemaking proceeding. Instead, facilities combusting hazardous 
secondary materials should refer to

[[Page 31856]]

EPA's Subtitle C hazardous waste regulations to determine whether the 
materials they are combusting are solid wastes. Each of these changes 
is discussed in detail in the referenced sections.
2. General Proposed Approach
    This proposal maintains the same general principles for determining 
whether a non-hazardous secondary material is or is not a solid waste 
as expressed in the ANPRM. Under the proposed rule, the following are 
not solid wastes when combusted for purposes of the CAA: non-hazardous 
secondary materials used as fuels that remain within and are combusted 
within the control of the generator and that meet the legitimacy 
criteria; non-hazardous secondary materials that meet the legitimacy 
criteria and are used as ingredients in a manufacturing process; 
materials that meet the legitimacy criteria and have been sufficiently 
processed into a fuel or ingredient from discarded non-hazardous 
secondary materials that have been discarded; and non-hazardous 
secondary materials used as a fuel that does not remain within the 
control of the generator for which EPA grants a facility's petition for 
a ``non-solid waste'' determination.
    The term ``discarded'' is intended to encompass material handling 
and management scenarios that meet the plain meaning of discard 
(abandoned, disposed of, or thrown away). For example, a secondary 
material that is thrown away and disposed of in a landfill is 
considered to have been discarded in the first instance. Materials that 
have been discarded in the first instance are solid waste even if they 
satisfy the legitimacy criteria (unless they are processed into a 
legitimate non-waste product) since both wastes and non-wastes may be 
legitimately recycled.
3. Legitimacy Criteria
    This proposal also maintains the same general principles as 
described in the ANPRM for determining whether a non-hazardous 
secondary material is or is not a legitimate fuel or ingredient. 
Secondary materials used in a combustion unit that are not a legitimate 
fuel or ingredient would be considered sham recycling and thus, a solid 
waste. For legitimate fuels, non-hazardous secondary materials must be 
handled as a valuable commodity, have meaningful heating value, be used 
as a fuel in a combustion unit that recovers energy, and contain 
contaminants at levels comparable to those in traditional fuels. As 
used throughout today's proposal, ``comparable'' levels of contaminants 
refer to levels that are comparable or less than those in traditional 
fuels. For legitimate ingredients, the non-hazardous secondary material 
must be handled as a valuable commodity, provide a useful contribution, 
result in a valuable product or intermediate, and result in products 
that contain contaminants at levels that are comparable in 
concentration to those found in traditional products that are 
manufactured without the non-hazardous secondary material. As with 
fuels, contaminant levels that are comparable refers to levels that are 
comparable or less than contaminant levels found in traditional 
products that are manufactured without the non-hazardous secondary 
material ingredients.
4. Traditional Fuels
    This proposal recognizes that traditional fuels are not solid 
wastes when burned in a combustion unit. Traditional fuels are those 
fuels that have been historically managed as valuable fuel products 
rather than being managed as waste materials. Traditional fuels include 
fossil fuels (e.g., coal, oil, including used oil meeting on-
specification levels, natural gas) and their derivatives (e.g., 
petroleum coke, bituminous coke, coal tar oil, refinery gas, synthetic 
fuel, heavy recycle, asphalts, blast furnace gas, recovered gaseous 
butane, and coke oven gas). Clean cellulosic biomass materials are also 
traditional fuels rather than wastes when burned as a fuel. ``Clean'' 
material is defined as those non-hazardous secondary materials that 
have not been altered (either chemically or through some type of 
production process), such that it contains contaminants at 
concentrations normally associated with virgin biomass materials. Clean 
cellulosic biomass includes forest-derived biomass (e.g., green wood, 
forest thinnings, clean and unadulterated bark, sawdust, trim, and tree 
harvesting residuals from logging and sawmill materials), corn stover 
and other biomass crops used specifically for energy production (e.g., 
energy cane, other fast growing grasses), bagasse\20\ and other crop 
residues (e.g., peanut shells), wood collected from forest fire 
clearance activities, trees and clean wood found in disaster debris, 
and clean biomass from land clearing operations.
---------------------------------------------------------------------------

    \20\ Bagasse is the matted cellulose fiber residue from sugar 
cane that has been processed in a sugar mill. For more information 
on bagasse, see the Materials Characterization Paper on Biomass-
Agricultural Residues and Food Scraps, which is located in the 
docket of today's proposed rule.
---------------------------------------------------------------------------

    We request comment on whether other fuels in use today also should 
be classified as traditional fuels, and also whether other types of 
cellulosic biomass should be designated as clean biomass, and thus a 
traditional fuel. In identifying other secondary materials as a 
traditional fuel, commenters will need to explain why such materials 
should be considered a traditional fuel--that is, an explanation of how 
the materials have historically been managed as a valuable fuel product 
and not a waste.
    EPA acknowledges that changes in technology and in the energy 
market over time may result in additional secondary materials being 
economically viable to be used as ``traditional'' fuels. It also may 
not always be clear whether a fuel material is a traditional fuel. We 
agree 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, request comment 
on whether we should 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. If we adopt such a petition 
process, it would be implemented through the same process as the non-
waste determination petition process discussed in section VII.D.5.
5. Circumstances Under Which a Non-Hazardous Secondary Material Would 
Not Be Considered a Solid Waste
    Non-hazardous secondary materials used as fuels in combustion units 
would be considered solid wastes unless: (1) The non-hazardous 
secondary materials (not otherwise discarded) remain under the control 
of the generator as discussed in section VII.D.1, and meet the 
legitimacy criteria; or (2) they are legitimate non-waste fuels that 
meet the legitimacy criteria and are produced from the processing of 
discarded non-hazardous secondary materials as discussed in section 
VII.D.4. Non-hazardous secondary materials used as a fuel in combustion 
units that are transferred to a third party are considered solid wastes 
unless a non-waste determination has been granted pursuant to the 
proposed petition process (discussed below).
    Non-hazardous secondary materials used as ingredients that are 
combusted in combustion units would not be considered solid waste if 
they have not been discarded in the first instance and if they are 
legitimate ingredients, irrespective of whether they have been 
transferred to a third party. We are not

[[Page 31857]]

proposing to differentiate ingredients that are used within the control 
of the generator from those that are not since we believe the use of 
non-hazardous secondary materials as ingredients is considered to be 
more integral or akin to use in a commercial manufacturing process and 
thus these non-hazardous secondary materials would not be considered 
discarded provided they satisfy the legitimacy criteria.
    Except for the petition process, the proposed criteria are designed 
to be self-implementing in nature, not requiring Agency action. As 
such, we are proposing that it will be the facility's (i.e., the 
facility that burns the material) responsibility to determine if the 
secondary material satisfies the proposed criteria that identifies 
which material is a solid waste when burned in a combustion unit.
6. Petition Process
    EPA is also proposing to establish a non-waste determination 
petition process for secondary materials used as fuels outside the 
control of the generator. The petition process provides persons with an 
administrative process for a formal determination that their non-
hazardous secondary material fuel has not been discarded and is 
indistinguishable in all relevant aspects from a fuel and therefore not 
a solid waste. The determination will be based on whether the non-
hazardous secondary material has been discarded, is a legitimate fuel 
and the following criteria: (1) Whether market participants handle the 
non-hazardous secondary material as a fuel rather than a solid waste; 
(2) whether the chemical and physical identity of the non-hazardous 
secondary material is comparable to commercial fuels; (3) whether the 
non-hazardous secondary material will be used in a reasonable time 
frame given the state of the market; (4) whether the constituents in 
the non-hazardous secondary material will be released to the air, 
water, or land from the point of generation to the combustion of the 
secondary material at levels comparable to what would otherwise be 
released from traditional fuels; and (5) other relevant factors. For 
further information regarding the non-waste determination petition 
process, see section VII.D.5.
    EPA developed two flowcharts that generally illustrate the process 
of determining whether nonhazardous secondary materials burned as a 
fuel or ingredient in combustion units are or are not solid waste. 
These diagrams present the proposed rule's basic framework as a series 
of questions that should be considered when determining the appropriate 
characterization of a nonhazardous secondary material (i.e. as a solid 
waste or not when burned in a combustion unit). See ``Flow Chart for 
Determining Whether Non-Hazardous Secondary Material Ingredients Burned 
In Combustion Units are Solid Wastes'', and ``Flow Chart for 
Determining Whether Non-Hazardous Materials Used as Fuel In Combustion 
Units are Solid Waste'' in the docket for today's proposal. We are 
soliciting comments on whether these flow charts should be included in 
the Code of Federal Regulations (CFR) as part of the final rule.

C. What were the major comments on the ANPRM?

1. Comments from State Agencies
    EPA received comments from several states and state organizations 
in response to the ANPRM. Comments received expressed a range of 
viewpoints representing states with differing solid waste management 
programs and authorities. Consequently, it was not surprising that the 
comments received often articulated competing suggestions and 
recommendations based upon different state programs and experiences.
    Comment: Some states did not want EPA to define what is or is not a 
waste at the federal level if it impacts or limits the scope of what 
states currently regulate under their solid waste management authority. 
Some states noted a potential problem related to existing ``stringency 
provisions'' in some state laws. For example, if a solid waste 
determination is made at the federal level, it could be argued that the 
state is less stringent through their issued exemptions and the state 
rule must be rescinded. Conversely, some states argued they cannot, by 
state statute, be more stringent than the Federal regulations, and even 
if they don't have this statutory limitation, they may feel pressure to 
not be more restrictive than the federal definition. Many states said 
we should defer the determination of whether those non-hazardous 
secondary materials used as fuels or ingredients are solid wastes to 
the states and urged flexibility in how each state could incorporate 
any new regulations into its existing solid waste management programs.
    EPA's Response: The Clean Air Act (section 129(g)(6)) states that 
the term ``solid waste'' shall have the meaning established by the 
Administrator pursuant to the Solid Waste Disposal Act. Accordingly, 
EPA must define which non-hazardous secondary materials used as fuels 
or ingredients in combustion units are solid waste at the national 
level in order to identify the universe of sources subject to the 
boilers emissions standards to be issued under CAA section 112 and the 
CISWI emissions standards to be issued under CAA section 129. See 
section VIII of today's proposal for a discussion on the applicability 
of state solid waste definitions and beneficial use determinations, as 
well as a discussion on state adoption of this rulemaking.
    Comment: Many states commented that they had long-standing 
``waste'' management programs regulating non-hazardous secondary 
materials, that no one had questioned the legitimacy of their 
regulatory programs in the past, and that it was inappropriate and 
contrary to the intent of RCRA for EPA to exclude this material, which 
had been considered ``waste'' for many decades, from regulation under 
RCRA.
    On the other hand, other states were concerned a federal 
designation that some of these non-hazardous secondary materials are 
``wastes'' would disrupt existing recycling markets by creating a 
deterrent from using these non-hazardous secondary materials as fuels 
or ingredients. These states emphasized the importance of promoting 
beneficial use of non-hazardous secondary materials and were concerned 
that regulation of certain materials (especially used tires) under CAA 
section 129 would create negative incentives to their beneficial use 
and consequently could have negative environmental impacts.
    Many states explained that they manage/regulate many of these 
secondary materials as solid waste (e.g., tires), but determine they 
are not wastes (via beneficial use determinations) when after analysis 
the state has determined they are going to a legitimate use (e.g., as a 
fuel). These states recommended that these materials remain a solid 
waste until they are approved for, procured and delivered to the 
potential end user in order to retain their ability to regulate the 
management of these secondary materials, usually under its solid waste 
management authority.\21\ For example, some states recommended that EPA 
exclude whole tires from the definition of solid waste at the point of 
combustion.\22\
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    \21\ Many states regulate used tires under a statutory authority 
outside of their solid waste management statutory authority, while 
some states regulate used tires pursuant to both their solid waste 
management authority, as well as separate tire statutory authority.
    \22\ Subsequent to the closing of the comment period, the 
Environmental Council of States (ECOS) approved Resolution 09-7, 
entitled ``Meaning of `Solid Waste' under the Resource Conservation 
and Recovery Act (RCRA) as it Applies to Non-Hazardous Waste 
Programs.'' This resolution, which was revised on March 23, 2010, 
urges EPA to exclude whole tires from the definition of solid waste 
for the purposes of combustion. Both the original (dated September 
22, 2009) and revised versions are included in the docket for 
today's rule.

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[[Page 31858]]

    EPA's Response: In developing this proposed rule, EPA attempted to 
balance and address the concerns raised by the states regarding 
potential impacts on their existing solid waste programs in determining 
which non-hazardous secondary materials are solid wastes when 
combusted, while at the same time, recognizing that the proposed rule 
needed to be based on whether these secondary materials are considered 
to have been managed in a way that meets the plain meaning of discard, 
as defined in AMC I. We believe we have addressed that balance, 
considering the statutory limitations, but also understand that today's 
proposal could impact existing state solid waste management programs, 
as well as states' beneficial use programs, and specifically request 
comment on how today's proposal impacts or could impact such state 
programs. For example, does the proposed approach impact the ability of 
the states to continue to regulate the management of secondary 
materials prior to their final end use.
    Comment: Some state commenters suggested that the Agency address 
CAA section 129 implementation issues by subcategorizing energy 
recovery units that burn waste materials and regulate this combustion 
similarly to the CAA section 112 requirements.\23\
---------------------------------------------------------------------------

    \23\ Id. ECOS Resolution 09-7 presents this position as an 
alternative to excluding whole tires from the definition of solid 
waste for the purposes of combustion.
---------------------------------------------------------------------------

    EPA's Response: This comment relates to EPA's regulation of solid 
waste incineration units under section 129 and is not relevant to this 
action, which proposes to define ``solid waste'' under RCRA for non-
hazardous secondary materials.
2. Meaning of Discard
    As discussed in Section VI, RCRA defines ``solid waste'' as `` * * 
* any garbage, refuse, sludge from a waste treatment plant, water 
supply treatment plant, or air pollution control facility and other 
discarded material * * * resulting from industrial, commercial, mining, 
and agricultural operations, and from community activities * * * '' 
(RCRA section 1004 (27) (emphasis added)). The ANPRM provided a 
thorough discussion on the definition of solid waste, including a 
summary of relevant case law. See also Section VI.B in today's 
preamble. Further, the ANPRM highlighted the importance of the concept 
of ``discard,'' noting that the definition of solid waste turns on the 
meaning of the phrase, ``other discarded material,'' as this term 
encompasses all other examples provided in the definition.
    Comment: Several comments stressed that the Agency use the plain 
meaning of discard (i.e., disposed of, abandoned, or thrown away) in 
defining the term ``solid waste'' for the purpose of establishing the 
appropriate standards for combustion units under CAA sections 112 and 
129.
    EPA's Response: EPA agrees with the premise of using the ``plain 
meaning'' of discard, as this position is consistent with case law on 
the issue (for a more detailed discussion, please refer to the ANPRM 
and section VI.B of today's preamble).
    Comment: Some commenters noted that the same rationale and 
principles related to ``discarded materials'' should apply whether 
these materials are regulated under RCRA subtitles C or D, as the 
principles related to ``discarded materials'' are the same. Other 
commenters argued that the subtitle C approach should not be used for 
non-hazardous secondary materials since these materials pose less risk 
relative to hazardous wastes.
    EPA's Response: EPA believes it is appropriate to use the same 
general framework that has been used to define solid waste for purposes 
of RCRA subtitles C and D (albeit tailored to specifically address non-
hazardous secondary materials used as fuels or ingredients in 
combustion units), noting that the same statutory definition of solid 
waste applies to both RCRA subtitles D and C. However, EPA is not 
proposing in today's action any revisions to its hazardous waste 
regulations.
    Comment: Some commenters argued that any secondary materials that 
are beneficially reused or recycled are not waste, regardless of 
whether or not the reuse or recycling is conducted in the same or 
different location or industry (on-site and off-site).
    EPA's Response: The Agency does not agree with this assertion, as 
this position is not consistent with case law. Again, the question of 
whether a material is or is not a solid waste depends on the issue of 
discard. In Safe Food and Fertilizer v. EPA, 350 F. 3d 1263, the court 
rejected the argument that, as a matter of plain meaning, recycled 
material destined for immediate reuse within an ongoing industrial 
process is never considered ``discarded,'' whereas material that is 
transferred to another firm or industry for subsequent recycling must 
always be solid wastes. 350 F. 3d at 1268. Instead, the court evaluated 
``whether the Agency's interpretation of * * * ``discarded'' * * * is, 
reasonable and consistent with the statutory purpose.'' Id. Thus, EPA 
has discretion to determine if non-hazardous secondary materials are 
not a solid waste if it is managed within the control of the generator, 
as well as if it is transferred outside the control of the generator. 
As previously described, this proposal states that non-hazardous 
secondary materials used as a fuel in combustion units that remain 
under the control of the generator and meet the legitimacy criteria are 
not solid waste, but that non-hazardous secondary materials that are 
transferred to a third party and combusted are considered solid wastes, 
unless a petition for a non-waste determination has been granted. 
Ingredients, on the other hand, are determined not to be solid waste 
even if they are managed outside the control of the generator as long 
as they meet the legitimacy criteria. See section VII.D.6 for a 
discussion on EPA's rationale for these determinations.
    Comment: One commenter noted that EPA's hazardous waste regulations 
under subtitle C provide that hazardous secondary materials ``burned to 
recover energy'' or ``used to produce a fuel'' are ``discarded'' and, 
therefore, are solid wastes. 40 CFR.261.2(c)(2). The commenter went on 
to point out that under the ANPRM approach, EPA is interpreting the 
definition of solid waste to mean that burning of non-hazardous 
secondary material, under appropriate conditions, is not ``discard'' 
under RCRA. According to the comment, the ANPRM is inconsistent with 
the interpretation in 40 CFR 261.2. Regardless of whether EPA believes 
that it can issue separate definitions of solid waste for hazardous 
waste and non-hazardous waste, the commenter suggests ``discarded'' 
cannot be read both to include materials that are ``burned to recover 
energy'' or ``used to produce a fuel'' and to exclude such materials.
    EPA's Response: EPA disagrees with this comment and does not 
believe the regulations are inconsistent. The hazardous waste 
definition may be considered a ``presumption'' that secondary materials 
burned for energy recovery, or used to produce a fuel, are solid 
wastes. EPA has, through rulemaking, excluded from the definition of 
solid waste a number of materials burned for energy recovery under 
certain conditions. See 40 CFR 261.2(c)(2)(A)(ii) (off specification 
commercial chemicals otherwise listed as hazardous wastes); 
261.4(a)(6)(``black liquor'' in pulping processes);

[[Page 31859]]

261.4(a)(7) (spent sulfuric acid); and 261.4(a)(16) (comparable fuels). 
In addition, EPA has excluded materials used to produce fuels. See, 40 
CFR 261.4(a)(12) (oil bearing hazardous secondary material inserted 
into the petroleum refining process), and 261.4(a)(18) (petrochemical 
recovered oil inserted into the refining process).
    Regardless of the appropriateness of these exclusions, or whether 
the Agency may appropriately exclude any secondary materials from the 
solid waste definition, consistency between the regulations for 
hazardous and non-hazardous secondary materials is not an issue. This 
proposed rule, which identifies certain secondary materials burned for 
energy recovery as not being solid wastes, is comparable to the 
conditional exclusions for the definition of solid waste in the 
hazardous waste regulations. Conditions apply to all of the secondary 
materials being considered for determinations as to whether they are 
solid wastes. The legitimacy criteria apply to all of the secondary 
materials.
    It is reasonable and within EPA's discretion to determine that non-
hazardous secondary materials may be burned as products and are not 
wastes. Today's proposal acknowledges the difficulty that the 
combustion of secondary materials is commonly associated with disposal. 
However, this view does not take into account that the secondary 
material may often be used to produce a safe fuel product that is a 
valuable commodity and is sold in the marketplace no differently from 
traditional fuels. This position seems like a common sense 
interpretation of the term, ``solid waste,'' under RCRA.
    Another difficulty the Agency faces is the misconception that 
secondary material that is burned, either for destruction or energy 
recovery, by definition has high levels of contaminants. The manner in 
which the secondary material is managed is a key factor that determines 
discard. Contaminant levels are part of that consideration. If a 
material has high levels of contaminants, it would be considered sham 
recycling, which is one type of way a material can be ``discarded.''
    Hazardous secondary materials--those that would be hazardous wastes 
under RCRA subtitle C, if discarded--are more likely to contain high 
levels of contaminants. Thus, EPA could reasonably presume that burning 
such secondary materials, even if burned for energy recovery, is likely 
a waste activity. This was the Agency's rationale for issuing the 
subtitle C rule at 40 CFR 261.2(c)(2), which specifies that burning for 
energy recovery is a waste disposal activity. In EPA's rule 
establishing the comparable fuels exclusion from the definition of 
solid waste for hazardous secondary materials, the Agency stated that 
these hazardous secondary materials (comparable fuels) are lower in 
hazardous contaminants than the normal hazardous wastes and that 
burning of the comparable fuels ``does not present the element of 
discarding hazardous constituents through combustion that underlies the 
typical classification of hazardous waste-derived fuels as a solid 
waste. 50 FR at 629-630 (Jan. 4, 1985).'' 63 FR at 33783 (1998). We 
may, after looking at certain secondary materials, decide that they are 
not in fact solid wastes and are being burned as valuable commodities 
to recover energy. This interpretation, however, is consistent with 
today's proposal, which also evaluates whether materials burned for 
energy recovery are wastes or non-wastes.
    Moreover, the case law supports the conclusion that materials 
burned for energy recovery or used to produce fuels may or may not be 
solid wastes. American Mining Congress v. EPA, 824 F.2d 1177 (DC Cir. 
1987) (``AMC I''), held that the term ``discarded materials'' could not 
include materials `` * * * destined for beneficial reuse or recycling 
in a continuous process by the generating industry itself. 824 F.2d at 
1190. The provision under consideration in this case dealt specifically 
with material ``reclaimed'' in a continuous process. That is, material 
is regenerated from a secondary material in a continuous process. 
However, it is highly likely the courts would apply this same reasoning 
to secondary materials that are otherwise reused or recycled in a 
continuous industrial process, such as material used, or combusted, to 
recover energy. Accord, Association of Battery Recyclers v. EPA, 208 
F.3d 1047 (DC Cir. 2000) (``ABR'').
    It is also worth noting that the Ninth Circuit has specifically 
found that non-hazardous secondary materials may, under certain 
circumstances, be burned and not constitute solid waste under RCRA. See 
Safe Air For Everyone v. Waynemeyer (``Safe Air''), 373 F.3d 1035 (9th 
Cir., 2004) (Kentucky bluegrass stubble may be burned to return 
nutrients to the soil and not be a solid waste). This activity is not 
waste treatment even in the absence of energy recovery. We believe, 
therefore, that burning material for another useful purpose (e.g., 
energy recovery) does not necessarily constitute a disposal activity.
    With respect to materials used to produce fuels, in American 
Petroleum Institute v. EPA, 216 F.3d 50 (DC Cir. 2000) (``API II''), 
the court overturned EPA's determination that certain recycled oil 
bearing wastewaters are wastes (216 F.3d at 55-58) and upheld 
conditions imposed by the Agency in excluding petrochemical recovered 
oil from the definition of solid waste (216 F.3d at 58-59). Both of 
these materials are returned to the petroleum refinery process and used 
to produce fuel. The court in this case was clearly considering the 
conditions under which two types of material may be excluded from the 
definition of solid waste. For purposes of the issue of concern in 
today's proposal, this decision supports EPA's discretion to determine 
whether or not a secondary material used as a fuel product is a solid 
waste or not, in light of factors relevant to determining whether the 
material is discarded. Therefore, EPA is not prevented from exercising 
its discretion to decide that issue either way.
3. General Approach
    EPA received several comments on the general approach outlined in 
the ANPRM for determining which non-hazardous secondary materials used 
as fuels or ingredients in combustion units are or are not solid 
wastes. Most commenters supported the general regulatory structure that 
included: (1) A recognition that certain materials are inherently fuel 
products, (2) a self-implementing approach for identifying those non-
hazardous secondary materials that are not considered solid waste 
pursuant to general criteria and (3) a petition process for receiving a 
non-waste determination from the Agency.\24\
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    \24\ On August 18, 2009, EPA received a letter signed by nearly 
one hundred community groups and citizens that urged for an 
expansive definition of solid waste for the purposes of combustion 
and argued against the general approach of the ANPRM. A copy of this 
letter has been placed in the docket for today's proposed rule. The 
letter highlights stakeholder concerns regarding the differences 
between CAA sections 112 and 129 and argues against an overly narrow 
definition of solid waste. Partially in response to these comments 
and others, we are considering and taking comment on an alternative 
approach to that proposed and described in section VII.D. This 
alternative approach would include, with certain exceptions, non-
hazardous secondary materials that are burned as a fuel or used as 
an ingredient in the combustion process within the definition of 
solid waste. As such, units combusting those materials would be 
required to meet CAA section 129 standards. For more information on 
the alternative approach, see section VII.E of this proposed 
rulemaking.
---------------------------------------------------------------------------

    Comments: Several commenters discussed whether to include a list of 
wastes and/or a list of non-wastes in the regulations. One commenter 
recommended that a list of secondary materials that are considered 
wastes be

[[Page 31860]]

identified, rather than a list of secondary materials that are not 
considered wastes, while other commenters urged for the inclusion of a 
list of secondary materials that are not considered wastes when burned 
as a fuel. If EPA included a list of secondary materials that are not 
considered wastes when burned as a fuel in its regulations, one 
commenter also suggested that the Agency additionally include a list of 
secondary materials that are considered wastes in order to remove any 
uncertainty. Those commenters who urged that the regulations include a 
list of secondary materials not considered a waste when used as a fuel 
or ingredient also cautioned that such a list should not be all-
inclusive in order to account for changes in technology and new 
secondary materials and processes that are not yet developed.
    EPA's Response: In recognition of changes in economies, 
technologies, markets and material processes, EPA is not proposing to 
list specific non-hazardous secondary materials as either wastes or 
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. We believe that there could be instances where 
determinations of whether a particular non-hazardous secondary material 
meets the various criteria will have to be based on site-specific 
information; a national designation that in all circumstances, a 
particular non-hazardous secondary material is or is not a waste may 
not be possible. However, it is EPA's goal in this proposal, as well as 
in the pending final rule preamble, to indicate, as clearly as 
possible, which non-hazardous secondary materials used as fuels or 
ingredients in combustion units are or are not considered solid waste 
based on this criteria. As several commenters also noted, any approach 
must be flexible enough to account for changing technologies and new 
secondary materials that could, in the future, be viable fuels or 
ingredients. The proposed approach allows for these changes, not by 
codifying a list of specific non-hazardous secondary materials that are 
or not waste, but rather by adopting a self-implementing approach that 
can consider site-specific information, if necessary.
    Comments: A few commenters noted a preference for categorical 
determinations that certain secondary materials were products, not 
wastes (e.g., traditional fuels) along with clear criteria for solid 
waste determinations for secondary materials not falling into one of 
these categories (i.e. a petition process for non-waste 
determinations).
    EPA's Response: EPA partially agrees with this approach. The 
proposed rule discusses traditional fuels as a category of fuel 
products that are not secondary materials and therefore, are not solid 
waste. With respect to non-hazardous secondary materials, although this 
proposal does not list types/categories of such secondary materials 
that are or are not solid waste in regulatory text (as discussed 
above), we are proposing self-implementing regulatory criteria to be 
used by the regulated universe to determine whether the non-hazardous 
secondary material would or would not be a solid waste. The regulatory 
criteria are based on four categories of non-hazardous secondary 
materials that are managed under various scenarios, including: (1) Non-
hazardous secondary materials that remain within the control of the 
generator and meet the legitimacy criteria and used as fuel; (2) non-
hazardous secondary materials that meet the legitimacy criteria and are 
used as ingredients; (3) fuel or ingredient products that are processed 
from discarded non-hazardous secondary materials and that are used as 
fuels or ingredients in a combustion unit, provided they meet the 
legitimacy criteria; and (4) EPA has granted a non-waste determination 
for non-hazardous secondary material fuels managed outside the control 
of the generator.
    More detailed information on these categories and their respective 
criteria can be found in section VII.D. of this proposal.
    Comments: Some commenters suggested that a petition process for a 
waste determination should not be mandatory. Proponents of this 
position urged that any regulatory construct for demonstrating that 
non-hazardous secondary materials qualify as alternative fuels should 
be self-implementing and not involve the need for individual regulatory 
determinations.
    EPA's Response: The non-waste petition process that applies to non-
hazardous secondary material fuels managed outside the control of the 
generator is not mandatory; however, we note that the assumption in 
this proposed rule is that these materials would be a solid waste, 
unless they are granted a non-waste determination by EPA. Also, as 
explained above, we are proposing a self-implementing approach for all 
the other non-hazardous secondary material management categories that 
can consider site-specific information, if necessary (i.e., facilities 
will make a self-determination of whether the non-hazardous secondary 
material in question meets the regulatory criteria). We again note it 
is EPA's intention to indicate in the preamble, as clearly as possible, 
which non-hazardous materials used as fuels or ingredients in 
combustion units are or are not considered solid waste based on the 
criteria laid out in regulatory text. The Agency expects this self-
implementing approach will govern for the majority of situations.
4. Level of Processing Needed To Produce a Non-Waste Product From 
Discarded Waste Material
    In the ANPRM, we stated that if a non-hazardous secondary material 
is processed into a legitimate fuel or ingredient product, then the 
processed material would not be a discarded material. We listed various 
non-hazardous secondary materials we believed to have undergone 
adequate processing (e.g., tire-derived fuel), and requested comment on 
whether some of the materials, such as mined landfilled ash, should be 
considered to have undergone adequate processing, such that it would be 
rendered a non-waste.
    Comments: Most commenters generally agreed with the concept, but 
had differing views on what level of ``processing'' would render a 
discarded material a legitimate non-waste product fuel or ingredient 
product. Their views ranged from not requiring any processing, to 
specifying a minimum level of processing if processing criteria are 
retained. These commenters argued that any management activity 
associated with recovering the non-hazardous secondary material would 
be sufficient. Commenters who indicated that the non-hazardous 
secondary material should not be required to ``undergo processing'' 
before it is considered a non-waste fuel or ingredient argued that as 
long as these secondary materials meet the legitimacy criteria, they 
should not be viewed as a solid waste once recovered from the discard 
environment; these commenters provided examples of non-hazardous 
secondary materials, such as whole tires, biomass, and coal fly ash. 
Also, some commenters stated that the act of recovering or 
``extracting'' the material from the ``discard environment'' should 
constitute the requisite degree of processing needed. Commenters who 
argued that no minimum level of processing be specified supported their 
position by noting that procedures for recovering solid waste vary 
widely and that the amount of processing required would be dependent on 
the application for which the non-hazardous secondary material is being 
prepared.
    EPA's Response: We disagree with the commenters who generally 
argued that no level of processing or even a

[[Page 31861]]

minimum level of processing should be sufficient to produce a non-waste 
fuel or ingredient. We likewise disagree with those commenters who 
argued that the act of recovering or ``extracting'' secondary material 
from the discard environment should be sufficient to be considered 
processing. Rather, the Agency believes that sufficient processing of 
the secondary material (e.g., changing the mass, chemical make-up, or 
removing particular components from the secondary material) must be 
undertaken to transform a waste-derived fuel or waste-derived 
ingredient into a fuel or ingredient product. Thus, our position on 
this issue has changed from that discussed in the ANPRM, as explained 
below.
    For example, the Agency no longer believes that, in light of the 
proposed definition of processing, simply cutting or sizing a material 
is sufficient to produce a product fuel or ingredient. Specifically, 
under the proposed rule, processing ``means any operations that 
transform discarded non-hazardous secondary material into a new fuel or 
new ingredient product. Minimal operations, such as operations that 
result only in modifying the size of the material by shredding, do not 
constitute processing for purposes of this definition. Processing 
includes, but is not limited to, operations that: Remove or destroy 
contaminants; significantly improve the fuel characteristics of the 
material, e.g., sizing or drying the material in combination with other 
operations; chemically improve the as-fired energy content; and improve 
the ingredient characteristics.'' See the proposed definition in Sec.  
241.2.
    We believe the proposed definition is specific enough to describe 
the general level of processing that would be needed, but flexible 
enough to apply broadly to the wide range of non-hazardous secondary 
materials that are currently under consideration, or that could be 
under consideration in the future as technologies change. We believe 
that discarded non-hazardous secondary materials must be sufficiently 
processed in order to render a secondary material into a non-waste 
product. Without sufficient processing, the non-hazardous secondary 
material that is produced would remain a waste-derived fuel or waste-
derived ingredient, and if burned in a combustion unit, would be 
subject to the CAA section 129 requirements. The Agency specifically 
requests comment on these points.
    See section VII.D.4 for a discussion of the processing of discarded 
non-hazardous secondary materials into non-waste fuel or ingredient 
products. That section describes EPA's rationale for why this processed 
material is no longer considered a solid waste, as well as examples of 
processing that EPA believes does or does not meet the requisite level 
to render a discarded secondary material into a non-waste product.
5. Comments on Specific Materials Used as Fuels
    In the ANPRM, we listed a number of non-hazardous secondary 
materials, as well as traditional fuels, that we believe are currently 
being used as fuels and ingredients. We solicited comment on additional 
information, including: The composition or characteristics of non-
hazardous secondary materials; how much of the non-hazardous secondary 
material is produced and utilized; how it is utilized (i.e. as a fuel 
or an ingredient); and how it is generally handled. The majority of 
comments submitted for fuels were in regard to traditional fuels and 
the following non-hazardous secondary materials-- biomass, used tires, 
used oil, coal refuse, and sewage sludge.
    a. Traditional Fuels. The ANRPM described traditional fuels to 
include: Coal, oil, natural gas, and their derivatives (e.g., petroleum 
coke, bituminous coke, coal tar oil, refinery gas, synthetic fuel, 
heavy recycle, asphalts, blast furnace gas, recovered gaseous butane, 
and coke oven gas), as well as cellulosic biomass (e.g., wood). We 
requested comment on whether there are other fuels that should be 
considered as traditional fuels and would fall within this grouping.
    Comments: A few commenters suggested that bagasse should be 
included in the traditional fuel group because it is a valuable co-
product which is fed directly from the mill to the boilers and has 
historically been the source of electrical power in communities located 
near the sugar cane mills. In addition, cellulosic biomass crops 
similar to bagasse (e.g., energy cane and other fast growing grasses) 
grown specifically for fuel production, agricultural seeds, woody 
biomass, and wood collected from forest fire clearance activities, land 
clearing biomass, trees, unadulterated wood from pallets, and 
uncontaminated wood from disaster debris were suggested as materials 
that should qualify as traditional fuels. Last, several commenters 
argued that used oil, on-spec and off-spec, should be listed as 
traditional fuels. Since neither type of used oil is discarded, the 
presumption is that it is recycled.
    EPA's Response: We agree with commenters that many of the materials 
mentioned in the comments should be classified as traditional fuels, 
which are not solid waste. However, to further add clarity, we are 
proposing that in order to qualify as a traditional fuel, cellulosic 
biomass must be ``clean''--that is, must not be altered (either 
chemically or through some type of production process), such that it 
contains contaminants not normally associated with virgin biomass 
materials, to ensure that the material being burned does not introduce 
contaminants not normally associated with virgin biomass materials (we 
describe what we consider to be clean biomass in section VII.C.5.b). We 
believe clean biomass to include, but not necessarily be limited to: 
forest-derived biomass (e.g., green wood; forest thinnings; clean and 
unadulterated bark; sawdust; trim; and tree harvesting residuals from 
logging and sawmill materials); corn stover and other biomass crops 
used specifically for energy production (e.g., energy cane, other fast 
growing grasses); bagasse and other crop residues (e.g., peanut shells, 
agricultural seeds); wood collected from forest fire clearance 
activities; trees and clean wood found in disaster debris; clean 
biomass from land clearing operations; and clean construction wood.
    In regard to used oil, for the reasons discussed later in section 
VII.D.4, we are including on-spec used oil in the list of traditional 
fuels because we believe it meets our view of what is a traditional 
fuel (i.e., fuels that have been historically managed as valuable fuel 
products rather than being managed as waste materials). However, off-
spec used oil will be considered a solid waste, unless it is processed 
into a legitimate non-waste fuel, such as on-spec oil.
    b. Biomass. Biomass includes a wide range of secondary materials 
which can be divided into two categories, cellulosic and non-
cellulosic, as stated in the ANPRM.\25\ While the ANPRM indicated that 
much of the biomass currently used as fuels are not solid waste since 
they have not been discarded in the first instance and are legitimate 
fuel products, we specifically requested comment on whether some 
biomass contains contaminants that are significantly higher in 
concentration when compared to traditional fuel products.
---------------------------------------------------------------------------

    \25\ In the ANPRM, we did not distinguish between ``clean'' 
cellulosic biomass and that which is not. Therefore, the comments 
discussed in this section are only in reference to cellulosic 
biomass that does not meet the definition of ``clean.''
---------------------------------------------------------------------------

    Comments: Cellulosic Biomass: For the cellulosic biomass category, 
several commenters argued that resinated wood products (e.g., board 
trim, sander dust,

[[Page 31862]]

panel trim) used to manufacture particleboard, medium density 
fiberboard, and hardboard are not discarded and are typically used on-
site to either make composites or are used as fuel. One commenter 
stated that ``[i]t is also important to note the quantity of 
formaldehyde actually present in these resonated wood fuels. It is 
minute. As the resins cure, virtually all of the formaldehyde in the 
adhesive is cross linked into polymers and no longer exists as 
formaldehyde. Current extraction tests on the highest formaldehyde 
content products show levels to be less than 0.02%, using the standard 
industry extraction test for formaldehyde from composites, EN 1203.'' 
Commenters also point out that formaldehyde is a common product of 
incomplete combustion, suggesting that trace amounts of formaldehyde 
would be present in the emissions irrespective of whether formaldehyde 
was present in the residuals. One commenter noted that incomplete 
combustion of virtually all organic materials produces carbon monoxide 
and formaldehyde. Commenters also stated that California rules on 
product emissions will shortly push those numbers below 0.01%, and cite 
several studies that indicate emissions from burning resinated wood 
residuals are not significantly different than burning wood absent the 
resinated materials.\26\ Specific to panel trim, one commenter argued 
that emissions are not expected to be any different from those 
generated from unadulterated wood and traditional fuels like coal and 
oil that contain concentrations of part 261, Appendix VIII constituents 
that are orders of magnitude higher than in panel trim.
---------------------------------------------------------------------------

    \26\ 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.
---------------------------------------------------------------------------

    One commenter discussed the use of pulp and paper sludges as fuel. 
This commenter states that because these residuals are primarily 
composed of biomass, emissions from burning these materials are 
essentially the same as the emissions from burning other biomass fuels, 
such as bark or wood. The commenter cited a report that found that the 
burning of kraft pulp mill wastewater treatment residuals in bark 
boilers at levels below about 10 to 15 percent of total heat input is 
not expected to lead to an increase in any of the criteria or criteria-
related pollutants, such as NOX, SO2, or VOC.\27\ 
Further, the commenter states that a comparison of emission data for 
forty-eight organic compounds when burning wood residue and wood 
residue in combination with bleached kraft mill wastewater treatment 
residuals (around 12 percent of total heat input) in four wood-fired 
boilers showed no discernible differences in emissions of these 
organics when the residuals were co-fired. A similar comparison was 
conducted for metals, showing no discernable impact when burning these 
sludges.
---------------------------------------------------------------------------

    \27\ 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.
---------------------------------------------------------------------------

    Another commenter stated that treated wood (e.g., 
pentachlorophenol, copper-based compounds, borate based compounds) also 
should be considered a fuel because it is not discarded and can be 
safely burned in boilers. In addition, commenters stated that creosote 
treated wood is a coal derivative and burning creosote would likely 
result in emissions no greater than burning coal. Creosote is a 
distilled and homogenous product that should burn more thoroughly than 
coal and is not burned in its pure form. Commenters also noted that 
creosote treated wood is a combination of two materials we listed as 
traditional fuels. For these reasons, it should qualify as a fuel. 
However, the same commenter noted that they would not be opposed to EPA 
requiring CCA lumber to be removed from the fuel stream.
    EPA's Response: Cellulosic Biomass: We agree that certain biomass 
(cellulosic biomass that is ``clean'' and non-cellulosic biomass) 
materials can be legitimate fuels. We also generally agree with 
commenters that secondary materials, such as secondary mill residues 
(i.e., residues such as sanderdust, board, trim and breakage from the 
manufacture of reconstituted wood/panel products) and pulp and paper 
mill residuals (i.e., primary and secondary wastewater treatment 
sludges) \28\ are likely legitimate fuels.
---------------------------------------------------------------------------

    \28\ Primary sludges consist of wood fiber and inorganic 
materials and secondary sludges are primarily microbial biomass.
---------------------------------------------------------------------------

    Regarding resinated wood products, we acknowledge that we have 
limited compositional data on these materials. As noted above, we did 
receive comments on the ANPRM concerning the contaminant data of these 
materials, specifically in regard to formaldehyde and emissions 
comparisons relative to burning wood that do not contain these 
resinated materials. Although emissions comparisons are not a direct 
indicator of whether these fuels satisfy the legitimacy criteria, we 
recognize that such data can be useful as an indicator of the 
contaminant levels in the secondary material fuels relative to 
traditional fuels. Based upon what limited data we do have regarding 
these materials, as well as comments received on the ANPRM, we have 
decided to classify resinated wood residuals as non-wastes for purposes 
of this proposed rule, if they are used as fuels within the control of 
the generator. (As we discuss in section VII.E of this preamble, the 
Agency is considering resinated wood residuals under the alternative 
approach as solid wastes when burned under the control of the generator 
for energy recovery, since as a matter of policy, the Agency may want 
to define a broader definition of solid waste.) Thus, given the general 
lack of data, we are requesting data and information both on the 
contaminant levels of these materials, as well as the appropriateness 
of categorizing them as non-wastes.\29\ Based on the data and 
information the Agency receives, we may decide that such secondary 
materials are more appropriately defined as solid wastes.
---------------------------------------------------------------------------

    \29\ It is worth noting that, in response to a request from 
EPA's Office of Air and Radiation (OAR), EPA's National Center for 
Environmental Assessment (NCEA) initiated an update of the 
formaldehyde IRIS assessment to address significant new scientific 
information that had become available on formaldehyde. EPA 
anticipates deriving an inhalation reference concentration (RfC) and 
reexamining the inhalation cancer assessment as part of this update. 
The draft assessment has been reviewed by scientists and managers 
within NCEA and across EPA. EPA will release a draft for public 
comment and independent expert scientific peer review, with a 
National Academy of Sciences (NAS) panel review expected to commence 
in late April 2010, which will coincide with a formal public comment 
process through the Federal Register.
---------------------------------------------------------------------------

    We also acknowledge having limited data on pulp and paper sludges 
that are used as fuel. As noted above, we did receive comments on the 
ANPRM about contaminants associated with these secondary materials. 
Similar to resinated wood residuals, based on the limited data we have, 
we also have decided to classify pulp and paper sludges that are used 
as fuels within the control of the generator to be non-waste. (Like 
resinated wood residuals, the Agency also decided to classify pulp and 
paper sludges as solid wastes when burned under the control of the 
generator for energy recovery under the alternative approach being 
considered. See section VII.E.). Given the limited data we have, we 
also are requesting comment both on the contaminant levels of these 
materials, as well as the

[[Page 31863]]

appropriateness of categorizing them as non-wastes, and may decide 
based on the comments received to classify pulp and paper sludges as 
solid waste when burned under the control of the generator in a 
combustion unit for energy recovery when the rule is promulgated.
    Although limited information was submitted in regard to painted 
wood or pentachlorophenol, copper-based and borate-based compound 
treated wood materials and their contaminant concentrations, we believe 
these secondary materials contain elevated levels of contaminants 
relative to traditional fuels, and thus do not meet legitimacy criteria 
and should be considered solid waste if burned in a combustion unit. 
(It should also be noted that to the extent that any of these treated 
wood materials are identified as a hazardous waste, it would not be 
eligible to be burned in a non-hazardous waste combustion unit.) In 
regard to creosote treated lumber, we believe there is still a fair 
amount of uncertainty associated with the level of contaminants (e.g., 
levels of polycyclic aromatic hydrocarbons present in creosote) in 
comparison to traditional fuels. We, therefore, are requesting that 
commenters provide additional data on contaminant levels associated 
with these non-hazardous secondary materials relative to traditional 
fuels that are in use today as fuels.
    Comments: Non-cellulosic Biomass: One commenter stated that animal 
manure should not be categorically excluded from the definition of 
solid waste because it is inherently waste-like, is discarded, and does 
not meet the legitimacy criteria for ``handled as a valuable 
commodity.'' The commenter stated that manure generated in concentrated 
Animal Feeding Operation (CAFO) are known to contain heavy metals, 
halogens, dioxins, etc. Manure from CAFOs are discarded in two ways 
after it is collected: some manure is recycled for land application 
(e.g., ``used in a manner constituting disposal'') and excess manure is 
simply disposed.
    The same commenter acknowledged that manure can be recycled for use 
as bioenergy, but cautioned that it should not automatically be exempt 
from the definition of solid waste. In support of its position that 
manure recycled into bioenergy and used as fuel is still a solid waste, 
the commenter cites the regulations at 40 CFR 261.2(e)(2)(ii), which 
lists materials burned for energy recovery, used to produce a fuel, or 
contained fuels among materials that are solid wastes, even if 
recycling of those materials involves use, reuse, or return to the 
original process. Overall, the commenter is concerned with the large 
volumes of animal manure currently being generated at animal feeding 
operations and the lack of oversight at recycling facilities to ensure 
that recovery is immediate and happens without releasing any pollutants 
into the environment. Based on the commenter's observations, current 
regulations (i.e. the 2008 CAFO NPDES Rule) still are not sufficient to 
assure that CAFO operations will meet the two benchmarks of immediacy 
and environmental care that define a ``valuable commodity.'' They 
conclude that for manure to be excluded from the definition of solid 
waste, it should have to meet numerous qualifying conditions to show 
that the manure is being recycled.
    EPA's Response: Non-cellulosic Biomass: Because the focus of this 
rulemaking is to determine which non-hazardous secondary materials are 
or are not solid waste when burned as a fuel or ingredient in 
combustion units (not when utilized for other purposes, such as land 
application), we are not making any determination that manure is a 
solid waste for other possible beneficial end uses. Such beneficial use 
determinations are generally made by the states for these other end 
uses, and EPA will continue to look to the states to make such 
determinations.
    With respect to whether manure is a legitimate non-waste fuel, EPA 
recognizes that manure has been used previously as a fuel, and is 
currently used as a fuel source in other countries. In fact, some 
commenters have argued that manure should be considered a traditional 
fuel, and if not, should at least be considered a non-waste fuel since 
they believe that manure meets the legitimacy criteria. While we 
appreciate the information submitted in the comments, we lack data 
sufficient to evaluate the legitimacy criteria for manure. Therefore, 
we request information and data on how manure is handled from its point 
of generation to the point it is used as a fuel, in order that EPA can 
determine whether manure would meet this legitimacy criterion.
    In addition, EPA has limited data on the contaminant concentrations 
and Btu value of manure to determine whether it would meet these 
legitimacy criteria. Therefore, we are requesting that commenters 
provide additional information and data on the extent to which manure 
(including materials, such as chicken litter) is currently used as a 
fuel, as well as data to support whether these materials meet our 
legitimacy criteria, including the contaminant levels--that is, they 
contain contaminants at levels comparable to traditional fuels and 
heating content of the various types of manure.\30\ We will evaluate 
the information submitted during the public comment period and will 
discuss our determination in the final rule.
---------------------------------------------------------------------------

    \30\ Based on data provided to EPA by USDA, research conducted 
by the Texas Agricultural Experiment Station and the Texas 
Cooperative Extension shows that manure has a dry, ash free heating 
value of 8,500 Btu/lb, while other research demonstrates the energy 
value of manure (as received) to be much lower (between 2,710-5,764 
Btu/lb). For more information, please refer to the background paper 
entitled, ``USDA Response to EPA's Belief that Manure that is Burned 
as a Fuel is a Solid Waste,'' which is located in the docket for 
today's rule.
---------------------------------------------------------------------------

    On the other hand, if manure is processed into biofuels, by, for 
example, anaerobic digesters such biofuels would be considered a 
legitimate non-waste fuel that has been processed from a non-hazardous 
secondary material provided ``the biofuel'' meets the legitimacy 
criteria--that is, managed as a valuable commodity, has a meaningful 
heating value and contains contaminants at levels that are comparable 
to traditional fuel. We again acknowledge, however, that we have 
limited data (such as how the biofuels are managed, once generated, 
contaminant concentrations and Btu value) on biofuels that are produced 
from animal manures, and request that commenters provide additional 
data on the extent to which manures are currently processed into 
biofuels, as well as data to support whether these materials meet our 
legitimacy criteria, including contaminant levels and heating content.
    c. Used Tires. We discussed in the ANPRM that tires used as 
legitimate alternative fuels can be categorized as a non-waste fuel if 
they have not been previously discarded (i.e., if the used tires have 
not been abandoned and thrown away). The ANPRM further stated that used 
tires collected and managed pursuant to a state tire oversight program, 
are not considered to be discarded. The ANPRM also explained that 
discarded used tires that have been processed to make a legitimate fuel 
product (such as TDF) would not be a solid waste. Furthermore, we 
requested comment on whether used tires that fall within the category 
of secondary materials that are discarded, but can be directly used as 
a legitimate fuel or ingredient without processing because they are 
indistinguishable in all relevant aspects from a fuel or ingredient 
product (e g., whole tires) should not be considered a solid waste.

[[Page 31864]]

    Comments: Other than the states,\31\ commenters generally agreed 
with the approach outlined in the ANPRM. Commenters did not agree, 
however, that whole tires taken from waste tire piles, but not 
processed, should be considered solid wastes. Several commenters 
responded that tires should be excluded from the definition of solid 
waste irrespective of where they are generated, including from waste 
tire piles. Along the same lines, some commenters argued that 
regardless of the source, scrap tires are indistinguishable from one 
another in terms of fuel/Btu value and air emissions and that the only 
distinction is whether they have been previously discarded. Others 
stated that extraction and reclamation from a waste tire pile should be 
sufficient processing to classify a tire as a legitimate non-waste 
fuel.
---------------------------------------------------------------------------

    \31\ For a discussion of state comments regarding used tires, 
see section VII.C.1., ``Comments from State Agencies.''
---------------------------------------------------------------------------

    EPA's Response: As discussed in section VII.D.2, we now believe 
that whole used tires (even if collected from tire dealerships and 
automotive shops and overseen by a state tire collection oversight 
program) are initially abandoned and thus meet the plain meaning of 
discard. As a result, whole used tires that are not processed into a 
legitimate fuel or ingredient (e.g., shredded/chipped with steel belts 
removed) would be considered a solid waste. We acknowledge that whole 
tires can be legitimately burned as fuel, but because they have been 
discarded, whole tires would be considered solid wastes and subject to 
the CAA section 129 requirements unless processed into a non-waste fuel 
product. See section VII.D.2 for a more detailed discussion on why we 
now consider whole used tires to have been discarded by the original 
owner.
    We are also proposing a process by which a facility or person can 
apply for a non-waste determination for secondary materials that are 
not managed within the control of the generator. As outlined in section 
VII.D.5, the purpose of the petition process is to recognize that some 
non-hazardous secondary materials may remain outside the control of the 
generator and not be processed into a fuel product, but still be a 
legitimate non-waste fuel product. As part of this petition, the 
facility must demonstrate that the secondary material has not been 
discarded in the first instance.\32\
---------------------------------------------------------------------------

    \32\ The petition process for a non-waste determination would 
also require the petitioner to describe how the non-hazardous 
secondary material satisfies the criteria outlined in the petition 
process, which includes whether it meets the legitimacy criteria.
---------------------------------------------------------------------------

    We also are requesting comment on whether discarded materials, such 
as used tires that have been abandoned and disposed of in waste tire 
piles and have not been processed (as defined in this proposal), should 
not be considered solid wastes if they meet the legitimacy criteria and 
are indistinguishable in all relevant aspects from a product or 
intermediate.
    d. Used Oil. As indicated in the ANPRM, we consider off-
specification (or ``off-spec'') used oil that is collected from repair 
shops to have been discarded. Used oil that meets the on-specification 
(or ``on-spec'') levels and properties of 40 CFR 279.11 is considered 
be a legitimate non-waste fuel product. We requested comment on whether 
off-spec used oil managed pursuant to the 40 CFR part 279 used oil 
management standards and which is burned for energy recovery in certain 
types of combustion devices \33\ should be considered a legitimate non-
waste fuel.
---------------------------------------------------------------------------

    \33\ Devises include industrial boilers located at facilities 
that are engaged in a manufacturing process where substances are 
transformed into new products, utility boilers used to produce 
electric power, steam, heated or cooled air or other gases or fluids 
for sale, used oil fired space heaters provided the burner meets the 
provisions of 40 CFR 279.23, and hazardous waste incinerators 
subject to regulation under 40 CFR subpart O of parts 264 and 265.
---------------------------------------------------------------------------

    Comments: Most commenters believe that off-spec (and on-spec) used 
oil should not be classified as a solid waste. Various reasons were 
provided in support. Specifically, one commenter reasoned that off-spec 
used oil should not be treated as a solid waste if it has been 
delivered to a legitimate recycler for processing. Designation as a 
solid waste would lead to costly burning in hazardous waste 
incinerators, burning in uncontrolled space heaters, and more 
undesirable disposal methods. Many commenters also referred to 
Congress' intent to manage used oil differently and EPA's regulatory 
structure for the management of used oil as evidence that used oil 
should not be classified as a solid waste. They added that used oil is 
typically neither disposed of, thrown away, nor abandoned, but is 
collected and contained. Used oil is a valuable product that is subject 
to EPA's recycling presumption. Btu content is not necessarily lower 
than on-spec used oil or virgin fuel, and contaminants, such as water, 
flashpoint, and metals can be effectively addressed. In a similar, but 
slightly different view, a number of commenters argued that on-spec and 
off-spec used oil should be included in the list of traditional fuels. 
Since neither is discarded, the presumption is that it is recycled. 
Only one commenter thought that off-spec used oil should continue to be 
considered a solid waste within the RCRA framework.
    EPA's Response: We agree with the commenters who said that on-spec 
used oil should not be classified as a solid waste. Based upon how we 
define traditional fuels (i.e. fuels that have been historically 
managed as valuable fuel products rather than being managed as waste 
materials), we believe that on-spec used oil should be considered a 
traditional fuel. In accordance with 40 CFR part 279, once used oil is 
determined to be on-spec, it is no longer regulated under the used oil 
management standards.\34\ Used oil that has been determined to be on-
spec has verified that it contains contaminants at levels below the 
maximum concentration limits established in the standards, such that 
the emissions resulting from the burning of on-spec used oil will not 
pose an increased threat to human health or the environment than the 
emissions resulting from the burning of virgin oil or diesel. This is 
because the contaminants of concern (i.e., those for which maximum 
concentration levels have been set) present in on-spec used oil are 
either at the same concentration or a lower concentration than virgin 
refined fuel oil.\35\
---------------------------------------------------------------------------

    \34\ Once used oil is claimed to be on-spec and the marketer 
complies with the requirements for analysis and record retention, 
notification, and record tracking shipment to on-specification 
burners, it is no longer subject to other management standards. We 
note that today's proposed rule does not change any of the 
regulations in place that regulate on-spec used oil.
    \35\ See Used Oil Final Rule, 50 FR 49181 (November 29, 1985).
---------------------------------------------------------------------------

    This approach is supported by Safe Food and Fertilizer v. EPA, 350 
F.3d 1263 (DC Cir. 2003). The decision upheld an EPA rule that excluded 
from the definition of solid waste certain recycled materials used to 
make zinc fertilizers (and the fertilizers themselves) as long as they 
were not speculatively accumulated, met certain handling, storage and 
reporting conditions, and were ``identical'' to fertilizers made from 
raw materials, i.e., they had concentration levels for certain 
chemicals that fall below specified thresholds. 350 F.3d at 1265. We 
believe on-spec used oil satisfies these criteria.
    In regard to off-spec used oil, we disagree that it should not be 
classified as a solid waste. The used oil regulations are structured 
such that off-spec used oil is managed within the constraints of the 
used oil management

[[Page 31865]]

standards until it is processed into on-spec used oil or it is properly 
disposed of. It may only be burned in specific types of combustion 
devices.\36\ Although off-spec used oil may be managed within the 
control of the generator, it contains contaminants at levels that are 
not comparable to traditional fuels, and thus would not be considered a 
legitimate non-waste fuel per the legitimacy criteria. Therefore, 
today's proposed rule considers off-spec used oil as a solid waste 
subject to the CAA section 129 requirements, as wells as state, and 
local requirements, unless it is processed to meet the on-spec used oil 
limits specified in 40 CFR 279.11.
---------------------------------------------------------------------------

    \36\ These devices, listed in 40 CFR 279.61, were determined to 
not pose significant health risks when burning off-spec used oil 
because they typically are equipped with particulate control 
equipment (as required by CAA permits). Nonindustrial boilers (e.g., 
those located in apartment and office buildings, schools, and 
hospitals), on the other hand, were found to pose significant risk 
when off-spec used oil is burned because they are typically very 
small and may not achieve complete combustion and do not have any 
emission control equipment.
---------------------------------------------------------------------------

    It also should be noted that off-spec used oil may be burned in 
used oil-fired space heaters pursuant to 40 CFR part 279, provided: (1) 
The heater burns only used oil that the owner or operator generates or 
used oil received from household do-it-yourself used oil generators; 
(2) the heater is designed to have a maximum capacity of not more than 
0.5 million Btu per hour; and (3) the combustion gases from the heater 
are vented to the ambient air. The RCRA used oil regulations base this 
provision on a finding that uncontrolled emissions from these sources 
do not pose a significant threat to human health and the 
environment.\37\ However, consistent with our determination that off-
spec used oil be considered a solid waste when burned as a fuel, we 
believe that off-spec used oil managed within the control of the 
generator would not qualify for the generator controlled exclusion when 
burned in a used oil fired-space heater, since contaminant levels are 
not comparable to traditional fuels. Therefore, we are proposing that 
off-spec used oil combusted at a unit that is within the control of the 
generator would be solid waste. We request comment on this approach, as 
well as any supporting information.
---------------------------------------------------------------------------

    \37\ Used Oil Final Rule, 50 FR 49194 (November 29, 1985).
---------------------------------------------------------------------------

    e. Coal Refuse/Coal Combustion Residuals. The ANPRM identified coal 
refuse (i.e., mining rejects and recovered landfilled ash) as a solid 
waste because it has been discarded and has not been subsequently 
processed for use as a fuel. We solicited comment on whether there are 
circumstances under which these materials have been discarded, but not 
processed, and can be considered as non-waste fuels once they are 
removed or recovered from the ``discard'' environment and managed as 
legitimate fuels.
    Comments: Several commenters responded that coal refuse should not 
be classified as a solid waste. One commenter argued that there is no 
basis for continuing to classify an alternative fuel or ingredient as a 
solid waste merely because it does not have to undergo some type of 
processing before being used. The same commenter also indicated that 
the recovery of ash and mill rejects from disposal sites all involve 
some degree of processing. The materials have to be excavated, stored, 
and transported to their designated uses where they are also often 
subject to the same types of processing activities that are associated 
with the mining and management of virgin coal (i.e., screening, sizing, 
and chemical analysis to identify Btu, ash characteristics and sulfur 
content). Given the significant costs associated with the extraction of 
these materials, including excavation and handling, as well as the 
nearly identical nature of these materials to traditional fuels and 
ingredients, the extraction operations themselves constitute the 
requisite degree of processing necessary to be viewed as a non-waste. 
One commenter stated that they were aware of one electric utility that 
in the past recovered high-carbon content ash from a disposal facility 
that it owns, and used the ash as a fuel source by supplementing the 
coal used in one of their utility boilers. The same company today takes 
high-carbon fly and bottom ash directly from several existing boiler 
units and burns it at their power generating station. This commenter 
noted that there are at least four patented processes for removing 
unwanted carbon from fly ash that allow the processed ash to produce 
both technically compliant fly ash for use in concrete and a separate 
carbon stream that can be re-introduced into the boiler for its fuel 
value.
    One commenter contended that coal refuse is a solid waste due to 
its toxicity levels in comparison to normal coal. Specifically, waste 
coals can have up to four times more mercury and chromium, and three 
times more lead than other coals.
    EPA's Response: As discussed in the Material Characterization Paper 
developed for this rulemaking, large volumes of coal refuse piles were 
accumulated at mining sites from the time mining first began in the 
Appalachians through the late 1970s. Beginning in the late 1970s, laws 
were enacted that, for the first time, required stabilization and 
reclamation of mining sites, including coal refuse disposal piles and 
fills. Current mining operations continue to generate the material, 
though likely at lower rates than in previous decades.
    For purposes of this proposal, we are therefore differentiating 
between coal refuse that was generated in the past and placed into 
``legacy'' piles, and the current generation of coal refuse. Legacy 
piles of coal refuse would clearly be considered to be disposed of and 
abandoned, thus meeting the definition of a solid waste material. We 
would not consider currently generated coal refuse to be abandoned or 
disposed of and, therefore, would not be considered a solid waste.
    With regard to coal refuse from legacy piles, the processing of 
coal refuse for use as a fuel or ingredient involves separation through 
the use of screens or grizzlies, blending, crushing, and some drying. 
Although we understand that virgin coal is similarly processed, we 
believe that such operations would constitute ``minimal processing'' 
and would not meet the processing definition as proposed. See section 
VII.D.4 for a discussion of what does and does not constitute 
``processing'' as defined in this proposal. Therefore, because coal 
refuse from legacy piles has been discarded and does not undergo a 
sufficient level of processing, it is considered a solid waste and 
would be subject to the CAA 129 requirements if burned in a combustion 
unit.
    We note that one commenter contended that coal refuse contained 
elevated levels of mercury, chromium, and lead when compared to other 
coals. We recognize that available data show that coal refuse generally 
has higher metals concentrations than non-refuse coal concentrations. 
Although coal refuse can contain metals concentrations that are higher 
than found in virgin coal, data also show that emissions levels from 
some facilities burning coal refuse (namely those equipped with 
circulating fluidized beds (CFBs)) are lower than most existing 
pulverized coal utility boilers.\38\ For the purposes of this proposal, 
however, it is not necessary to discuss whether coal refuse from legacy 
piles

[[Page 31866]]

satisfies the contaminant requirement of the legitimacy criteria, given 
that we believe that such coal refuse is a solid waste because it is 
discarded and is not sufficiently processed into a fuel product.
---------------------------------------------------------------------------

    \38\ CFBs ability to achieve lower emissions levels is due to 
several factors: (1) CFB boilers are often newer than many existing 
pulverized coal utility boilers and may be equipped with better 
particulate matter (PM) controls; (2) CFBs utilize lower operating 
temperatures, which result in lower metal and NOX 
emissions; and (3) CFB boilers often add limestone to their feed to 
control SO2 emissions, which results in greater metal 
fixation to the ash.
---------------------------------------------------------------------------

    We are also differentiating between mined landfilled ash, which 
generally refers to landfilled coal ash, from coal refuse, which we 
generally characterize as coal mining rejects that have been placed in 
waste piles (known as gob or culm, for example).\39\ Coal combustion 
residuals (CCRs) that have been discarded in the first instance (e.g., 
coal ash mined from landfills) would be considered solid waste unless 
they are processed into legitimate non-waste fuel products. It appears 
that the patented processes described by the commenter that separates 
carbon from the fly ash to produce a fuel would satisfy the processing 
requirement included in this proposal. However, until the Agency has 
additional information, we are not in a position to indicate that such 
processing is sufficient to produce a non-waste fuel. Therefore, we are 
requesting that commenters provide additional information explaining 
how this processing is conducted, and the extent to which these high 
carbon fuels are produced nationwide. With respect to high-carbon fly 
and bottom ash taken directly from existing boiler units and burned at 
power generating stations, we believe that such secondary materials are 
not discarded and would not be considered a solid waste if it was 
managed within the control of the generator and satisfies the fuel 
legitimacy criteria.
---------------------------------------------------------------------------

    \39\ The ANPRM included landfill ash in its description of coal 
refuse.
---------------------------------------------------------------------------

    Regarding the commenter that indicated coal fly ash and mill 
rejects are often subjected to the same types of processing activities 
that are associated with the mining and management of virgin coal 
(i.e., screening, sizing, and chemical analysis to identify Btu, ash 
characteristics and sulfur content), we believe that screening, sizing, 
and chemical analysis constitutes a minimal level of processing, and 
would not satisfy the processing requirement of this proposal. Although 
we recognize that sizing of materials is an important processing step 
for fuels in order to improve combustion efficiency, we believe this 
represents an inadequate level of processing to change a discarded 
material into a product fuel and, therefore, these materials would be 
considered solid wastes under today's proposal. However, we request 
that commenters provide additional information on the extent to which 
CCRs are recovered from the discard environment (e.g., landfills) and 
used as fuels. We also request that commenters provide more detailed 
information on how these secondary materials are processed, and whether 
these materials might satisfy the legitimacy criteria for fuels.
    f. Sewage Sludge. Sewage sludge or ``wastewater treatment sludge'' 
as referred to in the ANPRM, was one of several non-hazardous secondary 
materials that we solicited comment as to whether it is a legitimate 
alternative fuel and thus would not be solid waste if it has not been 
previously discarded.
    Comments: All commenters who addressed this issue argued that 
sewage sludge should not be classified as a solid waste. One commenter 
specifically pointed to the RCRA statutory definition of solid waste, 
stating that Congress expressly exempts solid and dissolved materials 
in domestic sewage processed at Publicly Owned Treatment Works (POTWs). 
Rather, sewage sludge should be regulated comprehensively under the 
Clean Water Act (CWA), or to the extent necessary to meet CAA 
obligations, EPA should regulate the combustion of POTW sewage sludge 
under CAA section 112. Additionally, it was put forth that if the 
Agency disagreed with the assertion that the RCRA statute requires the 
Agency to exempt sewage sludge from the definition of solid waste, that 
the Agency provide a regulatory exclusion for sewage sludge burned in 
incinerators in order to preserve the current framework for regulating 
sewage sludge managed under section 405 of the CWA to avoid redundancy. 
This commenter was also concerned about the implications a 
determination that sewage sludge is solid waste when incinerated would 
have on how states regulate sewage sludge managed for different 
purposes (e.g., land application).
    Two commenters stated that sewage sludge meets all three legitimacy 
criteria for fuels. It is handled as a valuable commodity by virtue of 
it being continuously dewatered and directly injected into the 
incinerator; it is not diverted or stored and every effort is made to 
maximize the quantity of sludge to be combusted. One commenter stated 
these materials have meaningful heating value, given that it recovers a 
net energy value of 4,300,000 Btus/hour of useable thermal energy from 
its combustion. Also, the CWA section 405 regulations provide risk-
based limits for contaminants when incinerated, such that as long as 
the contaminant level is below the limits, it does not pose a 
significant health risk.
    EPA's Response: We agree with commenters that the RCRA statutory 
definition of solid waste excludes the solid or dissolved material in 
domestic sewage. This is evidenced by the RCRA hazardous waste 
regulations that extend this exclusion to mixtures of hazardous waste 
with domestic sewage, provided that the mixture occurs in a pipeline en 
route to a POTW. See 40 CFR 261.4(a)(1). However, we do not agree with 
the commenters that the Domestic Sewage Exemption (DSE) applies to the 
sludge generated from the treatment process and thus, sewage sludge is 
a solid waste if it is discarded.\40\ We believe that sewage sludge 
burned without energy recovery (i.e., burned for destruction) in an 
incinerator is discarded, and thus a solid waste. Further, the Agency 
is not proposing to provide a regulatory solid waste exclusion for 
sewage sludge burned in incinerators that would preserve the current 
framework for regulating sewage sludge managed under section 405 of the 
CWA to avoid redundancy. However, we request comment on whether such an 
approach is within our discretion. Regarding the commenter's concerns 
about possible impacts on how states regulate sewage sludge managed for 
different purposes (e.g., land application), as discussed in more 
detail in Section VIII, through this rulemaking, EPA is articulating 
the narrow definition of which non-hazardous secondary materials are or 
are not solid waste when used as fuel for energy recovery or as 
ingredients in combustion units. We are not making solid waste 
determinations that cover other possible secondary material end uses. 
In EPA's view, these regulations should have no effect on state 
programs that choose to regulate this material in different ways and 
under different authorities.
---------------------------------------------------------------------------

    \40\ EPA has long viewed sewage sludge generated from POTWs as a 
solid waste, beginning with the 1980 Identification and Listing of 
Hazardous Waste rulemaking. In this final rule, EPA stated that the 
DSE is ``only applicable to non-domestic wastes that mix with 
sanitary waste in a sewer system leading to a POTW.'' See 45 FR 
33097 (May 19, 1980). In the same rule, EPA further said it decided 
not to exclude sewage sludge from regulation under RCRA, since the 
statutory expressions regarding the definitions of ``solid waste'' 
and ``sludge'' was clear. (See 45 FR 33101).
---------------------------------------------------------------------------

    Two commenters indicated that many POTWs recover energy in the form 
of usable heat from the incineration of sewage sludge via waste heat 
boilers. Although waste heat boilers are useful devices for providing 
energy in the form of steam for secondary processes, the Agency does 
not regard them as legitimate energy recovery devices because they 
receive their energy input

[[Page 31867]]

from the combustion of off-gases via a separate combustion chamber. 
Under the RCRA program, a legitimate energy recovery device is one that 
meets the definition of a boiler or an industrial furnace (see 40 CFR 
260.10). Among other criteria, a boiler's combustion chamber and 
primary energy recovery section(s) must be of integral design, unless 
it falls under the process heater or fluidized bed combustion 
exemption. Thus, a combustion chamber that is connected by a duct to a 
waste heat boiler (or recuperator/heat exchanger) does not qualify as a 
legitimate energy recovery device. The CAA program views waste heat 
recovery units (i.e., external to the combustion chamber) similarly. 
Waste heat recovery units are designed to cool the exhaust gas stream, 
and/or to recover, indirectly, the useful heat remaining in the exhaust 
gas from a combustion unit that has some other primary purpose (such as 
an institutional waste incinerator). The presence of a waste heat 
recovery unit on the exhaust gas does not change the fact that the unit 
combusting the secondary material is primarily an incineration unit 
burning waste for disposal purposes. See Other Solid Waste Incinerators 
(OSWI) final rule at 70 FR 74870 at 74876, (December 16, 2005). 
Therefore, sewage sludge burned in a waste heat recovery unit would not 
satisfy the meaningful heating value legitimacy criteria and would thus 
be considered to be burning solid waste (for more discussion on the 
legitimacy criteria, see section VII.D.6).
    The Agency also notes that data generally shows that municipal 
sewage sludge contains metals that are typically higher in 
concentrations when compared to traditional fuels (e.g., coal and fuel 
oil). See the table below for a comparison of the concentration of 
certain toxics of municipal wastewater treatment sludges to coal.

            Comparison of Toxics of Municipal Wastewater Treatment Sludges to Traditional Fuels \41\
----------------------------------------------------------------------------------------------------------------
                                                      Sewage sludge
                                     ----------------------------------------------
               Element                                          National sewage             Coal (mg/kg)
                                       40-City study (mg/kg   sludge study (mg/kg
                                           dry weight)            dry weight)
----------------------------------------------------------------------------------------------------------------
Arsenic.............................                    9.9                    6.7  10
Cadmium.............................                   69                      6.9  0.5
Chromium............................                  429                    119    20
Copper..............................                  602                    741    Not available.
Lead................................                  369                    134.4  40
Mercury.............................                    2.8                    5.2  0.1
Molybdenum..........................                   17.7                    9.2  Not available.
Nickel..............................                  135.1                   42.7  20
Selenium............................                    7.3                    5.2  1
Zinc................................                1,594                  1,202    Not available.
Sewage sludge findings in this table are for final sludge which is defined as the liquid, solid, or semi-solid
 residue generated during the treatment of domestic sewage in a treatment works, receiving secondary treatment
 or better, and which may include sewage sludge processed to meet the land application standards.
----------------------------------------------------------------------------------------------------------------

    As such, the Agency does not believe that sewage sludge would meet 
the legitimacy criteria for contaminants. Therefore, the Agency is 
proposing that sewage sludge, generated from POTWs and when combusted, 
be classified as a solid waste, and subject to the CAA Section 129 
requirements.
---------------------------------------------------------------------------

    \41\ More information on the composition of municipal wastewater 
treatment sludges can be found in the Materials Characterization 
Paper on Wastewater Treatment Sludge, which has been placed in the 
docket for today's proposed rule.
---------------------------------------------------------------------------

6. Comments on Specific Materials Used as Ingredients
    The ANPRM identified a number of non-hazardous secondary materials 
that we believe are currently being used as ingredients in combustion 
processes (i.e., blast furnace slag; CKD; coal combustion residual 
group (fly ash, bottom ash, and boiler slag); foundry sand; silica 
fume; and secondary glass material). The ANPRM solicited comment on 
whether or not these non-hazardous secondary materials are legitimate 
ingredients per the legitimacy criteria, and requested additional data 
and/or information supporting whether these secondary materials are 
legitimate ingredients. The majority of comments submitted were in 
regard to: CKD, CCRs, foundry sand, and blast furnace slag/steel slag.
    a. Cement Kiln Dust. For CKD, the ANPRM indicated that CKD is not a 
solid waste if it is recycled within the continuous clinker production 
process.
    Comments: One commenter responded that they strongly support this 
view, but that other CKD which may be available could be useful if 
industry could find a means to incorporate this viable ingredient into 
the process. Thus, they believe that any EPA interpretation regarding 
the use of CKD must allow for access of the material irrespective of 
where the ingredient is maintained prior to use.
    EPA's Response: As explained in section VII.D.3, we are proposing 
that non-hazardous secondary materials used as ingredients in 
combustion units that are not discarded in the first instance would not 
be considered a solid waste provided they satisfy the legitimacy 
criteria for ingredients (discussed in section VII.D.6.b). This 
proposal does not assume that ingredients used in combustion units that 
are not managed within the control of the generator are discarded 
materials (as is the case for non-hazardous secondary material fuels) 
since we believe that non-hazardous secondary materials used as 
ingredients in manufacturing processes, such as cement kilns are 
commodities managed within continuous commerce and are used as an 
integral part of the manufacturing process. That is, secondary 
materials that are directly used (or in the case of previously used 
materials, reused), function as raw materials in normal manufacturing 
operations or as products in normal commercial applications, and thus, 
EPA has interpreted the definition of solid waste as excluding 
secondary materials recycled in ways that most closely resemble normal 
production processes.
    With respect to the comment that our interpretation regarding the 
use of CKD must allow for access of the material irrespective of where 
the ingredient is maintained prior to use, it is not clear what point 
the commenter is making. To the extent that the CKD has not been

[[Page 31868]]

discarded in the first place, we are proposing that the use of CKD in a 
cement kiln would not be considered a solid waste whether it remains 
under the control of the generator or is transferred to another person, 
so long as it meets the legitimacy criteria. However, if CKD has been 
discarded, its use as an ingredient in the cement kiln would be 
considered combustion of a solid waste, (and the cement kiln would be 
subject to the CAA section 129 requirements), unless it has been 
processed (as defined in section VII.D.4) to produce a non-waste 
ingredient.
    b. Coal Combustion Residuals. The ANPRM identified what was 
considered to comprise the CCR group: Fly ash, bottom ash, and boiler 
slag. Similar to CKD, it was stated that coal fly ash that is handled 
as a commodity within continuous commerce when it is marketed to cement 
kilns as an alternative ingredient is not discarded. Under the ANPRM 
approach, if the CCR product was previously discarded, such non-
hazardous secondary materials would be solid wastes, unless they were 
processed into a legitimate ingredient product. However, we solicited 
comment on the situation where a discarded material is recovered from 
the environment and directly used as an ingredient (i.e. without 
processing). Additionally, we solicited comment on the extent to which 
non-hazardous secondary materials that have already been discarded 
(e.g., coal fly ash that has been landfilled) are later processed and 
used as ingredients in combustion units, as well as requested 
descriptions of the types of processing that these secondary materials 
undergo.
    Comments: Several commenters believe CCRs can be either legitimate 
fuels or ingredients when used in a combustion unit. One commenter 
stated that there are a number of cement kilns that use or have used 
high carbon fly ash as a fuel and ingredient. As an ingredient, the 
constituents within the fly ash are similar to those required from 
natural materials (such as shale, marl or limestone) in that they 
contain fractions of silica, iron and aluminum needed in the kiln. As a 
fuel, the relatively high carbon content imparts energy through its 
combustion, reducing the need for some portion of fossil or other fuels 
for the kiln.
    EPA's Response: As discussed above (and as further discussed in 
Section VII.D.6.b), we are proposing that non-hazardous secondary 
materials used as ingredients in combustion units that are not 
discarded in the first instance would not be considered a solid waste 
provided they satisfy the legitimacy criteria for ingredients. 
Commenters point out that CCRs can serve both as ingredients, as well 
as fuel supplements. This raises the question of whether these types of 
secondary materials should be treated like non-hazardous secondary 
materials used as fuels (where we assume they are discarded if they are 
managed outside the control of the generator), as opposed to 
ingredients (in which case they are not solid waste even if they are 
managed outside the control of the generator provided they satisfy the 
legitimacy criteria and have not been discarded in the first instance). 
It also raises the question as to whether these materials should be 
required to satisfy the legitimacy criteria for fuels or for 
ingredients, or both. We do not believe it would be appropriate to 
require these types of secondary materials to satisfy the criteria of 
both fuels and ingredients. As a result, we are proposing that the 
decision to treat them as fuels or ingredients should be based on the 
primary purpose of using the non-hazardous secondary material in the 
cement kiln. With respect to CCRs, we believe the primary purpose of 
their use is as an ingredient; thus, provided the CCRs satisfy the 
legitimacy criteria for ingredients and are not discarded in the first 
instance, they would not be considered solid waste.\42\ 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.
---------------------------------------------------------------------------

    \42\ We note that used tires provide both fuel value and 
ingredient value in cement kilns. In this instance, however, we 
believe the primary purpose of using tires in a cement kiln is to 
recover their energy value, and therefore believe tires should 
satisfy the fuel criteria in determining whether the materials are 
discarded and legitimate.
---------------------------------------------------------------------------

    Comment: With respect to the extent that CCRs have been discarded, 
but are later processed, one commenter noted that there are at least 
four patented processes for removing unwanted carbon from fly ash that 
would allow the processed ash to produce both technically compliant fly 
ash for use in concrete and a separate carbon stream that can be re-
introduced into the boiler for fuel value. Another commenter stated 
that coal fly ash (and mill rejects) recovered from disposal sites all 
involve some degree of processing, in that the materials have to be 
excavated, stored, and transported to their designated uses. The 
materials are also often subject to the same types of processing 
activities that are associated with the mining and management of virgin 
coal (i.e., screening, sizing, and chemical analysis to identify Btu, 
ash characteristics and sulfur content). Finally, one commenter 
disagreed with our position on CCRs. The commenter believes that CCRs 
are wastes due to their high concentration of contaminants, 
predominantly mercury.
    EPA's Response: In regard to when a discarded material is recovered 
from the environment and directly used as a fuel or ingredient, we are 
proposing that the secondary material is a solid waste, unless it 
undergoes a sufficient level of processing to produce a legitimate fuel 
product or ingredient. As discussed in detail in section VII.D.4, when 
a non-hazardous secondary material has been discarded, unless 
sufficient processing occurs to change the material to produce a 
legitimate fuel product or ingredient, it would remain a solid waste 
under this proposal. However, we are also requesting comment on whether 
such non-hazardous secondary materials that have been discarded and 
shown to be a legitimate fuel or ingredient product, should 
nevertheless be considered a legitimate non-waste fuel or ingredient, 
even if the non-hazardous secondary material does not undergo 
processing at all or an adequate amount of processing.
    As previously described for processed CCR's that are used as fuels, 
it appears that the patented processes described by the commenter that 
separates carbon from the fly ash to produce technically compliant fly 
ash for use in concrete would satisfy the processing requirement 
included in this proposal; however, we are requesting that commenters 
provide additional information explaining how this processing is 
conducted, and whether this type of fly ash is used as an ingredient in 
the clinker production process.
    Regarding the commenter that indicated that coal fly ash and mill 
rejects are often subject to the same types of processing activities 
that are associated with the mining and management of virgin coal 
(i.e., screening, sizing, and chemical analysis to identify Btu, ash 
characteristics and sulfur content), we do not believe that screening, 
sizing, and chemical analysis by itself is a sufficient level of 
processing that would render a discarded material into a non-waste 
ingredient product. As we noted previously in Section VII.C.5.e., while 
we recognize that screening, sizing, and chemical analysis can be 
important for producing traditional fuels, we also are proposing that 
such processing is not sufficient to change a waste-derived fuel into a 
product fuel. Thus, such secondary materials that undergo such minimal 
processing are still considered waste-derived fuels because such 
processing of CCRs, even with screening and chemical analyses, would 
not be

[[Page 31869]]

sufficient to produce a non-waste ingredient. However, we request that 
commenters provide additional information as to the extent to which 
CCRs are recovered from the discard environment (e.g., landfills) and 
used as ingredients in cement kilns, and if so, we request commenters 
provide more detailed information on the extent to which these CCRs are 
processed, and thus, might satisfy our proposed definition of 
processing in section VII.D.4.
    In addressing the commenter who argued that CCRs are solid wastes 
due to their high concentration of contaminants, we begin by noting 
that the chemical properties of CCRs are influenced to a great extent 
by those of the coal burned, the type of combustion unit, and the air 
pollution controls applied.\43\ We are also aware that fly ash may 
contain various levels of metals, such as vanadium, zinc, copper, 
chromium, nickel, lead, arsenic, and mercury.\44\ However, in a recent 
Report to Congress that addressed the use of these secondary materials 
as ingredients in cement and concrete applications, the overall 
conclusion reached with respect to the perceived safety health risk 
barriers was a positive one, in that the risk analyses did not identify 
significant risks to human health and the environment associated with 
these uses.\45\
---------------------------------------------------------------------------

    \43\ For more information on the different types, or ranks, of 
coal, please refer to the Materials Characterization Paper on 
Traditional Fuels and Key Derivatives, which is located in the 
docket of today's proposed rule.
    \44\ Listed by relative frequency. See ``Technical Background 
Document for the Report to Congress on Removing Wastes from Fossil 
Fuel Combustion: Waste Characterization.'' U.S. EPA. March 15, 1999.
    \45\ ``Study on Increasing the Usage of Recovered Mineral 
Components in Federally Funded Projects Involving Procurement of 
Cement or Concrete to Address the Safe, Accountable, Flexible, 
Efficient Transportation Equity Act: A Legacy for Users. Report to 
Congress.'' June 3, 2008. EPA530-R-08-007. When analyzing perceived 
safety and health risk barriers associated with the beneficial use 
of recovered mineral components (including CCRs et al), this study 
concluded that ``Findings from [several cited] analyses did not 
identify significant risks to human health and the environment 
associated with the beneficial uses of concern. In addition, [EPA] 
identified no documents providing evidence of damage to human health 
and the environment from these beneficial uses. Our overall 
conclusions from these efforts, therefore, are that encapsulated 
applications, including cement and concrete uses, appear to present 
minimal risk.'' Id. at 4-11.
---------------------------------------------------------------------------

    The Report to Congress also identifies several industry 
stakeholders and state agencies that have recognized that regulatory 
programs for the control of mercury and NOX in electric 
utility air emissions (and the necessary new emission control 
technologies and configurations necessary to achieve emissions 
reductions) can potentially result in increased carbon levels in coal 
fly ash that impact the ability to use the ash as a supplementary 
cementitious material.\46\ Consequently, EPA is studying the possible 
effects of new air emission control technologies and configurations on 
the composition of CCRs and publishing its findings in a series of 
reports.\47\ Thus, we request comment on whether advanced emission 
control technologies, such as carbon control technologies for mercury 
and NOX, are resulting or will result in increased levels of 
contaminants in coal ash to the extent that coal ash would not satisfy 
our legitimacy criteria.
---------------------------------------------------------------------------

    \46\ Id at 4-4.
    \47\ A series of reports have been and are being developed by 
U.S. EPA's Office of Research Development. To date, three documents 
have been finalized, including: (1) ``Characterization of Mercury-
Enriched Coal Combustion Residuals from Electric Utilities Using 
Enhanced Sorbents for Mercury Control.'' EPA-600/R-06/008. Feb. 
2006; (2) ``Characterization of Coal Combustion Residuals from 
Electric Utilities Using Wet Scrubbers for Multi-Pollutant 
Control.'' EPA-600/R-08/077. July 2008; and (3) ``Characterization 
of Coal Combustion Residuals from Electric Utilities Using Multi-
Pollutant Control Technology--Leaching and Characterization Data.'' 
EPA-600/R-09/151. December 2009.
---------------------------------------------------------------------------

    c. Foundry Sand. Similar to the previously discussed ingredients, 
we requested data and/or information supporting whether foundry sand is 
discarded and if not discarded, whether it meets the legitimacy 
criteria.
    Comment: One commenter responded and stated that foundry sand meets 
all four legitimacy criteria for ingredients. The commenter offered 
several examples of applications for foundry sand in support of why it 
should not be a solid waste; however, very little information was 
provided in the context of utilizing foundry sand as an ingredient in a 
combustion process.
    EPA's Response: Since this proposal is limited to those situations 
where the non-hazardous secondary material is used as a fuel or 
ingredient in a combustion process, examples of using foundry sand in 
other applications is not directly relevant. However, as previously 
explained, we are proposing that non-hazardous secondary materials used 
as ingredients in combustion units that are not discarded in the first 
instance would not be considered a solid waste provided they satisfy 
the legitimacy criteria for ingredients (discussed in section 
VII.D.6.b).
    d. Blast Furnace Slag/Steel Slag. The ANPRM also requested data 
and/or information regarding blast furnace slag and steel slag and 
their use as legitimate ingredients and thus, whether they are or are 
not considered solid waste.
    Comments: Two commenters responded that steelmaking slag and mill 
scale should be excluded from the definition of solid waste because 
they meet all four legitimacy criteria for ingredients. With respect to 
our solicitation for comment on when a material is previously discarded 
and has been processed into a legitimate ingredient product, one 
commenter responded that current practice to obtain these materials 
requires the procurement of a mining license and operating practices 
that are similar to processing of natural aggregates (though drilling 
and blasting practices are not required for recovery). In particular, 
iron and steel slag aggregates are removed by ripping and digging, 
followed by magnetic separation, crushing, further magnetic separation 
and finally sized by screening. They are then loaded and weighed in 
customer trucks subject to quality assurance and quality control for 
comparable virgin aggregate intended for the same use.
    EPA's Response: As with the previous ingredients, we are proposing 
that blast furnace and steel slag used as ingredients in combustion 
units that are not discarded in the first instance would not be 
considered a solid waste provided they satisfy the legitimacy criteria 
for ingredients. If these materials, as described by the commenter, are 
considered to have been discarded in the first instance, then they 
would have to be sufficiently processed into ingredient products that 
satisfy the legitimacy criteria in order to be classified as a non-
waste ingredient. Based on the processing operations described above, 
it appears that blast furnace and steel slag undergo sufficient 
processing; however, before the Agency concludes this to be the case, 
we request that commenters provide more detailed information regarding 
the level of processing that occurs.
7. Legitimacy Criteria
    The ANPRM discussed the following legitimacy criteria specific to 
fuel products that are used in combustion processes: (1) Handled as 
valuable commodities; (2) have meaningful heating value; (3) and 
contain contaminants that are not significantly higher in concentration 
than traditional fuel products. Likewise, for ingredients, the ANPRM 
listed the following criteria: (1) Handled as a valuable commodity; (2) 
the non-hazardous secondary material provides a useful contribution; 
(3) the recycling results in a valuable product; and (4) the product 
does not contain contaminants that are significantly higher in 
concentration than traditional products. We requested

[[Page 31870]]

comment on the criteria themselves and whether they are reasonable for 
non-hazardous secondary materials.
a. General
    Comments: Application of Legitimacy Criteria: Commenters provided 
various viewpoints on the appropriateness of the legitimacy criteria 
for non-hazardous secondary materials that are used as fuels or 
ingredients. Several commenters disagreed with the application of the 
same subtitle C legitimacy definition for determining whether non-
hazardous secondary materials are solid waste under RCRA subtitle D 
because non-hazardous secondary materials do not pose the same hazards. 
However, many of the commenters agreed with the application of the 
subtitle C legitimacy principles, but also argued that the criteria 
must be flexible to account for increasing use and changes in 
commodities, technologies, markets, and fuel prices and should not be 
more onerous than the legitimacy test codified at 40 CFR 260.43. 
Commenters also requested clarification as to whether all criteria need 
to be met, but urged EPA to recognize that legitimate uses are possible 
even if not all criteria are met.
    EPA's Response: Application of Legitimacy Criteria: First, we would 
note that there are two questions that the Agency needs to answer: (1) 
Whether or not the non-hazardous secondary material is a fuel product 
or ingredient product, or whether the material has been discarded and 
is therefore a solid waste, which includes waste-derived fuels or 
ingredients and (2) whether the non-hazardous secondary material is 
being legitimately and beneficially used or recycled.
    With respect to the legitimacy question, EPA believes it important 
and crucial to develop a set of legitimacy criteria to make sure that 
the fuel product and ingredient product are being legitimately and 
beneficially used and not simply being discarded via sham recycling. 
The definition of legitimate recycling developed for subtitle C 
hazardous secondary materials carefully considered the history 
surrounding the uses of materials, as well as the applicable case law 
with respect to the meaning of discard. Likewise, those same principles 
are pertinent to how a non-hazardous secondary material is determined 
not to be a solid waste. Therefore, we are proposing to codify general 
legitimacy criteria that use the same basic framework that has been 
established for the subtitle C hazardous waste regulations, but that 
are also tailored specifically for application to non-hazardous 
secondary materials that are used as fuels or ingredients in combustion 
units. See 40 CFR 241.3(d) for the proposed regulatory text of the 
legitimacy criteria and, for comparison see 40 CFR 260.43 in final 
regulations for the DSW hazardous waste legitimacy provisions. The 
rationale for the non-hazardous secondary materials legitimacy 
provisions (including comparisons to the DSW legitimacy provision) is 
discussed in section VII.D.6.
    Commenters also suggested that the legitimacy criteria must be 
flexible to account for increasing use and changes in commodities, 
technologies, markets, and fuel prices and should not be more onerous 
than the legitimacy definition codified at 40 CFR 260.43. We agree with 
these commenters and have proposed qualitative criteria that we believe 
provide the flexibility needed in evaluating these secondary materials 
that will accommodate such changes. The legitimacy criteria are 
structured to distinguish between legitimate reuse/recycling and 
disposal (i.e., sham recycling), while at the same time not impose 
restrictions on the types of non-hazardous secondary materials that may 
be of value in the future. For a detailed discussion of the proposed 
legitimacy criteria, see section VII.D.6.
    In regard to the commenters who requested clarification on whether 
all criteria need to be met, we believe that each of the criteria is 
important and addresses certain issues that need to be assessed. 
Therefore, each criterion must be met in order for the non-hazardous 
secondary material to be considered to be a legitimate non-waste fuel 
or ingredient. Thus, today's proposal requires that in evaluating the 
legitimacy criteria, the owner/operator of the combustion unit must 
assure that the non-hazardous secondary material meets all of the 
criteria.\48\ See section VII.D.6 for additional discussion.
---------------------------------------------------------------------------

    \48\ In EPA's final definition of solid waste rule regarding 
hazardous secondary materials, EPA codified a ``legitimate recycling 
provision.'' See 40 CFR 260.43. This legitimacy provision has two 
parts. The first part includes two factors that must be considered 
and met, which are considered the core of the legitimacy factors. 
The second part of the legitimacy provision consists of two factors 
that must be considered, but need not be met because the Agency is 
aware of situations where a legitimate recycling process exists, but 
may not conform to one or both of these factors. For further 
discussion of the legitimacy factors in the hazardous waste rules, 
see section VII.C.7 of this preamble and the final definition of 
solid waste rule (October 30, 2008 beginning on 73 FR 64700). Thus, 
the application of the legitimacy provision proposed in this rule is 
different than that promulgated in the final definition of solid 
waste rule in that all of the criteria to be considered in today's 
proposed rule must both be considered and met.
---------------------------------------------------------------------------

    Comment: Ingredients (General): We also received one general 
comment regarding the legitimacy criteria for ingredients. The 
commenter argued that the determination is not applicable for any 
material that is within a process and is being recycled in that 
process, and should not have to be justified as a secondary material, 
since closed-loop systems do not manage solid waste.
    EPA's Response: Ingredients (General): We generally agree with the 
commenter. That is, to the extent that the non-hazardous secondary 
material has not been discarded in the first instance, which we presume 
it would not be as part of a closed-loop system, and such secondary 
material meets the legitimacy criteria, it would not be considered a 
solid waste when combusted. Thus, as an example, where CKD is recycled 
back into the cement kiln, and meets the legitimacy criteria, it is not 
solid waste.
b. Fuels or Ingredients Being Managed as Valuable Commodities
    Comments: For this criterion, most commenters generally agreed with 
the Agency that such non-hazardous secondary materials should be 
managed as a valuable commodity, but argued that a specified 
containment system should not be a mandatory part of the criteria. One 
commenter suggested that rather than focus on containment, the focus 
should be on whether the non-hazardous secondary material has value for 
future use. Another commenter suggested that a more appropriate 
requirement is that the non-hazardous secondary material should be 
stored in a manner that preserves their economic value and avoids 
damaging releases to the environment. Another commenter thought that 
EPA should look to state requirements for containment, handling, and 
storage. Similarly, another commenter suggested that EPA should 
recognize that if a non-hazardous secondary material is managed 
pursuant to federal requirements that also apply to raw materials 
(e.g., coal refuse compared to coal), the criteria are satisfied. 
Lastly, one commenter argued that the concept of ``speculative 
accumulation'' of one year can prevent accumulation of enough non-
hazardous secondary materials to make recovery economical and thus, is 
not an appropriate criterion to conclude that a non-hazardous secondary 
material isn't being reused and is a solid waste.
    EPA's Response: We generally agree with those commenters who argued 
that a specific containment system should not be required and, 
therefore, are proposing a qualitative approach in line with the same 
principle as the

[[Page 31871]]

commenter who suggested that non-hazardous secondary materials should 
be stored in a manner that preserves their economic value, while 
preventing damaging releases to the environment. We also are proposing 
to incorporate the concept that non-hazardous secondary materials be 
``contained'' in the same manner as its analogous fuel or raw 
ingredient. Thus, we are proposing that where there is an analogous 
fuel or ingredient, the non-hazardous secondary material used would be 
required to be managed in a manner consistent with the management of 
the analogous fuel or ingredient or otherwise must be adequately 
contained so as to prevent releases to the environment. As explained in 
section VII.D.6, an analogous ingredient or fuel'' is an ingredient or 
fuel for which the non-hazardous secondary material substitutes and 
which serves the same function and has similar physical and chemical 
properties as the non-hazardous secondary material. Where there is no 
analogous fuel or ingredient, the non-hazardous secondary material must 
be adequately contained so as to prevent damaging releases to the 
environment. ``Adequately contained'' is when a non-hazardous secondary 
material is stored in a manner that adequately prevents releases to the 
environment considering the nature and toxicity of the non-hazardous 
secondary material. In regard to the comment on speculative 
accumulation, we are not proposing a specific timeframe, because states 
already require varied timeframes and we will leave this up to the 
state's discretion.
    c. Fuels Must Have Meaningful Heating Value. The ANPRM discussed 
the meaningful heating value criterion for legitimate alternative fuel, 
and outlined a qualitative approach rather than a ``bright-line'' 
cutoff for heating value. The ANPRM requested comment as to whether it 
was possible or appropriate to establish a specific heating value 
cutoff.
    Comments: Several commenters favored the ANPRM approach, while 
others recommended either a lower Btu benchmark or replacing the Btu 
benchmark with a case-by-case analysis. No commenters recommended 
deleting the criterion. Commenters emphasized that innovations and 
advancements in technology can efficiently produce energy from non-
hazardous secondary materials with lower heating value content.
    EPA's Response: We are proposing a qualitative approach for a 
meaningful heating value criterion as outlined in the ANPRM. The 
proposed regulatory text specifies that ``the material must have a 
meaningful heating value and be used as a fuel in a combustion unit 
that recovers energy''. See proposed 241.3(d)(1)(ii). We are clarifying 
in this proposal, that non-hazardous secondary materials with a heating 
value of greater than 5,000 Btu/lb, as fired, would be considered to 
satisfy the criterion. However, non-hazardous secondary materials with 
a heating value lower than 5,000 Btu/lb, as fired, may also be 
considered to have a meaningful heating value if the unit can cost-
effectively recover meaningful energy. See section VII.D.6.a. for an 
explanation of the factors that may be considered in determining 
whether an energy recovery unit can cost-effectively recover energy 
from a non-hazardous secondary material. Also, as outlined in the same 
section, this criterion is an appropriate factor, since it expresses 
the principle that non-hazardous secondary materials used as a fuel 
with a meaningful heating value provides a useful contribution to the 
manufacturing process. The Agency believes a 5,000 Btu/lb benchmark, as 
fired, identifying when a non-hazardous secondary material, by 
definition, provides fuel value is appropriate since it is consistent 
with determinations expressed in previous RCRA and CAA rulemakings, 
including the RCRA comparable fuels rule (63 FR 33781), the RCRA 
subtitle C boilers and industrial furnaces rule (48 FR 11157-59), and 
the CAA NESHAP for Hazardous Waste Combustors NODA (62 FR 24251).
    We request comment on whether it would be appropriate to also 
identify a lower Btu/lb threshold, below which non-hazardous secondary 
materials would not be considered to have meaningful heating value and 
thus, would be a solid waste by definition.
    d. Fuel/Ingredient Contaminant Levels. To address the possible 
presence of waste-like contaminants in non-hazardous secondary 
materials, the ANPRM stated that such secondary materials used as fuels 
should not contain contaminants that are significantly higher than 
those contained in traditional fuels. For ingredients, the ANPRM stated 
that products that use non-hazardous secondary materials as ingredients 
in combustion units should not contain contaminants that are 
significantly higher in concentration than the product produced without 
the non-hazardous secondary material. For both ingredients and fuels, 
the ANPRM suggested that a qualitative approach may be more appropriate 
to use than numerical specifications. In addition, we requested comment 
on whether the contaminants evaluated should be the hazardous 
constituents listed in Appendix VIII to 40 CFR part 261, or whether a 
different list of contaminants would be more appropriate.
    Comments: Commenters were evenly divided on whether the presence of 
contaminants was an appropriate legitimacy criterion. For commenters 
favoring the criterion, most believed that a qualitative approach was 
preferable; stating that little risk exists for environmental exposure 
and numerical specifications may be impractical due to the multiplicity 
of fuels or ingredients. However, a minority of commenters favored a 
quantitative approach. For commenters recommending that the presence of 
contaminants not be included as a criterion, most emphasized that 
emissions will be controlled under either CAA sections 112 or 129. They 
stated that comparative contaminant concentrations are inappropriate, 
and that the Agency should recognize the lower risks posed by non-
hazardous secondary materials. One commenter stated that the amount of 
contamination acceptable in an alternative fuel depends on how much is 
fired with the main boiler fuel, the type of contaminant (organic vs. 
inorganic), and the emission controls used.
    Specifically with respect to the use of ingredients in combustion 
units, one commenter agreed that the assessment should involve the 
final recycled product and not the ingredient itself. However, another 
commenter countered that the assessment should be a comparison of post 
combustion emission levels, not the product made with non-hazardous 
secondary materials to those in a product made with virgin materials. 
This commenter reasoned that combustion will destroy many of the 
substances that EPA considers possible contaminants and basically 
eliminates any environmental concern. Another commenter recommended an 
analysis of appropriate total constituent concentrations, leachable 
constituent concentrations, and a comparison to traditional ingredients 
(as outlined in the Solid Waste RCRA subtitle D groundwater protection 
constituent list).
    EPA's Response: Based on our assessment of all of the comments, we 
believe it appropriate to include contaminant levels as a legitimacy 
criterion. Thus, we do not agree with those commenters' that assert 
that contaminant comparisons are not appropriate to require as part of 
the legitimacy criteria. The Agency believes the criterion is necessary 
because non-hazardous secondary materials that contain contaminants 
that are not comparable in concentration to those contained in 
traditional fuel products or

[[Page 31872]]

ingredients would suggest that these contaminants are being combusted 
as a means of discarding them, and thus the non-hazardous secondary 
material should be classified as a solid waste. In some cases, this can 
also be an indicator of sham recycling. For example, non-hazardous 
secondary materials that may not contain comparable concentrations of 
contaminants include chromium-, copper-, and arsenic (CCA)-treated 
lumber, polyvinyl chloride (PVC) plastics which can contain up to 60 
percent halogens (chlorine), lead-based painted wood, and fluorinated 
plastics. Also, we disagree with the commenter who argued that any 
assessment should only include a comparison of post-combustion emission 
levels because the combustion unit will destroy many of the substances 
that EPA considers possible contaminants (and thereby eliminate any 
environmental concern). The Agency believes that this post-combustion 
assessment of contaminants further supports the principle that 
contaminant levels (before and after combustion) are important 
indicators of legitimacy.
    The legitimacy criterion for fuel/ingredient contaminants outlined 
in today's rule has changed from the criterion outlined in the ANPRM. 
In the ANPRM, non-hazardous secondary materials used as fuel could not 
contain contaminants that were significantly higher than traditional 
fuel products. For ingredients, the non-hazardous secondary material 
could not result in products that contain contaminants that are 
significantly higher in concentration than found in traditional 
products.
    Under today's proposed rule, non-hazardous secondary material used 
as fuels in combustion units must contain contaminants (defined as HAP 
listed under CAA section 112(b) and the nine pollutants listed under 
CAA section 129) at levels ``comparable'' to those in traditional fuels 
which the combustion unit is designed to burn. For use as an 
ingredient, the non-hazardous secondary material must result in 
products that contain contaminants at levels that are ``comparable'' in 
concentration to those found in traditional products that are 
manufactured without the non-hazardous secondary material ingredients.
    As discussed in section VII.C.7., requiring that the secondary 
material have contaminants at levels comparable to traditional fuels 
would ensure that the burning of any secondary materials in combustion 
units will not result in discard of materials and will not result in 
increased releases to the environment that could impact the health and 
environment of the local community. Ensuring that the level of 
contaminants in the non-hazardous secondary material is comparable to 
traditional fuels would prevent secondary materials from being 
discarded and be the most protective of human health and the 
environment. Today's proposed rule also requests comment on an 
approach, consistent with the ANPRM approach, which would only compare 
contaminants at levels that are significantly higher than traditional 
fuel products.
    Similar to the ANPRM, the assessment of whether the non-hazardous 
secondary material used as a fuel has contaminants comparable to 
traditional fuel products is to be made by directly comparing the 
numerical contaminant levels in the non-hazardous secondary material to 
the contaminant levels in traditional fuels. See section VII.C.7., for 
a complete discussion of contaminant assessments.
    The assessment of whether products produced from the use of non-
hazardous secondary material ingredients in combustion units that have 
contaminants that are comparable in concentration to traditional 
products can be made by a comparison of contaminant levels in the 
ingredients themselves to traditional ingredients they are replacing, 
or by comparing the contaminant levels in the product itself with and 
without use of the non-hazardous secondary material ingredient. See 
section VII.D.6.b.
    e. Ingredients Must Provide Useful Contribution. The ANPRM cited 
(from the October 2008 DSW Final Rule for hazardous waste) five ways 
\49\ in which a secondary material can add value and usefully 
contribute to a recycling process and solicited comment on whether they 
are appropriate for non-hazardous secondary materials.
---------------------------------------------------------------------------

    \49\ The five ways include: (i) The secondary material 
contributes valuable ingredients to a product or intermediate; or 
(ii) replaces a catalyst or carrier in the recycling process; or 
(iii) is the source of a valuable constituent recovered in the 
recycling process; or (iv) is recovered or regenerated by the 
recycling process; or (v) is used as an effective substitute for a 
commercial product.
---------------------------------------------------------------------------

    Comment: Only one commenter responded and indicated that the five 
criteria are too narrow and should be broadened to apply to the non-
hazardous secondary material uses (i.e., processes not considered 
recycling) since using the criteria for hazardous waste as a model is 
too limiting.
    EPA's Response: After review of the comment, we understand that 
there is some interest in broadening those criteria for non-hazardous 
secondary material use, but the commenter did not provide any 
information to merit the development of a separate or additional 
criteria for non-hazardous secondary material use to describe how they 
can ``add value and usefully contribute to a recycling process'' (or 
broaden to non-recycling uses as suggested by the commenter). However, 
the Agency solicits comments on this point; in particular, what the 
separate criteria would be and how a non-hazardous secondary material 
would or can ``add value and usefully contribute to a recycling 
process.''
    f. Ingredients Must Produce a Valuable Product. For this criterion 
to be met, the ANPRM indicated that a product or intermediate is 
valuable if it is (i) sold to a third party or (ii) used by the 
recycler or generator as an effective substitute for a commercial 
product or as an ingredient or intermediate in an industrial process. 
We then requested comment on whether this description of valuable 
product/intermediate is an appropriate way to consider this criterion 
in the context of non-hazardous secondary materials used as 
ingredients.
    Comments: One commenter responded that they support this criterion, 
but caution that it be broad enough so that it addresses the value 
obtained by both its use on-site and off-site by a third party. The 
commenter also suggested that the provision be interpreted broadly to 
also include traditional recycling markets and the products generally 
in which such secondary materials are utilized.
    EPA's Response: We believe that the criteria described in the ANPRM 
are broad enough to address the value obtained by both its use on-site 
and off-site by a third party. With regard to interpreting the 
criterion broadly enough to include traditional recycling markets and 
the products in which the secondary materials are utilized, we do not 
agree that it would be appropriate. Specifically, this rule is 
addressing a particular issue within the context of RCRA--that is, 
which non-hazardous secondary materials are or are not solid wastes 
when used in a combustion unit. We have tailored the legitimacy 
criteria to apply specifically to the use of these non-hazardous 
secondary materials as fuels or ingredients in combustion units only. 
An assessment of uses beyond those in combustion units is beyond the 
scope of this rulemaking.
8. De Minimis Concept
    Although we did not discuss the concept of de minimis in the ANPRM, 
commenters argued strongly that EPA allow for de minimis amounts of 
solid

[[Page 31873]]

waste to be burned without being subject to the CAA 129 requirements.
    Comments: Several commenters believe that any regulatory construct 
should include a de minimis exemption that excludes from the definition 
of solid waste for purposes of CAA section 129, those materials (i.e., 
solid waste) that, when combusted, result in de minimis emissions. An 
example provided by the commenters of a waste material is boiler 
chemical cleaning waste, which consists primarily of water, but also 
includes metal deposits from the boiler tubes, as well as spent 
solvent. Another example is oily rags which are generated in small 
quantities during routine maintenance activities. Air emissions 
associated with these practices is a small fraction compared to the 
emissions generated from fossil fuel combustion. Commenters also cited 
several court decisions that held that EPA retains the legal authority 
to promulgate de minimis exceptions for regulatory schemes.
    EPA's Response: The issue of whether the burning of de minimis 
amounts of solid waste (i.e., because it results in de minimis 
emissions) can be exempted from CAA 129 regulation is outside the scope 
of this rulemaking, which is only concerned with identifying which non-
hazardous secondary materials burned as fuels or ingredients in 
combustion units are or are not solid waste.

D. Rationale for, and Detailed Description of, Proposed Approach

    Under this proposal, non-hazardous secondary materials used as 
fuels in combustion units would be considered solid waste unless: (1) 
The non-hazardous secondary materials remain under the control of the 
generator as discussed in section VII.D.1, and are legitimate fuels; or 
(2) they are legitimate fuels that are produced from the processing of 
discarded non-hazardous secondary materials as discussed in section 
VII.D.4. Non-hazardous secondary materials used as a fuel in combustion 
units that are transferred to a third party (and not considered to be 
managed within the control of the generator) are considered solid 
wastes unless a non-waste determination has been made pursuant to the 
proposed petition process (discussed below in section VII.D.5).\50\
---------------------------------------------------------------------------

    \50\ As we noted earlier in the preamble, traditional fuels also 
are not considered solid wastes when burned in a combustion unit. 
Therefore, we will not discuss the use of traditional fuels further 
since we believe it is understood that they are legitimate products 
and not wastes.
---------------------------------------------------------------------------

    Non-hazardous secondary materials used as ingredients in combustion 
units would not be considered solid waste if they have not been 
discarded in the first instance and if they are legitimate ingredients, 
irrespective of whether they have been transferred to a third party 
outside the control of the generator. Non-hazardous secondary materials 
that have been discarded may be processed into a non-waste ingredient 
that meets the legitimacy requirements as discussed in VII.D.4.
    The ANPRM also discussed another possible exclusion from being a 
solid waste--that is, hazardous secondary materials that are excluded 
from the definition of solid waste under RCRA subtitle C when 
combusted. However, EPA has concluded that it does not need to include 
this exclusion since these materials have already been excluded from 
the definition of solid waste as hazardous secondary materials and, 
therefore, are not subject to this rule, which deals with the 
definition of solid waste for non-hazardous secondary materials used in 
combustion units. As noted in the ANPRM, under the hazardous waste 
regulations, the Agency has evaluated a number of hazardous secondary 
materials that are recycled and determined that such materials, while 
they either met a listing description or exhibited one or more of the 
hazardous waste characteristics, were not ``solid wastes'' for purposes 
of the RCRA Subtitle C hazardous waste regulations when they were 
combusted. Specifically, the following materials may be burned under 
certain conditions and are not defined as solid wastes for purposes of 
the hazardous waste regulations--black liquor, spent sulfuric acid, 
comparable fuels and commercial chemical products that are themselves 
fuels.\51\ These secondary materials are not solid wastes provided they 
are handled under the applicable conditions of the exclusions specified 
under the RCRA subtitle C hazardous waste regulations, and are not 
considered solid wastes for purposes of CAA section 129. The rules 
covering the determinations for black liquor, spent sulfuric acid,\52\ 
comparable fuels,\53\ and commercial chemical products that are 
themselves fuels \54\ are not being reopened in this proceeding and EPA 
is no longer requesting comment on those solid waste definitions for 
purposes of this rule.
---------------------------------------------------------------------------

    \51\ Black liquor is burned in a pulping liquor recovery furnace 
and then reused in the pulping process, while spent sulfuric acid is 
used to produce virgin sulfuric acid; in both these instances, these 
hazardous secondary materials are considered to be an integral part 
of the manufacturing process. With respect to comparable fuel, these 
hazardous secondary materials are considered a legitimate non-waste 
fuel because they meet the chemical and physical specifications of a 
traditional benchmark fuel. Commercial chemical products that are 
themselves fuels, such as off-specification fuels, including 
gasoline, jet fuel, kerosene, diesel, etc., are not solid wastes 
when burned as fuels if that is their intended purpose (40 CFR 
261.2(c)(2)(ii)).
    \52\ See Definition of Solid Waste Final Rule, January 4, 1985 
at 50 FR 641-642, covering both black liquor and spent sulfuric 
acid.
    \53\ See ``RCRA Comparable Fuels Exclusion'' Final Rule, June 
19, 1998, 63 FR 33782.
    \54\ See 50 FR 614 ``Amendments to the Definition of Solid 
Waste'' (Final Rule), January 4, 1985 at 50 FR 618, 629. See also 
Hazardous Waste Management System; Definition of Solid Waste; 
Corrections, April 11, 1985 at 50 FR 14219.
---------------------------------------------------------------------------

    Except for the petition process, the proposed criteria are designed 
to be self implementing in nature, i.e. they do not require prior 
Agency approval.
1. Non-Hazardous Secondary Materials Used as Fuel Within the Control of 
the Generator
    We are proposing to use the general framework finalized in the 
Definition of Solid Waste Rule to determine circumstances under which 
non-hazardous secondary materials remaining under the control of the 
generator that are used as fuels in combustion units are not considered 
to have been discarded.
    a. Scope and Applicability. EPA is proposing that non-hazardous 
secondary materials used as fuels in combustion units that remain 
within the control of the generator and that meet the legitimacy 
criteria specified in section VII.D.6 would not be solid waste. Non-
hazardous secondary materials that remain within the control of the 
generator and meet these criteria are referred to as legitimate (non-
waste) fuel products. The proposed conditions that must be satisfied to 
qualify as ``under the control of the generator'' are found in proposed 
40 CFR part 241.3. Nevertheless, EPA is seeking comment on whether such 
secondary materials should be considered solid wastes and thus, be 
subject to the CAA section 129 requirements if combusted.
    There are two scenarios where non-hazardous secondary materials 
used as fuels can be demonstrated to remain within the control of the 
generator. As such, the proposal consists of two parts in determining 
whether these secondary materials qualify for being ``under the control 
of the generator.'' The first part applies to non-hazardous secondary 
material generated and used as fuels at the generating facility. For 
purposes of this proposed criteria, ``generating facility'' means all 
contiguous property owned, leased, or otherwise controlled by the 
secondary material generator, and

[[Page 31874]]

``secondary material generator'' means any person whose act or process 
produces non-hazardous secondary materials at the generating facility. 
A facility that collects non-hazardous secondary materials from other 
persons (for example, used tires collected through a collection 
program) is not the secondary material generator of those materials. 
This is consistent with the approach taken in the DSW final rule, which 
specified that a facility that collects hazardous secondary materials 
from other persons (for example, when mercury-containing equipment is 
collected through a special collection program), would not be 
considered the hazardous secondary material generator for purposes of 
eligibility for the generator-controlled exclusion. See 73 FR at 64715.
    If a generator hires or contracts with a different company to use 
the non-hazardous secondary materials at the generator's facility as 
fuel, either temporarily or permanently, these materials remain under 
the control of the generator. However, generators sometimes contract 
with a second company to collect non-hazardous secondary materials at 
the generating facility and such materials are subsequently used as 
fuels in a combustion unit at another facility. In that situation, if 
the facility that burns the non-hazardous secondary material is not 
``within the control of the generator'' as defined below in the second 
part of the definition, then the non-hazardous secondary material fuel 
would be considered a solid waste unless a non-waste determination has 
been granted pursuant to the petition process.
    The second part of the proposed definition applies to non-hazardous 
secondary material generated and used as fuels at a different facility 
that is controlled by the generator (or if a person as defined in 
proposed Sec.  241.2 controls both the generator and the facility using 
the fuel in a combustion unit). For purposes of this proposed criteria, 
``control'' means the power to direct the policies of the facility, 
whether by ownership of stock, voting rights, or otherwise, except that 
contractors who operate facilities on behalf of a different person as 
defined in proposed Sec.  241.2 shall not be deemed to ``control'' such 
facilities. Thus, when a contractor operates two facilities, each of 
which is owned by a different company, non-hazardous secondary 
materials generated at the first facility and used as a fuel at the 
second facility is not considered ``under the control of the 
generator.''
    We note that the DSW final rule includes a third part of the 
definition that applies to hazardous secondary materials that are 
generated pursuant to a written contract between a tolling contractor 
and a toll manufacturer and legitimately reclaimed by the tolling 
contractor. For purposes of that exclusion, a tolling contractor is a 
person who arranges for the production of a product or intermediate 
made from specified raw or virgin materials through a written contract 
with a toll manufacturer. The toll manufacturer is the person who 
produces the product or intermediate made from the specified raw or 
virgin materials pursuant to a written contract with a tolling 
contractor. We view this as a very specific type of arrangement where, 
for example, a chemical manufacturer outsources a step in the 
manufacturing process to another company (typically a ``batch'' 
manufacturer), and then the batch manufacturer sends both the product 
and the residuals back to the main company (and the residuals are then 
reclaimed by the main company). Although there are two companies, there 
is only one manufacturing operation, and the main company keeps control 
over (and liability for) everything through the tolling contract.
    We do not believe that tolling contracts are relevant to non-
hazardous secondary materials used as fuels in combustion units as we 
are unaware of these types of contractual arrangements where both 
products and secondary material fuel are sent to what we are calling 
tolling contractors. As a result, we are not including this type of 
arrangement under the proposed definition for non-hazardous secondary 
material fuels that remain under the control of the generator. However, 
the Agency requests comments on whether to include this option in the 
final rule; those persons who provide comments supporting the addition 
of this option to the final rule should provide specific instances or 
examples of where non-hazardous secondary materials are managed under 
tolling arrangements and the frequency that such arrangements are used, 
and how these arrangements remain ``under the control of the 
generator.''
b. Restrictions and Requirements
    Legitimate Use. Under this proposed rule, non-hazardous secondary 
materials used as fuels in combustion units that remain under the 
control of the generator must meet the legitimacy criteria proposed in 
Sec.  241.3(d). To satisfy the legitimacy criteria, the non-hazardous 
secondary material (non-waste) fuel must be handled as a valuable 
commodity, have meaningful heating value and be used as a fuel, in a 
combustion unit that recovers energy, and contain contaminants at 
levels comparable to those in traditional fuels which the combustion 
unit is designed to burn. The details of the legitimacy criteria are 
discussed in Section VII.D.6. of this proposal.
    Notification. We are not proposing to require facilities that use 
non-hazardous secondary material fuels within the control of the 
generator to notify EPA as part of this proposal. We believe this would 
be duplicative of the CAA 112 regulatory notification and record 
keeping requirements being proposed for boilers and process heaters 
today. That proposal would require specific notifications from sources 
subject to the standards including notifications of compliance status, 
test results and descriptions of applicable air pollution control 
devices. In addition, for sources that have made a non-waste self-
determination under Sec.  241.3, the proposal for boilers and process 
heaters requires that records be maintained which document how the fuel 
meets legitimacy criteria and the definition of processing as 
appropriate. However, we solicit comment on this and specifically 
request comment on whether the Agency should require, at least 
initially, if not on a periodic basis, notification and recordkeeping 
under RCRA by those persons who both generate or combust non-hazardous 
secondary materials that are not solid wastes, including documentation 
that explains or provides the basis for the non-hazardous secondary 
material meeting the legitimacy criteria, and thus, is not a solid 
waste.
2. Non-Hazardous Secondary Materials Used as Fuel Outside the Control 
of the Generator
    Non-hazardous secondary materials used as a fuel in combustion 
units that are not considered to be managed within the control of the 
generator would be considered solid wastes unless they have been 
processed into a legitimate non-waste fuel product (discussed in 
section VII.D.4. below) or unless a non a non-waste determination has 
been made pursuant to the proposed petition process (discussed in 
section VII.D.5. below).
    This proposed approach differs from the ANPRM approach, which 
specified that non-hazardous secondary materials, such as used tires 
collected at tire dealerships and transferred to a third party would 
not be considered discarded if, for example, they were managed pursuant 
to state tire collection programs. As previously discussed, comments 
received from the states suggested that non-hazardous

[[Page 31875]]

secondary material fuels that are transferred to a third party have 
entered what is traditionally considered to be the ``waste stream'' 
(and have been regulated by the states as wastes) and therefore should 
appropriately be considered to be solid wastes (e.g., scrap tires) 
unless/until they are processed into non-waste fuel products. However, 
the Agency seeks comment on whether the approach described in the ANPRM 
would be more appropriate. In submitting comments supporting a broader 
approach, we request that commenters provide the basis for why such 
secondary materials have not been discarded.
    When non-hazardous secondary material fuels are transferred to 
another party, we generally believe that the material is discarded 
since the generator has relinquished control of the secondary material 
and the entity receiving such materials may not have the same 
incentives to manage them as a useful product, which results in the 
materials being discarded. (Note: As indicated above, the Agency is 
proposing a petition process to allow any person to demonstrate that 
non-hazardous secondary material fuels transferred to another party 
outside the control of the generator have not been discarded, and thus, 
are not a solid waste. See section VII.D.5. below for details on the 
petition process.)
    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 final rule.\55\ (This scenario does not apply to 
transfers taking place under the transfer-based exclusion for hazardous 
secondary materials that are generated and then transferred to another 
company for the purpose of reclamation.) However, this finding also 
holds true for non-hazardous secondary materials that are used as fuel.
---------------------------------------------------------------------------

    \55\ U.S. EPA An Assessment of Environmental Problems Associated 
With Recycling of Hazardous Secondary Materials (Docket  
EPA-HQ-RCRA-2002-0031-0355), January 2007.
---------------------------------------------------------------------------

    For example, the over-accumulation of scrap tires is well known and 
has resulted in massive piles of discarded tires that have contributed 
to the overall solid waste management problem due to the threat of 
fires, such as the Rhinehart Tire Fire Dump,\56\ and because they 
provide an ideal breeding ground for mosquitoes and rodents. It is 
estimated that 275 million tires remained in stockpiles across the 
United States in 2003 and that approximately 290 million new scrap 
tires are generated each year.\57\ Other non-hazardous secondary 
materials destined for use as a fuel that were accumulated, but then 
discarded have similarly contributed to the overall solid waste 
management problem.\58\
---------------------------------------------------------------------------

    \56\ See 51 FR 21054, June 10, 1986.
    \57\ U.S. EPA Scrap Tire Clean-Up Handbook: A Resource for Solid 
Waste Managers Across the United States EPA-905-B-06-001, January 
2006.
    \58\ U.S. EPA Description of Non-Hazardous Secondary Material 
Events that Resulted in Adverse Environmental Impacts (Docket 
 EPA-HQ-2008-0329), September 2009.
---------------------------------------------------------------------------

    As discussed in the DSW final rule,\59\ this pattern of discard at 
off-site, third party reclaimers appears to be a result of inherent 
differences between commercial recycling and normal manufacturing. As 
opposed to manufacturing, where the cost of raw materials or 
intermediates (or inputs) is greater than zero and revenue is generated 
primarily from the sale of the output, secondary materials recycling, 
including when used as a fuel, can involve generating revenue primarily 
from receipt of the secondary materials. Recyclers of secondary 
materials in this situation may thus respond differently than 
traditional manufacturers to economic forces and incentives, 
accumulating more inputs (secondary materials) than can be processed 
and generating stockpiles with sometimes little incentive to perform 
actual recycling.
---------------------------------------------------------------------------

    \59\ U.S. EPA A Study of the Potential Effects of Market Forces 
on the Management of Hazardous Secondary Materials Intended for 
Recycling (Docket  EPA-HQ-RCRA-2002-0031-0358), November 
2006. While the study focuses on hazardous secondary materials, the 
underlying economic theory would apply equally to non-hazardous 
secondary materials.
---------------------------------------------------------------------------

    However, this pattern of discard does not hold true for materials 
that are more commodity-like than waste like, such as traditional fuels 
and non-hazardous secondary materials used as ingredients in 
manufacturing processes that utilize combustion systems. As previously 
discussed, traditional fuels have been burned historically as fuels and 
have been managed as valuable products, are considered unused products 
and therefore are not solid wastes. Also see discussion in section 
VIII.D.6.b below that explains EPA's rationale as to why ingredients 
that are not managed within the control of the generator are determined 
not to be discarded.
    In some cases, a non-hazardous secondary material may be 
transferred to another entity to be burned for energy and still more 
closely resemble a product than a waste, despite the fact it is neither 
a traditional fuel nor has it been processed into a legitimate fuel. In 
such cases, the Agency has included a petition process where a person 
may petition EPA for a case-specific determination that the non-
hazardous secondary materials are not discarded and therefore not solid 
wastes. See section VIII.D.5. for a more detailed discussion of the 
petition process.
    In the proposed regulatory language, EPA is not specifying whether 
particular materials are or are not solid wastes. However, as discussed 
previously, whole tires that originate from tire dealerships and 
automotive shops (that are overseen by state tire collection oversight 
programs) would be considered to be discarded unless and until they are 
processed into TDF that has removed the steel belts and wire, or a 
case-specific non-waste determination petition is granted. EPA believes 
tires that are collected from tire dealerships and automotive shops, 
especially if overseen by a state tire collection oversight program 
that collects fees and regulates the process under state ``waste'' 
authorities, generally meet the plain meaning of discard; such 
materials can be considered as having been ``discarded'' by the 
original owner of the tire.
    This is further supported by the fact that many state agencies 
regulate tires as wastes, either pursuant to their solid waste 
authority or pursuant to statutory authority that specifically 
addresses the management of used tires (some use both authorities). The 
level of regulation ranges from state to state, but many states 
directly regulate used tires, for example, with storage requirements, 
such as speculative accumulation and fire suppression requirements, up 
until their final use as a fuel in combustion units. In addition, many 
states subsidize certain end-use applications, suggesting that used 
tires, even if managed pursuant to state oversight programs, are 
discarded materials once they are generated at tire collection points, 
such as tire dealerships.
3. Non-Hazardous Secondary Materials Used as Ingredients in Combustion 
Units
    Non-hazardous secondary materials used as ingredients in combustion 
units would not be solid wastes provided they satisfy the legitimacy 
criteria discussed in section VIII.D.6.b below. We are not 
differentiating between ingredients that are used within the control of 
the generator from those that are not since we believe that the use of 
non-hazardous secondary materials as ingredients is considered to be 
more integral or akin to use in a commercial manufacturing process and 
thus, these non-hazardous secondary materials

[[Page 31876]]

should not be considered discarded provided they satisfy the legitimacy 
criteria.
 4. Non-Hazardous Secondary Materials Processed Into Non-Waste Fuel/
Ingredient Products
    EPA is proposing that legitimate fuel or ingredient products that 
result from the processing of discarded non-hazardous secondary 
materials are not solid wastes. Of course, the legitimacy criteria 
specified in section VII.D.6. below must be met. Because the fuel/
ingredient products meeting these legitimacy criteria are, in effect, 
reclaimed products from a recycling process, EPA considers such 
materials to be new products that have not been discarded and therefore 
are not solid wastes. Until the non-hazardous secondary materials have 
been processed into a non-waste fuel or ingredient product meeting the 
legitimacy criteria, the discarded non-hazardous secondary material are 
considered solid wastes and would be subject to all appropriate 
federal, state and local requirements.
    Similar to the proposed approach for non-hazardous secondary 
materials that are used as fuels within the control of the generator, 
we are not proposing to require facilities that combust non-hazardous 
secondary materials that have been processed into non-waste fuel/
ingredient products to notify EPA as part of this proposal. We believe 
this would be duplicative to the CAA 112 regulatory notification and 
record keeping requirements being proposed for boilers and process 
heaters today. That proposal would require specific notifications from 
sources subject to the standards including notifications of compliance 
status, test results and descriptions of applicable air pollution 
control devices. In addition, for sources that have made a non-waste 
determination under 40 CFR 241.3, the proposal for boilers and process 
heaters requires that records be maintained which document how the fuel 
meets legitimacy criteria and the definition of processing as 
appropriate. However, we solicit comment on this and specifically 
request comment on whether the Agency should require, at least 
initially, if not on a periodic basis, notification and recordkeeping 
under RCRA by those persons who both generate or combust non-hazardous 
secondary materials that are not solid wastes, including documentation 
that explains or provides the basis for the non-hazardous secondary 
material meeting the legitimacy criteria, and thus, is not a solid 
waste.
    a. Proposed Definition of Processing. The proposed definition of 
processing means any operations that transform discarded non-hazardous 
secondary material into a new fuel or new ingredient product. Minimal 
operations, such as operations that result only in modifying the size 
of the material by shredding, do not constitute processing for purposes 
of this definition. Processing includes, but is not limited to, 
operations that: remove or destroy contaminants; significantly improve 
the fuel characteristics of the material, e.g., sizing or drying the 
material in combination with other operations; chemically improve the 
as-fired energy content; and improve the ingredient characteristics. 
While today's rule proposes a definition of operations that constitute 
processing, the level of processing that is necessary to render a 
discarded non-hazardous secondary material into a non-waste product is 
dependent on the material. We note, however, that discarded non-
hazardous secondary materials that are not processed or minimally 
processed (as discussed above i.e., processed in a manner that does not 
meet our definition of processing) would be considered a waste-derived 
fuel or ingredient, and thus a solid waste, no matter how legitimate 
their use is as a fuel or ingredient. In addition, non-hazardous 
secondary materials that are processed and used as fuels or ingredients 
in combustion units, but do not meet the legitimacy criteria, would be 
considered to be sham use and thus a solid waste. The Agency seeks 
comment on the proposed definition of processing, including whether 
such definition provides sufficient clarity that it can be implemented 
under the self-implementing provision in today's proposed rule (this 
approach is discussed further in this section).
    b. Rationale for Processing Discarded Material Into Non-Waste 
Products. Today's proposed rule identifies circumstances where 
materials that have been discarded in the first instance, and are thus 
solid wastes, can be rendered into new non-waste products through 
legitimate processing consistent with the definition outlined above. 
The basic principle that must be satisfied is that the discarded 
material must undergo sufficient processing that produces either a new 
fuel or ingredient product. The new product must have properties that 
provide the end user the assurance that the material consistently 
satisfies the fuel/ingredient product criteria based on the type of 
combustion unit the secondary material is used in (e.g., as a fuel in a 
boiler or as an ingredient in a cement kiln).
    The principle that products can be produced from a waste is common 
to industrial processes and commercial recycling markets. Newspaper and 
aluminum cans discarded by consumers are then collected, sorted and 
processed into new recycled paper and aluminum products that are not 
considered solid waste. Collected plastic is generally sent to a 
reclaimer, who will sort, grind, and clean the plastic. The cleaned and 
sorted plastic is sent to a manufacturer who will use it as feedstock. 
These are clear examples where discarded materials are processed into 
legitimate non-waste products.
    Recycled fuel products are no different from recycled paper and 
aluminum cans with respect to discard. If non-hazardous secondary 
materials that are discarded by being abandoned, disposed of or thrown 
away, but are later collected, segregated, and processed into a 
homogenous fuel product that is marketed and sold as a valuable 
commodity and are no different that traditional fuels used today, then 
they should no longer be considered solid waste, just as recycled paper 
is not a solid waste.
    There are other examples beyond consumer recycled materials where 
discarded materials are processed into new products. These examples 
include specific exclusions from the hazardous waste regulations, which 
provide insight into how secondary materials can be processed into 
valuable products. For instance, discarded spent solvents are commonly 
recycled via distillation into legitimate, newly usable solvents. These 
regenerated solvents are clearly considered to be products, not wastes. 
See 50 FR 634, January 4, 1985. Scrap metal that has been discarded is 
another example of a non-hazardous secondary material that is processed 
into a non-waste. (EPA specifically exempted scrap metal that has been 
processed from the definition of solid waste (see 261.4(a)(13).) For 
scrap metal to be considered ``processed,'' it must have been 
``manually or physically altered to either separate it into distinct 
materials to enhance the economic value or improve the handling of 
these materials. Processed scrap metal includes * * * scrap metal which 
has been baled, shredded, chopped, crushed, flattened, cut, melted, or 
separated by metal type (i.e. sorted) * * * '' (see 40 CFR 
261.1(c)(10)). We believe this is a good example of where the level of 
processing necessary to convert a waste material to a non-waste 
material is dependent on the material itself.

[[Page 31877]]

    Off-spec used oil is another example of a secondary material which 
we believe is discarded, but can be processed into a non-waste product 
(see section VII.C.5.d.). Once used oil is determined to be on-spec, we 
do not view it to be a solid waste since it is no longer regulated 
under the used oil management standards of 40 CFR part 279 and can be 
managed as a traditional fuel.\60\
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    \60\ Once used oil is claimed to be on-spec and the marketer 
complies with the requirements for analysis and record retention, 
notification, and record tracking shipment to on-specification 
burners, it is no longer subject to the management standards.
---------------------------------------------------------------------------

    One of the difficulties the Agency faces with determining whether 
non-waste fuels can be processed from discarded materials is that the 
combustion of materials is commonly associated with disposal, whether 
it is waste disposal in incinerators or waste disposal in energy 
recovery devices (e.g., municipal waste combustors that recover energy 
by producing electricity). Therefore, many equate the burning of any 
secondary material to discard, as some commenters have argued. This 
approach does not take into account that the secondary material has in 
fact been produced in a process that uses the discarded material as a 
feed stream to produce a safe fuel product that is a valuable commodity 
and sold in the marketplace no differently than traditional fuels. We 
view such an approach being a common sense interpretation of the 
statutory definition of solid waste under RCRA. Again, fuel produced 
from discarded non-hazardous secondary materials should not be 
considered solid waste just as recycled newspapers are not considered 
solid waste, since the material has been processed or ``manufactured'' 
into a new fuel product. The use of these energy containing secondary 
materials can be an effective substitute for traditional fuels. Such 
materials can provide economic efficiencies due to lower overall 
resource use, while still protecting human health and the environment.
    Another difficulty the Agency faces is the misconception that 
discarded material that is burned, either for destruction or energy 
recovery, by definition has high levels of contaminants. We do not 
believe this is the case for many of the non-hazardous secondary 
materials we are assessing. The manner in which the secondary material 
is managed is a key factor that determines discard (abandoned, disposed 
of, or thrown away); contaminant levels are part of that consideration, 
such that if a secondary material has high levels of contaminants, it 
would be considered sham recycling, which is one type of way a material 
can be ``disposed of.'' Clean materials can be discarded just like 
contaminated materials can. This, combined with the perception that 
combustion of secondary materials is equated to discard, results in the 
perception that there needs to be a very high threshold with respect to 
the level of processing that must take place to render a discarded 
material into a non-waste product. We believe, however, that a strict, 
but appropriate level of processing is necessary which is reflected in 
the processing definition outlined in today's proposed rule. We also 
note that in order for any secondary material to be considered a non-
waste fuel, it must contain contaminants at levels that are comparable 
to traditional fuels in use today.
    To put this into context, we believe it would help to include 
examples of processing of discarded non-hazardous secondary materials--
those which we believe are clearly adequate processing to render the 
material into a non-waste fuel or ingredient product in accordance with 
the definition of processing in Sec.  241.2 and those that do not.
c. Examples of Adequate Processing
    Examples of non-hazardous secondary materials that have been 
discarded, but can be processed into a non-waste fuel or ingredient 
product include, but are not limited to, used tires, solid waste 
processed in gasifiers to produce synthesis gas, off-spec used oil 
(discussed above), sewage sludge processed into pellets, painted wood, 
and coal fines and biomasss processed into pellets with the impurities 
removed. Each of these are described in more detail below.
    Used Tires. EPA views used tire processers as facilities that take 
solid waste that can produce valuable non-waste products. Used tires 
undergo various processing steps to meet certain specifications that 
are necessary for a particular end use, whether it be for use as TDF, 
or for use in other non-combustion applications, such as ground rubber 
applications (e.g., for use in sidewalks).\61\ Used tire processors 
typically enter into contracts with the end users of these tire derived 
products that specify that the processed tires meet certain 
specifications (i.e. size of tire pieces, wire content) to ensure the 
material consistently meets the needs of that particular end use. This 
is common for TDF.
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    \61\ As discussed previously, today's proposal only addresses 
non-hazardous secondary materials that are used in combustion 
process, and not in other applications.
---------------------------------------------------------------------------

    Used tires are often processed by shredding and removing dirt or 
other contaminants to produce TDF. Processing scrap tires into TDF can 
involve two physical processing steps: chipping/shredding (usually 
ranging in size from 1 to 4 inches) and (in some cases) metal removal, 
with the amount of metal in TDF varying depending on how much of the 
tires have been processed. For some units, such as cement kilns, metal 
in the wire can be used in the manufacturing process.\62\ However, most 
other units benefit from TDF that has been processed to minimize the 
amount of metal and improve heating efficiency.
---------------------------------------------------------------------------

    \62\ 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). Under today's proposal, cement kilns that burn whole 
tires would be subject to the CAA section 129 requirements, unless 
the tires were processed to produce TDF or a non-waste determination 
was issued by EPA regarding the burning of whole tires.
---------------------------------------------------------------------------

    EPA considers used tires that have been shredded/chipped into TDF 
and with the metal belts or wire removed, to meet the definition of 
processing discussed above. Thus, used tires that have been shredded/
chipped without the removal of the metal belts or wire would not be 
considered to have been sufficiently processed, and any TDF that is 
generated in such a fashion would be considered a waste-derived fuel. 
Removing the metal belts or wire will help reduce metal contaminants in 
the emissions and ash, and may improve the burning characteristics for 
some uses of the TDF. As is the case for all types of solid fuel, 
proper characterization of the size and composition of TDF are 
important factors that combustion unit operators assess to determine if 
TDF is a suitable fuel for their specific combustion unit design.\63\ 
For example, ASTM Standard 6700-01, describes standard practices for 
using TDF as fuels, and also specifies sampling and analysis methods 
and procedures that apply to TDF that cover composition, and fuel 
characterization analyses. The standards also address the size of the 
tire pieces

[[Page 31878]]

and metal content in order to optimize combustion. The standards for 
metals range from wire free, to relatively wire free to no wire 
removed. To meet the processing definition for combusting scrap tires, 
those materials should have the metal belts or wire removed consistent 
with the ASTM standard for relatively wire free. However, as noted in 
footnote 62, certain types of combustion units, such as cement kilns 
also use the wire in the tire as an ingredient to producing cement 
clinker. Therefore, we are soliciting comment on whether to adopt an 
additional definition for processing that would not require the metal 
belts or wire to be removed for those combustion units, such as cement 
kilns where the metals serve a useful purpose in the process of making 
clinker.
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    \63\ With regard to the legitimacy criteria discussed in Section 
VII.B.3, the heating value of scrap tires (12,000 Btu/lb to 16,000 
Btu/lb) is the highest of all secondary materials, except used oil 
(17,800 Btu/lb), and higher than typical coal values. Contaminants 
of potential concern have been measured for both materials: Mercury 
is below detectable levels for TDF, and average 0.11 ppm for coal; 
barium is also below detectable levels in TDF; cadmium, chromium, 
lead and manganese levels are comparable; zinc is present in higher 
concentrations in TDF than coal.
---------------------------------------------------------------------------

    Syngas Produced from Gasification of Solid Waste. Although not 
specifically discussed in the ANPRM, synthesis gas (or syngas as it is 
commonly referred) produced from the gasification of solid waste is a 
material that can also meet the requirements of a fuel product produced 
from processing discarded non-hazardous secondary materials, provided 
the syngas has been adequately processed to remove contaminants.
    A variety of solid waste streams are available for conversion to 
energy, including conversion through gasification technologies. 
Gasification is a chemical production process that converts 
carbonaceous material into a synthesis gas that can be used for energy 
production (or as a building block for other chemical manufacturing 
processes). In general, gasification systems are designed to react 
carbon-containing materials and steam at high temperatures to produce a 
synthesis gas composed mainly of carbon monoxide and hydrogen.
    Gasification systems include two basic components. The first is the 
reactor or gasifier and the second is a gas cleanup or polishing system 
used to remove various contaminants from the raw (un-polished) 
synthesis gas. At a minimum, syngas cleanup generally includes removal 
of sulfur and metals. These two components work together producing a 
synthesis gas that can be used as a fuel in a combustion turbine.
    Other Non-Hazardous Secondary Materials That are Processed. Sewage 
sludge can be processed into fuel pellets by biosolid drying that 
destroys pathogens and bacteria. Specifically, raw sewage sludge is 
moved to digesters where microbes decompose the organic solids. The 
resulting biosludge is pressed with wide fabric belts into sheets and 
water is removed. This sludge cake is then baked in ``tumble-drying'' 
ovens that destroy the pathogens and bacteria, removing any remaining 
water, and rotate the sludge into the final pelletized product.
    Although we consider this to meet our definition of processing, the 
fuel pellets would still have to meet the legitimacy criteria to be 
considered a non-waste fuel. As discussed in section VII.C.5.f., we 
generally believe sewage sludge itself has contaminant levels that are 
higher than traditional fuels in use today, and thus would not satisfy 
the contaminant part of the legitimacy criteria.
    Wood with lead-based paint that is shaved to remove the lead-based 
paint is another example of processing a discarded non-hazardous 
secondary material to produce a legitimate product; in this case, the 
underlying wood can be used as a non-waste, traditional fuel, and the 
lead-based paint can be safely disposed of or sent for lead recovery.
    Coal fines, biomass, and other materials can be mixed and processed 
into pellets (or other forms) that have the consistency and handling 
characteristics of coal. For example, the K-Fuel process employs heat 
and pressure to transform coal into a cleaner, more efficient fuel by 
removing water and polluting impurities, thus increasing combustion 
efficiency. When applied to different lower-rank sub-bituminous and 
lignite coals, the K-Fuel process removes, on average, almost 70 
percent of the coal's elemental mercury.\64\
---------------------------------------------------------------------------

    \64\ Evergreen Energy Company Web site. http://www.evgenergy.com/k_fuel.php.
---------------------------------------------------------------------------

    In the examples above, we view the non-hazardous secondary 
materials to have been sufficiently processed to produce a fuel product 
that would not be a solid waste if it met the legitimacy criteria 
specified in section VII.D.6; however, as noted previously, the non-
hazardous secondary materials would be considered solid wastes prior to 
processing and would be subject to appropriate federal, state, and 
local requirements.
d. Examples of Minimal Processing That Would Not Meet Proposed 
Definition of Processing.
    Sewage sludge, and other non-hazardous secondary materials that 
have a high moisture content can be dewatered to effectively increase 
the Btu/lb of the material prior to burning as a fuel. We do not 
consider dewatering, by itself, to meet our definition of adequate or 
sufficient processing. For example, dewatering sewage sludge would 
likely be required processing as part of normal waste management 
activities (e.g., prior to landfilling, or prior to burning the sludge 
for disposal in an incinerator). As such, we do not view this to be 
sufficient processing to convert discarded materials into non-waste 
fuel products.
    Whole tires that are, for example, removed from waste tire piles or 
collected and managed pursuant to state tire collection programs, that 
are marketed to cement kilns or other industrial furnaces and used as 
fuels absent processing into what we consider processed TDF would be 
another example of insufficient processing to produce a non-waste fuel. 
However, we are also requesting comment on whether discarded materials 
that have been collected and that otherwise have not been processed (as 
defined in this proposal), should not be considered solid wastes if 
they are indistinguishable in all relevant aspects from a product 
(again, of course they must be legitimate), and such whole tires are 
marketed to cement kilns or other industrial furnaces and are used as 
fuels. For example, if a discarded non-hazardous secondary material 
that has not been processed based on our proposed definition can be 
shown to be no different than other non-waste fuels in use today, could 
that secondary material be considered a non-waste fuel/ingredient 
product even though it was discarded in the first instance? Commenters 
should provide the rationale supporting this approach.
e. Alternative Approach for Addressing Non-Hazardous Secondary 
Materials That Are Processed Into Non-Waste Fuels or Ingredients
    As proposed, this particular provision is self-implementing, where 
each person would make the determination whether or not the non-
hazardous secondary material has been ``sufficiently processed'' to 
produce a non-waste fuel or ingredient. The Agency believes that such 
an approach is appropriate considering the large number of non-
hazardous secondary materials that are generated that may be processed 
into a non-waste fuel or ingredient. However, there is also the 
question of whether the definition of processing is sufficiently clear 
so that the regulated community can appropriately apply the definition. 
Therefore, the Agency is also considering and requests comment on 
whether this particular provision should be addressed through the non-
waste determination process under Sec.  241.3(c) (rather than as a 
self-implementing provision), such that the Agency would

[[Page 31879]]

consider and evaluate each type of processing activity on a case-by-
case basis and approve it before the processed fuel or ingredient would 
be considered a non-waste fuel or ingredient. We also request comment 
on whether the Agency should promulgate a general rulemaking provision, 
similar to 40 CFR 260.20,\65\ that would allow EPA to evaluate various 
processing activities generally, as opposed to on a site-by-site basis, 
such that the Agency would identify in the regulations which processing 
activities would produce a non-waste fuel or ingredient. While such an 
approach would put a much greater burden on EPA, it would also provide 
greater certainty to the regulated community as to which non-hazardous 
secondary materials have been sufficiently processed to produce a non-
waste fuel or ingredient.
---------------------------------------------------------------------------

    \65\ 40 CFR 260.20 allows any person to petition the 
Administrator of EPA to modify or revoke any provision of the 
hazardous waste rules. A similar ``general rulemaking authority'' 
could also be promulgated under RCRA subtitle D.
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5. Non-Waste Determination Process
    This proposal would establish a non-waste determination process 
that provides persons with an administrative process for receiving a 
formal determination from EPA that non-hazardous secondary material 
fuel that has not been managed within the control of the generator has 
not been discarded, and is indistinguishable in all relevant aspects 
from a fuel product, and thus, is not a solid waste when used as a fuel 
in a combustion unit. For example, a facility that is not affiliated 
with the generator of the non-hazardous secondary material fuel (and 
thus is ``outside the control of the generator'') can petition EPA to 
determine that the secondary material they burn as fuel is not a solid 
waste because the material has not been discarded and is 
indistinguishable in all relevant aspects from a fuel.
    This proposed process would be voluntary. The non-waste 
determination process would require the petitioner to request such a 
case-specific non-waste determination from EPA. Any petition that is 
submitted to EPA that requests that the non-hazardous secondary 
material be considered a non-waste fuel would need to demonstrate that 
the material has not been discarded in the first instance, as well as 
describe how the non-hazardous secondary material satisfies the five 
proposed criteria outlined in Sec.  241.3(c).
    To demonstrate that the non-hazardous secondary material used a 
fuel has not been discarded in the first instance, the petitioner would 
need to demonstrate that the non-hazardous secondary material was not 
initially abandoned or thrown away by the generator of the material. It 
may not always be clear whether secondary materials would be considered 
to be discarded in the first instance. For example, secondary material 
retrieved from a landfill or tires retrieved from waste tire piles 
would be considered materials that are discarded in the first instance. 
We may not, however, consider used tires collected from tire 
dealerships and managed pursuant to state tire collection programs to 
be discarded in the first instance, depending on how they are managed.
    After demonstrating that the material has not been discarded in the 
first instance, the petitioner must then demonstrate that the material 
is indistinguishable in all relevant aspects from a fuel product by 
showing that it satisfies the following five criteria: (1) Whether 
market participants handle the non-hazardous secondary material as a 
fuel rather than a waste; (2) whether the chemical and physical 
identify of the non-hazardous secondary material is comparable to a 
commercial fuel; (3) whether the capacity of the market would use the 
non-hazardous secondary material in a reasonable timeframe; (4) whether 
the constituents in the non-hazardous secondary material are released 
to the air, water or land from the point of generation to the 
combustion of the secondary material at levels comparable to what would 
otherwise be released from traditional fuels; and (5) other relevant 
factors.
    Specifically, the first criterion for a non-waste determination is 
whether market participants handle the non-hazardous secondary material 
as a fuel rather than a solid waste. This would include consideration 
of likely markets for the non-hazardous secondary materials used as 
fuels (e.g., based on the current positive value of the secondary 
material, stability of demand, and any contractual arrangements). This 
evaluation of market participation is a key from a fuel products 
standpoint rather than as negatively-valued wastes.
    The second criterion for a non-waste determination is the chemical 
and physical identity of the non-hazardous secondary material and 
whether it is comparable to commercial fuels. This ``identity 
principle'' is a key factor that the Court of Appeals for the DC 
Circuit cited in Safe Foods in determining whether a material is 
indistinguishable from a product. It is important to note that the 
identity of a material can be comparable to a fuel product without 
being identical. However, to qualify for a non-waste determination, any 
differences between the non-hazardous secondary material in question 
and the commercial fuel should not be significant from a health and 
environmental risk perspective.
    The third criterion for making a non-waste determination is the 
capacity of the market to use the non-hazardous secondary material as a 
fuel in combustion units in a reasonable time frame and ensure that it 
will not be abandoned. For the non-waste determination, a person will 
need to provide sufficient information about the non-hazardous 
secondary material and the market demand for it to demonstrate that 
such non-hazardous secondary materials will in fact be used as a fuel 
in combustion units in a reasonable time frame. EPA is not proposing to 
explicitly define ``reasonable time frame'' because such time frames 
could vary according to the non-hazardous secondary material and 
industry involved, and therefore determining this time frame should be 
made on a case-specific basis. However, the Agency solicits comments on 
whether it should propose a specific timeframe as part of this 
criterion.
    The fourth criterion for a non-waste determination is whether the 
constituents in the non-hazardous secondary material fuels are released 
to the air, water, or land water at concentrations comparable to what 
would otherwise be released from traditional fuels. The process that 
the Agency would be considering would encompass the point of generation 
of the material, management and storage prior to use through combustion 
and the end use of the secondary material. The Agency believes that to 
the extent the constituents are an extension of the original secondary 
material, their release to the environment is a possible indicator of 
risk and discard. The Agency recognizes that combustion using 
traditional fuels also result in a certain level of release and, in 
evaluating this criterion, would not deny a non-waste determination if 
the increase in release is not significant from either a statistical or 
a health and environmental risk perspective. However, when relatively 
high levels of the constituents in the non-hazardous secondary material 
are released to the environment in looking from the point of generation 
of the secondary material to its combustion, then that may be an 
indication that the non-hazardous secondary material is not being 
handled as a commercial fuel.
    The fifth and final criterion for a non-waste determination 
includes any other relevant factors that demonstrate that the non-
hazardous secondary material is

[[Page 31880]]

not a solid waste. This catch-all criterion is intended to allow the 
person to provide any case-specific information considered important 
and relevant in making the case that its non-hazardous secondary 
material used as a fuel in a combustion unit is not a solid waste.
    Any non-hazardous secondary material used as a fuel must also 
satisfy our proposed legitimacy criteria in order to be considered a 
non-waste fuel. In order for a non-waste determination to be granted, 
the applicant must also therefore show that the material satisfies the 
proposed legitimacy criteria. We note that there is overlap between the 
legitimacy criteria and the five petition criteria discussed above. 
Thus, the same rationale used to demonstrate that the non-hazardous 
secondary material contains contaminants at levels comparable to 
traditional fuels in combination with the argument that such secondary 
material contains meaningful heating value can be used to satisfy 
petition criterion number 2 above. Similarly, the rationale used to 
demonstrate that the secondary material contains contaminants at levels 
comparable to traditional fuels can be used as the rationale for 
petition criterion number 4 above.
    Non-Waste Determination Process. EPA is proposing that the process 
for the non-waste determination be similar to that for the solid waste 
variances found in Sec.  260.33, except that such requests can only be 
addressed by EPA. In order to obtain a non-waste determination, a 
facility that manages non-hazardous secondary materials that would 
otherwise be regulated must apply to the Regional Administrator per the 
procedures described in proposed Sec.  241.3(c). The application must 
address the relevant criteria discussed above. The Regional 
Administrator for the EPA Region where the facility combusting the 
material will evaluate the application and issue a draft notice 
tentatively granting or denying the application. Notification of this 
tentative decision will be provided by newspaper advertisement or radio 
broadcast in the locality where the recycler is located. The Regional 
Administrator will accept comment on the tentative decision for at 
least 30 days, and may also hold a public hearing upon request or at 
his discretion. The Regional Administrator will issue a final decision 
after receipt of comments and after the hearing (if any).
    The Agency recognizes that many states have programs in place to 
make such determinations under state statute, and EPA would support the 
states to also make such determinations--that is, allow the states to 
act on behalf of EPA in making such case-specific determinations. 
Therefore, we are specifically soliciting comment as to whether the 
Agency can (and if so) should allow a state, for example, under a 
state's beneficial use program, to also make case-specific 
determinations without EPA's approval. We note that under the Revisions 
to the Definition of Solid Waste Rule (70 FR 64668), a non-waste 
determination may be granted by the state if the state is either 
authorized for this provision or if the following conditions are met: 
(1) The state determines the hazardous secondary material meets the 
applicable criteria for the non-waste determination; (2) the state 
requests that EPA review its determination; and (3) EPA approves the 
state determination. Should EPA allow this type of non-waste 
determination process in determining whether or not such non-hazardous 
secondary material is or is not a solid waste?
    We note that states may submit these determinations on behalf of 
the petitioner for EPA to evaluate under the proposed non-waste 
determination criteria in proposed Sec.  241.3(c)(1). If EPA determines 
through the petition process that the secondary material in the state 
determinations are not solid waste, then they would not be subject to 
the CAA section 129 standards, but instead would be subject to the CAA 
section 112 standards. Conversely, EPA may make a non-waste 
determination for non-hazardous secondary materials under the Federal 
regulations that still remains subject to the state solid waste 
regulations.
    After a formal non-waste determination has been granted, if a 
change occurs that affects how a non-hazardous secondary material meets 
the relevant criteria contained in proposed Sec.  241.3(c)(1), persons 
must re-apply to the Regional Administrator for a formal determination 
that the non-hazardous secondary material continues to meet the 
relevant criteria and is not discarded and therefore, not a solid 
waste.
6. Legitimacy Criteria
    a. Legitimacy Criteria for Fuels. This notice is proposing that 
non-hazardous secondary materials used as fuels in combustion units 
must meet the legitimacy criteria specified in proposed Sec.  
241.3(d)(1) in order to be considered a non-waste fuel.\66\ To meet the 
fuel legitimacy criteria, the non-hazardous secondary material must be 
handled as a valuable commodity, have a meaningful heating value and be 
used as a fuel in a combustion unit that recovers energy, and contain 
contaminants at levels comparable to those in traditional fuels which 
the combustion unit is designed to burn. These criteria are discussed 
below.
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    \66\ We note, however, that non-hazardous secondary materials 
that satisfy the legitimacy criteria would still be considered a 
solid waste if they were discarded (abandoned, disposed of, or 
thrown away), unless they were processed into legitimate non-waste 
fuel products.
---------------------------------------------------------------------------

    Manage as a Valuable Commodity. We are proposing to require that 
non-hazardous secondary materials used as fuels be managed as valuable 
commodities, including being stored for a reasonable timeframe. See 
proposed 241.3(d)(1)(i). Where there is an analogous fuel, the 
secondary material used as a fuel must be managed in a manner 
consistent with the management of the analogous fuel or otherwise be 
adequately contained so as to prevent releases to the environment. 
Where there is no analogous fuel, the secondary material must be 
adequately contained so as to prevent releases to the environment. An 
``analogous fuel'' is a traditional fuel for which the non-hazardous 
secondary material substitutes and which serves the same function and 
has similar physical and chemical properties as the non-hazardous 
secondary material.
    With respect to how long a non-hazardous secondary material can be 
stored before the material is not considered to be ``managed as a 
valuable commodity,'' we are not specifying a specific timeframe, but 
requiring that the non-hazardous secondary material be stored for a 
reasonable timeframe. EPA is not proposing to specifically define 
``reasonable timeframe'' because such timeframes could vary according 
to the non-hazardous secondary material and industry involved. On the 
other hand, the Agency also recognizes that with this flexibility, also 
comes the potential for non-hazardous secondary materials to be over-
accumulated, which has been demonstrated to be a problem with hazardous 
secondary materials. It also could raise questions from an 
implementation standpoint since the question of ``reasonable 
timeframe'' may differ depending on each person's perspective. Thus, 
while we think that ``reasonable timeframe'' is an appropriate 
standard, considering the large number of non-hazardous materials that 
may be subject to this rule, and is flexible enough to allow 
accumulation to be cost-effective, the Agency solicits comment on 
whether it should define a specific timeframe or range of timeframes as 
part of this criterion. For example, one approach is to adopt the 
speculative accumulation provision (see 40 CFR 261.1(c)(8)) that

[[Page 31881]]

is defined in the hazardous waste regulations for determining how much 
secondary material must be recycled within a specific timeframe before 
the material is considered to have been discarded. Another approach 
would be for the Agency to determine how long fuels are generally held 
before they are used, and adopt such a standard. To this end, the 
Agency specifically solicits comment on the time period or range of 
time periods that fossil fuels are typically held before they are used 
as a fuel.
    We are proposing that this legitimacy factor apply to both the 
nonhazardous secondary materials burned under the generator-controlled 
exclusion, as well as to materials that have been processed into a 
product fuel. For the generator-controlled provision, the non-hazardous 
secondary material must be managed as a valuable commodity upon 
generation through its end use as a fuel--that is, from the initial 
point of generation of the non-hazardous secondary material to the time 
it is actually burned as a fuel either on-site or at another facility 
that is under the control of the generator. For non-hazardous secondary 
materials that are processed to produce a fuel product, the processed 
material must be managed as a valuable product from the point that it 
is first produced through its end use. As noted previously, before the 
fuel product is produced, the non-hazardous secondary materials are 
solid wastes, and must comply with any federal, state, or local 
requirements.
    This criterion requires that the non-hazardous secondary material 
be managed appropriately before its end use as a fuel. In EPA's view, a 
company will value non-hazardous secondary materials used as fuels that 
provide an important contribution and, therefore, will manage those 
secondary materials in a manner consistent with how it manages 
traditional fuels. If, on the other hand, a company does not manage the 
non-hazardous secondary material as it would a traditional fuel, that 
behavior may indicate that the non-hazardous secondary material is 
being discarded.
    This factor addresses the management of non-hazardous secondary 
materials used as fuels in two distinct situations. The first situation 
is when the non-hazardous secondary material is analogous to a 
traditional fuel that otherwise could be burned. In this case, the non-
hazardous secondary material must be managed prior to use as a fuel 
similarly to the way traditional fuels are managed or otherwise must be 
adequately contained so as to prevent releases to the environment. For 
example, for liquid non-hazardous secondary materials that are used as 
a fuel that are similar to liquid fossil fuels, the Agency would expect 
that such non-hazardous secondary materials would be managed in tanks 
or similar type devices to control the release of the secondary 
materials. The Agency would also expect that the types of controls that 
would typically be part of a tank or similar type device for fossil 
fuels would also be part of any tank system that is used to manage non-
hazardous secondary material. The second situation the factor addresses 
is the case where there is no analogous traditional fuel that otherwise 
could be burned. This could be either because the process is designed 
around a particular non-hazardous secondary material fuel, or because 
physical or chemical differences between the secondary material and the 
traditional fuel are too significant for them to be considered 
``analogous.''
    Non-hazardous secondary materials that have significantly different 
physical or chemical properties when compared to traditional fuels 
would not be considered analogous even if they serve the same function 
because it may not be appropriate to manage them in the same way. In 
this situation, the non-hazardous secondary material would have to be 
adequately contained so as to prevent releases to the environment for 
this factor to be met. A non-hazardous secondary material is 
``adequately contained'' if it is stored in a manner that both 
adequately prevents releases or other hazards to human health and the 
environment, considering the nature and toxicity of the secondary 
material.\67\ We note that this definition of ``contained'' differs 
slightly from the description used in the DSW final rule preamble, 
which defined ``contained'' to mean placing the material in a unit that 
controls the movement of that material out of the unit.\68\ We believe 
this slightly revised definition is appropriate because of the wide 
range of non-hazardous secondary materials that are used as fuels, some 
of which may not need to be ``contained'' in a dedicated storage unit. 
However, the Agency solicits 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 is considering is whether to 
provide a more specific definition of ``contained'' in the rules, or 
whether the Agency should include specific technical standards or limit 
the types of units that such non-hazardous secondary materials may be 
managed, in order for them to be considered to be ``managed as a 
valuable commodity.''
---------------------------------------------------------------------------

    \67\ Examples of materials that are adequately contained would 
include liquid fuels stored in a tank. Examples of other hazards 
include tire fires resulting from improper storage of scrap tires 
(see section VII.D.2.).
    \68\ See October 30, 2008; 73 FR 64681.
---------------------------------------------------------------------------

    The definition of legitimacy in the DSW final rule required that 
this factor be considered, but not necessarily met. Under that rule, 
the Agency was aware of situations in which the contained factor is not 
met, but the secondary material is still being managed as a valuable 
commodity. One example given was a hazardous secondary material that is 
a powder-like material that is shipped in a woven super sack and stored 
in an indoor containment area that has an analogous raw material that 
is shipped and stored in drums. A strict reading of this factor may 
determine that the hazardous secondary material is not being managed in 
a manner consistent with the analogous secondary material even if the 
differences in management are not actually impacting the likelihood of 
a release.
    This proposal includes a requirement for analogous raw materials to 
``* * * be managed in a manner consistent with the analogous fuel or 
otherwise be adequately contained to prevent releases to the 
environment'' (Sec.  241.3(d)(1)(i)(B)). This is similar to the DSW 
final rule provision, but is also different in that the requirement in 
today's proposal has to be met (not just considered). Thus, today's 
proposal would require that this factor be met (not optional) because 
we believe that in all situations where the factors in Sec.  
241.3(d)(1)(i) are not met, the material would be discarded.
    Meaningful Heating Value and Use as a Fuel. We are proposing that 
non-hazardous secondary materials have a meaningful heating value and 
be used as a fuel in a combustion unit that recovers energy. See 
proposed Sec.  241.3(d)(1)(ii). We are proposing the requirement for 
the non-hazardous secondary material to be used as a fuel in a 
combustion unit that recovers energy for two reasons. First, we want to 
be clear that non-hazardous secondary materials having a meaningful 
heating value, but that are not burned in a combustion device 
specifically for energy recovery (e.g., are burned in an incinerator) 
are solid wastes.\69\ We recognize that incinerators and similar type 
units may accept non-hazardous secondary materials with a meaningful 
heating value and use that

[[Page 31882]]

fuel value to limit the other types of fuels it needs to burn. However, 
the intent of an incinerator, and similar type units, is to destroy 
wastes, and thus, such non-hazardous secondary materials that are 
burned in such units are considered discarded, and thus a solid waste. 
Second, since these provisions are intended to apply only to non-
hazardous secondary materials that have a specific end use (in this 
case, use as a fuel in an energy recovery device), we believe it 
appropriate to highlight that point by adding that restriction directly 
to this legitimacy criteria.
---------------------------------------------------------------------------

    \69\ We note that incinerators that burn waste for purposes of 
destruction that have a waste heat recovery boiler would not be 
considered a combustion unit that satisfies this legitimacy 
criterion.
---------------------------------------------------------------------------

    With respect to the requirement that the non-hazardous secondary 
material have a meaningful heating value, in the context of the 
hazardous waste regulations, EPA addressed this concept--that is, 
whether a hazardous secondary material has an adequate, meaningful 
heating value, in the so-called ``comparable fuels'' rule (63 FR 33781) 
by defining it with a benchmark Btu content of 5,000 Btu/lb. EPA has 
also previously stated that industrial furnaces (i.e., cement kilns and 
industrial boilers) burning hazardous wastes with an energy value 
greater than 5,000 Btu/lb may generally be said to be burning for 
energy recovery; however, we have also indicated that hazardous wastes 
with a lower Btu content could conceivably be burned for energy 
recovery due to the devices' general efficiency of combustion. ``Thus, 
the 5,000 Btu level is not an absolute measure of burning for energy 
recovery * * *'' (see 62 FR 24251, May 2, 1997).
    We believe these same concepts may also be appropriate in 
determining whether non-hazardous secondary materials have a meaningful 
heating value since traditional fuels have a range of heating values in 
general from 4,000 to 23,000 Btu/lb, and since we recognize that new 
technologies may be developed in the future that can cost-effectively 
produce energy from secondary materials with lower energy content. As a 
result, for purposes of meeting the legitimacy criteria for fuels, we 
would consider non-hazardous secondary materials with an energy value 
greater than 5,000 Btu/lb, as-fired, to have a meaningful heating 
value, and satisfy this legitimacy criterion. 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, it may 
also be appropriate to allow a person to demonstrate that a meaningful 
heating value is derived from the non-hazardous secondary material if 
the energy recovery unit can cost-effectively recover meaningful energy 
from the non-hazardous secondary materials used as fuels. Factors that 
may be important in determining whether an energy recovery unit can 
cost-effectively recover energy from the non-hazardous secondary 
material include, but are not limited to, whether the facility 
encounters a cost savings due to not having to purchase significant 
amounts of traditional fuels they otherwise would need, whether they 
are purchasing the non-hazardous secondary material to use as a fuel, 
whether the secondary material they are burning can self-sustain 
combustion, and whether their operation produces energy that is sold 
for a profit (e.g., a utility boiler that is dedicated to burning a 
specific type of non-hazardous secondary material that is below 5,000 
Btu/lb could show that their operation produces electricity that is 
sold for a profit).
    However, the Agency requests comment on whether it should 
promulgate a bright-line test for determining what is considered a 
meaningful heating value in an effort to provide greater certainty to 
both the regulated community and regulatory officials. For example, the 
Agency could establish 5,000 Btu/lb or some other value as the bright-
line test. Commenters that suggest that the Agency establish a bright-
line test should indicate what value the Agency should select, as well 
as the basis or rationale for selecting that value. We also request 
comment on whether we should identify a Btu/lb cutoff below which the 
Agency would assume that the non-hazardous secondary material is burned 
for destruction as opposed to energy recovery. Under this approach, 
non-hazardous secondary materials between this lower level and 5,000 
Btu/lb (assuming there is a difference) could pass this criterion 
provided the facility demonstrates the energy recovery unit can cost-
effectively recover meaningful energy from the non-hazardous secondary 
materials used as fuels.
    EPA views this proposed legitimacy criterion to encompass the 
useful contribution and valuable product legitimacy factors used to 
evaluate hazardous secondary materials in the DSW final rule. In that 
rule, with respect to useful contribution, EPA said that legitimate 
recycling must involve a hazardous secondary material that provides a 
useful contribution to the recycling process or to a product of the 
recycling process. See Sec.  260.43(b)(1). This factor expresses the 
principle that the non-hazardous secondary materials should contribute 
value to the manufacturing process--legitimate use is not occurring if 
the secondary materials being used do not add anything to the process. 
This factor is intended to prevent the practice of using secondary 
materials in a manufacturing operation simply as a means of disposing 
or discarding them. We believe that non-hazardous secondary materials 
that are used as a fuel in a combustion unit that have meaningful 
heating value provide a useful contribution.
    With respect to the other mandatory legitimacy factor, the DSW 
final rule stated the recycling process must produce a valuable product 
or intermediate. The product or intermediate is valuable if it is (i) 
sold to a third party or (ii) used by the recycler or the generator as 
an effective substitute for a commercial product or as an ingredient or 
intermediate in an industrial process.'' See Sec.  260.43(b)(2). This 
factor expresses the principle that the secondary material should be a 
material of value, as demonstrated by someone purchasing the material, 
or using it as an effective substitute for a commercial product that it 
would otherwise have to buy or obtain for its industrial process. We 
believe non-hazardous secondary materials that have meaningful heating 
value that are used as fuels in combustion units are valuable products 
since they would be replacing traditional fuels that otherwise would 
have to be burned.
    Contaminant Levels. We are proposing a legitimacy criterion under 
which non-hazardous secondary materials used as fuels in combustion 
units must contain contaminants at levels that are comparable to those 
in traditional fuel products which the combustion unit is designed to 
burn (e.g., cellulosic biomass, fossil fuels and their derivatives, as 
identified elsewhere in this preamble). See proposed Sec.  
241.3(d)(1)(iii). This criterion is important to ensure that a non-
hazardous secondary material being used as a fuel is not being 
combusted or otherwise released to the environment wholly or in part 
for the purpose of disposing of or discarding of unwanted materials. 
Combustion of non-hazardous secondary material with elevated levels of 
contaminants results in the contaminants being discarded either through 
incineration, or by being released to the environment. We also believe 
that requiring that the secondary material have contaminants at levels 
comparable to traditional fuels would ensure that the burning of any 
secondary materials in combustion units will not have increased 
releases to the environment that could impact the health and 
environment of the local community. Thus, ensuring that the level of 
contaminants in the non-

[[Page 31883]]

hazardous secondary material is comparable would be the most protective 
of human health and the environment.
    We are proposing to define the term ``contaminants'' to mean the 
HAP listed under CAA section 112(b), as well as the nine pollutants 
required to be regulated under CAA section 129. We believe this is 
reasonable because this legitimacy criterion is intended to ensure that 
materials are not being combusted as a means of disposing of them, so 
the health and environmental impacts of concern will be those resulting 
from air emissions, and the air emissions of concern identified in the 
CAA include the listed HAP, as well as the section 129 pollutants. 
However, the Agency solicits comment on whether the list of 
contaminants should be narrower or broader, or whether the Agency 
should look at other possible lists. In particular, since the Agency is 
determining which non-hazardous secondary materials are considered 
solid waste under RCRA, the Agency could consider the list of hazardous 
constituents promulgated in Appendix VIII of part 261, which is a list 
of hazardous constituents that have been shown in scientific studies to 
have toxic, carcinogenic, mutagenic or teratogenic effects on humans 
and other life forms.
    In determining which traditional fuel(s) the owner or operator of 
the boiler unit would make a comparison with respect to contaminant 
levels, the Agency is proposing to allow any traditional fuel(s) that 
can be or is burned in the particular type of boiler. For example, if 
the boiler burns fuel oil, the level of contaminants to be compared 
would be the level of contaminants in fuel oil or other liquid 
traditional fuels that is or can be burned in such unit, while for gas-
fired boilers, the level of contaminants in the non-hazardous secondary 
material fuels would be compared to natural gas. The Agency believes 
that this approach is most appropriate since the non-hazardous 
secondary material would be replacing the use of a particular type(s) 
of fuel. In addition, as discussed in the preamble to the proposed 
boiler MACT, boilers designed to combust different types of fuels 
(e.g., coal vs. oil) cannot easily be modified to burn another fuel. 
Therefore it would not be appropriate to compare the contaminants in a 
secondary material that is to be combusted in a boiler designed to burn 
oil to the contaminant levels of coal.
    EPA is not proposing to establish specific numerical maximum 
contaminant levels that a non-hazardous secondary material would have 
to meet, but rather the proposal allows the owner or operator to make 
the comparison based on information he has or can acquire regarding the 
level of contaminants found in traditional fuels he burns. However, the 
Agency solicits comment on whether it would be more appropriate for the 
Agency to establish bright-line levels of various contaminants in the 
various traditional fuels or a single set of contaminant levels that 
would apply regardless of the type of traditional fuel that is burned 
(as EPA promulgated in the hazardous waste Comparable Fuel Rule \70\) 
so that the regulated community would have certainty as to whether a 
particular non-hazardous secondary material met this legitimacy 
criterion.
---------------------------------------------------------------------------

    \70\ See 40 CFR 261.38 as an example of maximum contaminant 
levels EPA has promulgated to determine whether a material is a 
comparable fuel for purposes of EPA's subtitle C hazardous waste 
regulations.
---------------------------------------------------------------------------

    The assessment of whether the non-hazardous secondary material has 
contaminants comparable to traditional fuel products is to be made by 
directly comparing the numerical contaminant levels in the non-
hazardous secondary material to the contaminant levels in traditional 
fuels. In making this comparison, the Agency solicits comment on 
whether the comparison should be based upon the total level of 
contaminants, or on the level of contaminants per Btu of heat value. In 
either case, we believe that a direct numerical comparison is necessary 
since the level of contaminants must be comparable to the level of 
contaminants in traditional fuels. The Agency also solicits comments on 
how EPA should interpret ``comparable.'' For example, should comparable 
mean the same as or lower, taking into consideration natural variations 
in sampling events?
    The Agency recognizes that there may be instances where the 
contaminant levels in non-hazardous secondary materials may be somewhat 
higher than found in traditional fuels, but the resulting air pollutant 
emissions would be inconsequential in terms of risks to human health 
and the environment in relation to the burning of traditional fuel 
products and thus possibly not indicative of discard. Therefore, the 
Agency requests comment on whether, instead of requiring that 
contaminant levels in non-hazardous secondary materials be comparable 
to traditional fuels, the Agency should adopt a criterion under which 
contaminants in non-hazardous secondary material used as a fuel in 
combustion units could not be significantly higher in concentration 
than contaminants in traditional fuel products. Under such an approach, 
the Agency believes that a qualitative approach would be appropriate in 
determining whether such secondary materials contain ``significantly 
higher concentrations of contaminants'' compared to traditional fuels. 
That is, a contaminant concentration could be elevated without 
indicating the secondary material is discarded and without posing an 
unacceptable risk, and therefore, may not be considered ``significantly 
higher'' for the purposes of determining whether the non-hazardous 
secondary material is legitimately being burned as a fuel in a 
combustion unit.
    The proposed rule contemplates that this legitimacy criterion must 
be met, rather than merely considered. The proposed legitimacy 
criterion is tailored specifically to the use of these non-hazardous 
secondary materials as fuels in combustion units. As a result, we 
believe that contaminant levels in secondary materials must be 
comparable to be legitimately used as a non-waste fuel product. We are 
therefore proposing that this legitimacy criterion be a requirement for 
the secondary material to be considered a legitimate fuel.
    Since these requirements are self implementing in nature (i.e., 
they do not need up front approval from the regulatory agency), 
facilities may choose to keep supporting documentation on-site in the 
event they are inspected by regulatory officials. EPA is not proposing 
to require that such documentation be maintained, since the proposed 
definition of non-hazardous solid waste is intended to be self-
implementing. However, the Agency solicits comment on whether we should 
require owners and operators of combustion units to prepare and 
maintain documentation that this particular legitimacy criterion has 
been met.
    b. Legitimacy Criteria for Ingredients. Today's notice is proposing 
that non-hazardous secondary materials used as ingredients in 
combustion units meet the legitimacy criteria specified in proposed 40 
CFR 241.3(d)(2). An ingredient used in a combustion unit must be 
managed as a valuable commodity, provide a useful contribution, be used 
to produce a valuable product or intermediate, and must result in 
products that contain contaminants at levels that are comparable in 
concentration to those found in traditional products that are 
manufactured without the non-hazardous secondary material. These 
criteria are discussed below.
    Managed as Valuable Commodities. We are proposing to require that 
non-hazardous secondary materials used as ingredients in combustion 
units be managed as valuable commodities and

[[Page 31884]]

be stored for a reasonable timeframe. See proposed 241.3(d)(2)(i). 
Where there is an analogous ingredient, the non-hazardous secondary 
material used as an ingredient must be managed in a manner consistent 
with the management of the analogous ingredient, or otherwise be 
adequately contained so as to prevent releases to the environment. 
Where there is no analogous ingredient, the non-hazardous secondary 
material must be adequately contained so as to prevent releases to the 
environment. An ``analogous ingredient,'' is a manufacturing process 
ingredient for which the secondary material substitutes and which 
serves the same function and has similar physical and chemical 
properties as the non-hazardous secondary material.
    We are proposing the same storage time and containment requirements 
that were discussed earlier for the legitimacy criteria for fuels, and 
are also proposing that this criterion be met. Consistent with the 
legitimacy criteria for fuels, this criterion addresses the management 
of non-hazardous secondary materials used as ingredients in two 
distinct situations. The first situation is when the non-hazardous 
secondary material is analogous to an ingredient that otherwise would 
be used in the production process. In this case, the non-hazardous 
secondary material should be managed prior to use as an ingredient 
similarly to the way analogous ingredients are managed in the course of 
normal manufacturing, or otherwise be adequately contained.
    The second situation this criterion addresses is the case where 
there is no analogous ingredient that otherwise would be used in the 
production process. This could be either because the process is 
designed around a particular non-hazardous secondary material, or 
because physical or chemical differences between the non-hazardous 
secondary material and the ingredient are too significant for them to 
be considered ``analogous.'' See Managed as a Valuable Commodity under 
the legitimacy criteria for fuels for additional discussion of this 
criterion, as well as the specific issues on which EPA is soliciting 
comment. That is, to the extent that changes are made to this criterion 
with respect to those non-hazardous secondary materials that are used 
as fuels, we would likewise make the same changes with respect to those 
non-hazardous secondary materials used as an ingredient, unless 
comments are submitted which explain, and provide appropriate data and 
information, on why this criterion should be different between those 
non-hazardous secondary materials that are used as a fuel and those 
that are used as ingredients.
    Useful Contribution. We are proposing that the non-hazardous 
secondary materials used as ingredients in combustion units provide a 
useful contribution to the production/manufacturing process. See 
proposed 241.3(d)(2)(ii). A non-hazardous secondary material used as an 
ingredient in combustion systems provides a useful contribution if it 
contributes valuable ingredients to the production/manufacturing 
process or to the product or intermediate of the production/
manufacturing process. This criterion is an essential element in the 
determination of legitimate use as an ingredient because legitimate use 
is not occurring if the non-hazardous secondary materials being added 
do not add anything to the process. This criterion is intended to 
prevent the practice of adding non-hazardous secondary materials to a 
manufacturing operation simply as a means of disposing of them, which 
EPA would consider sham recycling.
    The ANPRM listed five ways in which a non-hazardous secondary 
material can add value and usefully contribute to a recycling process: 
(i) The secondary material contributes valuable ingredients to a 
product or intermediate; or (ii) replaces a catalyst or carrier in the 
recycling process; or (iii) is the source of a valuable constituent 
recovered in the recycling process; or (iv) is recovered or regenerated 
by the recycling process; or (v) is used as an effective substitute for 
a commercial product. Since today's proposal addresses non-hazardous 
secondary materials that are used as ingredients in combustion units, 
we believe that only items (i) and (v) are specifically relevant to our 
assessment of whether these non-hazardous secondary materials provide a 
useful contribution in combustion scenarios. We request comment, 
however, on whether this is correct, or whether the secondary materials 
we are assessing as ingredients can provide useful contribution in 
other ways.
    For purposes of satisfying this proposed criterion, not every 
constituent or component of the non-hazardous secondary material has to 
make a contribution to the production/manufacturing activity. That is, 
non-hazardous secondary materials used as ingredients may contain some 
constituents that are needed in the manufacturing process, such as, for 
example, zinc in non-hazardous secondary materials that are used to 
produce zinc-containing micronutrient fertilizers, and satisfy this 
criterion (although we would also note that the constituents not 
directly contributing to the manufacturing process could still result 
in the material failing the contaminant part of the legitimacy 
criteria). The Agency is not defining quantitatively how much of the 
non-hazardous secondary material needs to provide a useful contribution 
for this criterion to be met, since we believe that defining such a 
level would be difficult and is likely to be different, depending on 
the non-hazardous secondary material. The Agency recognizes, however, 
that this could be an issue if persons argue that a material is being 
legitimately used as an ingredient, but in fact, only a small amount or 
percentage of it is used. Because of the differences in the emission 
standards that the non-hazardous secondary material would be subject 
to--between CAA section 112 and 129, persons may argue that such non-
hazardous secondary materials are not wastes, when in fact, the 
operation is really discard--that is sham recycling. Therefore, the 
Agency solicits comment on whether the Agency should quantitatively 
define how much of the non-hazardous secondary material must provide a 
useful contribution, or alternatively, how much constituents or 
components in a non-hazardous secondary material there would need to 
be, before the material would not be considered to provide a useful 
contribution.
    Valuable Product. We are proposing that the non-hazardous secondary 
materials used as ingredients in combustion units must be used to 
produce a valuable product or intermediate. See proposed 
241.3(d)(2)(iii). The product or intermediate is valuable if it is (i) 
sold to a third party or (ii) used as an effective substitute for a 
commercial product or as an ingredient or intermediate in an industrial 
process.
    This criterion expresses the principle that the product or 
intermediate of the manufacturing/production process should be a 
material of value, either to a third party who buys it from the 
manufacturer, or to the same manufacturer that subsequently uses it as 
a substitute for another material that it would otherwise have to buy 
or obtain for its industrial process. This criterion is an essential 
element of the concept of legitimate use of secondary materials as 
ingredients because legitimate use cannot be occurring if the product 
or intermediate is not of use to anyone and, therefore, has no real 
value. This criterion is intended to prevent the practice of running a 
non-hazardous secondary material through an industrial process to make 
something

[[Page 31885]]

just for the purpose of avoiding the costs of disposal. Such a practice 
would be sham recycling.
    One way that the use of the non-hazardous secondary material as an 
ingredient in the production/manufacturing process that involves a 
combustion unit can be shown to produce a valuable product would be to 
have documentation on the sale of the product to a third party. Such 
documentation could be in the form of receipts or contracts and 
agreements that establish the terms of the sale or transaction. This 
transaction could include money changing hands or, in other 
circumstances, may involve trade or barter. A manufacturer that has not 
yet arranged for the sale of its product to a third party could 
establish value by demonstrating that it can replace another product or 
intermediate that is available in the marketplace.
    Production/manufacturing processes that use non-hazardous secondary 
materials as ingredients in combustion systems may produce outputs that 
are not sold to another party, but are instead used by the same 
manufacturer. These products or intermediates may be used as a 
feedstock in a manufacturing process, but have no established monetary 
value in the marketplace. Such products or intermediates would be 
considered to have intrinsic value, though demonstrating intrinsic 
value may be less straightforward than demonstrating value for products 
that are sold in the marketplace. Demonstrations of intrinsic value 
could involve showing that the product or intermediate of the 
production/manufacturing process replaces another material that would 
otherwise have to be purchased or could involve a showing that the non-
hazardous secondary material meets specific product specifications or 
specific industry standards. Another approach could be to compare the 
non-hazardous secondary material's physical and chemical properties or 
efficacy for certain uses with those of comparable products or 
intermediates made from raw materials.
    Some production/manufacturing processes that use non-hazardous 
secondary materials as ingredients in combustion systems may consist of 
multiple steps that may occur at separate facilities. In some cases, 
each processing step will yield a valuable product or intermediate. 
When each step in the process yields a valuable product or intermediate 
that is salable or usable in that form, the activity would conform to 
this criterion.
    Contaminant Levels. We are proposing that the non-hazardous 
secondary material used as an ingredient must result in products that 
contain contaminants at levels that are comparable in concentration to 
those found in traditional products that are manufactured without the 
non-hazardous secondary material. See proposed Sec.  241.3(d)(2)(iv). 
The term ``contaminants'' refers to constituents in non-hazardous 
secondary materials that will result in emissions of the air pollutants 
identified as HAP listed under CAA section 112(b) and the nine 
pollutants listed under CAA section 129(a)(4)) when such secondary 
materials are burned as fuel or used as ingredients, including those 
constituents that could generate products of incomplete combustion. The 
Agency requests comments on whether we should have a different 
definition of contaminants that applies specifically to ingredients. 
Since contaminant comparisons for the contaminant legitimacy criterion 
apply to a comparison of the products rather than to the secondary 
material, we request comment on whether a different list of 
contaminants should apply, or whether we should generically define 
contaminants to be constituents that may be a concern with respect to 
the product that is produced (e.g., clinker).
    The assessment of whether products produced from the use of non-
hazardous secondary material ingredients in combustion units that have 
contaminants that are comparable in concentration to traditional 
products can be made by a comparison of contaminant levels in the 
ingredients themselves to traditional ingredients they are replacing, 
or by comparing the contaminant levels in the product itself with and 
without use of the non-hazardous secondary material ingredient.
    The Agency recognizes that there may be instances where the 
contaminant levels in the products manufactured from non-hazardous 
secondary material ingredients may be somewhat higher than found in the 
traditional products that are manufactured without the non-hazardous 
secondary material, but the resulting concentrations would not be an 
indication of discard and would not pose a risk to human health and the 
environment. Therefore, the Agency requests comment on whether, instead 
of requiring that contaminant levels in products manufactured from 
secondary material ingredients be comparable in concentration, the 
Agency should adopt a criterion under which contaminants in the product 
could not be significantly higher than found in the traditional 
products that are manufactured without the non-hazardous secondary 
material. Under such an approach, the Agency believes that a 
qualitative approach would be appropriate in determining whether such 
products contain ``significantly higher concentrations of 
contaminants.'' That is, a contaminant concentration could be elevated 
without indicating the secondary material is discarded and without 
posing an unacceptable risk, and therefore, may not be considered 
``significantly higher'' for the purposes of determining whether the 
non-hazardous secondary material is legitimately used as an ingredient 
in a combustion unit.
    Similar to fuels, we are proposing that the legitimacy criterion 
addressing contaminant levels in non-hazardous secondary materials used 
as an ingredient in combustion systems be one that must be met, as 
opposed to one that must only be considered. As we noted in the 
legitimacy criteria for fuels, this criterion is tailored specifically 
to the use of these non-hazardous secondary materials in combustion 
units, and thus, we do not believe that there are case-specific 
situations where this criterion could not be met, but the material 
would still be considered legitimately used as an ingredient.

E. Alternative Approach

    In addition to the proposed approach described in Section VII.D., 
the Agency is identifying an alternative approach for consideration and 
comment. As explained below, this alternative approach, which is 
broader than the proposed solid waste definition discussed above, we 
believe could be constructed in a manner consistent with RCRA and 
relevant caselaw although it may raise important policy questions. This 
alternative may be adopted by the Agency in the final rule if warranted 
by information presented during the public comment period or otherwise 
available in the rulemaking record. Under this alternative, traditional 
fuels that we have identified earlier, which includes clean biomass, 
and that have been burned historically as fuels and managed as valuable 
products (as discussed in section VII.C.5.) would not be solid wastes. 
In addition, non-hazardous secondary materials used as fuels or 
ingredients are excluded from the definition of solid waste if they 
both remain within the control of the generator and meet the legitimacy 
criteria.
    In contrast to the proposed approach described above, all other 
non-hazardous secondary materials that are burned as a fuel or used as 
an ingredient in the combustion process would be solid wastes subject 
to the CAA section 129 standards if burned in a combustion

[[Page 31886]]

unit. Also, all materials that result from processing of discarded non-
hazardous secondary materials would be solid wastes. As with the 
proposed approach, wastes would include those secondary materials used 
as a fuel or ingredient not passing the legitimacy criteria, and those 
secondary materials used as a fuel that are managed outside the control 
of the generator. This solid waste designation would include materials, 
such as secondary wood products combusted on-site, coal refuse, and 
tires processed into TDF, on-spec used oil, and all secondary materials 
used as ingredients managed outside the control of the generator in 
combustion units. No petition process would be offered under this 
alternative.
    We request comment on all aspects of this alternative. Comments are 
specifically requested related to the potential impact this alternative 
may have on traditional non-combustion recycling activities, potential 
changes in the quantity of non-hazardous secondary materials that may 
be landfilled, and any collateral regulatory impacts, such as the 
impact on the MACT floors proposed today for the Commercial and 
Industrial Solid Waste Incinerators if a significant number of 
additional sources are subject to that rule.
    This alternative approach is closer to the views expressed by some 
commenters that any secondary material combusted for energy recovery is 
a solid waste and should be regulated under CAA section 129. Thus, only 
traditional fuels and clean biomass may be burned in a combustion unit 
under CAA section 112. These commenters believe that the combustion of 
non-hazardous secondary materials by definition constitutes discard, 
and therefore all such materials are solid wastes. They have also 
expressed concerns that section 129 mandates stringent requirements for 
emissions control, monitoring and reporting for all sources 
irrespective of size, while section 112 allows EPA discretion to treat 
smaller sources differently by setting standards based on generally 
available control technology for sources emitting less than 10 tons per 
year or more of any single HAP or 25 tons per year or more of any 
combination of HAPs (i.e. area sources). If non-hazardous secondary 
materials burned on site for energy recovery are excluded from the 
definition of solid waste, these commenters argue that many smaller 
facilities that burn such materials will not be subject to any 
significant pollution control, monitoring, or reporting requirements. 
As a result, they believe such an exclusion could have significant 
adverse health and welfare effects on communities across the country 
that are located near area sources burning such secondary materials on 
site for energy recovery.
    We solicit comment on whether EPA should include such non-hazardous 
secondary materials as solid waste, and whether such a definition is 
consistent with or required by RCRA and/or the CAA. Further, as 
explained below, while we believe that the approach favored by the 
commenters may raise legal concerns as to the definition of 
``discard,'' as we have discussed previously and further discuss in 
this section of the preamble, we solicit comment on whether the Agency 
has the authority to regulate all non-hazardous secondary materials 
that are burned in combustion units either as a fuel or ingredient as 
solid wastes. In providing comments on this approach, we specifically 
request that commenters provide the basis for their recommended 
position in light of the existing case law on the issue of ``discard.''
    Some commenters have also argued that, as more non-hazardous 
secondary materials would be subject to CAA section 129 standards when 
combusted, this option would help promote traditional recycling, while 
ensuring more stringent emissions standards under CAA section 129 for 
those sources that elect to continue to burn these secondary materials. 
Depending upon local disposal and virgin material costs, increased 
recycling may occur as a result of market adjustments in response to 
higher materials management costs.
    EPA wishes to clarify, however, that simply because a waste has, or 
may have, value does not mean the material loses its status as a solid 
waste. See API I, 906 F.2d at 741 n.16; United States v. ILCO Inc., 996 
F.2d 1126, 1131-32 (11th Cir. 1993); Owen Steel v. Browner, 37 F.3d 
146, 150 (4th Cir. 1994). Wastes may be used beneficially. Even 
assuming beneficial reuse takes place, therefore, a material once 
discarded cannot cease to be a waste solely by being beneficially 
reused. In the case of this rule, beneficial resuse would be, for 
example, use as a fuel--as opposed to incineration, where the material 
is combusted primarily to be destroyed.
    It is also important to note that a secondary material could still 
be a waste even if it is recycled on site or under the control of the 
generator. See ``API II,'' 216 F.3d at 55-58, where the DC Circuit 
overturned EPA's determination that certain recycled oil bearing 
wastewaters are wastes. The court overturned this decision and remanded 
it to EPA for a better explanation. Importantly for the rule we are 
considering today, the court neither accepted EPA's view nor the 
contrary industry view, noting that the relevant determination that had 
to be made was whether primary treatment of wastewater is simply a step 
in the act of discarding or the last step in a production process 
before discard. 213 F.3d at 57. The court rejected both EPA's and 
industry's views because they were only stated in broad generalities. 
Relevant for today's alternative approach, we note that oil bearing 
wastewaters discussed in API II were in fact recycled on-site, but that 
the court could not determine whether they were wastes or not. Clearly, 
the issue was not whether the recycling occurred on site, or even under 
the control of the generator. Rather, the relevant determination is 
whether the material is discarded or not.
    To remedy the ``on-site'' problem raised by API II, EPA for this 
proposed rule also requires that for the material not to be a waste it 
must be a legitimate fuel or ingredient. This means, to summarize the 
legitimacy criteria very generally, if used as a fuel, it is handled as 
though it is a valuable product (loss must be minimal), it is a true 
fuel with legitimate heating value, and the material has comparable 
levels of contaminants to those contained in traditional fuels. In 
particular, if there are higher than comparable levels of contaminants, 
that would be an indication that the material is really a waste and it 
is being combusted to destroy the waste materials. If the material is 
used as an ingredient, under the proposed rule it must be managed as a 
valuable commodity, must provide a useful contribution to the 
production or manufacturing process, must be used to produce a valuable 
product or intermediate, and cannot result in products that contain 
contaminants that are not comparable to the concentrations found in 
traditional products. For details on the legitimacy requirement, see 
section VII.D.6, above. In fact, as noted below, EPA has determined, 
for purposes of this alternative approach, that certain secondary 
materials [see wood residuals and pulp and paper sludge below], even 
though they are recycled on-site or under the control of the generator, 
they are still considered solid wastes.
    The key point regarding the legal basis of this alternative 
approach is that EPA is accounting for the likelihood that material 
recycled within a continuous industrial process by being burned for 
energy recovery or as an ingredient is not a solid waste. The 
alternative approach, accordingly, requires that the secondary material

[[Page 31887]]

material is both recycled under the control of the generator and 
complies with the legitimacy criteria to ensure that it is in fact not 
handled as a waste and is a truly beneficial fuel or ingredient 
product. An example of a material burned for energy recovery under the 
control of the generator and meeting the legitimacy requirements is on-
spec used oil generated on-site and combusted in an industrial boiler.
    With respect to other examples, such as pulp and paper sludge and 
wood manufacturing residuals burned on-site for energy recovery, the 
Agency may reach a different conclusion. Specifically, commenters to 
the ANPRM indicated that these materials are primarily composed of 
biomass and that emissions from burning these materials are essentially 
the same as emissions from burning other biomass fuels, such as bark or 
unadulterated wood (see section VII.C.5.). For purposes of the primary 
proposal, EPA has determined that wood residuals and pulp and paper 
sludge are not wastes based on limited contaminant data collected to 
date and the on-site use of the secondary material. However, for this 
alternative approach, for the reasons described below, EPA is proposing 
to classify these materials as solid waste.
    This alternative acknowledges that for some categories of secondary 
materials, it is difficult to determine whether those materials may or 
may not be discarded. The DC Circuit has also acknowledged the 
ambiguity of the term ``solid waste'' under RCRA as applied to 
particular situations. Specifically, the court stated that ``[the] term 
may be ambiguous as applied to some situations, but not as applied to 
others.'' ABR at 1056. Thus, there could be some secondary materials 
that are clearly legitimately recycled within a continuous industrial 
process and others that are less clear. EPA believes that wood 
residuals and pulp and paper sludges are just the kinds of materials 
that present this kind of ambiguity.
    Based on information the Agency has received, pulp and paper 
sludges are generally used on-site by generators to fuel their boilers 
and are treated like valuable commodities. However, there appear to be 
questions with respect to contaminants in the sludges that give EPA 
pause as to whether the combustion of these materials is primarily a 
waste treatment activity--specifically because of levels of chlorine in 
pulp and paper sludge. The Agency has similar concerns with levels of 
formaldehyde in wood residuals.
    Accordingly, EPA believes that with respect to contaminant levels 
the wood residuals and pulp and paper sludge present a situation in 
which reasonable persons can disagree as to whether they are discarded 
materials or not. EPA solicits comments on whether these secondary 
materials should be classified as wastes or non-wastes.
    EPA believes that its formulation that secondary material recycled 
or reused legitimately under the control of the generator will cover 
all, or almost all, secondary material recycled or reused in a 
continuous industrial process. The Agency requests comment on the 
adequacy of this formulation and any data commenters may have 
indicating whether particular secondary materials that will fall within 
or outside of this framework and whether, and why, those materials are 
discarded or not.
    Comments are specifically requested related to the potential impact 
this alternative may have on traditional non-combustion recycling 
activities and potential changes in the quantity of non-hazardous 
secondary materials that may be landfilled. In addition, we request 
comment as to whether this alternative approach should include a 
petition process that provides persons with an administrative process 
for a formal determination that their non-hazardous secondary material 
fuel or ingredient is indistinguishable in all relevant aspects from a 
fuel or ingredient, and thus is not discarded and not a solid waste.
    EPA believes that an even more far reaching regulatory approach, as 
suggested by some comments, in which only traditional fuels are not 
solid wastes and all secondary materials burned for energy recovery or 
as an ingredient are considered discarded may not be legally acceptable 
in that the approach provides too broad a definition of solid waste in 
light of the RCRA case law on the definition of solid waste. 
Specifically, EPA is concerned about the case law holding that, the 
RCRA definition of solid waste does not extend to secondary material 
beneficially reused in a continuous industrial process, as that 
material has not been discarded and is not a solid waste. See ``AMC 
I,'' 824 F.2d 1177 at 1190 in which the court stated that the term 
``discarded materials'' could not include materials ``* * * destined 
for beneficial reuse or recycling in a continuous process by the 
generating industry itself.'' Accord, Association of Battery Recyclers 
v. EPA, 208 F.3d 1047 (DC Cir. 2000) (``ABR''). The provisions under 
consideration in AMC I and ABR dealt specifically with material 
``reclaimed'' in a continuous process--that is, material regenerated 
from a secondary material in a continuous process. It seems highly 
likely the courts would extend this same reasoning to secondary 
materials that are otherwise reused or recycled in a continuous 
industrial process, such as material used, or combusted, to recover 
energy or as an ingredient. Thus, EPA is hesitant to define all reused 
or recycled secondary materials as solid waste under RCRA.

F. Effect of Today's Proposal on Other Programs

    The construct of this proposed rule for determining when non-
hazardous secondary materials are legitimately burned as non-waste 
fuels or ingredients has applicability to the universe of facilities 
subject to CAA sections 112 and 129, as well as other rules and agency 
regulatory programs.
1. Clean Air Act
    As discussed in Section IV, the CAA section 129 definition of solid 
waste incineration unit states that the term ``solid waste'' will have 
the meaning established by the Administrator of EPA under RCRA. Today's 
proposed rule would establish under RCRA which non-hazardous secondary 
materials constitute ``solid waste.'' This proposed definition of 
``solid waste'' has been used by EPA in its concurrent proposed CAA 
emissions standards for CISWI units (under CAA section 129) and boilers 
and process heaters (under CAA section 112). Any unit combusting 
``solid waste'' under today's proposed definition would be regulated as 
a ``solid waste incineration unit'' under CAA section 129. If a non-
hazardous secondary material is not a ``solid waste'' under the 
proposed definition and such material is burned as a legitimate fuel or 
used as a legitimate ingredient in a manufacturing process, the 
combustion unit would be regulated pursuant to CAA section 112 (by 
statute, a source cannot be regulated under both CAA sections 112 and 
129).
2. Renewable Energy
    This proposal may impact how some non-hazardous secondary materials 
could be used to help supply renewable energy to the U.S. and through 
state programs. Given the Congressional mandate for renewable energy, 
it is important to assess the impact of this proposed regulation on 
those programs. Congress has passed several laws, such as the Energy 
Independence and Security Act of 2007 (Pub. L. 110-140), that support 
the development and use of renewable sources of energy, both for power 
generation and for the production of transportation fuels. Qualified 
sources would include wind, solar, and geothermal power, but could also 
include power generated by the

[[Page 31888]]

combustion of biogenic materials, which may include some non-hazardous 
secondary materials burned for energy recovery. Biogenic materials are 
materials that result from the activity of living organisms. A number 
of non-hazardous secondary materials are partially or completely 
biogenic. For example, woody biomass contains recoverable energy and 
would be considered biogenic in origin. Energy from biogenic sources is 
generally preferable to fossil fuels.
    In addition to these federal programs that may be impacted, 
Renewable Portfolio Standards (RPS) currently provide states with a 
mechanism to increase renewable energy generation using renewable 
energy sources (including biofuels) and a cost-effective, market-based 
approach. An RPS requires electric utilities and other retail electric 
providers to supply a specified minimum amount of customer load with 
electricity from eligible renewable energy sources. The goal of an RPS 
is to stimulate market and technology development so that, ultimately, 
renewable energy will be economically competitive with conventional 
forms of electric power. States create RPS programs because of the 
energy, environmental, and economic benefits of renewable energy and 
sometimes other clean energy approaches, such as energy efficiency and 
combined heat and power. Today's proposed rule determining which non-
hazardous secondary materials constitute solid waste may impact the 
requirements for secondary materials that may be burned for energy 
generation under the RPS program.
3. Subtitle C Hazardous Waste Program
    The result of this rulemaking effort will have no effect on the 
subtitle C Hazardous Waste Program. The RCRA subtitle C hazardous waste 
federal program has a long regulatory history in defining ``solid 
waste'' for purposes of the hazardous waste regulations. However, the 
40 CFR 261.2 definition of solid waste explicitly applies only to 
wastes that also are hazardous for purposes of the subtitle C 
regulations (see 40 CFR 261.1(b)(1)). CAA section 129 also specifically 
excludes subtitle C units from coverage under that section. EPA 
emphasizes that it is not modifying or reopening its hazardous waste 
regulations; EPA does not intend to respond to any comments directed to 
those regulations.
    RCRA section 7003 gives EPA the authority to compel actions to 
abate conditions that may present an ``imminent and substantial 
endangerment'' involving both solid and hazardous wastes. EPA uses this 
authority on a case-by-case basis. The Agency can determine in a 
specific factual context whether a secondary material which causes an 
endangerment is discarded. RCRA Sections 3007 and 3008 establish EPA's 
inspection and Federal enforcement authority to address violations of 
the Subtitle C hazardous waste regulations. Nothing in this proposed 
rule shall impact EPA's ability to act pursuant to RCRA sections 3007, 
3008 and 7003. The proposed rule also does not limit or otherwise 
affect EPA's ability to pursue potentially responsible persons under 
section 107 of CERCLA for releases or threatened releases of hazardous 
substances.

VIII. State Authority

    Subtitle D of RCRA establishes a framework for state, federal, and 
local government cooperation in controlling the management of non-
hazardous solid waste. The federal role in this arrangement is to 
establish the overall regulatory direction, by providing minimum 
nationwide standards for protecting human health and the environment, 
and to provide technical assistance to states for planning and 
developing their own solid waste management practices. The actual 
planning and direct implementation of solid waste programs under RCRA 
subtitle D, however, remains largely a state and local function, and 
states have authority to devise programs to deal with state specific 
conditions and needs.
    EPA has not promulgated detailed regulations of what is included in 
the definition of solid waste for the RCRA subtitle D (non-hazardous) 
programs. States have promulgated their own laws and regulations as to 
what constitutes solid waste and have interpreted those laws and 
regulations to determine what types of non-hazardous secondary material 
activities involve the management of a solid waste. Many states have a 
process or promulgated regulations to determine when these materials 
are wastes, and when they can be used beneficially and safely in 
products in commerce.
    Through this rulemaking, EPA is articulating the narrow definition 
of which non-hazardous secondary materials are or are not solid waste 
when used as fuel for energy recovery or as ingredients in combustion 
units. We are not making solid waste determinations that cover other 
possible secondary material end uses.

A. Applicability of State Solid Waste Definitions and Beneficial Use 
Determinations

    CAA Section 129 states that the term ``solid waste'' shall have the 
meaning ``established by the Administrator pursuant to the Solid Waste 
Disposal Act'' Id. at 7429(g)(6). Accordingly, the state's definitions 
of solid waste would not be applicable in determining whether the 
section 129 standards apply. Specifically, state determinations 
regarding a material's beneficial use that may exempt that non-
hazardous secondary material from the state solid waste standards would 
not necessarily impact the status of that secondary material under 
EPA's solid waste definition as it relates to which combustion units 
are subject to the CAA section 129 standards, except perhaps as 
discussed in section VII.D.5, where we discuss a state's ability to 
submit, on behalf of the petitioner, a petition for EPA to evaluate 
under the proposed non-waste determination criteria.\71\ Likewise, non-
hazardous secondary materials that are exempted from being a solid 
waste by EPA's proposed rule, if finalized, would be exempt from the 
CAA section 129 standards, even though the state standards may define 
the non-hazardous secondary material as a solid waste.
---------------------------------------------------------------------------

    \71\ If EPA determines through the petition process that the 
secondary materials in the state determinations are not solid waste 
per 40 CFR 241.3(c), then the units that burn such materials would 
not be subject to the CAA section 129 requirements.
---------------------------------------------------------------------------

    The language in CAA section 129, however, may be interpreted to 
provide the Administrator with flexibility in determining the meaning 
of solid waste under that section. EPA is requesting comment on an 
option where, to determine applicability of the CAA section 129 
requirements, the Agency would rely on a determination through a 
state's beneficial use program that certain secondary materials are or 
are not solid waste. Such state programs are meant to encourage the use 
of non-hazardous secondary materials, provided that the uses maintain 
the specified state's acceptable level of risk, protect human health 
and the environment, and are managed in accordance with the conditions 
of the determination. Generally, for a secondary material to be 
beneficially used and thus no longer a solid waste, it would have 
chemical and physical properties similar to the raw material it is 
replacing or, when incorporated into another product, its use would be 
beneficial to the final product. Relying on these beneficial use 
determinations

[[Page 31889]]

would recognize state interests in defining solid waste in the context 
of their own solid waste program, as well as help to mitigate potential 
inconsistencies between federal and state solid waste determinations.
    Consideration of this option, however, where the Agency could rely 
on determinations by a state's beneficial use program in deciding 
whether certain materials are solid wastes when used as fuels or 
ingredients in combustion units, must take into account the current 
legal rationale for defining solid waste under EPA authority. 
Specifically, the courts have held that a secondary material that has 
been discarded is a solid waste regardless of whether it may be reused 
at some time in the future and simply because a waste has, or may have, 
beneficial value does not mean the secondary material loses its status 
as a solid waste.\72\
---------------------------------------------------------------------------

    \72\ See AMC II, 907 F.2d at 1186; API I, 906 F.2d at 741 n.16; 
United States v. ILCO Inc., 996 F.2d at 1131-32; Owen Steel v. 
Browner, 37 F.3d at 150.
---------------------------------------------------------------------------

    See the ANPRM for this rulemaking for the complete discussion of 
case law pertaining to the solid waste definition (74 FR 51).

B. State Adoption of the Rulemaking

    No federal approval procedures for state adoption of today's 
proposed rule are included in today's proposal 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 any additional authority to approve state programs 
beyond municipal solid waste. While states are not required to adopt 
today's rule, some states incorporate federal regulations by reference 
or have specific state statutory requirements that their state program 
can be no more stringent than the federal regulations. In those cases, 
EPA anticipates that the changes in today's rule will be adopted by 
these states, consistent with state laws and state administrative 
procedures.

IX. Costs and Benefits of the Proposed Rule

    The value of any regulatory action is traditionally measured by the 
net change in social welfare that it generates. This action alone does 
not directly invoke any costs \73\ or benefits. This proposal is being 
developed and published in conjunction with the upcoming Boiler MACT 
and CISWI proposed rules.\74\ Costs to the regulated community and 
corresponding benefits to human health and the environment fall under 
the jurisdiction of these rules. As such, the Agency has not prepared a 
separate economic assessment in support of this proposal. However, we 
recognize that this action, as proposed, may affect various State 
materials management programs, and we are sensitive to these concerns. 
The Agency encourages comment on any potential direct impacts this 
action may have on State materials management programs.
---------------------------------------------------------------------------

    \73\ Excluding minor administrative burden/cost (e.g. rule 
familiarization) and voluntary petition costs.
    \74\ National Emission Standards for Hazardous Air Pollutants 
for Area Sources: Industrial, Commercial, and Institutional Boilers; 
National Emission Standards for Hazardous Air Pollutants for 
Industrial/Commercial/Institutional Boilers and Process Heaters; 
and, Standards of Performance for New Stationary Sources and 
Emission Guidelines for Existing Sources: Commercial and Industrial 
Solid Waste Incineration (CISWI) Units.
---------------------------------------------------------------------------

    The costs and benefits indirectly associated with this action are 
the corresponding impacts assessed in the regulatory impact analyses 
prepared in support of the CAA proposed rules. These independent 
regulatory impact analyses measure, among other factors, the estimated 
net change in social welfare associated with these actions. In the 
development of these analyses, EPA worked to ensure that the 
methodologies and data applied in these assessments captured 
appropriate RCRA related costs (e.g., secondary material diversions). 
These assessments were designed to adhere to Agency and the Office of 
Management and Budget (OMB) guidelines and procedures. The Agency has 
also prepared a general executive summary document that addresses 
overall impacts of this rulemaking package. These documents are 
available in the docket established for today's action. The reader is 
encouraged to review and comment on all aspects of these documents.

X. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), 
this action is a ``significant regulatory action.'' Pursuant to the 
terms of Executive Order 12866, the Agency, in conjunction with the 
Office of Management and Budget (OMB) has determined that this proposed 
rule is a significant regulatory action because it contains novel 
policy issues, as defined under part 3(f)(4) of the Order. Accordingly, 
EPA submitted this action to OMB for review under EO 12866. Any changes 
made in response to OMB recommendations have been documented in the 
docket for this action.

B. Paperwork Reduction Act

    The information collection requirements in this proposed rule have 
been submitted for approval to the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The 
Information Collection Request (ICR) document prepared by EPA has been 
assigned EPA ICR number 2382.01.
    This proposal establishes a voluntary non-waste determination 
petition process for materials identified as solid wastes. Facilities 
claiming this non-hazardous solid waste exclusion are required to seek 
approval from the Agency through the submission of a petition prior to 
operating under this exclusion. Sufficient information about the 
secondary material and the market demand for this material will be 
necessary to demonstrate that the non-hazardous secondary material will 
in fact be used as a fuel or ingredient in the combustion process. 
Specifically, the petition will need to contain information to assess 
the following criteria: (1) Whether market participants handle the non-
hazardous secondary material as a fuel rather than a waste; (2) whether 
the chemical and physical identify of the non-hazardous secondary 
material is comparable to a commercial fuel; (3) whether the capacity 
of the market would use the non-hazardous secondary material in a 
reasonable timeframe; (4) whether the constituents in the non-hazardous 
secondary material are not discarded to the air, water or land from the 
point of generation through combustion of the secondary material at 
significantly higher levels from either a statistical or from a health 
and environmental risk perspective than would otherwise be released; 
and (5) other relevant factors.
    The facility-level burden associated with this voluntary petition 
option is uncertain. However, we estimate an average total one-time 
burden of approximately 700 hours per facility, with a total cost per 
facility of approximately $71,400. The total number of facilities 
likely to take advantage of this option is undetermined, but we would 
expect that only a limited number of facilities may submit such a 
petition. The Agency requests comment on the number of petitions that 
are likely to be submitted to EPA for consideration. Burden is defined 
at 5 CFR 1320.3(b).
    An agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB

[[Page 31890]]

control number. The OMB control numbers for EPA's regulations in 40 CFR 
are listed in 40 CFR part 9.
    To comment on the Agency's need for this information, the accuracy 
of the provided burden estimates, and any suggested methods for 
minimizing respondent burden, EPA has established a public docket for 
this rule, which includes this ICR, under Docket ID number EPA-HQ-RCRA-
2008-0329. Submit any comments related to the ICR to EPA and OMB. See 
the ADDRESSES section at the beginning of this notice for where to 
submit comments to EPA. Send comments to OMB at the Office of 
Information and Regulatory Affairs, Office of Management and Budget, 
725 17th Street, NW., Washington, DC 20503, Attention: Desk Office for 
EPA. Since OMB is required to make a decision concerning the ICR 
between 30 and 60 days after June 4, 2010, a comment to OMB is best 
assured of having its full effect if OMB receives it by July 6, 2010. 
The final rule will respond to any OMB or public comments on the 
information collection requirements contained in this proposal.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of today's rule on small 
entities, small entity is defined as: (1) A small business, as defined 
by the Small Business Administration's (SBA) regulations at 13 CFR 
121.201; (2) a small governmental jurisdiction that is a government of 
a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. No small 
entities are directly regulated by this proposed rule (see discussion 
above under costs and benefits). Small entities potentially affected 
indirectly by this action include: major source industrial, commercial, 
and institutional boilers and process heaters, area source industrial, 
commercial, and institutional boilers and commercial and industrial 
solid waste incineration units. We estimate that these units operate in 
approximately 50 different industry categories based on the NAICS three 
digit sector code level. These sectors include: crop production; 
forestry and logging; support activities for agriculture and forestry; 
oil and gas extraction; mining (except oil and gas); utilities; heavy 
and civil engineering construction; food manufacturing; beverage and 
tobacco product manufacturing; textile mills and textile product mills; 
wood product manufacturing; paper manufacturing; petroleum and coal 
products manufacturing; chemical manufacturing; plastics and rubber 
products manufacturing; nonmetallic mineral product manufacturing; 
primary metal manufacturing; fabricated metal product manufacturing; 
machinery manufacturing; computer and electronic product manufacturing; 
transportation equipment manufacturing; furniture and related product 
manufacturing; merchant wholesalers; motor vehicle and parts dealers; 
air, rail, and pipeline transportation; warehousing and storage; waste 
management and remediation services; educational services; hospitals; 
accommodation; repair and maintenance; and public administration. Any 
potential impacts to small entities under these and any other 
potentially affected sectors are addressed in the regulatory 
flexibility analysis prepared in support of the CAA proposed rules that 
are linked to this action.\75\
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    \75\ National Emission Standards for Hazardous Air Pollutants 
for Area Sources: Industrial, Commercial, and Institutional Boilers; 
National Emission Standards for Hazardous Air Pollutants for 
Industrial/Commercial/Institutional Boilers and Process Heaters; 
and, Standards of Performance for New Stationary Sources and 
Emission Guidelines for Existing Sources: Commercial and Industrial 
Solid Waste Incineration (CISWI) Units.
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    We have determined that, because no small entities are directly 
impacted by this proposed action, there will not be a significant 
economic impact on a substantial number of small entities. This 
determination is based on the findings, as discussed above.
    Although this proposed rule will not have a significant economic 
impact on a substantial number of small entities, EPA nonetheless has 
tried to reduce the (indirect) impact of this rule on small entities 
through the careful and targeted identification of solid waste 
materials. We continue to be interested in the potential impacts of the 
proposed rule on small entities and welcome comments on issues related 
to such impacts.

D. Unfunded Mandates Reform Act

    This proposed rule does not contain a Federal mandate that may 
result in expenditures of $100 million or more for State, local, and 
tribal governments, in the aggregate, or the private sector in any one 
year. Because this action is linked to the CAA rules (see footnote 
under section C), this rule alone will not result in significant 
economic impacts on States, local and tribal governments, in the 
aggregate, or the private sector in any one year. Thus, this rule is 
not subject to the requirements of sections 202 or 205 of UMRA.
    This proposed rule is also not subject to the requirements of 
section 203 of UMRA because it contains no regulatory requirements that 
might significantly or uniquely affect small governments. As described 
above, this action alone does not result in unique effects, or 
significant economic impacts.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132. This action, independent of the CAA 
rules, as proposed (see footnote 81), will not result in substantial 
direct effects on the states. Furthermore, this action will not preempt 
state laws related to the affected materials. States will remain free 
to manage these materials as appropriate under their Subtitle D 
programs. Thus, Executive Order 13132 does not apply to this action.
    Although we believe that this action, as proposed, will not result 
in substantial direct effects on the states, we are sensitive to the 
perceptions States may have of this action in regard to their solid 
waste management programs. On January 2, 2009 we published an ANPRM 
(Identification of Non-Hazardous Materials That Are Solid Waste) that 
presented the Agency's anticipated approach for this action. We 
received numerous comments on this ANPRM, many of which came from 
States. Furthermore, we have reached out to the States with various 
informational conference calls throughout the development of this 
proposal. .
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA

[[Page 31891]]

and State and local governments, EPA specifically solicits comment on 
this proposed action from State and local officials.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Subject to the Executive Order 13175 (65 FR 67249, November 9, 
2000) EPA may not issue a regulation that has tribal implications, that 
imposes substantial direct compliance costs, and that is not required 
by statute, unless the Federal government provides the funds necessary 
to pay the direct compliance costs incurred by tribal governments, or 
EPA consults with tribal officials early in the process of developing 
the proposed regulation and develops a tribal summary impact statement.
    EPA has concluded that this action may have tribal implications. 
However, it will neither impose substantial direct compliance costs on 
tribal governments, nor preempt Tribal law. The proposed rule may have 
minor tribal implications to the extent that entities generating or 
burning solid wastes on tribal lands could be affected.
    EPA consulted with tribal officials early in the process of 
developing this regulation to permit them to have meaningful and timely 
input into its development. EPA specifically solicits additional 
comment on this proposed action from tribal officials.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    This action is not subject to EO 13045 (62 FR 19885, April 23, 
1997) because it is not economically significant as defined in EO 
12866, and because the Agency does not believe the environmental health 
or safety risks addressed by this action present a disproportionate 
risk to children. This action's health and risk assessments related to 
this action are contained in the support documents prepared for the CAA 
section 129 CISWI and section 112 boiler MACT proposed rules.

H. Executive Order 13211: Actions that Significantly Affect Energy 
Supply, Distribution or Usage

    This action is not a ``significant energy action'' as defined in 
Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. This action, independent of the CAA 
rules, as proposed, is not expected to directly affect energy use or 
use patterns. Energy impacts resulting for the CAA (see rule 
identification in footnote 72) application of this action are assessed 
and discussed in the preambles and supporting materials for those 
rules.

I. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards.
    This proposed rulemaking does not involve technical standards. 
Therefore, EPA is not considering the use of any voluntary consensus 
standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA is evaluating the question of whether this proposed rule will 
or will not have disproportionately high and adverse human health or 
environmental effects on minority or low-income populations. We have 
completed preliminary environmental justice analyses, in conjunction 
with the Boiler MACT and CISWI proposed rules (see section IV.A.). 
These preliminary environmental justice analyses are compiled in the 
``Review of Environmental Justice Impacts'' for both this proposal and 
the Boiler MACT and CISWI proposed rules. This document is available in 
the docket for today's rule (Docket ID No: EPA-HQ-RCRA-2008-0329).
    EPA is committed to addressing environmental justice concerns and 
has assumed a leadership role in environmental justice initiatives to 
enhance environmental quality for all citizens of the United States. 
The Agency's goals are to ensure that no segment of the population, 
regardless of race, color, national origin, income, or net worth, bears 
disproportionately high and adverse human health and environmental 
impacts as a result of EPA's policies, programs, and activities. Our 
goal is to ensure that all citizens live in clean and sustainable 
communities. In response to Executive Order 12898, and to the concerns 
voiced by many groups outside the Agency, EPA's Office of Solid Waste 
and Emergency Response (OSWER) formed an Environmental Justice Task 
Force to analyze the array of environmental justice issues specific to 
waste programs and to develop an overall strategy to identify and 
address these issues (OSWER Directive No. 9200.3-17).
    The Environmental Justice analysis in today's proposal includes two 
main parts: (1) Demographic analysis and environmental impacts; and (2) 
outreach.
Demographics Analysis and Environmental Impacts
    For this proposal, the demographic analysis focuses on the 
management of secondary materials that have been proposed to be solid 
waste under this proposed rule (versus the emissions from the 
combustion of the non-hazardous secondary materials which will be 
covered in the Boiler MACT and CISWI proposed rules). Specifically, the 
analysis focuses on the populations around the facilities accepting 
non-hazardous secondary materials that under the proposal would be 
considered to be solid waste. These wastes would be diverted from units 
previously combusting materials in accordance with the CAA section 112 
standards for non-wastes according to today's proposed rulemaking. The 
analysis includes a demographic evaluation (focusing on the presence of 
low-income and minority populations) and possible impacts associated 
with solid waste being sent to municipal waste combustors and landfills 
(which are projected to receive the majority of the diverted materials 
as assessed by the impacts of the CISWI and Boiler MACT proposed rules 
using the least cost approach). The analysis also covers additional 
diversion implications. The assessment includes impacts on the 
abatement of scrap tire piles, stockpiling of secondary materials, and 
the disposal of used oil not in compliance with applicable standards.
    The impacts of the new proposed emissions standards are included in 
the

[[Page 31892]]

Boiler MACT and CISWI proposed rules. The analysis in those proposals 
includes the following efforts: identification of sources, 
identification of demographic characteristics near sources, evaluation 
of area wide air quality, estimation of Boiler MACT/CISWI emission 
reductions of HAPs from the proposed standards and work practices.
Outreach
    The outreach aspect of the environmental justice analysis will help 
stakeholders participate in the rulemaking process and build a dialog 
during the comment period for the proposed rule. The first step in the 
outreach process took place at the EPA Community Engagement in 
Rulemaking Roundtable Discussion in New Orleans, LA on January 28, 
2010. This discussion was held concurrently with the National 
Environmental Justice Advisory Council public meeting. At the 
roundtable meeting, the basics of the advanced notice of proposed 
rulemaking were discussed, including how it interacts with EPA's 
upcoming CAA section 112 and section 129 rulemakings, and provided an 
educational forum to bring together EPA technical experts, community 
leaders, nonprofit groups, and others to discuss key themes of the 
proposed rulemaking. Based on the results of the roundtable meeting, 
the Agency developed an approach for public participation and outreach 
during the comment period for the proposal (including planned forums to 
discuss the proposed rules and/or learn more about environmental 
impacts of the rule). The activities associated with the outreach are 
posted at http://www.epa.gov/waste/nonhaz/definition.htm.

List of Subjects in 40 CFR Part 241

    Environmental protection, Air pollution control, Waste treatment 
and disposal.

    Dated: April 29, 2010.
Lisa P. Jackson,
Administrator.

    For the reasons stated in the preamble, title 40, chapter I of the 
Code of Federal Regulations, is proposed to be amended by adding part 
241 to read as follows:

PART 241--SOLID WASTES USED AS FUELS OR INGREDIENTS IN COMBUSTION 
UNITS

Subpart A--General
Sec.
241.1 Purpose.
241.2 Definitions.
Subpart B--Identification of Non-Hazardous Secondary Materials That Are 
Solid Wastes When Used as Fuels or Ingredients in Combustion Units
241.3 Standards and procedures for identification of non-hazardous 
secondary materials that are solid wastes when used as fuels or 
ingredients in combustion units.

    Authority:  42 U.S.C. 6903, 6912, 7429.

Subpart A--General

Sec.  241.1  Purpose.

    This part identifies 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 Clean Air Act.

Sec.  241.2  Definitions.

    For the purposes of this subpart:
    Contained means 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.
    Contaminants means any constituent in non-hazardous secondary 
materials that will result in emissions of the air pollutants 
identified in CAA section 112(b) and the nine pollutants listed under 
CAA section 129(a)(4)) when such secondary materials are burned as fuel 
or used as ingredients, including those constituents that could 
generate products of incomplete combustion.
    Control means the power to direct the policies of the facility, 
whether by the ownership of stock, voting rights, or otherwise, except 
that contractors who operate facilities on behalf of a different person 
as defined in this section shall not be deemed to ``control'' such 
facilities.
    Generating facility means all contiguous property owned, leased, or 
otherwise controlled by the non-hazardous secondary material generator.
    Intermediate product means a finished product traded usually among 
producers or suppliers rather than end users.
    Non-hazardous secondary material means a secondary material that, 
when discarded, would not be identified as a hazardous waste under part 
261 of this chapter.
    Person is defined as an individual, trust, firm, joint stock 
company, Federal agency, corporation (including government 
corporation), partnership, association, State, municipality, 
commission, political subdivision of a state, or any interstate body.
    Processing means any operations that transform discarded non-
hazardous secondary material into a new fuel or new ingredient product. 
Minimal operations, such as operations that result only in modifying 
the size of the material by shredding, do not constitute processing for 
purposes of this definition. Processing includes, but is not limited 
to, operations that: remove or destroy contaminants; significantly 
improve the fuel characteristics of the material, e.g., sizing or 
drying the material in combination with other operations; chemically 
improve the as-fired energy content; and improve the ingredient 
characteristics.
    Secondary material means any material that is not the primary 
product of a manufacturing or commercial process, and can include post-
consumer material, off-specification commercial chemical products or 
manufacturing chemical intermediates, post-industrial material, and 
scrap.
    Solid waste means the term solid waste as defined in 40 CFR 258.2.
    Within control of the generator means that the non-hazardous 
secondary material is generated and burned in combustion units at the 
generating facility; or that such material is generated and burned in 
combustion units at different facilities, if the facility combusting 
the material is controlled by the generator; or if both the generating 
facility and the facility combusting the material are under control of 
the same person as defined in this section.

Subpart B--Identification of Non-Hazardous Secondary Materials That 
Are Solid Wastes When Used as Fuels or Ingredients in Combustion 
Units

Sec.  241.3  Standards and procedures for identification of non-
hazardous secondary materials that are solid wastes when used as fuels 
or ingredients in combustion units.

(a) Except as provided in paragraph (b) of this section, non-hazardous 
secondary materials that are combusted are solid wastes, unless a 
petition is submitted to, and a determination granted by, the Regional 
Administrator pursuant to paragraph (c) of this section. The criteria 
to be addressed in the petition, as well as the process for making the 
non-waste determination, are specified in paragraph (c) of this 
section.
    (b) The following non-hazardous secondary materials are not solid 
wastes when combusted:
    (1) Non-hazardous secondary materials used as a fuel in a 
combustion unit that remains within the control of the generator (as 
defined in Sec.  241.2) and that meets the legitimacy criteria 
specified in paragraph (d)(1) of this section.

[[Page 31893]]

    (2) Non-hazardous secondary materials used as an ingredient in a 
combustion unit and that meets the legitimacy criteria specified in 
paragraph (d)(2) of this section.
    (3) Fuel or ingredient products that have undergone processing (as 
defined in Sec.  241.2) from discarded non-hazardous secondary 
materials and that are used as fuels or ingredients in a combustion 
unit, and that meet the legitimacy criteria specified in paragraph 
(d)(1) of this section, with respect to fuels, and paragraph (d)(2) of 
this section, with respect to ingredients.
    (c) The Administrator may grant a non-waste determination that a 
non-hazardous secondary material used as a fuel is not discarded and 
therefore not a solid waste when combusted. The criteria and process 
for making such non-waste determinations includes the following:
    (1) Submittal of an application to the Regional Administrator for 
the EPA Region where the facility combusting the non-hazardous 
secondary material is located by an applicant for a determination that 
the non-hazardous secondary material, even though it has been 
transferred to a third party, has not been discarded and is 
indistinguishable in all relevant aspects from a product fuel. The 
determination will be based on whether the non-hazardous secondary 
material has been discarded, is a legitimate fuel as specified in 
paragraph (d)(1) of this section and on the following criteria:
    (i) Whether market participants treat the non-hazardous secondary 
material as a fuel rather than a solid waste;
    (ii) Whether the chemical and physical identity of the non-
hazardous secondary material is comparable to commercial fuels;
    (iii) Whether the non-hazardous secondary material will be used in 
a reasonable time frame given the state of the market;
    (iv) Whether the constituents in the non-hazardous secondary 
material are released to the air, water or land from the point of 
generation to the combustion of the secondary material at levels 
comparable to what would otherwise be released from traditional fuels; 
and
    (v) Other relevant factors.
    (2) The Regional Administrator will evaluate the application based 
on the following procedures:
    (i) The applicant must apply to the Regional Administrator for the 
non-waste determination addressing the relevant criteria in paragraphs 
(c)(1)(i) through (v) of this section.
    (ii) The Regional Administrator will evaluate the application and 
issue a draft notice tentatively granting or denying the application. 
Notification of this tentative decision will be published in a 
newspaper advertisement or radio broadcast in the locality where the 
facility combusting the non-hazardous secondary material is located, 
and be made available on EPA's Web site.
    (iii) The Regional Administrator will accept comment on the 
tentative decision for at least 30 days, and may also hold a public 
hearing upon request or at his discretion. The Regional Administrator 
will issue a final decision after receipt of comments and after the 
hearing (if any).
    (iv) If a change occurs that affects how a non-hazardous secondary 
material meets the relevant criteria contained in paragraphs (c)(1)(i) 
through (v) of this section after a formal non-waste determination has 
been granted, the applicant must re-apply to the Regional Administrator 
for a formal determination that the non-hazardous secondary material 
continues to meet the relevant criteria and is not discarded and is 
thus not a solid waste.
    (d) Legitimacy criteria for non-hazardous secondary materials.
    (1) Legitimacy criteria for non-hazardous secondary materials used 
as fuels in combustion units include the following:
    (i) The non-hazardous secondary material must be managed as a 
valuable commodity based on the following factors:
    (A) The storage of the non-hazardous secondary material prior to 
use must not exceed reasonable time frames;
    (B) Where there is an analogous fuel, the non-hazardous secondary 
material must be managed in a manner consistent with the analogous fuel 
or otherwise be adequately contained to prevent releases to the 
environment;
    (C) If there is no analogous fuel, the non-hazardous secondary 
material must be adequately contained so as to prevent releases to the 
environment;
    (ii) The non-hazardous secondary material must have a meaningful 
heating value and be used as a fuel in a combustion unit that recovers 
energy.
    (iii) The non-hazardous secondary material must contain 
contaminants at levels comparable or lower to those in traditional 
fuels which the combustion unit is designed to burn. Such comparison is 
to be based on a direct comparison of the contaminant levels in the 
non-hazardous secondary material to the traditional fuel itself.
    (2) Legitimacy criteria for non-hazardous secondary materials used 
as an ingredient in combustion units include the following:
    (i) The non-hazardous secondary material used as an ingredient must 
be managed as a valuable commodity based on the following factors:
    (A) The storage of the non-hazardous secondary material prior to 
use must not exceed reasonable time frames;
    (B) Where there is an analogous ingredient, the non-hazardous 
secondary material must be managed in a manner consistent with the 
analogous ingredient or otherwise be adequately contained to prevent 
releases to the environment;
    (C) If there is no analogous ingredient, the non-hazardous 
secondary material must be adequately contained to prevent releases to 
the environment;
    (ii) The non-hazardous secondary material used as an ingredient 
must provide a useful contribution to the production or manufacturing 
process. The secondary material provides a useful contribution if it 
contributes a valuable ingredient to the product or intermediate or is 
an effective substitute for a commercial product.
    (iii) The non-hazardous secondary material used as an ingredient 
must be used to produce a valuable product or intermediate. The product 
or intermediate is valuable if:
    (A) The material is sold to a third party, or
    (B) The material is used as an effective substitute for a 
commercial product or as an ingredient or intermediate in an industrial 
process.
    (iv) The non-hazardous secondary material used as an ingredient 
must result in products that contain contaminants at levels that are 
comparable or lower in concentration to those found in traditional 
products that are manufactured without the non-hazardous secondary 
material.

[FR Doc. 2010-10837 Filed 6-3-10; 8:45 am]
BILLING CODE 6560-50-P
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