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August 3, 2010

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

FRL-9148-2; RIN 2050-AG4

Mail Code: 28221T 

1200 Pennsylvania Avenue, NW 

Environmental Protection Agency 

Washington, DC 20460 

RE: Notice of Proposed Rulemaking – “Identification of Non-Hazardous 

Secondary Materials That Are Solid Waste” 

(75 Fed. Reg. 31844 et seq., June 4, 2010) 

To Whom It May Concern: 

The Portland Cement Association (PCA) is a trade association representing portland cement 

manufacturing companies in the United States and Canada. PCA’s U.S. membership consists of 28 

portland cement companies operating 102 manufacturing plants in 34 states and distribution centers 

in all 50 states. PCA members account for more than 97.5 percent of portland cement-making 

capacity in the United States.

In the Federal Register of June 4, 2010, EPA published two companion notices of proposed 

rulemakings (NPRMs) of great significance to PCA members. The first EPA NPRM is referenced 

above and is the subject of the comments we are submitting today. In this first NPRM, EPA is 

proposing to add a new “Part 241” to its regulations for non-hazardous solid waste under the 

Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §§ 6901, et seq. 

EPA’s second NPRM, published at 75 Fed. Reg. 31938, et seq. is issued pursuant to Section 

129 of the Clean Air Act (CAA), 42 U.S.C. § 7429. In that NPRM, EPA proposes emission standards 

and other requirements under CAA § 129 for “Commercial and Industrial Solid Waste Incineration 

Units,” or “CISWIs.” EPA has recently extended the deadline for public comments on the CAA 

CISWI proposal until August 23, 2010, and PCA will be submitting comments on the CISWI 

proposal at that time.

As will be explained in greater detail below, the two proposals are linked in a manner of great 

potential significance to portland cement manufacturing facilties. For even though a portland cement 

kiln is not an “incinerator,” under EPA’s proposal portland cement kilns will be subject to the new 

CAA § 129 incinerator standards whenever any kiln “combusts” a non-hazardous secondary material 

that EPA defines as “solid waste” in this “Part 241” RCRA rulemaking.
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We appreciate the opportunity to provide comments on the important questions related to this 

proposed rulemaking by the Agency. We look forward to working with the Agency as consideration 

of these issues continues. Please do not hesitate to contact us should you have any questions 

regarding PCA’s perspectives on this matter. We can be reached at (202) 408-9494.

Best Regards,

Andrew T. O’Hare

Vice President

Regulatory Affairs

500 New Jersey Avenue, N.W., 7th Floor

Washington, DC 20001

202.408.9494 Fax 202.408.0877

www.cement.org
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Please refer to the following outline for key arguments raised in PCA’s comments:

CONTENTS

Opening................................................................................................................................................. 1

I. BACKGROUND ..................................................................................................................... 6

A. The Portland Cement Industry and Its Use of Non-Hazardous Secondary 

Materials...................................................................................................................... 6

B. Statutory and Judicial Background to Proposed Rule............................................ 8

C. The Proposed Rule’s Scope Under RCRA is Narrow, But Its Impacts 

Could Be Severe .......................................................................................................... 8

D. The Potentially Damaging Impacts on PCA’s Members....................................... 10

E. A Portland Cement Kiln is Not a Boiler or Incinerator ........................................ 10

II. SIGNIFICANT AND FUNDAMENTAL FLAWS IN THE PROPOSAL: A 

SUMMARY ........................................................................................................................... 11

III. EPA HAS NO AUTHORITY TO REGULATE USE OF SECONDARY 

MATERIALS AS INGREDIENTS UNDER CAA 129 ..................................................... 12

A. Plain words of statute – “combust”......................................................................... 12

B. Legislative History .................................................................................................... 13

C. EPA’s Own Word Usages......................................................................................... 14

IV. NOTHING IN THE D.C. CIRCUIT’S 2007 NRDC OPINION, OR IN ANY OF 

THE RULEMAKING OR ADVOCACY LEADING UP TO IT, CONTAINS 

THE SLIGHTEST HINT THAT EPA COULD OR SHOULD REGULATE 

INGREDIENTS..................................................................................................................... 15

A. Energy Recovery the Only Focus ............................................................................ 15

B. Rulemaking Preceding the 2007 NRDC Opinion................................................... 15

C. The NRDC Briefing and Opinion ............................................................................ 16

D. EPA Never Explains Why It Believes CAA § 129 Regulates Ingredients............ 17

V. EPA’s PROPOSAL REPRESENTS A FAILURE OF REASONED 

DECISIONMAKING ........................................................................................................... 18

A. Supreme Court “State Farm” and D.C. Circuit Precedent .................................. 18

B. EPA Has Latitude to Define “Solid Waste” to Effectuate RCRA’s Goals.......... 19

1. Rationale for Subtitle C DSW Approach........................................................ 19

2. The Subtitle C DSW Approach Was Never Intended to Apply to NonHazardous Materials ....................................................................................... 20

C. EPA Relies Upon Subtitle C DSW Principles for Its Proposed Subtitle D 

Solid Waste Definition Without Justification........................................................ 20

D. EPA’s Proposal Would Impose Unjustified Barriers to Recycle and Reuse....... 21
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E. EPA’s Reliance Upon RCRA Subtitle C Caselaw Is Unnecessary and 

Inappropriate ............................................................................................................ 22

VI. FUNDAMENTAL FLAWS REGARDING USED TIRES REFLECT 

FUNDAMENTAL FLAWS RUNNING THROUGH THE ENTIRE PROPOSAL....... 24

A. The Portland Cement Industry’s History of Beneficially Using Whole 

Scrap Tires................................................................................................................. 24

B. The Proposal Will Strongly Discourage Portland Cement Kiln Utilization 

Of Used Tires With No Resulting Benefits to Health and the Environment....... 26

C. EPA’s Interpretations of “Discard” and “Processing” Are Misguided and 

Harmful...................................................................................................................... 28

1. Discard ............................................................................................................ 28

2. Processed......................................................................................................... 30

D. EPA’s Importation of “Legitimacy Criteria” from RCRA Subtitle C is 

Unwarrantedand Unproductive, Particularly as Applied to Portland 

Cement Kilns. ............................................................................................................ 32

E. Used Tires Should Be Recognized as “Traditional Fuels”.................................... 34

VII. EPA’S COST ASSESSMENT IS INADEQUATE, INCOMPLETE, AND 

ARBITRARY ........................................................................................................................ 35

VIII. PCA’S RESPONSES TO SPECIFIC REQUESTS FOR COMMENT AND 

INFORMATION IN EPA’S PREAMBLE......................................................................... 40

A. Additional Information on non-hazardous secondary material 

(“NHSM”), Federal Register page 31850................................................................ 40

B. Information on Additional Traditional Fuels, Federal Register page 

31856........................................................................................................................... 41

C. Petition Process for Designating Traditional Fuel, Federal Register page 

31856........................................................................................................................... 45

D. Definition of Processing, Federal Register pages 31861, 31876, 31878................ 45

E. Additional Information on Levels of Contaminants, Federal Register 

page 31863.................................................................................................................. 48

F. Sewage Sludge Approach, Federal Register page 31866....................................... 49

G. CCR Ingredient or Fuel Value, Federal Register page 31868. ............................. 50

H. Coal Combustion Residual Contaminant Changes, Federal Register page 

31869........................................................................................................................... 50

I. Levels of Contaminants in Fuels, Federal Register page 31872. .......................... 51

J. Record Maintenance and Notification, Federal Register page 31874.................. 52

K. Inventory Management, Federal Register page 31874.......................................... 52

L. Discard Definition for Newly Generated Tires, Federal Register pages 

31874........................................................................................................................... 53

M. Metal in Tires-processing Definition, Federal Register page 31877-78. .............. 55

N. Processing - Determination Versus Self Implementing Approach, Federal 

Register page 31878-31879....................................................................................... 56

O. Non-waste Determination, Federal Register page 31880. ..................................... 58

P. Storage Timeframes, Federal Register page 31880-31881. ................................... 59

Q. Definition of “Contained”, Federal Register page 31881...................................... 60
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R. Btu Limit, Federal Register page 31882. ................................................................ 62

S. Scope of Contaminants, Federal Register page 31883........................................... 63

T. Bright-line Level of Contaminants, Federal Register page 31883........................ 65

U. Comparison of Total Constituents, Definition of “Comparable” Federal 

Register page 31883. ................................................................................................. 66

V. Qualitative Comparison (Emissions), Federal Register page 31883. ................... 66

W. Useful Contribution, Federal Register page 31884................................................ 67

X. Contaminant Comparison-Ingredients, Federal Register page 31885................. 68

Y. Alternative Approach, Federal Register page 31886............................................. 68

IX. CONCLUSION ..................................................................................................................... 69

LIST OF Attachments to PCA’s Comments....................................................................................... 71
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I. BACKGROUND

A. The Portland Cement Industry and Its Use of Non-Hazardous Secondary 

Materials

As a preliminary matter, in order for EPA to understand and appreciate PCA’s concerns with 

the proposed rule, EPA first needs to understand how portland cement manufacturers make beneficial 

use of secondary materials in their manufacturing operations. 

Portland1 cement is the powder that acts as the glue or bonding agent that, when mixed with 

water, sand, gravel and other materials, forms concrete. Portland cement is produced from various 

naturally abundant raw materials, including limestone, shale, clay, and silica sand. The four key 

elements in cement making include calcium, iron, silica and aluminum. Portland cement is an 

essential construction material and a basic component of our nation’s infrastructure. It is utilized in 

numerous markets, including the construction of highways, streets, bridges, airports, mass transit 

systems, commercial and residential buildings, dams, and water resource systems and facilities. The 

low cost, durability, and universal availability of portland cement ensures that concrete remains one 

of the world’s most essential and widely used construction materials. 

PCA’s member companies support efforts to increase our nation’s use of safe and compatible 

energy efficient alternative fuels and raw materials in order to reduce reliance on fossil fuels and 

virgin materials. Indeed, our member companies are leaders in the effort to be responsible stewards 

of our Nation’s energy and natural resources by, among other things, combining advanced 

technology and innovative manufacturing practices. PCA’s members continue to be at the forefront 

of sustainable industrial ecology, undertaking voluntary efforts to reducing waste disposal through 

the use of scrap tires, used motor oils, petroleum sludge and other reusable materials as alternative 

fuels and raw materials in the production of cement. Indeed, the environmental benefits of these 

efforts were chronicled in a recent study underwritten by EPA’s Office of Policy, Economics, and 

Innovation’s Sector Strategies Division.2

Some PCA members burn “hazardous waste fuel” (HWF) as a replacement for fossil fuels at 

one or more of their portland cement manufacturing facilities. HWF-burning is fully regulated under 

the hazardous waste “cradle-to-grave” regime of RCRA Subtitle C. HWF-burning kilns are also 

subject to Clean Air Act (CAA) maximum achievable control technology (“MACT”) emission 

control requirements codified at 40 C.F.R. Part 63, Subpart EEE. HWF is being utilized as an 

alternative fuel at eleven portland cement manufacturing facilities in the U.S.

At a far greater number of facilities, portland cement companies are using non-hazardous 

secondary materials as a replacement for traditional materials used in the manufacturing process. 

 1 “Portland cement” is not a brand name. It is a generic term used to describe a specific type of cement. 

2 Cement Sector Trends in Beneficial Use of Alternative Fuels and Raw Materials, Revised Draft October 2008, included as 

Attachment K, posted on EPA’s website at http://www.epa.gov/sectors/sectorinfo/sectorprofiles/cement.html.
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Non-hazardous secondary materials are being used both as ingredients and fuels. These 

manufacturing facilities (like all portland cement manufacturing facilities that do not utilize HWF), 

are subject to comprehensive CAA MACT standards codified at 40 C.F.R. part 63, subpart LLL. 

As EPA recognizes in the NPRM, portland cement manufacturers’ use of non-hazardous 

secondary materials conserves virgin non-renewable raw materials and fuels and provides great 

benefits to the environment. One of the principal benefits is an opportunity to reuse materials that 

would otherwise be discarded. This type of recycling not only reduces the pollution and energy 

necessary to extract virgin materials, but (as explained further below) can also reduce air pollution 

such as greenhouse gases and other conventional pollutants from the portland cement manufacturing 

process. 

Many cement plants are capable of beneficially utilizing a wide range of non-hazardous 

secondary materials including both alternative ingredients and fuels. PCA estimates that in the U.S., 

over 12 million tons of non-hazardous secondary materials are used annually by the cement industry. 

Among common alternative ingredient materials, which contain one of more of the four essential 

cement ingredients, include foundry sand, mill scale, and steel furnace slag. Among alternative fuels, 

scrap tires provide the best example, due to the industry’s long-standing use of this secondary 

material. Over 40 percent of U.S. cement plants have invested in technology to use scrap tires as an 

alternative fuel to coal. In the United States, where more than 300 million scrap tires are generated 

annually, portland cement plants use more than 50 million tires a year – thereby diverting those 

materials from landfills. 

As explained in more detail in Section VI below, the environmental benefits of utilizing scrap 

tires as a supplemental fuel in the portland cement manufacturing process are multifold. When whole 

tires are combusted in cement kilns, the steel belting becomes a component of the clinker, an 

intermediate product, replacing some or all of the iron required by the manufacturing process. Pound 

for pound, tires have more fuel value than coal and the use of tires as fuel can actually reduce certain 

emissions. EPA states that tire-derived fuel contains about the same amount of energy as oil and 25 

percent more energy than coal. This means that each ton of tire derived fuel used by a portland 

cement plant has the potential to replace 1.25 tons of coal. This practice reduces impacts of coal 

mining, processing, and transportation and reduces the industry’s greenhouse gas emissions. 

Moreover, tires contain biogenic materials and thus when combusted are carbon neutral for that 

biogenic portion.

Additional background on the benefits associated with these practices is described in PCA’s 

comments on the “Advance Notice of Proposed Rulemaking” (ANPRM) EPA published on January

2, 2009 as a pre-cursor to the instant proposal (74 Fed. Reg. 41 et seq.). PCA’s ANPRM comments 

also attach several EPA and industry studies and reports demonstrating such benefits. PCA’s 

ANPRM comments appear in the docket for this rulemaking at EPA-HQ-RCRA-2008-0329-

0352.1[1] and are incorporated into these comments by reference.
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B. Statutory and Judicial Background to Proposed Rule

Section 129 of the Clean Air Act (CAA) directs EPA to issue emission standards for “solid 

waste incineration units.” The statute defines such units as those that “combust any solid waste 

material” from commercial or industrial units. The CAA does not define “solid waste” – rather it 

provides that “solid waste” for purposes of CAA § 129 is to be “established by the Administrator” 

under RCRA. CAA § 129(g).

As EPA explains on page 31848 of its preamble, the instant proposal is prompted by the 

Court’s decision in NRDC v. EPA, 489 F.3d 1250 (D.C. Cir. 2007) (“NRDC”). In that case, the Court 

rejected EPA’s regulations issued under CAA § 129. No RCRA regulations were at issue in that 

case.

In EPA’s CAA § 129 regulations that were under judicial review in NRDC, EPA had provided 

that certain types of facilities would be exempt from regulation as CAA § 129 units if the units 

combusted solid wastes of certain types for certain purposes. The Court rejected EPA’s rules, 

holding that the CAA unambiguously provided that “any” facility that combusted “any” solid waste –

regardless of the purposes of the combustion – must be regulated under CAA § 129. 

EPA is now undertaking to define “solid waste” under RCRA for purposes of determining 

which units will be subject to CAA § 129. Nothing in the NRDC case guides or restrains EPA’s 

discretion in this RCRA rulemaking, for the issue of how the Administrator may define “solid waste” 

under RCRA was simply not before the Court in NRDC. 

RCRA defines “solid waste” as being:

[A]ny 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 § 1004(27). 

C. The Proposed Rule’s Scope Under RCRA is Narrow, But Its Impacts Could Be 

Severe

We should make clear at the outset what is at issue in the instant rulemaking and what is not at 

issue. First, EPA has no constraints placed on it by the 2007 NRDC case. While the D.C. Circuit

held that any facility that combusts anything that EPA defines as “solid waste” under RCRA 

regulations must be regulated under CAA § 129, the Court’s opinion did not in any manner speak to 

how EPA should go about defining “solid waste” under RCRA. EPA is thus left with discretion to 

determine through this rulemaking that, to effectuate the purposes of RCRA, some materials will not 

be deemed “solid wastes” when they are combusted in CAA § 129 units.
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Second, the scope of EPA’s proposal is, consistent with the scope of the Court’s vacatur in 

NRDC, actually quite narrow in the context of the overall administration of RCRA. EPA is not

proposing to define “solid waste” for general purposes of its (and the States’) solid waste 

management programs under RCRA Subtitle D. Neither is EPA proposing to amend its definition of 

solid waste for Subtitle C hazardous waste purposes (40 C.F.R. § 261.2). 

Rather, the narrow purpose of the proposed regulations is stated quite clearly in the regulatory 

provisions of the proposed rule. In the proposed new Part 241 to the C.F.R., Subpart B would be 

entitled:

Identification of Non-Hazardous Secondary Materials That Are Solid Wastes 

When Used As Fuels or Ingredients in Combustion Units

75 Fed. Reg. 31892 (emphasis added).

Similarly, proposed § 241.3, the regulatory section that includes the proposed provisions for 

making such identifications, is entitled:

Standards and procedures for identification of non-hazardous secondary 

materials that are solid waste when used as fuels or ingredients in combustion 

units.

Id., (emphasis added).

And the operative language in the proposed rule leads with the following:

The following non-hazardous secondary materials are not solid wastes when 

combusted: . . . 

Proposed § 241.3(b) (emphasis added).

Moreover, the proposed regulatory language is clear that material determined to be (or not to 

be) a solid waste when combusted is solely within the context of determining whether a unit will be 

regulated or not under CAA § 129. See proposed § 241.1.

Accordingly, a material that EPA may declare through this rulemaking not to be a solid waste 

when combusted for purposes of determining CAA § 129 applicability may still be considered and 

regulated as a solid waste for other purposes under State or federal regulations. For instance, assume 

EPA were to follow PCA’s recommendations below and structure its Part 241 rules so that whole 

scrap tires used as fuel in portland cement kilns are not a solid waste when combusted. This would 

not affect the ability of States to classify and regulate those scrap tires as solid wastes under their own 

solid waste laws or under RCRA Subtitle D for purposes of generation, transportation, taxation, 

management standards, or any other purpose. As EPA states in its preamble:
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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. . . . Likewise, nonhazardous 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.

74 Fed. Reg. 31888 (emphasis added).

D. The Potentially Damaging Impacts on PCA’s Members

As explained in the immediately preceding section, the fact that EPA might provide in the 

Part 241 regulations that a whole tire is not a solid waste when combusted in a CISWI unit would not 

in any manner impede a State’s ability to regulate whole tires as solid wastes if they are placed in a 

landfill or managed in any other manner. The only issue in this rulemaking is what materials, when 

combusted in certain types of units, will trigger the applicability of CAA § 129. While this issue is 

quite narrow in the overall scheme of the RCRA program, it is of profound significance to PCA’s 

members. 

The problem lies in the basic fact that facilities will have strong incentives to avoid 

combusting materials that would subject them to regulation as incinerators under CAA § 129. EPA 

recognizes this in its proposed CISWI preamble. See 75 Fed. Reg. 31965-66. Many portland cement 

facilities would be unable to meet the CISWI emission standards that EPA has proposed for 

“existing” sources for one or more parameters without undertaking retrofits with enormous costs that 

could not be justified. More importantly, the CISWI standards for “new” sources – which would also 

be applicable to “modified” sources – are so excessively stringent that no facility can meet them on a 

continuous basis. Because portland cement kilns could through many types of necessary operational 

changes be deemed “modified” and thus trigger applicability of the “new source” standards, portland 

cement kilns would have no rational choice but to avoid combusting those materials EPA declares to 

be “solid wastes” in the part 241 rule. This would be most unfortunate indeed, as explained 

throughout these comments.

E. A Portland Cement Kiln is Not a Boiler or Incinerator

As demonstrated below (Parts III and IV), in enacting CAA § 129, Congress was focused 

exclusively on “incinerators.” Incinerators burn waste materials solely for the purposes of 

destruction. They do not use “ingredients,” and they make no product. 

Moreover, in all the rulemaking and litigation that prompted this proposed rule – culminating 

in the NRDC case discussed in part I(B) above – EPA, the parties, and the Court were focused 

exclusively on incinerators and boilers. Like incinerators, boilers do not use “ingredients.” Unlike 
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incinerators, boilers may burn waste materials for energy recovery purposes. But the only product 

they make is steam, and the steam that they make never comes in contact with the fuel they burn. 

A portland cement kiln is significantly different from an incinerator or a boiler in key 

respects. First, it is one type of “industrial furnace” which, unlike boilers and incinerators, make a 

marketable product. All materials that are placed in the kiln – including fuels – come into mutual 

contact in the manufacturing process. The product the kilns produce must meet strict quality 

standards. EPA’s RCRA regulations have long recognized these key distinctions among industrial 

furnaces, boilers, and incinerators. See 40 C.F.R. § 260.10.

Despite the fact that there was absolutely no issue with portland cement kilns producing 

ingredients in the development of CAA § 129 or the rulemaking and litigation leading to this 

rulemaking, portland cement kilns have been included in this proposal in a manner that could have 

very adverse impacts on kilns’ ability to use non-hazardous materials beneficially. As will be 

explained further below, a significant flaw in the proposal is its failure to recognize key differences 

between portland cement kilns as compared to incinerators and boilers.

For instance, whole tires (un-shredded and without metal removed) serve as a useful and 

bona fide fuel and ingredient in portland cement kilns but not in boilers or incinerators. And 

“legitimacy criteria” for non-hazardous materials that might possibly be appropriate for boilers and 

incinerators cannot properly be applied to furnaces that are in business to make a quality product.

We will explain these points further throughout these comments. We urge EPA to recognize, 

however, just as its regulations have long provided, that key differences in these types of units 

require distinctions in the way they are controlled.

II. SIGNIFICANT AND FUNDAMENTAL FLAWS IN THE PROPOSAL: A 

SUMMARY

We now turn to our attention to the current proposal. There is a bottom-line message that will 

resonate throughout these comments:

In implementing RCRA, EPA must balance the statute’s two primary goals of (1) protecting 

human health and the environment and (2) encouraging reuse and recycling. The second goal is 

particularly critical in the Subtitle D context. Yet EPA openly recognizes that its proposal, coupled 

with the proposed CISWI rule, would result in the landfilling of great volumes of non-hazardous 

secondary materials now being beneficially reused. EPA has not attempted to justify its antireuse/recycling proposal on grounds that such an approach is necessary to protect human health and 

the environment. As EPA clearly has discretion under RCRA and the case law to structure its 

Subtitle D proposal in a manner that would promote reuse and recycling without impairing health 

and environmental protection, EPA’s proposal as applied to portland cement kilns is fatally arbitrary 

and capricious and a failure of reasoned decision making.
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In Section III below, we explain why, as a legal matter, EPA has no authority under CAA § 

129 to regulate the use of secondary materials as ingredients. In Section IV, we show that nothing in 

the rulemaking proceedings or the case law leading to this proposal contained any hint that regulation 

of ingredients was ever at issue. In Section V, we explain why we believe the proposal represents a 

failure of reasoned decisionmaking. 

In Section VI, we focus on the proposal’s treatment of waste tires as the prime example of its 

numerous fundamental flaws, and show how EPA’s approach to key concepts such as “discard,” 

“processing,” and “legitimacy criteria” as applied to portland cement kilns are unnecessary and 

unsupportable. In Section VII we show how EPA’s assessment of the costs and benefits of this 

proposal are flawed. In Section VIII we will respond to specific issues on which EPA has solicited 

comment in its preamble.

III. EPA HAS NO AUTHORITY TO REGULATE USE OF SECONDARY MATERIALS 

AS INGREDIENTS UNDER CAA 129

A. Plain words of statute – “combust”

The purpose of the RCRA part 241 proposal is to identify materials that would be deemed 

“solid wastes” for purposes of triggering CAA § 129 jurisdiction. See 75 Fed. Reg. 31892 (proposed 

§ 241.1).

EPA’s CAA § 129 authority is limited to “solid waste incineration units,” which the statute 

defines as units that “combust” solid waste. CAA § 129(g)(1). This statutory definition does not say 

EPA can regulate units that “treat” solid waste (as provided in RCRA Subtitle C). Nor does it say 

that EPA can regulate units that “use” solid waste. 

The act of “combustion” is thus necessary to trigger CAA § 129 jurisdiction, and materials 

that are used as ingredients in an industrial process are not “combusted.” Even though temperatures 

in a kiln are extremely high, the feedstock for clinker that is placed into the kiln is not “combusted” –

rather, it is incorporated into the clinker product. Similarly, secondary materials that may be used as 

substitutes for mined or virgin feedstock become incorporated into the clinker product and are not 

“combusted.”

Neither the CAA nor RCRA define the words “combust” or “combustion.” One must 

accordingly turn to the plain meaning, dictionary, standard usage among engineers, definitions. The 

McGraw-Hill Science and Engineering Dictionary, Third Edition 1984, defines “combustion” as 

follows (emphasis added): The burning of gas, liquid, or solid, in which the fuel is oxidized evolving 

heat and often light.” Similarly, a well-respected engineering text defines “combustion” in this 

manner: “the conversion of a substance called a fuel into chemical compounds known as products of 

combustion by combination with an oxidizer. The combustion process is an exothermic chemical 

reaction, i.e., a reaction that releases energy as it occurs.” Weston, Energy Conversion, chapter 3, p. 
Page 13 of 72

85 (emphasis added), included at Attachment A, and available at 

http://www.personal.utulsa.edu/~kenneth-weston/chapter3.pdf.

As will be discussed in detail below, EPA’s proposal explicitly addresses two distinct types of 

secondary material use: (1) burning materials as fuels; and (2) using materials as ingredients. As 

these common dictionary definitions show, a unit “combusts” fuels but not ingredients. EPA 

accordingly has no authority under the plain terms of CAA § 129 to regulate portland cement kilns’

use of secondary materials as ingredients.

B. Legislative History

The legislative history shows that the drafters of the CAA indicated no intent to include use of 

materials for ingredients when they specified the word “combust.” The legislative history of CAA § 

129 in fact shows there is no mention of the use of secondary materials for ingredients. Rather, the 

entire focus of the legislative history reflects a concern in the late 1980s that municipal and hospital 

incinerators were coming on line (or planned) in large numbers and the then-existing CAA controls at 

the federal level for such units were perceived to be inadequate. 

The only analysis and explanations of the CAA § 129 language in the legislative history 

appear in the two Senate Environment and Public Works Committee Reports leading up to the final 

enactment of the 1990 Clean Air Act Amendments. One Report accompanied the 1989 version of the 

Senate Bill, Senate Report 101-228, accompanying S. 1630 (the “1989 Senate Report,” Attachment 

B). The other accompanied the 1987 version of the Senate Bill, Senate Report 100-231, 

accompanying S. 1894 (the “1987 Senate Report,” Attachment C). 

One will search in vain for any concern or reference to – even obliquely – use of secondary 

materials as ingredients. As explained on page 8593 of the 1989 Senate Report, the driving force for 

CAA § 129 was a study EPA had prepared (as directed by 1984 RCRA amendments from Congress) 

on the health risks of “municipal solid waste incinerators.” See Attachment B. The 1987 Senate 

Report further explains that the concern driving Congress related to the fact that “111 municipal 

incineration facilities are currently in operation in the United States, and at least 210 more are in the 

planning or permitting phase.” See Attachment C at 9450.

The 1987 Senate Report explains that citizen concerns over potential health risks have made 

“permitting for municipal incineration units difficult or impossible in some communities,” and that 

the purpose of the legislation was to insure that such units would be subject to protective emission 

standards to alleviate such concerns. Id. 

The 1987 Senate Report goes on to explain that there are three types of incinerator 

technology: “mass burn” facilities that take “garbage” untreated and burn it in a simple process to 

produce heat, steam, or electricity; “refuse derived fuel (RDF),” which is fed to “specialized boilers;” 

and “modular” units, which are “small pre-fabricated” units that burn waste in a “two-chamber 

process.” See Attachment C at 9451-52.
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Thus, the types of units the drafters thought they were covering with CAA § 129 most 

certainly did not include industrial furnaces that might be using secondary materials as ingredients. 

This is strongly reinforced by the fact that there are unequivocal (and lengthy) statements in the 

legislative history to the effect that the byproduct of the “incinerators” covered by the legislation is 

“fly ash” and “bottom ash.” For example, the 1989 Senate Report states: “Pollutants which are 

trapped by control devices before entering the air become incinerator fly ash. Managing incinerator 

ash, therefore, is inextricably linked to controlling air emissions from municipal waste incinerators.” 

See Attachment B at 8494. 

Industrial furnaces such as cement kilns produce cement kiln dust (CKD). This is a material 

that is wholly distinguishable from fly ash, not only physically and chemically, but legally. Compare

RCRA § 3001(b)(3)(A)(i) (fly ash) with RCRA § 3001(b)(3)(A)(iii) (CKD).

And the 1987 Senate Report states with respect to the units that would be regulated under 

CAA § 129: “It is necessary to regulate air emissions and ash simultaneously because the control 

technologies required to limit emissions trap pollutants, which then become part of the fly ash.” See 

1987 Senate Report, Attachment C at 9451.

Under the assumption that the units regulated by CAA § 129 would be producing this 

“incinerator ash” or “fly ash,” Congress included a special provision in the 1990 CAA Amendments 

(along with CAA § 129) specifying that “ash from solid waste incineration units” could not be 

regulated as a hazardous waste under RCRA for two years. 42 U.S.C. § 6921 (note). 

Thus all the legislative history shows no indication of any Congressional intent to cover 

materials used as ingredients in industrial furnaces, and, in fact, consistently points the other way. It 

strongly reinforces the point that the statutory word “combust” can and should be given its plain 

English, unambiguous meaning.

C. EPA’s Own Word Usages

EPA’s own phraseology in its proposed part 241 preamble underscores this point. As EPA 

stated in its preamble summary:

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 wastes.

75 Fed. Reg. 31844 (emphasis added).

Moreover, in its definition of “contaminant” in the proposed regulatory provisions, EPA 

provided: “. . . when secondary materials are burned as fuel or used as ingredients . . . “ 75 Fed. 

Reg. 31892 (emphasis added). There are several additional places in the preamble where EPA draws 

this distinction: fuels are “burned” whereas ingredients are “used.” Of course, “combustion” equates 

with “burn” but not “used.”
Page 15 of 72

We found no place in the preamble where EPA stated that ingredients are “burned.” In fact, 

quite remarkably, there is no place we could find in the January 2, 2009 ANPR or the new part 241 

proposal where EPA even attempted to stake out a theory as to how its authority to regulation 

“combustion” could extend to regulation of materials used as ingredients. 

The closest EPA comes is (very indirectly) to say several times that it is being guided by 

Subtitle C principles and precedents in crafting the proposed part 241 provisions. But of course, as 

noted above, the relevant word is “treatment” in Subtitle C – which is much broader than 

“combustion.” 

IV. NOTHING IN THE D.C. CIRCUIT’S 2007 NRDC OPINION, OR IN ANY OF THE 

RULEMAKING OR ADVOCACY LEADING UP TO IT, CONTAINS THE 

SLIGHTEST HINT THAT EPA COULD OR SHOULD REGULATE INGREDIENTS

A. Energy Recovery the Only Focus

As discussed earlier, the part 241 proposal is EPA’s response to the Court’s remand in NRDC 

v. EPA, 489 F.3d 1250 (D.C. Cir. 2007). Starting with EPA’s first CISWI rule of December 1, 2000 

(65 Fed. Reg. 75338), there were several rounds of rulemakings, administrative petitions, and judicial 

challenges culminating in the 2007 NRDC decision.

Throughout these administrative and judicial proceedings, there was an ongoing dispute 

regarding whether EPA should regulate burning for energy recovery under CAA § 129. The focus 

was not only 100 percent on energy recovery, but also overwhelmingly on boilers (not industrial 

furnaces). Nothing in the petitions, comments, or judicial briefs filed by NRDC or other parties ever 

mentioned the issue of using secondary materials for ingredients. 

B. Rulemaking Preceding the 2007 NRDC Opinion

EPA’s first CISWI rule (December 1, 2000) contained exemptions from CAA § 129 coverage 

for units burning fuels for energy recovery. EPA did this by defining “commercial and industrial 

waste” to mean “solid waste combusted in an enclosed device using controlled flame combustion 

without energy recovery . . .” 65 Fed. Reg. 75359.

Even though EPA used the terms “solid waste combusted,” EPA’s 2000 rule and preamble 

said nothing about use of materials as ingredients in an industrial process. Moreover, it could not be 

clearer from the rule and the preamble, and the types of units that EPA’s rule was intended to cover, 

that the rule did not cover use of ingredients.

Earthjustice (on behalf of the Louisiana Environmental Action Network (LEAN) and the 

National Wildlife Federation (NWF)) filed an administrative reconsideration petition with EPA on 

January 30, 2001. See Attachment D. Earthjustice’s objection focused solely on the fact that EPA 
Page 16 of 72

had excluded units burning solid waste for energy recovery purposes, maintaining that such exclusion 

violated the clear terms of CAA § 129. Earthjustice’s petition made no mention whatever of use of 

materials as ingredients. See generally id.

EPA granted Earthjustice’s petition on the procedural ground that the issue of excluding 

energy recovery burning had not been raised with sufficient specificity in the proposed rule preceding 

the 2000 final rule, and EPA undertook a new round of public comment. On February 17, 2004, EPA 

proposed amendments to the CISWI rule, once again taking the position that burning secondary 

materials as fuels for energy recovery would not be regulated under CAA § 129. 69 Fed. Reg. 7390.

Earthjustice once again strenuously objected to EPA’s proposed definitions in its comments 

on EPA’s February 2004 proposal (“Earthjustice 2004 Comments” at Attachment E). The comments 

made no mention of materials used as ingredients and included no objection to the fact that the rule 

did not cover ingredients. All of the objection was directed to the energy recovery issue.

Moreover, it is quite clear from Earthjustice’s comments that the overwhelming focus of its 

concerns related to the issue of area source boilers. See Attachment E at pages 1-2. Earthjustice’s 

primary fear was that EPA would “exploit” the provisions in CAA § 112 allowing “area sources” to 

be regulated under less stringent “Generally Available Control Technology” (GACT) requirements. 

Id. Boilers, of course, do not utilize secondary materials as ingredients. 

EPA issued its final CISWI rule September 22, 2005. 70 Fed. Reg. 55568. EPA’s rule once 

again exempted energy recovery burning, and did not purport in any manner to regulate use of 

ingredients or even mention ingredients. EPA made clear in this preamble that portland cement kilns 

would not be regulated under CAA § 129 if they burned fuels for energy recovery. E.g., 70 Fed. Reg.

55571.

C. The NRDC Briefing and Opinion

NRDC, the Sierra Club, and the Environmental Integrity Project sought judicial review of 

EPA’s September 2005 final rule. This resulted in the Court’s 2007 opinion remanding EPA’s 

CISWI rule that EPA is now responding to with its June 4, 2010 proposed rules. 

Similar to their comments on the 2004 CISWI proposed rule, the overwhelming focus of the 

NRDC parties’ concern was on boilers, and the issue of whether and to what extent EPA’s rules could 

allow smaller “area source” boilers burning waste fuels for energy recovery to be covered by more 

lenient “GACT” standards under CAA § 112. The entire thrust of the NRDC parties brief was that 

EPA could not exempt units burning solid waste for energy recovery from CAA § 129. See NRDC 

Brief, at Attachment F. If the NRDC parties prevailed on that issue, then such units would be subject 

to CAA § 129, which does not provide for less stringent standards for area sources.

NRDC’s brief said nothing about the issue of whether industrial furnaces using secondary 

materials as ingredients should be regulated. And from the very first sentence of the NRDC Brief 

“Statement of Facts,” it is clear that the issue was never considered:
Page 17 of 72

This matter concerns the highly toxic air emissions from more than 50,000 incinerators 

and boilers nationwide. Widely used to dispose of on-site waste and to generate heat or 

electricity, incinerators and boilers operate at virtually every imaginable industrial site, 

including chemical plants, refineries, pulp and paper mills, lumber mills, 

agribusinesses, and smelters.

Id. at 6.

This becomes further evident from the following key point in the NRDC Brief:

That is, although section 129 directs EPA to regulate sources that combust “any solid 

waste material from commercial or industrial establishments,” 42 U.S.C. § 7429(g)(l) 

(emphasis added), the agency instead regulates only sources that combust solid waste 

from “commercial or industrial establishments ... without energy recovery.” This 

leaves the excluded, so-called “energy recovery units” to be regulated under EPA’s 

boilers rules.

Id. at 19.

Note especially the last phrase, “under EPA’s boilers rules.” This strongly reinforces the 

point that no thought was being given in this litigation to issues involving industrial furnaces using 

secondary materials as ingredients. The only issue in the case was EPA’s attempt to exclude units 

burning solid waste for energy recovery from CAA § 129.

For further reinforcement of this point, one can review the numerous “standing” declarations 

attached to the NRDC Brief, where various members of NRDC and its co-petitioning organizations 

explained how they could be adversely affected if EPA excluded such units from CAA § 129. See Id.

at 69-98. In every one of these declarations, the declarant states that he or she lives in close to 

proximity to an industrial boiler or an on-site incinerator. Not a single declarant states that he/she 

would be affected by emissions from an industrial furnace such as a portland cement kiln.

Thus, not surprisingly, the D.C. Circuit opinion in the 2007 NRDC case makes absolutely no 

mention of any issue involving the use of secondary materials as ingredients. The Court held only 

that EPA’s regulation that exempted solid waste combusted for energy recovery was “inconsistent 

with the plain language of section 129,” because CAA § 129(g)(1) defined the affected facilities as 

“any facility which combusts any solid waste material.” 489 F.3d at 1254, 1255.

D. EPA Never Explains Why It Believes CAA § 129 Regulates Ingredients

EPA made clear at the beginning of its January 2, 2009 ANPR that it was initiating the new 

part 241 rulemaking for the purpose of complying with the remand in the 2007 NRDC case. 74 Fed. 

Reg. at 43. But as shown above, the NRDC case had nothing whatever to do with ingredients. EPA 

never explains – either in the ANPR or the June 4, 2010 part 241 proposal – why it chose to include 

ingredients within the scope of this rulemaking.
Page 18 of 72

V. EPA’s PROPOSAL REPRESENTS A FAILURE OF REASONED 

DECISIONMAKING

A. Supreme Court “State Farm” and D.C. Circuit Precedent

Judicial review of agency rulemakings often focuses on two fundamental issues: (1) whether 

the agency’s interpretation of a statutory provision is sustainable; and (2) whether the agency engaged 

in “reasoned decisionmaking” in reaching that interpretation. The reviewing court may vacate a

regulation on either ground. In its bedrock decision Motor Vehicle Mfrs. Ass’n v. State Farm, 463 

U.S. 29 (1983) (“State Farm”), the Supreme Court elaborated upon the federal Administrative 

Procedure Act’s (APA) “arbitrary or capricious” standard with the phrase “reasoned 

decisionmaking,” and this terminology is used frequently by the D.C. Circuit and other courts.

In CMA v. EPA, 217 F.3d 861 (D.C. Cir. 2000), the Court reviewed an EPA rule issued under 

the Clean Air Act in which EPA had imposed a so-called “early cessation” requirement. Many 

facilities had been burning a certain type of waste under emission limitations established under 

RCRA. EPA had imposed more stringent requirements under the CAA that were to take effect in 

three years, and EPA specified in those new rules that facilities failing to affirmatively commit to 

coming into compliance with those new more stringent standards by the three-year deadline would 

have to cease burning that type of waste much earlier than the three-year compliance deadline.

Petitioners before the Court pointed out that if any facility was forced to stop burning that 

type of waste before the new deadline, the same waste would simply be burned by other facilities 

under the same older RCRA standards, and EPA did not dispute this. Also, EPA maintained 

generally that such a rule would have health and environmental benefits, but did not explain how it 

would.

The Court said the CAA’s purpose was to protect and enhance air quality so as to promote the 

public health and welfare. Id. at 866. But since EPA could not explain any environmental benefits to 

its early cessation requirements, the Court held that it was unreasonable for EPA to impose “costly 

obligations on regulated entities without regard to the [CAA’s] purpose.” Id. at 867. In fact, the

Court took special note that environmental harm might be increased by EPA’s rule because more 

movement of wastes could increase the chances of leakage or spillage. Id. at 865. The Court 

concluded that EPA’s actions represented a “classic case of arbitrary and capricious rulemaking.” Id. 

at 865.

Similarly, the D.C. Circuit in API v. EPA, 216 F.3d 50 (D.C. Cir. 2000) rejected an EPA 

interpretation that a certain material had been “discarded,” and was therefore a solid waste in the 

Subtitle C context. Citing State Farm, the Court ruled that EPA had failed to provide a “rational 

explanation” for its decision. Id. at 56-58. (We note that EPA cites this case as “API II” in its 

preamble. 75 Fed. Reg. at 31851.) Other recent D.C. Circuit cases in which the D.C. Circuit has 

relied upon State Farm “reasoned decisionmaking” principles to reverse EPA rules include Am. Farm 
Page 19 of 72

Bureau Fedn v. EPA, 559 F.3d 512, 523-24 (D.C.Cir. 2009) and New York v. EPA, 413 F.3d 3, 10-11 

(D.C. Cir. 2005).

B. EPA Has Latitude to Define “Solid Waste” to Effectuate RCRA’s Goals

For over thirty years EPA has been attempting to define – in its Subtitle C hazardous waste 

regulations codified at 40 C.F.R. § 261.2 – which secondary material management and handling 

practices trigger the definition of solid waste (DSW). EPA has always claimed discretion to “draw 

lines” in this regard under the statutory definition of solid waste (RCRA § 1004(27)). As EPA 

stressed in its first final Subtitle C DSW rule: “the extent of the Agency’s authority is not explicit on 

the face of the statute” when addressing the issue of whether materials destined for recycling may be 

deemed solid wastes. 50 Fed. Reg. at 614, 615, January 4, 1985. 

A primary goal of RCRA is protection of human health and the environment. E.g., RCRA §§

3001, 3002, 3003, 3004, 3005. Another primary goal of RCRA is to promote resource conservation 

and recovery, including energy recovery. E.g., RCRA § 1002, 1003. Throughout its various rounds 

of Subtitle C DSW rulemakings, EPA has used its discretion to “draw lines” in an attempt to 

effectuate and accommodate these primary statutory goals.

1. Rationale for Subtitle C DSW Approach

EPA’s DSW for Subtitle C purposes involves a complex “line drawing” matrix in which 

hazardous secondary materials destined for recycling may or may not be deemed a solid waste. 

EPA’s most recent revisions to the Subtitle C DSW appear in a final rulemaking published at 73 Fed. 

Reg. 64668 on October 30, 2008. In the preamble to these revisions, EPA summarized and reviewed 

some of the most fundamental reasons why it has used its discretion to regulate some materials 

destined for recycling as solid waste in the Subtitle C context.

One major factor is that the secondary material in question in the Subtitle C context is by 

definition “hazardous,” and presents the same risks to health and the environment as hazardous 

wastes. 73 Fed. Reg. at 64671. EPA cites the fact that hazardous material destined for recycling was 

involved in (a) one-third of the first 60 RCRA waste site “imminent and substantial endangerment” 

actions EPA initiated before the Comprehensive Environmental Response, Compensation and 

Liability Act (CERCLA) became law in 1980, and (b) 20 of the initial 100 sites on the CERCLA 

National Priorities List (NPL). Id. EPA stresses that many additional “damage cases” have been 

documented more recently. Id. 

Another major factor is the “cradle to grave” regulatory regime mandated by RCRA Subtitle 

C. EPA has reasoned that allowing classification of hazardous materials as solid wastes depending 

only on what persons handling the materials “intended to do with them” would be inconsistent with 

the cradle to grave scheme of Subtitle C. Id.
Page 20 of 72

2. The Subtitle C DSW Approach Was Never Intended to Apply to NonHazardous Materials

Despite the complexity of EPA’s ever-evolving DSW in the Subtitle C context, one thing has 

always been crystal clear: the definition applies only in the Subtitle C context. EPA has taken great 

care to distinguish between the definition of solid waste for Subtitle C purposes (40 C.F.R. § 261.2) 

and the definition for Subtitle D purposes. 

EPA’s Subtitle C regulations, in fact, could not be more explicit on this point: “The definition 

of solid waste contained in this part applies only to wastes that also are hazardous for purposes of the 

regulations implementing subtitle C of RCRA. For example, it does not apply to materials (such as 

non-hazardous scrap, paper, textiles, or rubber) that are not otherwise hazardous wastes and that are 

recycled.” 40 C.F.R. § 261.1(b)(1). In issuing this provision, EPA cited to RCRA legislative history 

calling for this result, so that the Subtitle C definition could not be used in “unintended contexts” for 

non-hazardous Subtitle D materials. 50 Fed. Reg. 614, 627 (January 4, 1985), citing H.R. Rep. 98-

198 at 47. 

C. EPA Relies Upon Subtitle C DSW Principles for Its Proposed Subtitle D Solid 

Waste Definition Without Justification

In its Part 241 proposed preamble, EPA says that to define solid waste under Subtitle D, it is 

“appropriate to use the same general framework” it has used under Subtitle C, “noting that the same 

statutory definition of solid waste applies to both RCRA Subtitles D and C.” 75 Fed. Reg. 31858. 

The fact that the “same statutory definition” applies to both Subtitles C and D cannot be a valid 

justification, however. As explained in the section immediately above, (a) EPA’s regulations have 

long specified that the Subtitle C DSW does not apply in the Subtitle D context and (b) EPA has 

stressed, citing legislative history, that the Subtitle C DSW should not be the same as a solid waste 

definition under Subtitle D. 

Yet EPA has not only borrowed heavily from its Subtitle C DSW approach in crafting its 

Subtitle D part 241 proposal, but in some regards the part 241 proposal is significantly more stringent

than the Subtitle C DSW. The most striking example is the contrasting approach to ingredients.

Under § 261.2 (Subtitle C DSW), a hazardous secondary material that is recycled by being 

“used or reused as ingredients in an industrial process to make a product” is exempt from the DSW so 

long as the material is not being reclaimed. § 261.2(e)(1)(i). Under proposed § 241.3(b)(2), however, 

a non-hazardous secondary material being recycled for use as an ingredient will be exempt only if it 

meets several “legitimacy criteria” as specified in proposed § 241.3(d)(2).

Among the most notable of these criteria is the fourth: 

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 
Page 21 of 72

those found in traditional products that are manufactured without the non-hazardous 

secondary material.

Proposed § 241.3(d)(2)(iv), 75 Fed. Reg. 31893.

Thus, while non-hazardous secondary materials would be subject to this product comparison 

testing under EPA’s proposal, under EPA’s Subtitle C hazardous waste regime hazardous secondary 

ingredient materials are exempt from the definition of solid waste regardless of how much those 

materials may influence contaminant levels in the resulting product. One would assume that (a) if 

EPA has leeway under the statute to define solid waste (which it does); (b) if EPA has authority to 

define solid waste for purposes of Subtitle C differently than for purposes of Subtitle D (which it 

does); and (c) if secondary materials under Subtitle C are hazardous and secondary materials under 

Subtitle D are non-hazardous (which is the case), then EPA should not – unless it can demonstrate a 

rationale for doing so – be regulating secondary materials under Subtitle D as stringently as under 

Subtitle C. Yet inexplicably, EPA’s proposed part 241 regulations treat non-hazardous secondary 

ingredient materials more stringently than hazardous secondary ingredient materials.

We note that the two fundamental grounds EPA has cited to support the lines it has drawn in 

the Subtitle C context are, as discussed above, the innate hazardousness of the material (with the 

“damage case” examples going back for decades) and the “cradle to grave” mandate of RCRA 

Subtitle C. EPA cites no damage cases to support its part 241 proposal, however (and it is hard to see 

how it could when dealing with material that is by definition non-hazardous). And, of course, there is 

no “cradle to grave” system under RCRA Subtitle D. Thus, the grounds EPA relies upon in using its 

discretion to draw lines in its Subtitle C DSW simply do not apply in the Subtitle D context. 

And EPA’s approach in this proposal appears even more illogical and “unreasoned” when one 

considers (as explained in part I(C) above), that the only function of the proposed part 241 definition 

is to determine what materials will trigger CAA § 129 applicability when combusted. Materials that 

may be excluded from the part 241 definition will not be excluded from the definition of solid waste 

for all other purposes.

This is in stark contrast to the function of EPA’s Subtitle C definition of solid waste in 40 

C.F.R. § 261.2. If a material is excluded from the definition under that section, it may also be 

excluded from RCRA control when stored, transported, or otherwise managed or discarded. 

Considering that the materials at issue under the Subtitle C definition are hazardous, the 

consequences of excluding a material are obviously much more serious from a health and 

environmental perspective.

D. EPA’s Proposal Would Impose Unjustified Barriers to Recycle and Reuse

EPA’s line drawing efforts in the Subtitle C recycling context over the years have endeavored 

to balance two fundamental RCRA goals: protection of human health and the environment, and the 

promotion of recycle/reuse of secondary materials. In the context of dealing with hazardous

secondary materials in the Subtitle C definition, EPA has accordingly often drawn lines that might 

discourage some forms of recycle/reuse on grounds that such a choice was necessary to protect health 
Page 22 of 72

and the environment. There is at least a rational basis for this, as materials that would qualify as 

hazardous wastes may warrant special precautions. Moreover, Congress repeated the mandate to 

protect human health and the environment incessantly in various key Subtitle C provisions. E.g., 

RCRA §§ 3001, 3002, 3003, 3004, 3005.

As we will demonstrate with numerous examples throughout these comments, in the RCRA 

Subtitle D non-hazardous material context, EPA’s part 241 proposal (along with the CISWI proposal) 

draws many lines that would impose major impediments on recycle/reuse. Yet EPA never attempts

to justify these choices dealing with non-hazardous materials on grounds of protecting human health 

and the environment. One key example that will be developed below: how could keeping whole tires 

in landfills and waste piles be better for public health and the environment than having these tires 

used as coal replacement in a portland cement kiln regulated under CAA § 112 and other CAA 

standards? 

We note that the RCRA policy favoring recycle/reuse is expressed in the strongest terms in 

the Subtitle D context. Here are the very first words of Subtitle D (in RCRA § 4001) (emphasis 

added): 

The objectives of this subchapter are to assist in developing and encouraging methods 

for the disposal of solid waste which are environmentally sound and which maximize

the utilization of valuable resources including energy and materials which are 

recoverable from solid waste and to encourage resource conservation.

There is no doubt that EPA envisions the part 241 proposal would result in far less solid waste 

being recycled/reused and that waste materials would be landfilled instead. The CISWI proposal is 

quite clear on this in many places, as is the RIA for the part 241 proposal. E.g., 75 Fed. Reg. 31965-

66.

So the question becomes, why does EPA’s part 241 proposal at practically every turn draw 

lines that will discourage recycle/reuse of non-hazardous material when an over-arching Subtitle D 

goal is to maximize recycle/reuse of non-hazardous materials? If EPA believes this approach is 

necessary to protect health and the environment, EPA never asserts this, nor explains how or why. 

We believe the D.C. Circuit would find this, just as it found EPA’s rules in the CMA case sited above, 

a “classic case of arbitrary and capricious rulemaking.” 217 F. 3d at 865. And it is clear that EPA 

cannot remedy this defect by developing and articulating post-hoc rationalizations in its final rule. 

“A ‘notice of proposed rulemaking must provide sufficient factual detail and rationale for the rule to 

permit interested parties to comment meaningfully.’” Cement Kiln Recycling Coalition v. EPA, 493 

F.3d 207, 225 (D.C. Cir. 2007) (quoting Honeywell Int'l, Inc. v. EPA, 372 F.3d 441, 445 (D.C. Cir. 

2004)) (emphasis added).

E. EPA’s Reliance Upon RCRA Subtitle C Caselaw Is Unnecessary and 

Inappropriate

EPA attempts to justify some of its positions based on several D.C. Circuit cases that have 

judicially reviewed various versions of EPA’s Subtitle C DSW. See 75 Fed. Reg. 31850-51. But 

\
Page 23 of 72

again, those decisions have been limited to rulings on a Subtitle C definition that EPA has 

consistently maintained has no application to the Subtitle D context.

For example, EPA has cited American Petroleum Institute v. EPA, 906 F.2d 729 (D.C. Cir. 

1990 (“API I”) for the proposition that the Court has disapproved the concept that a material that may 

have once been thrown away could nevertheless “cease to be a solid waste” if it were being 

beneficially reused, as it would no longer at that point be considered a “discarded material.” 75 Fed. 

Reg. 31850; 74 Fed. Reg. 51.

But EPA has overlooked a critical element of the Court’s ruling. In remanding the rule to 

EPA for a further explanation of its position, the Court stressed it believed it would be “unlikely” 

EPA could successfully maintain the position that a discarded material could cease to be a solid waste 

when recycled because:

To reach such a conclusion, EPA would have to reconcile this position with RCRA’s 

acknowledged objective to establish a cradle-to-grave regulatory structure for the safe 

handling of hazardous wastes.

906 F.2d at 741 (emphasis added and internal citations and quotation marks omitted).

Thus, this Subtitle C case in no way impairs EPA’s ability to craft a Subtitle D rule that could 

allow for materials once deemed to have been discarded to cease to be a solid waste when reused. 

And no other case cited by EPA (or any that we have found) has ruled that EPA is unable to do this in 

the Subtitle D context.

In fact, other D.C. Circuit cases reviewing EPA’s “solid waste” definition show that the Court 

understood the Subtitle C hazardous waste context to be quite distinct from RCRA Subtitle D. In its 

preamble at page 31850, EPA cites American Mining Congress v. EPA, (“AMC I”) 824 F.2d 1177 

(D.C. Cir. 1987). The Court in that case stated: “RCRA includes two major parts: one deals with 

non-hazardous solid waste management and the other with hazardous waste management. Under the 

latter, EPA is directed to promulgate regulations establishing a comprehensive management system.” 

Id. at 1179 (emphasis added). Nothing in the Court’s opinion speaks to the issue of defining solid 

waste for Subtitle D purposes. The Court correctly recognized, however, that it is Subtitle C – and 

not D – that establishes a “comprehensive management system.” 

Similarly, American Mining Congress v. EPA, (“AMC II”), which EPA cites on page 31850 of 

its preamble, was limited to an examination of issues under RCRA Subtitle C, which the Court noted 

“requires EPA to create a comprehensive regulatory scheme for the treatment, storage, and disposal 

of hazardous wastes.” 907 F.2d 1179, 1182 (D.C. Cir. 1990) (emphasis added).

EPA also cites American Petroleum Institute v. EPA, (“API II”) 216 F.3d 50 (D.C. Cir. 2000) 

on page 31851 of its preamble. But again, the Court’s opinion could not be clearer that it was 

limiting its ruling to Subtitle C issues, and not considering how solid waste might be defined in the 

“less stringent” Subtitle D regime:
Page 24 of 72

RCRA is a comprehensive environmental statute granting EPA authority to regulate 

solid and hazardous wastes. “Solid wastes” are governed by Subtitle D of RCRA, and 

are generally subject to less stringent management standards than “hazardous wastes” 

which are regulated under Subtitle C.

...

In pursuit of its congressionally conferred duty and authority to regulate solid waste 

under RCRA, the EPA has adopted regulations defining solid waste for purposes of its 

hazardous waste regulations.

Id. at 54 (emphasis added).

Thus none of these cases purport to circumscribe, or in any manner limit, EPA’s authority to 

define solid waste either for purposes of RCRA Subtitle D in general or for purposes of triggering 

CAA § 129 in particular. EPA remains free to craft its definition in the instant rulemaking to 

effectuate the purposes of RCRA Subtitle D – the primary purpose of which is to “maximize” the use 

of non-hazardous secondary materials. RCRA § 4001.

VI. FUNDAMENTAL FLAWS REGARDING USED TIRES REFLECT FUNDAMENTAL 

FLAWS RUNNING THROUGH THE ENTIRE PROPOSAL

A. The Portland Cement Industry’s History of Beneficially Using Whole Scrap 

Tires

The most dramatic adverse impact on the portland cement industry from EPA’s proposed part 

241 rule (as it would work together with the proposed CISWI rule) is in regard to the proposed rule’s 

approach to used tires. EPA already has extensive documentation in the record on the following basic 

points, and we will further elaborate on some of them below:

a. Scrap tires that have been buried in landfills or stacked in piles throughout the U.S. 

present a major environmental problem – not because of any inherent hazard of the 

tires themselves, but because they take up precious landfill space that is in short supply 

and present risks of fires, draw rodents and pests, mosquitoes, etc.;

b. Over the last two decades, portland cement kilns have been able to provide a great 

source of relief for states and communities seeking environmentally responsible 

outlets for the removal of these tires from landfills and piles;

c. Whole tires serve as a useful substitute for virgin fuel at cement kilns, and the metal in 

these tires serves as a useful substitute for virgin raw materials. As EPA states in its 

proposed rule preamble:
Page 25 of 72

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).

75 Fed. Reg. 31877, n. 62.

d. There is no increase in air pollutant emissions from portland cement kilns burning 

these non-hazardous materials. In fact, data in EPA’s record shows that if anything, 

there is improvement in the emission performance on key pollutants of concern.

Prior to approximately 1990, scrap tires were simply landfilled, like most other waste 

materials. They were not perceived as a disposal problem nor available in a quantity attractive to 

cement plants. Two factors changed that situation. The first factor was diminishing landfill capacity. 

With fewer landfills available, scrap tires, which do not decompose or compact easily, had been 

phased out as an acceptable material. In certain cases this was a decision by the landfill operator, in 

other cases, a decision due to changes in state regulations. 

Secondly, scrap tires were no longer considered as part of the municipal solid waste stream, 

and therefore not collected or disposed of by municipalities. This, in turn, caused the generators of 

scrap tires to use the services of scrap tire collectors and transporters. These entrepreneurs typically 

found inexpensive ways to dispose of their cargo; usually by stock piling the tires in a remote

location. Until 1985, this form of disposal was the accepted practice. It is these large stockpiles that 

subsequently became public nuisances due to fires and other issues. Thus other markets and 

opportunities for use of scrap tires were explored, including the use of tires in cement kilns as fuel.

These old landfills and piles are menaces (as they are attractive nuisances drawing rats, 

breeding mosquitoes, creating hazardous smoke from uncontrolled fires, etc) and there has been great 

support by local, county and state governments for kilns to take these tires and use them as fuel.3

 

Approximately 87 percent of the old tire piles have been cleaned up since 1990.4

 But major 

environmental messes linger, and portland cement kilns are practically the only place where they can 

be reused as whole tires. While uncontrolled tire fires with thick black smoke have caused poor 

public perception of tire combustion, continued use of whole tires by portland cement kilns as fuel 

will materially help prevent the occurrence of these uncontrolled fires.

In 1990, 6 million tires (of 223 million scrap tires generated that year) were used as fuel in 

cement plants. By 1992, 14 cement plants were using tire-derived fuel (TDF) with another 24 

 3 Report of Pennsylvania Joint State Government Commission, Waste Tire Recycling and Reuse in Pennsylvania, 

October, 2007. Included as Attachment J. 4 Scrap Tire Markets In The United States, 9th Biennial Report, May 2009, Rubber Manufacturers Association. Included 

as Attachment L.
Page 26 of 72

planning, permitting, or waiting to use scrap tires.5 A PCA report shows data starting in 1998, when 

35 plants (of those reporting) were already using tire as fuels (53 of 93 reporting plants were using 

alternative fuel).6

 By 2009, 40 of 90 plants reporting were using tire as fuels representing a total of 

over 355,000 tons of tires annually.

7

B. The Proposal Will Strongly Discourage Portland Cement Kiln Utilization Of 

Used Tires With No Resulting Benefits to Health and the Environment

The data available indicates that emissions from TDF-firing kilns have lower emissions of 

nitrogen oxides, sulfur dioxide, and most metals.8 EPA recognizes that the use of TDF in cement 

kilns results in emissions that are often less and generally within the same range as emissions from 

the use of fossil fuels.

9

 Also, data that show decreases of sulfur dioxide (SO2) emissions by 20 to 50 

percent or more has been found.10 Of course actual emission results can vary on a site-specific basis,

The use of TDF can actually result in lower nitrogen oxide (NOx) emissions. NOx can be 

reduced by over 30 percent depending on the kiln type, age, fuel combustion location, and the plant’s 

ability to optimize the manufacturing process. An EPA-sponsored study on NOx reductions reported 

that TDF added to the raw material feed end of some preheater or precalciner kilns can reduce NOx

emissions over 30 percent, and EPA also found that when mid-kiln injection of whole scrap tires was 

used, there was an average NOx reduction of 33 percent and 40 percent for selected long dry and wet 

kilns, respectively.11 EPA has also agreed that the use of TDF results in lower NOx emissions when 

compared to many U.S. coals, particularly the high-sulfur coals.12 In fact, in some instances, the use 

of TDF has been incorporated into cement plants’ air permits or within state or local regulations as a 

listed control mechanism for NOx.

13 EPA’s own emission-reduction strategies model incorporates 

TDF as a method for NOx reduction.14

 5 The Use of Scrap Tyres in the US Cement Industry, Michael Blumenthal, World Cement, December 1992. Included as 

Attachment M. 6 North American Cement Industry, Annual Yearbook 2009, Portland Cement Association, ER395, Table 44. Included as 

Attachment N. 7 US & Canadian labor-Energy Input Survey, 2010, Portland Cement Association. Included as Attachment O. 8 Air Emissions Data Summary for Portland Cement Pyroprocessing Operations Firing Tire-Derived Fuels, John 

Richards; David Goshaw; Danny Speer, and Tom Holder, PCA, 2008. Included as Attachment P 9 Tire-Derived Fuel Frequent Questions, http://www.epa.gov/wastes/conserve/materials/tires/faq.htm. Included as 

Attachment Q

10 Health Consultation - CEMEX, Incorporated, Lyons, Boulder County, Colorado, Agency for Toxic Substances and 

Disease Registry, Table 2, Page A-3. Included as Attachment R; Air Emissions From Scrap Tire Combustion, EPA600/R-97-115, October 1997. Included as Attachment S. 11 NOx Control Technologies for the Cement Industry, U.S. EPA, Office of Air Quality Planning and Standards, Ozone 

Policy and Standards Group, September 19, 2000. Included as Attachment T. 12 Management of Scrap Tires, EPA website, http://www.epa.gov/wastes/conserve/materials/tires. Included as 

Attachment U. 13 Mojave Desert Air Quality Management District, Rule 1161(C)(1)(a)(iv), Portland Cement Kilns. Included as 

Attachment V; Proposed Rulemaking, 25 PA. Code Chs. 121, 129 and 145, Control of NOx Emissions from Cement 

Kilns, 38 Pa.B. 1838, April 19, 2008. Included as Attachment W; South Coast Air Quality Management District, Best 

Available Retrofit Control Technology Assessment, TXI Riverside Cement, Revised Draft, August 8, 2008. Included as 
Page 27 of 72

In addition, EPA has found that hazardous air pollutants(HAP) emissions are not impacted by 

alternative fuels, including tires. In its proposed Subpart LLL rule preamble of May 6, 2009, EPA 

states: “EPA notes, however, that the combustion of secondary materials as alternative fuels did not 

have any appreciable effect on the amount of HAP emitted by any source.”15

Replacement of TDF with coal also may influence cement kiln emissions and costs for control 

of mercury. The average bituminous coal used for fuel exhibits higher levels of mercury than TDF, 

as shown below.16 Thus, increases of mercury emissions may occur with the loss of the use of TDF 

as fuel.

Fuel Hg ppm by Weight

Coal 0.1

TDF -

The preamble to this rule also notes the possible negative impacts due to the loss of the use of TDF. 

EPA has mentioned both the greenhouse gas (GHG) and additional particulate matter (PM) impacts 

in the preamble.17

A direct impact from the loss of TDF in cement kilns would be the change in GHG emissions 

from cement kilns. As noted above, the net increase in GHG emissions would be 0.013 MTCO2E per 

MMBtu. Based upon an estimated 20,328,000 MMBtu value for lost TDF,18,19 the resulting increase 

in GHG emissions from cement kilns would be 264,424 MTCO2E. In addition to the direct change in 

GHG emissions from the cement kilns, additional GHGs will be generated because of the extraction 

and processing emissions from the coal that replaces the TDF. Using the same heat amount and 

EPA’s value of 0.006 MTCO2E per MMBtu, the increase in GHG from the supply of coal would be 

121,968 MTCO2E.

The change to coal from TDF would also result in additional PM emissions. Based upon the 

total annual replaced heat value and 0.246 lbs/MMBtu of PM from extraction and processing of coal, 

an increase in PM emissions would amount to 2,500 tons per year. 

 

Attachment X.; South Coast Air Quality Management District, Final Environmental Assessment: Proposed Amended 

Rule 1112.1 – Emissions of Particulate Matter and Carbon Monoxide from Cement Kilns, SCAQMD No. 091027JJI, 

November 13, 2009. Included as Attachment Y. 14 Industrial Sector Integrated Solutions Model, EPA, prepared by ARCADIS U.S., Inc., December 23, 2008, EPA-HQOAR-2002-0051-2007.pdf. Included as Attachment Z. 15 74 Fed. Reg. 21138. 16 Materials Characterization Paper In Support of the Proposed Rulemaking: Identification of Nonhazardous Secondary 

Materials That Are Solid Waste – Scrap Tires, April 6, 2010. Included as Attachment AA. 17 75 Fed. Reg. 31849. 18 Materials Characterization Paper in Support of the Proposed Rulemaking: Identification of Nonhazardous Secondary 

Materials That Are Solid Waste – Scrap Tires, EPA, April 6, 2010. Included as Attachment AA. 19 In 2007, 48.4 million tires were used as fuel for cement kilns. This represents 20,328,000 MMBtu/year of fuel,

assuming each tire weighs 30 lbs and has 14,000 Btu/lb heat value.
Page 28 of 72

Under the structure of EPA’s part 241 proposal, portland cement kilns would not be allowed 

to continue this highly environmentally beneficial practice of burning whole tires from landfills and 

waste piles unless they were willing to subject themselves to being regulated and permitted as an 

incinerator under the CISWI regime. This is despite the fact that the record is replete with 

demonstrations and showings that sources will for good reason choose not to enter the CISWI regime, 

and EPA’s CISWI proposal explicitly and affirmatively projects that sources will choose not to do so.

The only “way out” of this dilemma for portland cement kilns under the part 241 proposal 

would be for portland cement kilns to burn TDF that has gone through the “processing” steps of 

chipping/shredding and metal removal. For kilns to use such processed TDF, however, the costs 

would escalate greatly and there would be additional air pollution and other adverse environmental 

impacts associated with the “processing.” We should note here that the “non-waste determination” 

petition process – in addition to all its other infirmities as explained later in these comments – does 

not provide a “way out” under EPA’s proposal. This is because EPA makes quite clear in its 

proposed preamble that in its view, tires from landfills or waste piles could never qualify for relief 

under this petition process. See 75 Fed. Reg. 31879.

In effect, EPA’s proposal would strongly discourage portland cement kilns from continuing 

the highly beneficial practice of using whole tires from landfills and waste piles. This presents not 

only the most notable adverse impact on the portland cement industry, but also the most dramatic 

example of how EPA’s proposal is wholly unsupportable under “arbitrary/capricious” and “reasoned 

decisionmaking” standards.

C. EPA’s Interpretations of “Discard” and “Processing” Are Misguided and 

Harmful

EPA bases its regulatory construct on certain legal theories involving the words “discard” and 

“processing.” We will show below that EPA’s interpretations of “discard” and “processing” for 

purposes of this Subtitle D RCRA proposal are wholly unnecessary and counterproductive.

1. Discard

EPA says that RCRA’s definition of solid waste centers on the concept of “discard.” 75 Fed. 

Reg. at 31850. But then EPA asserts in its preamble that any material that is discarded by anybody 

must be considered forever discarded (and therefore remain a solid waste) no matter what value or 

use it may have to another person who may retrieve the material. We find this logical leap to defy 

common sense, and not in any manner compelled by the statutory language or judicial precedent. As 

this interpretation produces results that impede reuse and recycling of non-hazardous materials with 

no benefit to health and the environment, we believe it is arbitrary and capricious and a failure of 

reasoned decisionmaking.
Page 29 of 72

a. Plain Meaning

If Party A abandons or dumps a material that Party A no longer wants or no longer has any 

use for, it may logically be concluded that Party A has “discarded” that material. As long as that 

material remains where it was abandoned or dumped, it logically can continue to be considered 

“discarded” material. But it is illogical and nonsensical to hold that a material must be considered 

forever “discarded” if Party B comes upon the material, removes it from its “discarded” venue, and 

takes it with him or her for a bona fide use.

Suppose a woman walks by a town dump and spies a chest-of-drawers that someone has 

thrown away (i.e., abandoned, discarded). The piece of furniture is old, but it is perfectly usable for a 

room in her house. She takes the chest of drawers and places it in a guest bedroom, and it now sits 

there full of clothes. To say the chest sitting in that room is now a “discarded” material simply defies 

the plain meaning of the word.

b. Case Law

As explained in Section V(E) above, EPA cites one D.C. Circuit case (“API I”) as having 

rejected a previous EPA interpretation that a material once discarded need no longer be considered a 

solid waste when recycled. But as we show in the discussion above, that decision did not reject 

EPA’s rule, but rather remanded it to EPA for further explanation. And while the Court stated that it 

believed it “unlikely” EPA could sustain its original position on remand, the Court explained:

To reach such a conclusion, EPA would have to reconcile this position with RCRA’s 

acknowledged objective to establish a cradle-to-grave regulatory structure for the safe 

handling of hazardous wastes.

906 F.2d at 741 (emphasis added and internal citations and quotation marks omitted).

Thus, the case EPA relies upon is clearly a RCRA Subtitle C case and its logic and rationale is 

expressly limited to Subtitle C, as the lines to be drawn between solid waste and exempt material 

involve hazardous material in a cradle-to-grave regulatory regime. In this part 241 rulemaking, EPA 

is defining solid waste for non-hazardous materials in the Subtitle D setting where there is no cradleto-grave regime. EPA cites no case law, and we are aware of none, in which a court has ruled that a 

discarded non-hazardous material must forever be deemed discarded no matter what beneficial use it 

may subsequently be put to.

c. RCRA Provisions

Nothing in the RCRA definition of solid waste (§ 1004(27)) or any other provision of RCRA 

suggests that a material that is once discarded must be deemed discarded forever and therefore 
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forever remain a “solid waste.” In fact, language in RCRA strongly supports the opposite conclusion:

(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.

RCRA § 1002(c) (emphasis added).

This statutory provision directly contradicts the premise that a once-discarded material must 

forever be deemed a solid waste, for it states that material that has been buried (hence initially 

discarded) can, if usable, be considered “separate” from solid waste.

2. Processed

Even if EPA felt compelled to deem tires in waste piles and landfills incapable of being 

exempt from the part 241 definition of solid waste without some form of “processing” (which it 

should not, as explained immediately above), the proposed rule’s approach on the requisite degree of 

“processing” for waste tires is wholly inappropriate and illogical, at least as applied to portland 

cement kilns.

EPA begins its analysis by explaining:

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 wastederived ingredient into a fuel or ingredient product.

75 Fed. Reg. 31861.

EPA never explains why it believes this, however, in the context of a material that does not 

need processing – or perhaps needs only minimal processing20

 20 We note that whole tires that have long been buried or stacked in aging piles may need minimal processing for use in 

cement kilns, such as removal of excess water and dirt, mud, and debris. Whole tires from newer stacks or piles often 

need no physical processing whatever.

– to serve as a wholly bona fide fuel. 

EPA then says that used tires cannot be considered sufficiently “processed” unless they are physically 

shredded and undergo metals removal processing. See 75 Fed. Reg. 31877. 
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EPA never explains why it thinks this much processing is necessary for tires to escape the 

“discard” rubric and serve as bona fide fuels in portland cement kilns. But all logic goes against EPA 

on this point. In two different passages in the same Federal Register page, EPA states (a) used tires 

must go through “various processing steps to meet certain specifications that are necessary for a 

particular end use,” including TDF, and (b) portland cement kilns use whole tires as fuels “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).” 75 Fed. Reg. 31877, & n. 

62.

The logic to be divined from this is:

a. a once-discarded secondary material must be processed to a sufficient degree to meet 

the specifications to serve a particular bona fide end use;

b. the specifications for tires used by portland cement kilns in a bona fide end use do not 

include shredding or metal removal; and

c. tires used by portland cement kilns will not be considered sufficiently processed 

unless they are processed by shredding and metal removal.

We submit this simply makes no sense. The result of this faulty logic is that beneficial reuse 

of significant amounts of non-hazardous material will be greatly discouraged, and there will be no 

health or environmental benefits (only detriments). We believe it is obvious that EPA’s proposal 

represents a “classic case or arbitrary and capricious rulemaking.” CMA, supra Section V(A), 217 

F.3d at 865.

EPA points to its approach to “scrap metal” under Subtitle C on page 31876 of the preamble. 

In the Subtitle C hazardous waste context, EPA’s regulations provide that scrap metal that would 

otherwise be a RCRA hazardous waste will be deemed sufficiently “processed” to escape the 

definition of solid waste under extremely minimal conditions. As EPA states in its preamble, under 

40 C.F.R.§§ 261.1 and 261.4, such minimal steps as baling or sorting are all that are necessary. This 

material that would otherwise be a hazardous waste may then be sent into high-temperature 

environments such as electric arc furnaces at steel mills and aluminum smelters entirely free of 

RCRA controls.

EPA’s only explanation for the discrepancy in the way it treats scrap metal going to thermal 

processing under the Subtitle C hazardous waste regime so much more leniently than its proposed 

approach for non-hazardous scrap tires going to portland cement kilns is:

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.

75 Fed. Reg. 31876.
Page 32 of 72

We submit that this entire train of logic simply cannot be sustained as reasoned decision

making. EPA is discouraging reuse and recycle practices of non-hazardous materials in portland 

cement kilns in a manner that it has not attempted to justify (nor could it) on grounds of health and 

environmental protection. To make matters worse, the stringency of the discouragement for the nonhazardous reuse practices is much more pronounced when compared to EPA’s approach to a Subtitle 

C hazardous material.

A point we explained in Section I(C) above bears repeating in conclusion. If EPA excludes 

whole tires burned in portland cement kilns from its part 241 definition of solid waste, all it will be 

saying is that such tires are not solid wastes when combusted for purposes of determining whether the 

portland cement kiln combusting such material will be subject to CAA § 129. The rule as thus 

constructed, would have absolutely no impact on the States’ ability to define waste tires as solid 

wastes for any purpose, including disposal, generation, transport, taxation, or any other management 

requirement mode.

D. EPA’s Importation of “Legitimacy Criteria” from RCRA Subtitle C is 

Unwarrantedand Unproductive, Particularly as Applied to Portland Cement 

Kilns.

Once a non-hazardous material is run through the tests involving “discard” and “processing,” 

EPA’s proposal still requires that fuels meet three “legitimacy criteria” and that ingredients meet four 

such criteria. EPA introduces the concept of legitimacy criteria in its part 241 proposal with an 

extended discussion of why and how such criteria are necessary in the Subtitle C context in assuring 

proper management of hazardous materials. As EPA explains, the point is to “guard against 

hazardous secondary materials being discarded in the guise of recycling.” 75 Fed. Reg. 31851.

After EPA explains why legitimacy criteria are so important in the hazardous materials 

context, EPA summarily concludes that it “believes” the concept is “important” in the non-hazardous 

material context as well. 75 Fed. Reg. 31851. The only ground EPA offers in support of this “belief” 

is that legitimacy criteria will help determine whether a “non-hazardous secondary material being 

recycled is truly being recycled or is, in fact, being discarded through sham recycling.” 75 Fed. Reg.

31852. EPA appears again to adopt the ill-founded and wholly unjustified approach that whatever 

restrictions are appropriate for hazardous wastes under Subtitle C are appropriate for non-hazardous 

waste issues under Subtitle D. 

We have already explained why EPA does not have jurisdiction to regulate materials used as 

ingredients under CAA § 129. (See Section III above). But to the extent EPA might nevertheless 

erroneously include the ingredient provisions in its final rule, we must strongly object to the inclusion 

of the legitimacy criteria for ingredients. EPA has not even imposed legitimacy criteria for 

ingredients in its Subtitle C definition of solid waste rule. See Section V(C) above. Once again, EPA 

would be placing burdens on reuse and recycle of non-hazardous materials that cannot be justified 

(and which EPA has not attempted to justify) on grounds of health and environmental protection.
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Much the same can be said for EPA’s legitimacy criteria approach for fuels as applied to 

portland cement kilns. The portland cement industry simply cannot afford to jeopardize its product 

by using alternate fuels that affect cement quality. As EPA recognizes in its preamble, the 

controversy over “sham recycling” relating to fuels arose in the hazardous waste context years ago. 

See 75 Fed. Reg. 31871. EPA justifiably had a concern (reflected in the earlier Subtitle C 

rulemaking and policy documents it cites) that unscrupulous parties seeking to avoid the expensive 

Subtitle C cradle-to-grave regime had incentives to claim that the hazardous waste they were burning 

was a bona fide fuel. At that stage in the RCRA Subtitle C development (mid 1980s), burning of 

hazardous materials for bona fide energy recovery purposes was exempt. This concern simply does 

not apply to the situation in which non-hazardous materials are being burned in fully regulated 

industrial furnaces such as portland cement kilns.

Ironically, EPA has long recognized that products from portland cement kilns burning 

hazardous waste fuel (HWF) are not adversely affected in any manner. In 1995, after reviewing 

exhaustive data presented in a petition filed under the Toxic Substances Control Act (TSCA), EPA 

rejected the petitioners’ request that products from HWF kilns carry warning labels because EPA 

found there was no difference in contaminant levels (or risks) in the product. 60 Fed. Reg. 39169 et 

seq., August 1, 1995. As recently as 2007, EPA’s Assistant Administrator for Solid Waste and 

Emergency Response (OSWER) stated in a letter to the Center for Maximum Potential Building 

Systems that “there is no difference in the cement from kilns burning hazardous waste compared to 

cement produced by kilns not burning hazardous waste.” See “Letter from OSWER Assistant 

Administrator”, included as Attachment G.

Moreover, NSF International has reviewed data from several portland cement kilns burning 

HWF to assess whether product from such kilns could be safely used in concrete water pipes and 

water storage tanks. These studies have uniformly concluded that there is no statistical difference in 

contaminants between clinker or product made from kilns burning HWF as compared to kilns using 

only fossil fuels.21

Aside from our general opposition to the proposed legitimacy criteria for non-hazardous 

materials, we take particular exception to the third criterion for fuels and the similar fourth criterion 

for ingredients as applied to portland cement kilns:

(iii) [Fuels] 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.

. . . 

 21 E.g., “A Comparison of Metal and Organic Concentrations in Cement and Clinker Made with Fossil Fuels to Cement 

and Clinker Made with Waste Derived Fuels,” NSF International (1993). Included as Attachment BB.
Page 34 of 72

(iv) [Ingredients] 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.

Proposed §§ 241.3(d)(1)(3), 241.3(d)(2)(4).

As emphasized throughout these comments, a portland cement kiln (unlike a boiler or an 

incinerator) is an industrial furnace that manufactures a product to quality specifications. Portland 

cement manufacturers simply cannot afford to use fuels or ingredients that will interfere with that 

product quality, and when dealing with non-hazardous secondary materials, it simply seems pointless 

to attempt to monitor (assuming one accurately and meaningfully could do so) parameters such as 

contaminant levels in fuels, ingredients, and products when the variability of such levels could be just 

as great when dealing with different traditional fuels and ingredients.

As noted above, EPA has long maintained that portland cement quality is not adversely 

affected in terms of contaminant levels when hazardous waste is being burned. There can be no 

justification for imposing such criteria, therefore, when non-hazardous secondary materials are at 

issue. Most ironically, nothing in EPA’s regulations subjects product from portland cement kilns 

burning hazardous waste to any legitimacy criteria (nor should they be, based upon all the data and 

findings that have accumulated over the years). It would in our view be supremely arbitrary and 

capricious, therefore, for EPA’s regulations to subject product from portland cement kilns using nonhazardous secondary materials to legitimacy criteria.

In addition, as we will be elaborating upon in our comments on the CISWI proposal, there are 

major complex implementation issues regarding portland cement kilns’ coverage under the CAA § 

112 MACT rules and the upcoming CAA § 129 CISWI rules. One such issue is how, when, and why 

a kiln may move from one regime to another, either voluntarily or involuntarily. If a regime is 

established by which a kiln could remain under CAA § 112 only if its secondary material fuel met 

certain contaminant level requirements, but the kiln could be challenged in the future on the ground 

that its fuel no longer met those requirements so that a State agency or EPA could suddenly declare 

that the kiln was covered by CAA § 129, the kiln would have every incentive to avoid burning the 

alternative fuel in the first place.

Finally, imposition of such subjective criteria would inevitably invite disputes between and 

among regulated parties, regulators, and potentially citizens groups and greatly increase the burdens 

and transaction costs of attempting to operate under the system. It would thereby be an additional 

disincentive for parties to engage in the practice of beneficial reuse and recycling of non-hazardous 

secondary materials. Moreover, EPA has not articulated any reason for creating these obligations.

E. Used Tires Should Be Recognized as “Traditional Fuels”

Under EPA’s proposal as currently structured, materials classified as “traditional fuels” would 

not be deemed solid waste. Although EPA describes coal and petroleum coke as traditional, based on 

the extensive use developed over the last 20-30 years in the industry, many of the alternative fuels 
Page 35 of 72

such as TDF can also be considered traditional. As explained earlier, the industry goals since 1991 

have emphasized use of alternate fuels and raw materials based on the industry increasing their 

reliance on this type of material since the 1980s. The practice is so predominant that the data used to 

establish MACT standards under CAA § 112 for portland cement kilns contained significant 

information on kilns that were already using alternative fuels and raw materials as a standard practice.

Thus, use of TDF is a long-standing and customary practice now characteristic of cement 

manufacturing fuel options. The number of cement plants utilizing TDF as a supplemental fuel has 

risen dramatically over the last 19 years. In 2009, the cement industry consumed 355,000 tons of 

tires for energy recovery which is a significant portion of the tires used for such purposes. 

Furthermore, as of 2006, state and local environmental agencies have approved the use of TDF in 21 

states. We believe these facts justify consideration for TDF as a traditional fuel for the cement 

industry as well as for other sectors.

VII. EPA’S COST ASSESSMENT IS INADEQUATE, INCOMPLETE, AND ARBITRARY

Throughout these comments PCA has endeavored to demonstrate that, if EPA elects to go 

forward with the proposed part 241 RCRA rule as it has been proposed, portland cement kilns will, 

of necessity, be forced to stop using non-hazardous secondary materials because the compliance 

costs which they would have to incur under CAA § 129 and EPA’s pending (and future) regulations 

implementing § 129. 

For example, although it may not be what EPA intends, PCA’s members have advised us that 

the materials processing requirements which EPA would mandate under this rule, for purely arbitrary 

and not demonstrated environmental or scientific reasons, will, at the very least, cause them to stop 

using whole tires as an alternative fuel. As we discuss below, EPA has failed to conduct any 

meaningful analysis of this impact of the proposed rule on the operating costs of cement 

manufacturers and other members of the regulated community, or the environmental impacts that 

EPA will cause by needlessly forcing industry to abandon the use, in whole or in part, of secondary 

materials as fuels and ingredients and burn more coal and other fossil, and mine more virgin materials 

for fuels and ingredients. As we discuss below, EPA has instead avoided, or attempted to downplay, 

the significance of the costs that, of necessity, the proposed rule would require be incurred by the 

regulated community in order to prevent the secondary materials we use legitimately as a fuel (or an 

ingredient, if the final rule does not exclude ingredients), from being designated by EPA as a “solid 

waste” and thereby causing the unit in which that fuel (or ingredient) is used from becoming subject 

to § 129. 

The NPRM asserts that the action proposed in this rulemaking “does not directly invoke any 

costs or benefits” and, therefore, that there was no need for EPA to have “prepared a separate 

economic assessment in support of this proposal.” 75 Fed. Reg. 31889 (emphasis added). Several 

paragraphs later, however, the NPRM also states that compliance with the proposed rule will impose 

“costs and benefits indirectly associated with this action.” Id. (emphasis added). As we discuss 

below, PCA has a number of concerns with EPA’s assessment of the costs that this rulemaking will 
Page 36 of 72

impose on the regulated community, including the distinction EPA has sought to draw between 

“direct” and “indirect” costs. Aside from being a purely arbitrary distinction, as we explain below, it 

is factually incorrect. 

While PCA acknowledges that EPA did review costs “indirectly associated with this action,” 

75 Fed. Reg. 31899, as part of its review of the “corresponding impacts assessed in the regulatory 

impact analyses prepared in support of the CAA proposed rules,” id., referring to the Boiler MACT 

and CISWI rules,22 we have significant concerns with both the substance of the analysis as well as its 

thoroughness in identifying the costs likely to be incurred.23 

The source for the preamble’s claim, that there are no direct costs, appears to be EPA’s cost 

review document which is contained in the rulemaking docket and identified as EPA-HQ-RCRA2008-0329-0528. This cost review document states in relevant part:

The proposed NHSM, on its own, will not result in any of the costs, benefits, 

or other impacts described in this section.24 As explained above, the proposed 

NHSM rule specifies criteria under which non-hazardous secondary materials 

are considered solid wastes. Although the rule will determine which Section 

of the CAA under which a given combustion unit is regulated, the rule does 

not include emission standards and does not require changes in the 

management or use of secondary materials. Only with the promulgation of 

the air rules would society realize the costs and benefits and other impacts 

estimated with the methods described in this section. EPA therefore attributes 

these impacts entirely to the air rules.

 22 The NPRM did not provide the identification number of the specific costing document to which the NPRM was 

referring. However, PCA assumes that the specific document being referred to by the NPRM was EPA-HQ-RCRA2008-0329-0528. For the remainder of our comments in this section, therefore, when we refer to EPA’s “cost review” or 

“cost assessment,” we are referring to document EPA-HQ-RCRA-2008-0329-0528. 23 The NPRM’s description of the specific factors EPA actually assessed is both vague and, PCA submits, misleading 

(“These independent regulatory analyses measure, among other factors, the estimated net change in social welfare 

associated with these actions,” 75 Fed. Reg. at 31899). Regardless of why the specific wording may have been chosen, 

the wording used nonetheless provides support for our concerns regarding the incorrectness of EPA’s belief that this 

rulemaking imposes no direct costs, as well as supports our contention that EPA’s cost analysis is inadequate and 

incomplete. As written by EPA, the NPRM’s costs and benefits discussion at 75 Fed. Reg. 31889, infers that this 

rulemaking will, at worst, impose only a small number of minimal costs on the regulated community, independent of what 

other costs would be incurred if, because of how EPA defines secondary material in this rulemaking, a unit becomes 

subject to § 129. Additionally, in light of the preamble’s discussion, and seeming downplay, of costs, a concern also 

arises over whether, by virtue of the preamble, a court would conclude that the regulated community has not been given 

the full opportunity to comment on the EPA’s assessment of costs. See, e.g., Owner-Operator Independent Drivers 

Association v. Federal Motor Carrier Safety Administration, 494 F.3d 188 (D.C. Cir. 2007). 24 The “section” the authors were referring to in this sentence is Section 3 of EPA’s cost review document. Section 3 is 

entitled “METHODS FOR ASSESSING IMPACTS.” It begins on page 18 of the cost review document (EPA-HQRCRA-2008-0329-0528) and consists of five subparts: 3.1 (“Engineering Cost Methodology”); 3.2 (“Social Cost 

Methodology”); 3.3 (“Job Effects”); 3.4 (“Costs of Petition Process for Non-Waste Determination”); and, 3.5 (“Benefits 

Methodology”).
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EPA-HQ-RCRA-2008-0329-0528 at 18 (emphasis added).25 Other than making the assertion that 

the proposed rule “does not require changes in the management or use of secondary materials,” 

neither the preamble’s discussion of the costs and benefits of the proposed rule, 75 Fed. Reg. 31889, 

nor its source document, EPA-HQ-RCRA-2008-0329-0528, provide any explanation or other 

evidence to support the claim. Thus, EPA appears to be asking the public to accept its claim on 

good faith. 

However, EPA’s claim has no merit. As we discuss below, there are a host of costs which the 

regulated community will have to incur if the rule, as proposed, is adopted, including costs due to 

changes in the management or use of secondary materials which the proposed rule would, on an 

individualized basis, necessitate. 

Although neither the preamble nor cost review states so expressly, it appears that the rationale 

for EPA’s claim – that there would be no changes in the management or use of secondary materials –

is that the intent of this rulemaking is solely to define, or identify, what non-hazardous secondary 

materials are solid wastes for purposes of CAA § 129. In other words, excluding the proposed 

petition process (which we will address in a moment), EPA appears to believe, and therefore to have 

only focused on what actions the regulated community will be required to do, and their costs, only if 

and after a secondary materials is deemed to be a solid waste for purposes of CAA § 129. For 

unexplained reasons, EPA has erroneously concluded, and therefore ignored, that the proposed rule 

clearly contemplates a range of activities, in addition to the proposed petition process, which the 

regulated community will, on an individualized basis, have to engage to preclude a secondary 

material from being designated a solid waste and thereby avoid the triggering of § 129.26 For 

purposes of our comments, PCA will refer to the cost of the petition process and such other activities 

as “pre-designation costs.” 

The fact that EPA recognized, and therefore attempted to quantify the petition process costs, 

in its cost review document while at the same time contending in the preamble that the regulated 

community will not incur any pre-designation costs, is not only a contradiction but also a clearly 

erroneous and arbitrary assertion; especially when EPA has failed to provide any factual support or 

reasoned explanation to back up its claim. However, before we discuss pre-designation costs that 

EPA has failed to consider, we first want to discuss the inadequacy of EPA’s analysis of the costs of 

the petition process. 

As a preliminary matter concerning the petition process, PCA takes note of the fact that, in 

cost review’s analysis of the petition process, EPA refers to the petition process as “voluntary” but 

 25 The “Section” being referred to in the above-quoted statement is Section 3 of EPA’s cost review document. Section 3 

is entitled “METHODS FOR ASSESSING IMPACTS.” It begins on page 18 of the cost review document and consists 

of five subparts: 3.1 (“Engineering Cost Methodology”); 3.2 (“Social Cost Methodology”); 3.3 (“Job Effects”); 3.4 

(“Costs of Petition Process for Non-Waste Determination”); and, 3.5 (“Benefits Methodology”). 26 PCA takes note of the fact that, in its cost review of the petition process, EPA refers to the petition process as 

“voluntary,” while also acknowledging that EPA “requires [petitioners engaging in the process] to provide information 

describing how the secondary materials satisfy the legitimacy criteria described above, along with analysis of certain 

market, human and environmental health, and other factors.” EPA-HQ-RCRA-2008-0329-0528 at 21.
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goes on to immediately acknowledge that the proposed petition process “requires [petitioners 

engaging in the process] to provide information describing how the secondary materials satisfy the 

legitimacy criteria described above, along with analysis of certain market, human and environmental 

health, and other factors.” EPA-HQ-RCRA-2008-0329-0528 at 21 (emphasis added). PCA infers 

that EPA agrees that the costs incurred to comply with the petition process and other pre-designation 

activities are costs which should be considered and, therefore, that EPA’s use of the term 

“voluntary” was intended to be purely descriptive. As neither the preamble, nor the cost review, 

make any further mention of the term “voluntary,” PCA assumes that EPA is not claiming that, 

because such activities are engaged in “voluntarily,” there is no need for EPA to conduct a thorough 

cost analysis of all such pre-designation activities. If, on the other hand, EPA is asserting (or will 

assert) this is its rationale for not conducting a thorough analysis, EPA needs to state this and give 

the public an opportunity to respond. PCA certainly does not believe EPA can rely upon such 

reasoning, and EPA’s analysis of the costs of the petition process would support our view. 

Turning, then, to EPA’s review of the cost of the petition process. As we previously stated, 

PCA contends that EPA’s analysis is inadequate and incomplete. In fact, the cost review effectively 

agrees with PCA’s assessment, by pointing out the following deficiencies:

The costs associated with this petition option are uncertain, both nationally 

and at the level of the facility. Nationally, the costs of the petition process 

will depend largely on the number of facilities that submit petitions. Due to 

the uncertainty surrounding the number of petitions likely to be submitted to 

EPA under this rule, we do not include the total costs of the petition process in 

the primary cost estimates presented in this document.

The costs of the petition process are also uncertain at the facility level, but 

EPA already has in place certain petition processes whereby parties may 

request exclusions similar to the non-waste determinations established in the 

proposed rule. 

EPA-HQ-RCRA-2008-0329-0528 at 22.27

While EPA’s foregoing statement evidences the inadequacy of EPA’s cost assessment, it also 

falls short in recognizing the extent of the inadequacy and incompleteness of EPA cost assessment. 

For example, while EPA’s cost review uses the 40 C.F.R. 260.22 delisting petition and a subpart of 

the petition for variance from classification as a solid waste as analogues to estimate the costs of the 

petition process being proposed in this rule, EPA-HQ-RCRA-2008-0329-0528 at 22, the cost review 

provides no details of analytical methodology and thus “failed to provide an opportunity for 

comment on the methodology.” Owner-Operator Independent Drivers Association v. Federal Motor 

Carrier Safety Administration, 494 F.3d 188, 206 (D.C. Cir. 2007). Among other things, it is 

impossible to tell whether the costs estimates EPA presented on page 22 of its review reflect only the 

costs that would be incurred to prepare and file a petition with EPA, or also include all of the related 

 

 27Even assuming there are similarities between the processes, as EPA asserts, EPA has not claimed they are identical. 

Thus, by failing to provide a substantive analysis of the process and their specific similarities, and also differences, EPA 

has not provided the public an opportunity to comment on the merits of its claim and the accuracy of the specific cost 

estimates it has put forth. 
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costs which would be incurred in order to prosecute a petition to conclusion; such as, the cost to 

respond to comments filed by the public in opposition to a petition, the cost of a an administrative

appeal by the denial of a petition by EPA or an administrative appeal initiated by an environmental 

group of EPA’s grant of the petition, and the cost of a judicial appeal of a denial of a petition or an 

appeal initiated by an environmental group of EPA’s grant of a petition. Given that amount of the 

dollar values presented on page 22 of EPA’s cost review, it is highly unlikely that EPA’s published 

estimates include these additional costs. Further, the failure to consider all such additional costs, 

given that EPA’s proposed petition process would allow for the public to comment on each petition, 

makes it extremely more likely that such costs will be incurred and, therefore, that much more 

arbitrary for EPA to fail to consider such additional costs. 

PCA also assumes that EPA’s cost estimates only include the direct out-of-pocket costs of 

such petitions, and that no consideration has been given to identifying and calculating the costs that 

might be incurred, or the dollar amount of the operating efficiencies lost, or the lost jobs, while a 

petition is pending. Such costs would be incurred, for example, if a facility has to purchase more 

expensive fuel while its petition to use a less expensive, secondary material as an alternative fuel is 

pending, or being appealed. The potential for this and other such lost operating efficiencies to occur 

is quite real under the EPA’s proposed petition process and such additional costs should be 

recognized and taken into account by EPA as part of its cost assessment. 

In addition to the cost of the petition process, which is the only pre-designation cost factor 

EPA did attempt to analyze, the proposed rule will necessitate changes in the management or use of 

secondary materials as a result of the proposed rule’s requirement that, to avoid being designated a 

“solid waste,” secondary materials will have to be “sufficiently processed.” Under the currentlyproposed rule, there clearly will be processing costs that will need to be incurred, including by 

cement manufacturers. However, because of EPA’s current indecisiveness on this issue and the 

NPRM’s insufficient specificity28

EPA has, effectively, three courses of action which it can take with respect to the deficiencies 

in its cost review. One option is simply to ignore the concerns we have expressed here and proceed 

to final rule without addressing the defects we have identified. However, PCA believes that the 

courts would overturn and remand EPA’s final rule should it choose this path. A second option is 

for EPA to agree with the concerns we have raised with respect to the inadequacy and 

incompleteness of its cost review and cure the defects by conducting a meaningful and 

comprehensive review of the costs associated with this proposed rule and republishing the rule with 

the revised cost analysis for public comment. A third option available to EPA is to amend the 

proposed rule by adopting the revisions PCA is recommending in these comments, including: 

designating scrap tires as a traditional fuel; excluding ingredients from the scope of the rulemaking; 

, only EPA can realistically assess what the cost, or range of costs, 

of the processing to be required might be. To date it has not. Here again is an additional reason why 

EPA’s cost review and analysis is inadequate and incomplete. 

 28 The NPRM, in fact, concedes PCA’s point, wherein it state admits that “there is a question whether the definition of 

processing is sufficiently clear so the regulated community can appropriately apply the definition.” 75 Fed. Reg. 31878. 

The NPRM goes on, then, to compound EPA’s failure to identify and calculate the proposed rule’s costs, and the 

regulated community’s ability to respond in any meaningful way, by requesting public to offer comment and suggestions 

on what the final rule’s specific requirements should be. See, e.g., 75 Fed. Reg. 31878-79.
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and eliminating the proposed rule’s processing requirements for scrap tires. EPA’s adoption of these 

revisions PCA is recommending would not only eliminate costs that the current proposed rule would 

impose as well as the need for EPA to have to analyze such costs, but would also, as we discuss in 

greater detail elsewhere in these comments, further RCRA’s goal of promoting beneficial material 

recycling and reuse. 

VIII. PCA’S RESPONSES TO SPECIFIC REQUESTS FOR COMMENT AND 

INFORMATION IN EPA’S PREAMBLE

In the remainder of these comments, we will respond to various requests for comments and/or 

information as set forth in EPA’s preamble. It is important to note that in some of the responses below, we 

are providing comments and information only as a “backup” in the event EPA were to decide to issue a final 

rule with certain provisions that we have shown should not be included earlier in our comments.

For instance, we explain earlier in our comments that EPA does not have the authority to regulate 

ingredients under CAA § 129. The fact that we may offer some comments, suggestions, and/or information 

regarding ingredients below in response to EPA’s request should in no way be regarded as any concession 

on our part regarding our basic legal position. For another example, we explain both above and below why 

we believe “legitimacy criteria” have no place in this rule for non-hazardous materials as applied to an 

industrial furnace producing a product, such as a portland cement kiln. The fact that we offer certain 

comments, suggestions, and/or information in response to EPA’s request for comments on legitimacy 

criteria below should in no way be regarded as any concession on our part regarding our basic position that 

no legitimacy criteria should be included.

A. Additional Information on non-hazardous secondary material (“NHSM”), 

Federal Register page 31850. 

EPA defined a list of NHSMs known to be in use in the preamble, and asked for 

additional information to describe beneficially used materials. 

In addition to information provided throughout our comments, PCA offers the following 

information with respect to TDF:

• Used tires have been utilized historically as fuels and have been managed as a valuable 

resource; particularly tires that are collected directly from retailers or other tire changing 

facilities or through state or local tire collection programs with respect to handling from the 

point of generation.

• The EPA should allow the same consideration for tires that is allowed for biomass, wood from 

forest fires, and crop residuals – that is if the materials are properly managed and have a 

meaningful heat value then they are traditional fuels and are not considered solid waste.
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• The EPA points out that zinc may be present at higher concentrations in TDF than in coal, but 

does not provide supporting data in the preamble. Data available from the USGS database 

indicates that the average bituminous coal concentration for zinc is 73 ppm. Note that this coal 

data includes concentrations of zinc as high as 51,000 ppm.29 Zinc in tires is typically around 

2% (20,000 ppm). Thus, zinc concentrations in TDF could be similar to coal. However, what 

is important is the potential for air emissions if used tired are burned. EPA conducted a study 

in which tires were burned in a test incinerator without the aid of any emission control 

devices.

30 The study concluded that, with the exception of zinc, there were no significant 

increases in air emissions when tires were substituted for coal. Zinc is not defined as a 

hazardous air pollutant (HAP) which is a criterion to be considered a “contaminant” under this 

proposed rule. However, the EPA stated that the zinc emissions would have been effectively 

eliminated if an appropriate control technology had been used, which would be the case for 

any cement plant burning used tires. EPA should focus more on the fact that tires have lower 

concentrations of other metals with greater toxicity, such as mercury. Furthermore, there is 

significant environmental benefit from burning used tires in place of coal due to the typical 

reduction found for numerous other emissions, such as greenhouse gases, particulate matter, 

NOx, SO2 and dioxin/furans.

B. Information on Additional Traditional Fuels, Federal Register page 31856.

EPA requests comment on whether other fuels in use today should be classified as 

traditional fuels, and for supporting information. 

PCA believes that the traditional fuels category should be broadened, as described 

throughout our comments. In the ANPRM, EPA acknowledged that “...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.” 75 Fed. Reg. 31853 (emphasis added).

In this proposal, EPA “...recognizes that traditional fuels are not solid wastes when burned in 

a combustion unit.” In the following sentence, EPA states that “... [t]raditional fuels are those fuels 

that have been historically managed as valuable fuel products rather than being managed as waste 

materials.” 75 Fed. Reg. 31856.

Yet, EPA limits the definition of “traditional fuels” to a very narrow universe of materials, 

namely “...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 

 29 USGS Nat'l Coal Resources, US Coal Quality Database, available at: http://energy.er.usgs.gov/coalqual.htm. Included 

as Attachment CC.

30 Referenced from the TNRCC “Air Emissions Associated with the Burning of Tire-Derived Fuel”, Waste Tire 

Recycling Program, March 2001. Included as Attachment DD.
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cellulosic biomass materials are also traditional fuels rather than wastes when burned as a fuel.” 75

Fed. Reg. 31856.

By their very nature, some of these “traditional fuels” are secondary materials (used oil, 

petroleum coke), yet they are defined as traditional fuels in this proposal. There are many other 

materials that might be considered as secondary materials, but because of their energy content, have 

been identified as viable fuels for industries such as cement manufacturing, particularly as the cost of 

fossil fuels have increased over time. These “changes in... the energy market”, as well as systems 

designed and installed by cement plants in order to manage these materials (“changes in 

technology”), would suggest that materials such as plastics, paper and paper residues, and tires 

should qualify under this definition of “traditional fuels.”

There are other fuels used by cement kilns such as glycerin, a by-product of biodiesel 

production, that are not specifically mentioned as "traditional fuel." It is generated from agricultural 

seed or fast growing grass, but can also be generated from vegetable grease or oils. There is no way 

to distinguish which source was used as feedstock or for that matter, other potential new sources 

being evaluated today, such as algae, etc. Since the only difference is the source (all biomass), and 

all other aspects are identical, it is not intuitive that some materials should be arbitrarily identified as 

“traditional fuels,” but others as “secondary materials.” It is our contention that all biomass-derived 

materials may be classified as traditional fuels. We also believe that if a material is capable of being 

used for its energy value to replace fossil fuels, then that objective meets the individual company 

goals, our national goals, and international goals for sustainability. We do not believe it is 

appropriate to use our U.S. solid waste regulations to inhibit the vast strides we have made on reuse 

of these non-hazardous materials in the energy intensive cement manufacturing industry.

The cement industry has integrated alternative fuels and raw materials in its fuel 

consumption strategies for more than 20 years. The following table illustrates the use of alternative 

fuels in the cement industry in the last decade. As this table illustrates, very large quantities of 

alternative fuels are being used. The major growth category is “other alternative fuels.” This 

includes a wide variety of alternative fuels including wood wastes (sawdust, planer shavings), 

paper/cardboard, spent pot liners, off-spec products/packaging, plastics, biomass, biodiesel wastes, 

glycerin, vegetable oils, etc. 

The decline in utilization of alternative fuels in the past 2 years is primarily due to the 

construction and cement consumption downturn the industry has experienced, although even in the 

midst of this downturn, consumption of “other alternative fuels” increased. Cement production has 

been severely impacted by the recession and has resulted in numerous plant closures as well as 

temporary shutdowns. This suggests that the total amount of fuel burned by the industry (of all 

types) has dropped significantly. Thus, alternative fuel consumption of waste oil, solvents, and tire 

derived fuels would also be reduced accordingly.
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Nonetheless, the number of plants that have used alternative fuel strategies has grown as 

illustrated by the second table.31

 31 North American Cement Industry, Annual Yearbook 2009, Portland Cement Association, ER395, Table 44. 

Attachment N.

 This shows the use of alternative fuels by the number of plants 

from 1998 through 2009. Given the percentage of plants using alternative fuels, the importance of 

alternative fuels cannot be understated.
Page 44 of 72

Quantities of Alternative Fuels Burned in Cement Kilns

Alternative 

Fuel Units 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009

Waste Oil gallons 7,519,371 5,327,494 8,312,276 6,709,055 7,075,863 10,739,071 9,386,766 22,635,768 10,675,288 7,168,381 

Other 

Alternative 

Fuel* tons 83,815 225,514 244,077 310,589 842,418 493,761 494,063 645,376 719,478 855,376 

Solvents tons 840,388 824,198 829,166 809,299 813,116 728,338 736,279 691,862 743,888 579,636 

TDF tons 303,330 275,385 326,158 383,221 441,102 450,267 463,794 478,858 475,948 355,918 

* This includes such other alternative fuels such as biomass, plastics, wood wastes of various types, paper, spent pot liners, and off-spec products/packaging, etc.

Alternative Fuels Utilized

1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009

Total Reporting Plants 93 93 95 95 98 97 96 96 98 98 97 90

Plants using Alternative fuel 53 51 54 54 55 56 62 64 65 64 66 63

Percent 57 54.8 56.8 56.8 56.1 57.7 64.6 66.7 67 65.3 68 70

Types of Alternative Fuels Used*

Tire Derived Fuel 35 35 38 38 37 41 44 52 47 41 43 40

Waste Oil 6 8 11 10 10 13 16 17 16 15 18 18

Solvents 14 12 12 10 12 13 12 11 10 10 11 11

Other 19 17 18 24 23 22 28 36 40 39 42 43

* Plants may use more than one type of alternative fuel

 Source: PCA U.S. and Canadian Labor-Energy Input Survey
Page 45 of 72

C. Petition Process for Designating Traditional Fuel, Federal Register page 

31856.

EPA requests comment on whether the rule should include a petition process to 

demonstrate that a non-hazardous fuel qualifies as a traditional fuel. 

We believe that the petition process would be too slow and cumbersome to be effective. In 

addition, adding yet another layer of public participation and notice to the existing regulatory structure is 

unnecessary and burdensome to industry without providing any real benefit, environmental or 

economical, to stakeholders or the general public.

PCA believes this type of process, like the non-waste determination, would be an unpredictable 

and unnecessary process that would not only be more costly to producers and thus consumers but would 

certainly be a disincentive to utilizing NHSM. The process includes an initial decision by the EPA 

which may later be overturned or changed based on public comments. This will not only slow the 

process but also make it unduly political where a scientific approach would be more beneficial to the 

environment and to the public. 

Also, as described elsewhere in PCA’s comments, the concept of “traditional” as used by EPA in 

the proposed rule seems arbitrary and inconsistent. We object to the way it is applied as a key term to 

make a decision that may result in a significant negative influence on the long-term reuse program in our 

industry for the sake of using a previously poorly designed (RCRA) component of the regulations. In 

Europe, what EPA considers “non-traditional” fuels have been used for decades. We are concerned that 

the petition process will be too slow, and that clear decisions that allow sustainability principles to stay 

in place will be difficult to obtain. Along the same lines we are concerned that the process will not be 

dependable to make operating decisions on the timely basis necessary to continue to incorporate these 

types of programs into manufacturing.

D. Definition of Processing, Federal Register pages 31861, 31876, 31878.

EPA has proposed a definition of “processing” for determining if a once 

discarded material can be used without it being considered a solid waste, and 

requests comments on the definition and on adopting an additional definition for 

processing tires where the metal would not be required to be removed... 

PCA objects to the concept of processing in determining whether a material that can be 

used is a solid waste (for purposes of § 129 versus § 112 regulation). Many materials are not 

only similar to “traditional fuels” but also are bona fide fuels without any further processing. We 

feel in fact that even if a fuel is not similar to a “traditional fuel” it should still be considered not 

a solid waste since its management, use and impact on the environment are similar or the same as 

that of a traditional fuel, as has been demonstrated by the cement industry through years of 

program implementation.
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PCA believes the EPA should consider NHSM that is used in a manner no different from 

other non-waste fuel/ingredients in use today to be considered a non-waste fuel/ingredient 

product even though they may have been discarded in the first instance. One other way to look 

at processing, however, is for EPA to recognize that in a cement kiln; the process inherently 

works to “process” the materials in the kiln as opposed to creating extra steps that must be 

implemented preceding the kiln. Hence, the cement kiln eliminates the need for the processing 

step(s). We therefore believe that EPA could and should recognize that processing “in” the 

cement kiln system inherently meets the definition of processing. 

In demonstrating why processing is not a good option for defining waste versus nonwaste, the use of TDF in cement kilns can provide an easy to understand example. This example 

illustrates why there should be no criteria on processing of tires to be used as legitimate nonsolid waste fuels, or there should at least be a subcategory for whole tires and TDF with metal 

for use in cement kilns as legitimate non-solid waste fuels. EPA discusses the processing of tires 

to meet requirements for a specific combustion unit design, and references ASTM Standard 

6700-01 as describing practices for using TDF as fuel, including the size and metal content in 

order to optimize combustion. EPA proposes that to be sufficiently processed, the TDF meet the 

ASTM standard for “relatively wire free” while also acknowledging that cement kilns benefit 

from the wire as an ingredient for producing cement clinker.

• While tires may be processed to size and metal content specifications for certain 

combustion units, it should be recognized that for cement kilns, the specification would 

be whole tires or tire chips without metal being removed. Therefore, in the case of 

cement kilns, whole and chipped tires without the metal removed already meet the 

specifications for use in cement kilns as legitimate non-solid waste fuels.

• Cement kilns can utilize tires with metal more efficiently than units where specifications 

require metal to be removed. In the process of removing the metal, a certain amount of 

rubber agglomerated to the metal does not become part of the TDF. Based on the Rubber 

Manufacturers Association, approximately 20% of the tire weight is lost to metal, fluff 

and agglomerated rubber.

• The need to remove the metal component of the tires to reduce metal content in ash is not 

applicable to the cement industry as the metal is a legitimate secondary material in the 

process of making cement. Metals are captured by being chemically incorporated into 

the product during the chemical reaction that takes place in the kiln. Furthermore, it is 

conceivable (and likely) that if it were necessary to shred tires and remove the metal to 

make a non-solid waste TDF for use in a cement kiln, the removed metal would meet the 

requirement of a sufficiently processed NHSM that would also go to the cement kiln. 

This would result in the same materials being introduced to the kiln system as if whole 

tires or shredded tires with metal were used, and the only thing accomplished would be a 

tremendous waste of energy and money to “process” the tires.

• With regards to removing metals to reduce metals in emissions, EPA should focus more 

on the fact that tires have lower concentrations of certain metals, such as mercury as 
Page 47 of 72

compared to “traditional” fuels. Furthermore, there is significant environmental benefit 

from burning used tires in place of coal due to the typical reduction of numerous other 

emissions, such as greenhouse gases, particulate matter, NOx, SO2 and dioxin/furans.

• Even though EPA only cites the ASTM Standard 6700-01 as an example, it later relies on 

the criteria of “relatively wire free” from the standard to define what is sufficiently 

processed. This wrongly implies that TDF that does not meet the ASTM standard is not 

legitimate fuel and references the ASTM standard out of its narrow context. 

i. The context of the ASTM standard is the practice for processing tires into chipped 

materials with or without metal being removed to meet a specification necessary for 

use in existing solid fuel combustion units with minimal adjustments or retrofitting. 

The ASTM standard excludes whole tires not because whole tires are not a 

legitimate fuel, rather because whole tires do not require processing to be used as a 

fuel in a cement kiln, and as no processing is required, there is no basis for a 

standard practice. Whole tires certainly meet the intent of the ASTM standard – that 

is to be used in an existing combustion unit (i.e., a cement kiln) with minimal 

adjustments or retrofitting.

ii. The proposed solid waste rule preamble states that only TDF meeting the “relatively 

wire free” definition per ASTM (<1% bead wire and <2% total wire) is sufficiently 

processed. This is arbitrary. The ASTM standard states that metal content can range 

from wire free to no wire removed. As stated in the ASTM standard: “TDF 

tolerable wire content is determined by a combustion unit’s design consideration. 

TDF’s wire removal is determined by production process capabilities. Some 

combustion units such as cement kilns can tolerate all inherent wire, so no removal is 

necessary.” 

iii. The ASTM standard discusses the need to remove wire based on various processing 

problems as they generally relate to boilers (e.g., fuel feed systems, grate 

maintenance, ash circulation/handling, and ash disposal). It also discusses issues for 

the amount of ash if wire is left in and the metal content of the ash. Therefore, metal 

that may be removed to meet other combustion unit specifications or because of 

concerns for metals content of the ash is not a concern for a cement plant. An 

example of a combustion device that would need “wire free” fuel would be a boiler 

or a fluidized bed boiler unit for power generation. In those units, the wire builds up 

and the unit would require shut down on regular intervals to clean out the ash and 

accumulated wire. However, in the case of a cement kiln, the wire is used 

beneficially as iron incorporated into the product and does not remain in the 

combustion unit, the cement kiln. Therefore, the wire is not detrimental to the 

process but replaces virgin iron raw materials and inherently becomes part of the 

product.

Most references to chip size in the ASTM standard are with respect to handling and 

conveying as well as residence time and combustion efficiency in boilers. It goes on to say that 

to be economical, the existing unit should have the ability to use TDF without modification, and 

that a supplier must be able to economically collect, process and transport TDF to the 
Page 48 of 72

combustion unit. In the case of cement plants, the existing units can utilize whole tires without 

(or minimal) modification and it is economically feasible for a supplier to collect and transport 

whole tires, as these delivery systems have been in place for many years at many of the plants.

E. Additional Information on Levels of Contaminants, Federal Register page 

31863.

EPA discusses the amount of uncertainty associated with the level of 

contaminants in NHSMs in comparison to traditional fuels, and requests 

commenters to provide additional data on this topic, and specifically on creosote 

treated lumber. 

While PCA does not have specific data on contaminant levels in creosote treated lumber, 

the level of polycyclic aromatic hydrocarbons (“PAH”) in alternate fuel has been shown not be 

an issue when these materials are managed in cement kilns, and therefore we do not believe the 

level of PAH should be an issue in the Solid Waste rules. Destruction efficiencies of the primary 

organic preservative constituents in treated wood have been demonstrated to be in the range of 

99.99%.

32 Creosote is a coal tar oil derived from the distillation of coal tar. Wood timbers are 

typically treated with creosote for its wood preservative characteristics. Coal tar oil is a 

derivative of coal and thus should be considered a traditional fuel. Therefore, creosote treated 

wood is a combination of two traditional fuels – wood and coal tar oil.

Cement kilns, with flame-zone temperatures in excess of 3400o

F and residence times in 

excess of 2 seconds have routinely shown that organic constituents are destroyed at 99.99%+ 

from a wide range of use of fuels that includes both fossil and alternative fuels. If constituents 

from all types of fuels in a kiln have consistently shown to be destroyed, we contend that this 

fact would certainly apply to the range of non-hazardous fuels that EPA is addressing in this 

proposal.

Data is available that shows the variation in the most common “traditional” fuel used, 

coal. The USGS generated data on more than 13,000 samples collected by the USGS and 

cooperative state geological surveys. The USGS database contains coal quality data for 7,430 

coal samples that represent complete-bed thicknesses at various localities throughout the U.S. 

This is the most complete dataset for coal available. 

In order to provide the most complete picture of the variability of the coal, all bituminous 

coal data analyses were used to prepare averages and other statistical data. Since cement plants 

use a number of different sources of bituminous coals (Appalachian, Midwest, and West), the 

use of the entire database was chosen. The following is data for sulfur, Btu, mercury, cadmium 

and lead concentrations of coal from this database:

 32 Recycling Waste Treated Wood As Fuel; An Environmental Responsible Option, Stephen Smith, P.E. April 2005. 

Included as Attachment EE.
Page 49 of 72

Coal Data - National Coal Resources Data System

US Coal Quality Database - All Bituminous Coal Analyses

Sulfur 

%

Heat Value 

Btu/lb

Hg 

ppm

Cd 

ppm

Pb 

ppm

Average 2.18 12,456 0.19 0.49 11.49

Minimum 0.04 5,030 0 0 0.17

Maximum 17.3 15,247 44.0 160 520

Standard Deviation 1.80 1,447 0.85 5.31 23.7

As indicated by the above table, the range of minimum and maximum values for all of 

these important parameters is quite large. The standard deviation also indicates that the 

variability can be quite significant. The above represents what is most likely the worst-case in 

terms of variability, but it does emphasize the fact that even traditional fuels cannot be assumed 

to have a consistent level of sulfur or mercury. While the content may be much more consistent 

from a single source, facilities almost always source traditional fuels from multiple sources.

F. Sewage Sludge Approach, Federal Register page 31866.

EPA requests comments on the proposed approach for sewage sludge with 

respect to redundancy between a solid waste definition and section 405 of the 

CWA.

Sewage sludge that has been treated in thermal drying systems and other processes for the 

purpose of primary fuel replacement in cement and other industries should not be considered a 

solid waste. Utilizing the inherent fuel content of this material for heat recovery and energy 

consumption demonstrates that this material has not been discarded and is a legitimate fuel. 

There are also other industry uses of these biosolids (note that “wet” and “dry” sludge have the 

same general composition and there is no reason to expect varying emission results.)

This is again an issue of a better use of a material. Many States are ending landapplication of sludge due to contaminate build-up. So cement kilns should be the logical 

destination for positive use of a material which would otherwise become an increasingly 

challenging disposal issue.

There are examples where cement kilns are using sewage sludge in the cement 

manufacturing process. For example, Lafarge is currently using sewage sludge as a fuel, on a 

limited basis, in a kiln in Austria. Mitsubishi Cement Corp (MCC) in California has been using 

a wet biosolid material as NOx control, and that material has no significant heating value because 

of the high water content. We are also aware that a limited number of U.S. facilities have 

recently begun testing/using a dried/processed sewage as a supplemental fuel. This sludge is 

dried and pelletized and has a heating value comparable to many alternative fuels. We 
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understand that these trials are still in the stage of testing the logistics, and that the supply may 

be limited.

The following points are provided as additional information: 

• It may be useful to note that approximately 60% of the biosolids produced are land 

applied, composted or used as landfill cover, 22% are used for energy recovery, and the 

remaining 17% are disposed of in landfills. Source: National Biosolids Partnership 

(2002) A guide to understanding biosolids issues. 

http://biosolids.org/docs/Guide_to_Understanding_Biosolids_Issues_052506.pdf

• Although useful as a fertilizer and soil conditioner, sewage sludge, if applied 

inappropriately can be potentially harmful to the environment and the health of humans 

and animals.

• If agricultural land is flooded, frozen or covered with snow, biosolids cannot be applied

due to the chance of runoff.

• An advantage to consuming biosolids for energy recovery is that it is a sustainable fuel 

that helps to move society towards a carbon neutral footprint. Zero ash is generated when 

these materials are beneficially used in a cement kiln, unlike other energy recovery uses 

where an ash is created that must ultimately be disposed. 

G. CCR Ingredient or Fuel Value, Federal Register page 31868.

EPA solicits comment on whether the use of CCRs is primarily used for their 

ingredient value as opposed to their fuel value. 

PCA believes that CCRs are utilized as ingredients instead of fuels, and as such can satisfy the 

legitimacy criteria for ingredients. Air emission controls in place regulate maximum emissions which 

inherently limit the types of materials that are acceptable based on the established regulatory framework. 

We are currently not aware of CCRs that are being used for purposes of fuel rather than ingredients and 

should be handled as such if this distinction is so key to the final regulations. 

H. Coal Combustion Residual Contaminant Changes, Federal Register page 

31869.

EPA discusses coal combustion residuals (CCR) use and requests comment on 

whether advanced emission control technologies are or are expected to result in 

increased levels of contaminants in a manner that CCR will not satisfy EPA’s 

legitimacy criteria.
Page 51 of 72

There is no data and no way for the cement industry to predict the result of new or future 

technology on the character of fly ash because of the use of advanced pollution control technology. It 

should be noted though that there is no current information available that has proven that advanced 

emission control technologies directly result in increased contaminant levels. This future scenario also 

helps make the point that alternative materials (fuels and ingredients) have and will continue to change 

in nature. For example, when activated carbon injection (ACI) is incorporated for emission control, the 

impact this process may have is already addressed as part of the future LLL MACT standards. 

Therefore, to implement these types of sustainability programs in manufacturing, the flexibility to work 

with the changes over time is key. The existing regulatory controls are in place to regulate emissions. 

As with other comments PCA is offering, the bottom line is that we do not believe that EPA working to 

find definitions that lock beneficial materials into a “waste” versus no-waste designation to prohibit their 

future reuse is in line with sustainability goals of industry, EPA, or industry.

I. Levels of Contaminants in Fuels, Federal Register page 31872.

EPA requests comment on comparing the level of contaminants in alternative 

fuels to traditional fuels. 

PCA contends that this comparison is not necessary or pertinent with respect to the cement 

industry for purposes of establishing legitimate fuel criteria. Cement kilns are already regulated under 

multiple rules that have been put in place to ensure that facility emissions don’t adversely impact human

health and the environment (See PCA Clean Air Act Permitting Manual, Attachment H) on permitting 

that describes the CAA permitting process). We believe that the current regulations already in place 

governing cement kilns and the range of fuels they use are sufficient to protect human health and the 

environment. Therefore, we recommend that EPA not include any contaminant comparisons of NHSM 

to “traditional fuels” out of this regulation since they already do not escape regulation under Clean Air 

Act and/or state permitting with respect to emissions. Such action by EPA would only serve to duplicate 

current permitting and/or Clean Air Act regulations. 

Further, we do not believe that there is an efficient or practical approach to comparing 187 HAPs 

plus 9 Section 129 constituents between an appropriate alternative material and “traditional” material. 

The variability inherent to any material, whether naturally occurring or man-made complicates a direct 

comparison. Further, the real intent, as noted by EPA several times in the preamble is protection of 

human health and the environment. First, a comparison of constituents does not deal with actual 

environmental impact. As noted by EPA in the LLL proposed standards “the combustion of secondary 

materials as alternative fuels (in cement kilns) did not have any appreciable effect on the amount of 

HAP emitted by any source.”33

 33 74 Fed. Reg. 21138.

 The proposed approach by EPA ignores that in many if not most 

instances, cement has contributions of contaminants from raw materials as well as fuels. Further, the 

contributions from raw materials outweigh that of fuels. As a result, the fuel contaminant level in some 

cases can be high but not high enough to significantly change the total input rate – to materially affect 

the emission rate. 
Page 52 of 72

A number of facilities in our industry have performed studies over the last two decades showing 

the same results with respect to the lack of negative environmental impact. The segment of the industry 

which uses hazardous materials as alternative fuel has conducted multi-pathway risk assessments as part 

of the RCRA permitting process to demonstrate that emissions from operations do not pose unacceptable 

risk to human health and the environment. The studies address operations from cement manufacturing 

while using a wide range of alternative fuel and raw materials (including non-hazardous and hazardous 

waste), thus can be viewed as representative of the industry alternate fuel and raw material use as a 

whole. As the agency approved permits for each facility that conducted the assessments, this action 

demonstrates that the operations reflected protection of human health and the environment. Therefore, 

we believe that adding a Solid Waste driven regulation that adds complexity to the rules already in place 

for protection of emissions is unnecessary and not pertinent when applied to the cement manufacturing 

process.

J. Record Maintenance and Notification, Federal Register page 31874.

EPA requested comments on the need for record maintenance and notification for 

self-implementing rule components. 

PCA agrees with the EPA determination that any additional regulatory notification and 

record keeping imposed under this proposal would be duplicative and therefore an unnecessary 

burden. As described elsewhere in our comments, the level of regulatory approvals in place for 

the use of alternative materials at cement manufacturing facilities is already significant.

K. Inventory Management, Federal Register page 31874.

In Section D.2, EPA states that third parties receiving materials from generators 

do not have sufficient incentive to manage the materials as useful products (page

31875). EPA also points to over-accumulation of materials by middlemen who 

may also lack incentive. 

With materials which are sent directly from a generator to a cement kiln, there is 

sufficient incentive to distinguish the facility from the scenarios cited. The value of the material 

to the user is the same as that for the generator.

The user has absolutely no reason to maintain the material in inventory. In fact, the 

longer it sits in storage, the more its value degrades (e.g. weathering can diminish fuel/ingredient 

value) and the more virgin material must be used. PCA therefore believes EPA should allow 

direct use of non-hazardous alternative materials to be treated the same as material under the 

control of the generator, as we believe the regulations as written add a cumbersome and 

unnecessary regulatory approach. In addition, we believe that the automatic designation of a 

material as a solid waste if it is out of the control of the original generator is not a legitimate 

argument since there is potentially no difference between materials whether the original 

generator has control over this material or not. In the preamble to this proposed rule, in fact, EPA 

quotes from a recent D.C. Circuit opinion stating that a secondary material “transferred to 
Page 53 of 72

another firm or industry for subsequent recycling” is not automatically a solid waste. See 75 

Fed. Reg. 31851.

As we have pointed out many times throughout these comments, assumptions EPA 

makes regarding hazardous material handling and management simply cannot be logically 

carried over to non-hazardous materials. This is one more example. 

L. Discard Definition for Newly Generated Tires, Federal Register pages 31874.

EPA requests comments on the definition of discard with respect to tires in a state 

collection program. 

PCA rejects EPA’s application of “discard” to newly generated scrap tires. Comments on 

several state tire regulations are included as examples. California law (PRC Section 42870-

42871) prohibits landfills from disposal of whole tires and prohibits dumping tires or storing 

them in non-permitted locations. In fact, California Public Resources Code (PRC) Section 

42861(d) notes, “Used tires represent a valuable state resource which should be reclaimed and 

recycled whenever possible.” The used tires must be transported by a State-licensed hauler and 

all shipments are manifested on a “Comprehensive Trip Log” (PRC Section 42951-42956).

Landfills also set tires aside for transport to facilities with further use for these tires. Landfills in 

California may accept chipped tires or chip tires on-site, but very few landfills do that (Azuza 

landfill is the only one in Southern California). 

In addition, tires that are abandoned illegally must be transported to a proper usage 

facility, thus they are not discarded, and rather they are “temporarily misplaced”. Therefore, by 

law, tires are not discarded, but are moved through a process to a further use. This procedure is 

exclusive to tires; no other materials are included with these documents. It is clear that 

California regards used tires as a separate commodity. Similarly, Florida’s Waste Tire Rule 

states that “Collection or storage of waste tires a permitted waste tire processing facility or waste 

tire collection center prior to processing or use does not constitute disposal, provided that the 

collection and storage complies with Rule 62-711.540, F.A.C.”

The state of Texas also has stringent waste tire tracking systems. Texas State 

Regulations (Texas Administrative Code (TAC) Title 30 Chapter 328F) concerning the 

management of used or scrap tires (tires that are not are not identified as industrial solid waste) 

also have stringent waste tire transportation, manifest and storage requirements. Scrap tire 

storage sites, facilities and transporters must register with the Texas Commission on 

Environmental Quality (30 TAC 328.55) before any collection, storage, transportation or 

processing of used or scrap tires may take place. Transportation of used and scrap tire is under a 

manifest and detailed records retention system (30 TAC 328.57-58). Whole tires are prohibited 

from being placed below ground (30 TAC 328F.66(e)).

Arkansas state regulation set forth by the Arkansas Pollution Control and Ecology 

Commission prohibits the landfilling of whole tires. Whole tires that are not split are not 
Page 54 of 72

allowed disposal in a landfill (Reg 14.704, 14.708 and 14.1301). It is illegal to dispose of whole 

or portions of used or waste tires at any facility that is not authorized to accept waste tires (Reg 

14.703). Alternate use of used tires is encouraged by the prohibition of any new monofills for 

used tires, unless it is demonstrated that there is no feasible recycling alternative (Reg 14.705).

Waste tire transporters must be also be licensed as a waste tire transporter by the 

Arkansas Department of Environmental Quality (ADEQ) (Reg 14.1103). Each waste tire 

collection, transportation activity and delivery activity is required to be recorded (Reg 14.1111). 

For Arkansas facilities with capacity for waste tires over a certain level, permitting for waste tire 

storage, collection or processing activities is required by ADEQ (Reg 14.901 and 14.1201). 

Recordkeeping and regular reporting on waste tire activities is required.

In much the same manner, Kansas has established a system of permit for waste tire 

processors, processing facilities, transporters and collection centers (KSA 65-3424b). Kansas 

Administrative Regulations KAR 28-29 establish many specific requirements for management, 

design, pest control, storage and recordkeeping for these various entities. Kansas regulations 

require processing (i.e. use of a volume-reducing technique of shredding or cutting) of tires 

before they can be placed into landfills (KAR 28-29-29).

Oregon law establishes a permitting system for waste tire carriers and storage sites, and 

also imposes a landfill ban on disposal of whole tires. Oregon Revised Statute (ORS 459.247) 

describes landfill bans. Statutes and Rules describing Oregon's waste tire program include: ORS 

459.705 Waste Tire Storage and Disposal; Oregon Administrative Rules (OAR) 340 Chapter 64 

Waste Tire Program.

Although only a small sampling of states rules are discussed here, many states have rules 

and procedures in place for the handling, transportation, storage and usage of tires. As can be 

seen on Attachment I,

34 several states have regulations prohibiting the placement of tires in 

landfills. Landfilling is not usually an attractive options because as the landfill reaches capacity, 

the permitting of new landfills faces both public and political resistance. States are also 

recognizing the use of TDF as effective NOx control technology. As an example, Tennessee has 

incorporated using TDF for NOx control into their NOx State Implementation Plan and the Texas 

Commission of Environmental Quality has defined mid-kiln firing as a mechanism for 

decreasing nitrogen oxides emissions (§117.3101(7)).

A 2007 Pennsylvania report35

 34 Scrap Tire Laws and Regulations. Scrap Tire News Legislative Report data as it appeared in 2010 Scrap Tire and 

Rubber Users Directory. Included as Attachment I.

(Attachment J) describes the negative impacts of and 

problems with mismanaged used tires and provides an overview of the market for products 

created from used tires which exist in each state. It is recognized that when an item can no 

longer be used as a tire, the item still has value. The tire commodity can be recycled or reused 

with the purpose of conserving virgin materials and energy and to reduce waste. The report 

35 Waste Tire Recycling and Reuse in Pennsylvania: An Analysis of the Industry, Markets, and State Use, Including 

Rubber Modified Asphalt, October 2007. Joint State Government Commission. Included as Attachment J. 
Page 55 of 72

recommends that state policy and regulations further encourage and expand the recycling and use 

of tires. In fact, the report specifically recommends (recommendation #18.) for Pennsylvania to 

explicitly regulate tires as a commodity and not as a waste. 

Historically state tire programs have come into existence because for a number of 

decades used tires destined for “discard” were taken to a landfill and “discarded or “thrown 

away”, and there were also certain individuals that mismanaged these materials prior to 

“discard”, and they were not taking tires to the designated “discard” location. In addition, tires 

have been and are used for erosion control, so just saying that a tire on the ground or in a ditch is 

“discarded” is not a correct assumption.

M. Metal in Tires-processing Definition, Federal Register page 31877-78.

EPA discusses an option for an additional definition for processing tires where 

metals belts and wire would not need to be removed (where it serves a useful 

purpose). 

As an overall comment PCA rejects EPA’s definition and approach to the term, 

“processing” as described above. However, if EPA does include the definition, we believe that 

language such as stated in this comment request that recognizes units such as cement kilns where 

materials serve a useful purpose without other processing is productive and will help implement 

an otherwise quite troublesome rule.

The definition of processing should also include, for flexibility, the idea that sorting of 

the tires or other materials for size and quality is legitimate processing. For example, tires are 

collected in one central location where they are sorted and usable tires are resold, retreadable 

tires are sent for retreading and resale, selected tires are evaluated for use in crumb rubber, some 

are set aside for use as whole tire fuel and others are sized for use as fuel in cement kilns with the 

remainder shredded or chipped for fuel or landfill.

Regarding whole scrap tires used as alternative fuel, the cement industry’s interpretation 

of “processing” entails a broad definition not relegated to a prescribed approach that only 

recognizes physical practices such as shredding or chipping. While our industry acknowledges 

that a handful of cement plants utilize chipped or shredded tire scraps as a fuel, the 

overwhelming majority use whole tires. Regarding “processing,” the industry believes that this 

term encompasses sorting, segregation, cleaning, culling, racking, transportation, or other 

systematic procedures directed toward an established way of making scrap tires (in whole form) 

ready for use as TDF in a cement kiln. We view such “non-mechanical processing” as an 

effective reclamation protocol, so long as the outcome results in sufficient examination and 

sorting of the whole scrap tires as a cement kiln fuel. 

On page 6, Section 4 of our comments to the docket (EPA-HQ-RCRA-2008-0329-

0352.1) in response to the January 2, 2009 ANPRM, we stated that “while we agree that 

legitimate fuel products that have been extracted, processed, or reclaimed from previously 
Page 56 of 72

discarded non-hazardous secondary materials would not generally be considered solid waste,” it 

is also our view that “it should not be imperative that such fuel products undergo prescribed 

processing prior to utilization as legitimate fuels.” 

As discussed above used tires undergo various processing steps to meet certain 

specifications that are necessary for a particular end use. In cement manufacturing, both 

shredded and whole tires can be fed to the kiln as fuel sources based on the kiln type and its 

design. The iron in the wire (approximately 98.5% iron content) is a necessary ingredient for 

manufacturing cement. The steel used by the tire industry is AISI 1070 and above tire cord 

quality wire rod to manufacture new tires.36 In addition to the iron, the following is the content 

of the steel in tires:

Steel Belts Bead Wire

Carbon 0.67 - 0.73% 0.60% min.

Manganese 0.40 - 0.70% 0.40 - 0.70%

Silicon 0.15 - 0.03% 0.15 - 0.30%

Phosphorus 0.03% max. 0.04% max.

Sulfur 0.03% max. 0.04% max.

Copper Trace Trace

Chromium Trace Trace

Nickel Trace Trace

Therefore, removal of the wire from the tire and then adding it back to the process is not 

warranted. In addition, the TDF processing required in the ASTM standard referenced above is 

mainly for the use of TDF in boilers and is not applicable for cement manufacturing. Therefore, 

we are requesting that for cement manufacturing sorting and/or sizing be considered the required 

TDF processing. Ultimately the form the TDF enters the kiln should be dictated by the kiln 

system. Processing should simply be considered as making the material amenable to meet the 

quality objectives of the manufacturing process. Anything more is an unnecessary waste of 

energy and resources.

N. Processing - Determination Versus Self Implementing Approach, Federal 

Register page 31878-31879.

EPA further requests comment with respect to processing regarding the selfimplementing approach versus a determination approach, and whether a general 

rulemaking provision should be available for EPA to evaluate various processing 

activities generally versus on a site-by-site basis. 

 36 Rubber Manufacturers Association, Scrap Tire Management Counsel: Scrap Tire Characteristics. 

Included as Attachment FF, and available at http://www.energyjustice.net/tires/files/scrapchn.html.
Page 57 of 72

We oppose the agency’s definition and application of the term “processed” to the use of 

non-hazardous secondary fuels. PCA understands this rule applies to multiple types of 

combustion devices but the fact is a cement kiln operator will always endeavor to sufficiently 

and efficiently process any NHSM or traditional fuel before using it, and the actual processing 

happens in the kiln. In the case of some fuels that is an easy task and some not so easy. The 

amount of processing may limit how much of a fuel can be used but producing a quality cement 

product is the driving force in a cement production facility. The following points address and 

illustrate comments and concerns in this area:

• Many NHSMs are already sufficiently processed as they are generated. A good example 

is whole tires. A whole tire that is complete, the correct size and containing little water 

inside the tires is a good fuel and relatively the same as shredded tires. Tires do not need 

to have the steel wire removed since iron is a raw material used in the cement making 

process. The same is true for wood, paper and plastics in that they need little or no 

processing to become a good fuel. Many NHSMs are either already shredded or they are

sized in the process as they are generated, and they are already sufficiently small to be 

used for good combustion. Some other examples are packaging materials from receiving 

facilities, manufacturing and consumer product warehouses. These wastes are typically 

shredded and as bulk materials, they are good fuels. In addition, there are carmanufacturing by-products like trunk liner trimmings, bumper trim remnants and 

packaging materials that are shredded and ready for use as fuels. Finally, off 

specification product or trim wastes from manufacturing products like diapers, paper 

towels, and other paper products are currently collected and shredded. All of the 

previously mentioned materials could be pelletized but the extra energy expended 

consumes power and creates additional emissions with no benefit. In the case of NHSMs

that contain moisture, the least efficient approach for combustion of those materials is to 

dry them in a separate drying system before sending them to a facility for combustion. A 

separate drying system will have innate inefficiencies and will create additional 

emissions from combustion to produce drying air. This will require separate 

transportation, storage, material handling and combustion which will certainly increase 

multiple pollutant and greenhouse gas emissions. The most efficient approach for 

combustion of those materials is to use the combustion process (cement kiln) to dry them 

in a system that is designed and operated to run as efficiently as possible. This approach 

eliminates the need for separate transportation, storage, material handling and combustion 

which will ensure lower overall emissions and energy consumption.

• The term “sufficient processing” may on its face sound logical and appropriate but when 

it comes to defining the term and offering an analogy the EPA uses the example of whole 

tires as NHSM not sufficiently processed. This provides confusion since whole tires have 

been successfully and efficiently used in the cement industry for decades without 

negative impact on human health or the environment, thus the industry considers tires a 

“traditional” fuel. The effort and resources expended in obtaining TDF from the 

generators and transferring them to the cement kilns requires investment and, therefore, 

imparts sufficient value to the TDF product to make it a legitimate "fuel product". 

•
Page 58 of 72

• In the preamble EPA discusses other NHSMs and what constitutes "sufficient 

processing". In particular, a discussion of scrap metal describes that “baling” or “sorting”

of scrap metal constitutes sufficient processing. This directly contradicts EPA’s 

definition of sufficient processing of fuels in this proposed rule. 

It is inappropriate for EPA to single out tires or other fuels and require a 

prescribed amount of processing when they may not require further processing to be 

efficiently used as fuels. In fact, more whole tires are used in the cement industry than 

shredded tires because certain kiln technologies are more amenable to whole tires while some 

can better utilize shredded tires. In the case of facilities that can use whole tires, further 

processing is energy intensive with little if any added benefit to the process or environment. 

Construction and pallet wood are two other specific examples of materials that could be 

considered processed if removed, shredded and metal removed, much like TDF processing.

O. Non-waste Determination, Federal Register page 31880.

With respect to the non-waste determination process, EPA solicits 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.

Regarding a petition process for a non-waste determination, PCA does not support making this a 

mandatory prerequisite for a source to use a NHSM material as a fuel or ingredient. Under the current 

regulations, sources always have the ability to seek regulatory guidance or a formal interpretation by a 

regulator of a rule as applied to specific facts. EPA should make clear in the rulemaking, however, that 

such determinations must be obtained from the applicable permitting authority, which in almost all cases 

will be the State. It is important to permitted sources that EPA require states to provide in their Title V 

programs knowledgeable CAA staff to implement this rule, and not require sources to separately seek a 

determination or assistance from RCRA staff regarding their CAA permits. Therefore, we believe that 

approval for use of alternative materials is implementable at the state level, based on the existing 

regulatory pathways as emphasized above. We support allowing states to grant petitions under existing 

beneficial use programs and encourage EPA to allow the existing regulatory structure in stay in place.

We also think it is important to point out that we believe the process designed by EPA in the 

proposed rule will be cumbersome and difficult to implement. We are concerned about EPA and/or the 

states’ ability to make timely and reasonable decisions under the proposed rule. Our industry has past 

experience with waste management driven air standards and trying to rectify issues such as the purpose 

of burning, discard, constituent levels, Btu, etc. We have found the process to have so many decisions 

that represent gray areas that many times the agency response is no decision at all. Other times the 

decision making process is a difficult and lengthy one. Either scenario results in a lost opportunity for 

the facility to secure an alternative material. Although permitting alternate fuels and raw materials has 

not necessarily been an easy or timely process in the past, we are concerned that the newly envisioned 

process will stifle industry’s sustainability initiatives that we have been working toward for decades. 
Page 59 of 72

\

We also believe the process will require the petitioner to demonstrate that the material is nonwaste is unduly repetitive. It must be demonstrated that the material has not been discarded and meets 

legitimacy criteria. If the petitioner makes the first demonstration that the material has not been 

discarded, than by definition the material is not a solid waste. Similarly, if the petitioner can make the 

second demonstration (legitimacy) on a previously discarded material, then it should be acceptable 

since, when used, it is no different than a material that had not been previously discarded.

The requirement of the fifth criterion for a non-waste determination, as described in the 

preamble, allows a petitioner to provide case-specific information. This may be misinterpreted that a 

person does not have the right to present such information with the first four criterion. We assume it is 

not EPA’s intent to be compelled to ignore such information if submitted with the first four criterion. 

We think it is important to include language to clarify that information the applicant believes 

“appropriate to demonstrate that the material as used in the combustion unit is not a solid waste” is 

necessary. Without such language, agencies may misunderstand the intent and use this to demand 

information not directly related to the petition.

In the cement industry, many of the plants have already worked through the process to gain 

acceptance of alternate fuels and/or raw materials through detailed technical work, working with the 

regulatory agencies, and with the public. To use an even more arduous process now for materials that 

are by definition non-hazardous flies in the face of common sense. 

P. Storage Timeframes, Federal Register page 31880-31881.

EPA requested comment on defining a specific timeframe or range of timeframes, 

and on a typical management for fossil fuels. 

PCA believes that a defined storage timeframe should not be among the criteria used for 

determining if a non-hazardous secondary material (NHSM) is a valuable commodity. PCA strongly 

recommends that EPA not define a specific timeframe or range of timeframes as part of this criterion but 

rather leave it to the facilities to choose an appropriate timeframe for the NHSM based on how 

frequently the material is used and the amount of reasonable storage space that is available.

To run a consistent program that allows for the process changes, a cement plant needs to be 

allowed to have continuous and unrestricted storage of NHSM. Materials to be used in the process have 

been managed throughout the history of cement manufacturing. The main operating driver in the 

industry is to maintain strict chemistry requirements necessary to produce quality products. Due to 

natural variability in naturally occurring substances, such as the raw materials supplied from the quarries 

where the cement facilities are located, storage of alternate materials is necessary to balance production 

requirements. There may be times when an alternate material is used more and times when an alternate 

material is used less, depending predominantly on the cement quality criteria. 

Both the use of fuels and materials in a cement facility can vary depending on the availability of 

the raw materials and the type of cement product being manufactured. When alternate fuels or materials 

become available a cement facility has the ability to store these materials in the event they are not 

regularly available, which is the standard practice for fuels and raw materials in manufacturing cement. 
Page 60 of 72

A cement facility ideally runs continuously and with a steady feed of materials. To operate in this 

fashion, large quantities of raw materials, fuels, and NHSM are necessary and need to be stockpiled. 

As another factor, the storage period of NHSM may be related to the amount and timing of 

generation of the specific NHSM. If a NHSM is generated continuously, then use and storage is 

predictable and can be kept consistent. However, some NHSMs are generated after long periods of 

accumulation and may be removed only once or twice per year. For example, foundry sands can 

typically be received year round. However, in some instances if the material becomes wet, it can form 

lumps since some foundry sands include clays to help bind the sand grains together in the manufacturing 

process. In colder portions of the U.S., these lumps can then freeze and may plug storage bins or 

otherwise cause problems within conveyance systems. Thus, for some locations, these materials (both 

virgin and alternate materials) must either accumulate only when it is dry or not be received during the 

winter. Similarly, alumina-bearing raw materials are often clay-like and can absorb water easily. These 

may also freeze in winter and need to be stored under cover.

When a NHSM is generated once or twice per year, it will require a longer storage period at the 

user’s site as they receive a large shipment at one time but use it on a consistent basis over a long period. 

In the case of most agricultural byproducts, they may be generated in total once or twice per year. The 

same may apply for manufacturing by-products such as process catalysts or other process reaction 

agents that are removed annually or semi-annually. Typically, coal, the most widely used traditional 

fuel, is not trickled in on a daily basis but large shipments are received on a semi-monthly or monthly 

basis. 

In summary, we do not believe that over accumulation of non-hazardous secondary materials

should be of concern; good business sense does not allow excessive accumulating to avoid tying up 

capital and cash. Alternate materials in the cement industry are managed as a useful commodity, the 

same as the naturally occurring ingredients and fuels. There are existing regulations for fugitive air 

emissions and stormwater pollution prevention that provide adequate oversight of management 

practices, ensuring that they are protective of human health and the environment (as described below).

Q. Definition of “Contained”, Federal Register page 31881.

EPA requested comment on whether the definition of “contained” as applied to 

non-hazardous secondary materials is appropriate. EPA goes on to address other 

approaches including potentially imposing specific containment standards.

PCA believes imposing specific standards could lead to unnecessarily stringent containment 

standards especially considering the non-hazardous status of the materials. The cement industry 

already is regulated under current air (primarily Title V permits that incorporate emission 

standards for storage piles and material handling) and stormwater regulations (40 CFR 122.26 

and analogous state requirements) that address the issue of containment. Cement facilities are 

required to comply with air permitting regulations that apply not only to the main stack, but also 

to the following areas:
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• quarrying

• raw material, and intermediate and final products (clinker, portland cement) processing

• fuel processing

• storage of raw materials and fuels (including alternatives), intermediate and final 

products (clinker, portland cement)

• transportation/conveyance of raw materials and fuels (including alternatives), and 

intermediate and final products (clinker, portland cement)

All of the above air permitting and compliance requirements are contained within each 

facilities’ Title V permit. This permit describes all of the numerous applicable regulations, 

including applicable MACT regulations (Part 63 Subpart LLL) and NSPS regulations (Part 60 

Subpart OOO, Subpart Y). In addition, many other requirements are incorporated that are

mandated per each state’s SIP. In short, the Title V permitting process is very detailed and 

incorporates emission limitations on each process and storage unit and each material transfer 

point.

Also, each facility must meet other non-air regulatory requirements. USEPA’s 

stormwater permitting regulations are applicable to cement manufacturing facilities. All but four 

of the states are authorized to issue national pollutant discharge elimination system (NPDES)

permits for stormwater discharges from industrial activities. These permits are generally based 

on the federal Multi-Sector General Permit (MSGP) and as such, contain many of the MSGP’s 

components as they are applicable to the cement industry. EPA recently issued a new MSGP in 

2008, but most of the state authorized permits are based on the previous MSGP issued in 2000. 

That permit requires the prevention of exposure of fine granular solids (cement, fly ash, kiln 

dust, etc.) to storm water where practicable, by storing these materials in enclosed silos/ hoppers, 

buildings or under other covering [Section 6.E.3.2]. The general permit also requires benchmark 

monitoring of Total Suspended Solids (TSS) (Section 6.E.4).

Industrial facilities in the four states that are not authorized to manage their stormwater 

programs are currently operating under the 2008 MSGP which requires stormwater discharges 

from material storage piles at cement manufacturing facilities to be monitored for Total 

Suspended Solids (TSS) and pH (Section 78.E.5).

 

For those facilities that store and utilize oil and/or oil products, the Oil Pollution 

Prevention regulations establish procedures, methods, equipment, and other requirements to 

prevent the discharge of oil from non-transportation-related onshore and offshore facilities into 

or upon the navigable waters of the United States or adjoining shorelines (40 CFR Part 112.1(1)). 

Per these requirements, facilities that manage oil and oil products must prepare a Spill 

Prevention, Countermeasure, and Control (SPCC) Plan to ensure that discharges of oil are 

prevented. The management of oil-bearing AFR is covered by this requirement.

Also, in addition to the Solid Waste/tire state-specific rules described elsewhere in our 

comments, the state Solid Waste rules also often deal with non-hazardous material management. 

The state rules range from acknowledging use in industrial processes as a non-regulated activity 

(i.e. no additional requirements above the CAA and other rules described), to having a beneficial 
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use determination process, to permitting Solid Waste processing actions if processing is 

conducted on site). Most often, the rules acknowledge, as do the RCRA hazardous waste rules, 

that reuse of an otherwise waste material in an industrial process is akin to normal processing 

and thus they do not add yet another layer of regulation to the framework already in place.

This rule does not need to further address containment so that it becomes burdensome. The ability to 

handle the materials in a manner that is protective of human health and the environment must already be 

addressed when bringing any of these materials onsite.

We believe EPA’s current “contained standard” as defined in this proposal, which is a general 

performance standard, provides sufficient direction to the regulated community. In fact, typical industry 

practices are already using this as a general guideline for safe handling and storage of NHSM and 

meeting or exceeding these standards. Further specific definitions or other approaches would not be 

beneficial since the current guidance provides clear and sensible direction. It is unlikely that EPA would 

be able to quickly draft standards addressing all possible NHSMs, both current and future. No 

additional program is needed to regulate containment.

R. Btu Limit, Federal Register page 31882.

EPA requested input on whether a bright line Btu limit should be established. 

PCA objects to establishing any type of Btu/lb threshold and believes it is not necessary for 

materials to be considered a “legitimate” fuel. As explained above, the industry cannot afford to 

jeopardize our product by using alternate materials that negatively affect cement quality, and this applies 

to fuels as well as ingredients. We note that the entire controversy over “sham recycling” relating to 

fuels arose in the hazardous waste context years ago, when EPA justifiably had a concern that 

unscrupulous parties might seek to avoid the expensive Subtitle C cradle-to-grave regime. Those with 

material that could be a hazardous waste had incentives to claim that the hazardous waste they were 

burning was a bona fide fuel (because at that stage in the RCRA Subtitle C development, bona fide fuel 

burning was exempt). This concept has no relevance to the situation in which non-hazardous materials 

are being burned – the incentives to avoid RCRA Subtitle C simply do not exist.

Any heating value is “meaningful.” The ability to use NHSMs with any heating value reduces 

fossil fuel dependency, yielding environmental benefit. Emissions generated by such use are controlled 

through CAA standards. In addition, regardless of the Btu value EPA would select, the number would 

be arbitrary with respect to some future potential fuel. This would stifle continuing advancements in 

combustion design and operations that presently fulfill the RCRA goals of pollution source reduction, 

energy recovery and the most environmentally beneficial disposal methods possible for any byproduct 

material that is still generated. EPA should not only avoid impeding the use of even lower heating value 

fuels that provide useful heat energy and displace fossil fuels, but they should implement standards and 

guidelines that encourage their continued and increased use.

Specifically for the cement industry, it has been shown many times over history that it is possible 

to effectively recover the energy of low heat value materials in a cement kiln. Historically, the RCRA 

hazardous waste rules did not address Btu, but an EPA guidance document (Sham Recycling Policy –
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March 16, 1983) documented the 5,000 Btu criteria as a guideline, especially for less efficient boilers. 

The policy was published as enforcement guidance that set forth general criteria for energy value, and it 

directed enforcement personnel to high priority misuse scenarios (e.g. non-industrial boilers burning 

low-Btu waste). As the bright line did not take into account industry specific technical abilities, the 

cement industry worked for years to demonstrate the abilities of the process to utilize fuel value at 

varying and lower Btu values. As an example, many of the facilities that use hazardous waste fuel have 

successfully demonstrated through permitting and/or technical documentation the ability for their device 

to utilize lower Btu materials for their fuel value. To date, none of the guidance documents have ever 

resolved the original misconstrued bright line Btu issue at a national level for hazardous waste fuel. 

However, the process of making a determination on a site-specific and manufacturing type specific basis 

is working and should be left in place due to the range of units being addressed under this rule versus 

establishing a bright line.

One additional point that the PCA thinks it is important to note is with respect to alternate raw 

materials or ingredients. In the event that ingredients are not excluded from the final rule, we believe it 

is important to recognize that some ingredients do contain minor Btu content. As long as the primary 

intent for the secondary material is as an ingredient, then the material should be considered an ingredient 

versus being considered a fuel for the purposes of this rule.

S. Scope of Contaminants, Federal Register page 31883.

EPA requests comment on the proposed approach for establishing the 

contaminants to be compared, or whether the list should be narrower or broader. 

In addition to disagreeing with the criteria for contaminant comparison, PCA disagrees with 

broadening the scope of contaminants discussed by EPA. Using the definition of “contaminants” as 

“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” is excessive and unnecessary. Based on 

stack testing data and risk assessments performed in the cement industry previously described, it is 

accepted that organics in fuels do not survive intact to exit a cement kiln or cause harm to human health 

and the environment. In addition, stack testing comparing different fuels (tires, waste derived fuel, coal, 

coke, etc.) on a single kiln system under normal operating conditions supports that same conclusion. 

Based on the same data, hydrocarbon emissions in a cement kiln stack are from traces of naturally 

occurring organic materials (roots, limestone, clay, etc.) and evolve from the incoming raw materials in 

a non-combustion atmosphere. This fact has been recognized previously by EPA, and the organic 

emissions, regardless of their source, are being regulated under the soon to be finalized LLL NESHAP 

standards.

Extensive testing has also been conducted on kilns that burn hazardous waste fuel with respect to 

organic emissions. This testing has shown that nearly all of the organic content in the fuels does not 

survive in the kiln. These kilns have been required to conduct destruction and removal efficiency (DRE) 

testing for nearly 20 years. These tests involve the injection of difficult to destroy Principal Organic 

Hazardous Constituents (POHCs) and stack testing to determine how much of these POHCs are then 
Page 64 of 72

emitted. These POHCs are selected based upon how difficult they are to destroy. Because of the 

stringency of the hazardous waste burning requirements, compounds that rank near the top of the 

incinerability rankings are chosen to prove the efficacy of the kiln’s DRE capabilities. Thus, if a kiln 

can demonstrate destruction of the most difficult to destroy compound, then any other organic 

compound must also be likewise destroyed. Many of these tests were conducted under worst case 

conditions for kiln combustion to further indicate they can perform under the whole operational range.

Kilns first had to demonstrate compliance with a RCRA standard for DRE of 99.99%. That is, at 

least 99.99% of organic hazardous constituents must be destroyed when used as a fuel. Once MACT 

standards were promulgated for hazardous waste burning kilns, the same DRE standard was used as 

non-dioxin/furan organic hazardous air pollutants are controlled by the DRE standard. In promulgating 

the HWC MACT standard, EPA noted that kilns always destroy organic compounds. EPA’s DRE data 

base of operating [hazardous waste-burning] cement kilns includes results from approximately 25 DRE 

tests and nearly 200 runs. All data show compliance with the DRE standard.37 In fact, many tests 

showed destruction efficiencies one or two orders of magnitude higher than the standard. Based on the 

consistent results showing the high level of destruction is inherent in a cement kiln, EPA diminished the 

frequency requirement for DRE testing. 

Applying the type of comparison proposed by EPA for the original list of contaminants or an 

expanded list would empower EPA to require expensive and lengthy material and/or stack sampling for 

any and all additional NHSM considered for use. This arduous process would likely eliminate many 

materials based on the cost hurdle and how long it would take to schedule, conduct and evaluate this 

type of analysis. Further, as noted above, the air emissions for cement kilns, including use of alternate 

fuels and raw materials is regulated in accordance with existing Clean Air Act regulations. Therefore, 

an additional level of scrutiny is not a wise use of resources.

As described elsewhere in these comments, since metals are chemically incorporated into the 

cement and resulting concrete, EPA should not place restrictions on the product quality. In a study 

conducted by NSF International (see Attachment BB & supra note 25) it was determined that when 

cement manufactured from the combustion of hazardous waste fuels is used to construct pipes and 

infrastructures for water treatment purposes there is no impact on concrete quality or threat to public 

health or the environment. It is also discussed in the “Definition of Processing” section of our 

comments how metals (such as those contained in tires) are vital ingredients for the manufacture of 

cement and must be added in order to produce a quality product.

As noted above, (hazardous waste burning) kilns have been required to perform multipathway 

human health risk assessments (HRAs). Each HRA included evaluation of a number of organic 

compounds and metals that were required to be emission tested at each facility. All of the HRAs 

demonstrated that there was no unacceptable health risks associated with the facility emissions as 

documented by the facilities receiving final permits

 37 70 Fed. Reg. 59500.
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T. Bright-line Level of Contaminants, Federal Register page 31883.

In response to EPA’s request for comment on establishing bright-line levels of 

contaminants, PCA disagrees with any action toward establishing bright-line 

levels or any other levels aimed at any of the various traditional fuels that are 

burned; doing so would provide no benefit to the regulated community or human 

health and the environment. 

The concept of comparative contaminant concentration is inappropriate as applied to nonhazardous byproduct materials used as fuel for energy recovery or for materials used for ingredient 

value. The same standard that applies to traditional fuels should apply to any new (non-traditional) fuels 

regardless of the extent to which they are familiar or widely used. The fact that certain fuels have been 

traditionally used does not make the levels of contaminants in them an appropriate standard. Similarly, 

the fact that certain fuels have not been traditionally used should not exclude them from being used, 

even if some of their levels of contaminants are higher than traditional fuels. A comparison process 

would be unnecessarily costly and impractical (note this is not a one time analysis; rather an opportunity 

for new alternative fuels is an ongoing process). 

Further, requiring that the constituent concentrations of these materials not be “significantly 

higher” than the fossil fuels they replace is misguided since emissions, which is the real issue at hand, 

are already controlled under the Clean Air Act (§ 112 standard for manufacturers). Indeed, that is the 

purpose of § 112 – to require sources to control HAP emissions that are related to the specific 

manufacturing processes.

Whether those materials are regulated under § 112 or § 129, the emissions will be regulated and 

owners/operators will need to comply with pertinent emission limits that will have been established with 

consideration of protection of human health and the environment. The cement industry has previously 

shown that a wide range of fuels can be utilized with essentially complete destruction of organic HAPs. 

Further, risk results mentioned above demonstrate the lack of impact on human health and the 

environment based on over two decades of study. As noted in each study, for organic constituents, the 

environmental impacts are predominantly orders of magnitude lower than health based thresholds and 

thus do not pose a health risk concern. Most metals included in risk studies also have a negligible 

impact on any potential health risks.

As a final but critical point with respect to the cement industry, imposing these types of 

requirements would also result in elimination of some (and potentially significant quantities of) 

materials from use as legitimate alternative energy or ingredient sources, against the intended national 

goals of energy independence. Similarly, use of a comparable fuel approach or equivalent 

concentrations approach is detrimental to continued/increased useful utilization of byproduct materials 

that can avoid increased fossil fuel use and the associated environmental impacts. 

Therefore, our conclusion is that these rules are inappropriate, arbitrary and duplicative of Clean 

Air Act regulations and permits already in place, do not provide any improved environmental benefit 

and discriminate against the use of non-traditional fuels. All qualifications should be on a case-by-case 
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basis, allowing for flexibility in each facility’s determination process in accordance with existing 

regulations. 

U. Comparison of Total Constituents, Definition of “Comparable” Federal 

Register page 31883.

EPA requested comments on basing a comparison on total constituents, and the 

definition of “comparable.”

PCA reiterates that we disagree with any action toward establishing bright-line levels or any 

other levels for contaminants that are aimed at any of the various traditional fuels that are burned; doing 

so would provide no benefit to the regulated community. As described above, we do not believe that a 

comparison of constituents is appropriate. Further, criterion for contaminant levels per Btu would also 

be impractical and unrelated to protecting human health and the environment. Generally, non-hazardous 

secondary materials used as fuels will be similar or lower in heat value, so the normalized basis would 

not be appropriate. With regard to the term, “comparable,” EPA attempts to define the term by using the 

actual word “comparable” in its definition (75 Fed. Reg. 31856). Such usage does not clarify what is 

actually meant by the term. PCA points out that the term “comparable” should not be solely interpreted 

as “equal” or “same.” The term comparable can also mean “similar”, “higher” or “lower.”

Furthermore, EPA attempts to justify the criterion for contaminant levels in the description of 

legitimacy criteria (75 Fed. Reg. 31882). In the text, EPA states that establishing such a criterion is 

necessary to ensure that the non-hazardous secondary material is not being burned for disposal. This 

implies that because the contaminants may be different, then the material cannot possibly be a valuable 

fuel. This reasoning is flawed and PCA objects to this rationale by EPA. There are numerous examples 

of so-called traditional fuels that exhibit variability with respect to certain constituents. For example, 

there is plenty of sulfur variability in coal and limestone. Another example is the difference in mercury 

content found in coal and coke. Data showing the type of variability in “traditional” fuels is presented 

elsewhere in our comments. Using an alternative fuel as an example, plastic-derived fuel has much 

lower mercury content than coal. PCA believes EPA’s logic is flawed because it would imply – in the 

case of coal – that the material is being burned for disposal purposes. EPA goes on to discuss how 

constituents must be comparable to guard against increased risk of adverse effect on human health and 

environment resulting from emissions. These issues are already addressed through the air permitting 

program where facilities already have to obtain air quality regulatory approvals to use alternative 

materials. Further, the cement industry, as described above, has demonstrated consistently that the use 

of alternatives does not adversely impact human health and the environment.

V. Qualitative Comparison (Emissions), Federal Register page 31883.

EPA also requests comment on a qualitative approach to comparison, taking into 

account the focus on emissions versus fuel contaminant inputs. 

Although the intent of this qualitative approach certainly makes more sense than the other 

approaches for a comparison, PCA also believes this action is not necessary. Again, the cement industry 
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emissions limits already contemplate a wide range of fuels and raw materials in the inherent manner by 

which the LLL MACT standards have been established.

W. Useful Contribution, Federal Register page 31884.

EPA requested comment on quantitatively defining how much of the nonhazardous secondary material must provide a useful contribution. 

PCA objects to the establishment of limits. Our alternate material programs have been used for 

decades, and are driven by cement quality criteria that are a normal part of manufacturing. The industry 

cannot afford to jeopardize our product by using alternate materials that negatively affect cement 

quality, as we are ultimately responsible to supply a quality product to our customers. It is important for 

EPA to recognize that this applies to fuels as well as ingredients, for (unlike boilers) in a portland 

cement kiln the fuels and ingredients are all inserted into the same manufacturing device where the 

clinker product is produced. Therefore, if the non-hazardous secondary material can be used safely and 

produce products that have continually been shown safe for public use, then the actual content of the 

useful components is irrelevant.

The Agency should not “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.” In most cases, a NHSM has several contributing components, and the 

ability to use the material components is dependent on the manufacturing or equipment type. For 

example, as the cement industry utilizes major raw material constituents and minor constituents to 

manufacture quality cement, those specific components are typically fit together using a variety of 

materials. The traditional use of raw materials to supplement the quarried calcium and silica sources 

come from a variety of materials that have the necessary chemical contribution for that process need. 

The cement chemist is responsible for using materials that are stored on-site, supplemented by 

alternative materials, to proactively determine which materials are used to meet quality needs.

The following are examples of common alternative raw materials that contain more than one 

constituent necessary to manufacture cement and in various concentration ranges:

Material Calcium

Oxide

Aluminum

Oxide

Iron Oxides Silica Oxide

Waste refractory 5 – 15% 40 – 50% 0.5 – 1.5% 30 – 40%

Paint sludge 5 – 15% 5 – 10% 0 – 25% 5 – 10%

Steel plant slag 1 – 2% 0 – 0.5% 90 – 95% 1 – 2%

Waste alumina 0 – 1% 95 – 98% - 0 – 1%

Acknowledging that various industries/equipment have differing needs, it is also unclear what 

standard would be used to set a limit even if the useful contribution was measurable. The fact is, the 

incentive of using a NHSM is that it does provide a useful contribution. It is in the user’s best interest to 

maximize that useful contribution aside from any other incentives or disincentives that may or may not 

exist. Therefore, PCA is against quantitatively defining what constitutes a “useful contribution.” 
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X. Contaminant Comparison-Ingredients, Federal Register page 31885.

EPA requests comment on establishing a comparison method for contaminants in 

ingredients, where the approach would address comparing contaminants in the 

product not being significantly higher than “traditional” product. 

PCA opposes setting limits of contaminants in ingredients. As described above, our industry is 

already regulated on the emissions at the exhaust point as opposed to the content of the material going 

into the feedstock or the product. Cement manufacturing facilities operate in compliance with the Clean 

Air Act standards as permitted through the Title V program which includes the Federal MACT standards 

and the full state implementation of the Clean Air Act. The results of facility risk studies are consistent 

with EPA’s comment in the preamble; “. . . 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.” 

The burden of testing and deciding if the contaminants contained in a NHSM should be left to 

the current manufacturing and regulatory processes through our ongoing sustainability programs, and 

not subject to standards set forth in this regulation. The ASTM cement quality standards guide the 

operations of cement manufacturing, and making a quality product is the absolute goal of every 

manufacturer.

Portland cement is manufactured to meet strict chemical and performance specifications under 

such organizations as ASTM and AASHTO. These specifications dictate, to a large degree, the 

ingredients that can be used in cement manufacturing. There are a wide range of raw materials and fuels 

that can be used to meet cement manufacturing quality objectives. The levels of contaminants in these 

traditional raw materials and fuels can vary significantly. These variations occur within material taken 

from the same source (e.g. single quarry) and also between multiple sources. For the purpose of 

comparing levels of contaminants found in NHSMs with levels found in traditional materials, the 

NHSM contaminant should be allowed to be compared to multiple sources of the traditional raw

materials that are available across the market to the facility. Such a comparison should be allowed 

regardless of whether or not the traditional material is being used by the facility at that time of the 

comparison. Doing so would allow for the variability of constituent levels to be properly accounted for 

when going through the comparison process. Variability needs to be considered because multiple 

sources of a single traditional material are typically available to a facility. Furthermore, the natural

variability inherent in sampling events needs to be considered.

Y. Alternative Approach, Federal Register page 31886.

EPA requests comments on the alternative approach presented in the preamble. 

In response, PCA does not agree with the alternative EPA has presented. 
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As expressed throughout PCA’s comments, we do not agree with EPA’s approach to use 

the Solid Waste rule to unnecessarily “label” the wide range of alternative fuels and ingredients 

that have and can continue to be used in the cement industry. EPA should finalize the rule in a 

manner that recognizes the cement industry’s operating approach and not further burden the 

process. We therefore do not agree with the alternative approach.

IX. CONCLUSION

In closing, PCA’s member companies support efforts to increase our nation’s use of safe 

and compatible energy efficient alternative fuels and raw materials. PCA’s members have been 

on the forefront of undertaking voluntary efforts to contribute to a cleaner environment through 

the use of scrap tires, used motor oils, petroleum sludge and other waste materials as alternative 

fuels and raw materials in the production of cement. Many cement plants are capable of 

beneficially utilizing a wide range of non-hazardous secondary materials including both 

alternative ingredients and fuels.

However, we reiterate that in implementing RCRA, EPA must balance the statute’s two 

primary goals of (1) protecting human health and the environment and (2) encouraging reuse and 

recycling. The second goal is particularly critical in the Subtitle D context. Yet EPA openly 

recognizes that its proposal, coupled with the proposed CISWI rule, would result in the 

landfilling of great volumes of non-hazardous secondary materials now being beneficially 

reused. This would increase the burden upon the existing landfill capacity in the US and change 

the timeline for requiring new landfill capacity. EPA has not attempted to justify its antireuse/recycling proposal on grounds that such an approach is necessary to protect human health 

and the environment. As EPA clearly has discretion under RCRA and the case law to structure 

its Subtitle D proposal in a manner that would promote reuse and recycling without impairing 

health and environmental protection, we believe EPA’s proposal is fatally arbitrary and 

capricious and a failure of reasoned decisionmaking.

For all of the reasons developed throughout these comments, we urge EPA to take the 

following basic steps in structuring its final rule:

a. Remove all portions of the rule that would purport to regulate use of non-hazardous 

secondary materials as ingredients;

b. With respect to non-hazardous secondary fuels, make numerous revisions that would 

encourage rather than discourage reuse and recycle by portland cement kilns, such as –

(i) provide that materials suitable for use as fuel without the need for processing 

are not solid wastes when combusted even if they have previously been discarded;

(ii) provide that if “processing” may be needed to make a discarded material 

suitable for use as fuel, that material will not be a solid waste when combusted so long as the 

material has been rendered suitable for use as fuel in the type of device in which it will be used 

(thus, neither shredding nor metal removal would be necessary for whole tires in portland cement 

kilns);
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c. Delete the “legitimacy criteria” at least as applicable to portland cement kilns. 

* * * * * 

We appreciate the opportunity to provide comments on the important questions related to this 

proposed rulemaking by the Agency. We look forward to working with the Agency as 

consideration of these issues continues. Please do not hesitate to contact us should you have any 

questions regarding PCA’s perspectives on this matter. We can be reached at (202) 408-9494.
Page 71 of 72

LIST OF ATTACHMENTS TO PCA’S COMMENTS

Attachment A Weston, Energy Conversion, chapter 3, p. 85, 

http://www.personal.utulsa.edu/~kenneth-weston/chapter3.pdf. 

Attachment B 1989 Senate Report Excerpt

Attachment C 1987 Senate Report Excerpt.

Attachment D Earthjustice Petition January 30, 2001. 

Attachment E Earthjustice 2004 Comments

Attachment F NRDC Brief, NRDC v. EPA 489 F.3d 1254 (2007) 

Attachment G Letter from OSWER Assistant Administrator

Attachment H PCA (Trinity) AFR CAA permitting manual

Attachment I Scrap Tire Laws and Regulations. Scrap Tire News Legislative Report data 

as it appeared in 2010 Scrap Tire and Rubber Users Directory

Attachment J Report of Pennsylvania Joint State Government Commission, Waste Tire 

Recycling and Reuse In PA, Oct. 2007

Attachment K Cement Sector Trends in Beneficial Use of Alternative Fuels and Raw 

Materials, Revised Draft October 2008, posted on EPA’s website at 

http://www.epa.gov/sectors/sectorinfo/sectorprofiles/cement.html.

Attachment L Scrap Tire Markets In The United States, 9th Biennial Report, May 2009, 

Rubber Manufacturers Association.

Attachment M The Use of Scrap Tyres in the US Cement Industry, Michael Blumenthal, 

World Cement, December 1992.

Attachment N North American Cement Industry, Annual Yearbook 2009, Portland Cement 

Association, ER395, Table 44

Attachment O US & Canadian labor-Energy Input Survey, 2010, Portland Cement 

Association 

Attachment P Air Emissions Data Summary for Portland Cement Pyroprocessing 

Operations Firing Tire-Derived Fuels, John Richards; David Goshaw; Danny 

Speer, and Tom Holder, PCA, 2008.

Attachment Q Tire-Derived Fuel Frequent Questions, 

http://www.epa.gov/wastes/conserve/materials/tires/faq.htm

Attachment R Health Consultation - CEMEX, Incorporated, Lyons, Boulder County, 

Colorado, Agency for Toxic Substances and Disease Registry, Table 2, Page 

A-3.

Attachment S Air Emissions From Scrap Tire Combustion, EPA-600/R-97-115, October 

1997.

Attachment T NOx Control Technologies for the Cement Industry, U.S. EPA, Office of Air 

Quality Planning and Standards, Ozone Policy and Standards Group, 

September 19, 2000.
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Attachment U Management of Scrap Tires, EPA website, 

http://www.epa.gov/wastes/conserve/materials/tires

Attachment V Mojave Desert Air Quality Management District, Rule 1161(C)(1)(a)(iv), 

Portland Cement Kilns.

Attachment W Proposed Rulemaking, 25 PA. Code Chs. 121, 129 and 145, Control of NOx

Emissions from Cement Kilns, 38 Pa.B. 1838, April 19, 2008.

Attachment X South Coast Air Quality Management District, Best Available Retrofit 

Control Technology Assessment, TXI Riverside Cement, Revised Draft, 

August 8, 2008.

Attachment Y South Coast Air Quality Management District, Final Environmental 

Assessment: Proposed Amended Rule 1112.1 – Emissions of Particulate 

Matter and Carbon Monoxide from Cement Kilns, SCAQMD No. 091027JJI, 

November 13, 2009.

Attachment Z Industrial Sector Integrated Solutions Model, EPA, prepared by ARCADIS 

U.S., Inc., December 23, 2008, EPA-HQ-OAR-2002-0051-2007.pdf

Attachment AA Materials Characterization Paper In Support of the Proposed Rulemaking: 

Identification of Nonhazardous Secondary Materials That Are Solid Waste –

Scrap Tires, April 6, 2010.

Attachment BB “A Comparison of Metal and Organic Concentrations in Cement and Clinker 

Made with Fossil Fuels to Cement and Clinker Made with Waste Derived 

Fuels,” NSF International (1993) Attachment __.

Attachment CC USGS Nat'l Coal Resources, US Coal Quality Database, available at: 

http://energy.er.usgs.gov/coalqual.htm

Attachment DD TNRCC Air Emissions Associated with the Burning of Tire-Derived Fuel, 

Waste Tire Recycling Program, March 2001

Attachment EE Stephen Smith, P.E. “Recycling Waste Treated Wood as a Fuel,” April 2005

Attachment FF RMA STMC Scrap Tire Characteristics, available at 

http://www.energyjustice.net/tires/files/scrapchn.html

Attachment GG Report on Sustainable Manufacturing, PCA, 2009