At tachment D

Support in the Preamble for Determining that Contaminant Levels Alo ne Do Not Indicate Di scard. In the past, EPA has always viewed the legit imacy criteria as factors may indicate sham recy cling, not as a bright line definit io n of discard. Rel ics of the long

- standing agency review remain in the NHSM Rule preamble. The preamble recognizes that management of a material

can be a strong indicator that recycling is legit imate. The preamble also recognizes that contaminant levels maybe evidence of di scard, but are not always an indicator of discard. EPA’s decision on whether resinated wood is a waste (within the control of the generator or if transferred) is based on the circumstances under which the material is handled and combusted. 76 Fed. Re g. at 15499. As resinated wood residuals transferred off

- site are utilized in the same manner as self

generated resinated wood residuals (i.e., contained in the same bins as furnish materials used in the product, transferred via conveyors or ducts), w hich the plants are specifically designed to burn as a fuel, we agree that this does not constitute discard. T hus, we have determined that resinated wood residuals are not solid w aste when transferred off

- site for use as fuel

, provided the material meets the l egitimacy criteria a nd has not been otherwise deemed to be discarded. We have codified this concept under 40 CFR 241.3(b)(2)(ii). Id. However, we believe that these materials are not discarded when used within the control of the generator, such as at pul p and paper mills, s ince these non - hazardous secondary materials are part of the industrial process

. 76 Fed. Reg. at 15487. If, how ever, the barium we re at much higher levels in the non - hazardous secondary material (such as 50 ppm), the levels wo uld not b e comparable and it mayindicate discard of the barium and sham recycling. 76 Fed. Reg. at 15524. "Burning is an inherently destructive process, even if there is a beneficial use. Therefore, the Agency needs to be cautious in evaluating whether burning a non - hazardous material for energy recovery, also has a w aste destroying intention. " 76 Fed. Reg. at 15525, The Agency discussed various criteria regarding the concept of legitimacy. Specifically, with respect to secondary materials used as a fuel, the y should be handled as a valuable commodity, have a meaningful heating value, and contain contaminants that are not significantly higher in concentration than traditional fuel products. For those secondary materials used as an ingredient, they should be ha ndled as a valuable commodity, the secondary material provides a useful contribution, the recycling results in a valuable product, and the product does not contain contaminants that are significantly higher in concentration than traditional products. If th ese criteria are not met, then sham recycling may be indicated

and the secondary material maybe a solid w aste. 76 Fed. Reg. at 15464 n. 12.2

EPA is careful to note that ‘‘legitimacy’’ is shorthand for referring to non - hazardous secondary materials that a re not throw n away, are saved and are reused by being burned for their value as a fuel. The legitimacy criteria are the factors needed to be examined to make this determination . Thus, for example, it is relevant how the non

- hazardous secondary materials ismanaged and the extent to which contaminants in the secondary material may indicate that the real reason for burning the secondary material is simply its destruction

—referred to as ‘‘sham’’ recycling. The Agency is not simply ‘‘punting’’ to its legitimacycriteria, but believes they provide a valid basis for show ing that a non

hazardous secondary material is more commodity like than w aste
- like. 76 Fed. Reg. at 15471

. A non

- hazardous secondary material contains 500 parts per million (ppm) of lead, w hile the traditional fuel that w ould or could be burned in the combustion unit contains 475 ppm of lead. These levels w ould be considered comparable (since it falls within a small acceptable range) and thus, w ould meet this factor. If, on the other hand, the level of lead in the non

- hazardous secondary material was 1,000 ppm, these levels w ould not be comparable and it may indicate that the nonhazardous secondary material w as being burned to dispose of the material and that the activity is sham recycling. 76 Fed . Reg. at 15524.