U.S. Environmental Protection Agency 

Documentation of OMB Review Under Executive Order 12866 

Title of Action: 

Docket#: FRL#: RIN:

This action was submitted to the Office of Management and Budget (OMB) for review under Executive Order (E.O.) 

12866, titled Regulatory Planning and Review (58 FR 51735, October 4, 1993). Whenever EPA makes publicly available 

a regulatory action that was reviewed under E.O. 12866, section 6(a)(3)(E) of the E.O. directs the Agency to also: 

(1) Make available to the public a copy of the information that was provided to OMB’s Office of Information and 

Regulatory Affairs (OIRA) for review under the E.O., i.e., the text of the draft regulatory action and, if applicable, 

an assessment of the potential costs and benefits, as well as additional information for those actions that are 

determined to be economically significant under the E.O. (Information requirements are described in sections 

6(a)(3)(B) and (C)). 

(2) Identify for the public any substantive changes between the draft submitted to OIRA and the action that was 

subsequently issued, using a method that is complete, clear, and simple. 

(3) Identify for the public those substantive changes made at the suggestion or recommendation of OIRA.

For this regulatory action, were substantive changes made to information reviewed under E.O. 

12866? [Please check the appropriate answer.]

No. [In the docket, include the information identified in item (1) below.]

Yes. [In the docket, include the information identified in items (1) – (3) below.]

Accordingly, the Agency has included this form and the following information in the public 

docket for this regulatory action: [Please check the appropriate information.]

(1) A copy of the information that was provided to OIRA for review under the E.O. 

(2) Documentation of any substantive changes made to the draft regulatory text that was 

submitted to OIRA when compared with what was subsequently made publicly available.

The documentation is provided on the pages following this form. Changes made at the 

suggestion or recommendation of OIRA, if any, are clearly identified through attribution to 

OIRA. EPA has used one or more of the following methods to note changes: [Select the 

appropriate option(s).]

(a) Redline-Strikeout – A copy of the draft regulatory action submitted, using redlinestrikeout to show the substantive changes that were made.

(b) Hand Markup – A copy of the draft regulatory action submitted, using handwritten notes 

to show the substantive changes that were made.

(c) Note to the file - A document that identifies the substantive changes that were made, 

with page and paragraph references to the draft regulatory action that was submitted.

If you have any questions about this regulatory action or this documentation, please call the 

contact:

Name: Email: Phone: 

Revised 05/05/2010 

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

EPA-HQ-RCRA-2008-0329 2050-AG44

Marc Thomas thomas.marc@epa.gov (703) 308-0023
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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 241 

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

RIN 2050-AG44

Identification of Non-Hazardous Secondary Materials That Are Solid Waste 

AGENCY: Environmental Protection Agency (EPA). 

ACTION: Final Rule.

_______________________________________________________________________ 

SUMMARY: The Environmental Protection Agency (EPA or the Agency) is publishing a final 

rule that identifies which non-hazardous secondary materials used as fuels or ingredients in 

combustion units are solid wastes under the Resource Conservation and Recovery Act (RCRA). 

The meaning of “solid waste” as defined under RCRA will determine whether a combustion unit 

is required to meet the emissions standards for solid waste incineration units issued under section 

129 of the Clean Air Act (CAA) or the emissions standards for commercial, industrial, and 

institutional boilers issued under section 112 of the CAA. 

DATES: This final rule is effective on [INSERT DATE 60 DAYS AFTER PUBLICATION 

IN THE FEDERAL REGISTER]. 

ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA-HQRCRA-2008-0329. All documents in the docket are listed on the www.regulations.gov web site. 

Although listed in the index, some information is not publicly available, e.g., confidential 

business information (CBI) or other information whose disclosure is restricted by statute. 

Certain other material, such as copyrighted material, will be publicly available only in hard copy. 
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Publicly available docket materials are available either electronically in www.regulations.gov or 

in hard copy at the RCRA Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., 

N.W., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday 

through Friday, excluding legal holidays. The telephone number for the Public Reading Room is 

(202) 566-1744, and the telephone number for the RCRA Docket is (202) 566-0270. 

FOR FURTHER INFORMATION CONTACT: George Faison, Program Implementation 

and Information Division, Office of Resource Conservation and Recovery, 5303P, 

Environmental Protection Agency, Ariel Rios Building, 1200 Pennsylvania Avenue, N.W., 

Washington, D.C. 20460-0002; telephone number: 703-305-7652; fax number: 703-308-0509;

email address: faison.george@epa.gov. 

SUPPLEMENTARY INFORMATION:

A. Does this Action Apply to Me? 

Categories and entities potentially affected by this action include: 

Generators Users

Major Generator 

Category 

NAICS* 

Major Boiler Type and 

Primary Industry 

Category 

NAICS* 

Industrial Boilers:

Crop Production 111 Food Manufacturing 311, 312, 

Cattle Ranching and 

Farming 1121 Pulp and Paper Mills 3221 

Hog and Pig Farming 1122 Petroleum Refining 32411 

Poultry and Egg 

Production 1123 Chemical Manufacturing 325 

Sheep and Goat Farming 1124

Primary Metal 

Manufacturing 331 

Horses and Other Equine 

Production 112920

Fabricated Metal 

Manufacturing 332 

Logging 113310 Other Manufacturing 313, 339, 321, 333, 336, 

511, 326, 316, 327 

Support Activities for 11511 
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Crop Production

Bituminous Coal and 

Lignite Surface Mining 212111 Commercial Boilers:

Bituminous Coal 

Underground Mining 212112 Retail 442-454 

Anthracite Mining 212113 Warehouse 493 

Fossil Fuel Electric Power 

Generation 221112 Education 611 

Sewage Treatment 

Facilities 221320 Health Care Facilities 621 

Construction of Buildings 236 Social Assistance 624 

Site Preparation 

Contractors 238910 Lodging, Restaurant 721, 722 

Beverage and Tobacco 

Product Manufacturing 312 Office 813,541,921 

Sawmills and Wood 

Preservation 32111 Other 922140, others 

Veneer, Plywood, and 

Engineered Wood Product 

Manufacturing 

32121 

 

Engineered Wood Member 

Manufacturing 321213 Common Non- Manufacturing Boilers:

Pulp, Paper, and 

Paperboard Mills 3221 Agriculture (crop & livestock production) 111,112,115 

Solvents Made in 

Petroleum Refineries 324110 All Mining 212 

Solvent Dyes 

Manufacturing 325132 Construction 236 

Plastic manufacturers 325211 

All Other Miscellaneous 

Chemical Product and 

Preparation Manufacturing

325998 Other Boilers:

Packaging 32611 Electric Utility Boilers 2211 

Other Rubber Product 

Manufacturing 32629 Non HW Burning Cement Kilns 327310 

Glass and Glass Product 

Manufacturing 3272 

Cement Manufacturing 327310 

Iron and Steel Mills 331111 

Electrometallurgical 

Ferroalloy Product 

Manufacturing

331112

 

Metal-casting industry 331522

Recyclable Material 

Wholesalers 423930 

Landscaping Services 561730 

Solid Waste Collection 

and Solid Waste Landfill 562111, 562212 

Automotive Repair and 

Replacement Shops 811111 

* NAICS - North American Industrial Classification System 
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This table is not intended to be exhaustive, but rather provides a guide for readers, 

including lists of examples of the types of entities likely to be impacted by this action. Other 

types of entities not listed could also be affected. To determine whether your facility, company, 

business, organization, etc., is affected by this action, you should examine the applicability 

criteria in this rule. If you have any questions regarding the applicability of this action to a 

particular entity, consult the person listed in the preceding section: FOR FURTHER 

INFORMATION CONTACT. 

B. Why is EPA Taking This Action?

Clean Air Act (CAA) section 129 states that the term “solid waste” shall have the 

meaning “established by the Administrator pursuant to [RCRA].” The purpose of this final rule 

is to identify the requirements and procedures to be used to properly identify whether nonhazardous secondary materials burned as fuels or used as ingredients in combustion units are or 

are not solid waste. This final rule is necessary to identify units for the purpose of developing 

emission standards under sections 112 and 129 of the CAA. In addition to this final rule, EPA is 

concurrently finalizing air emission requirements under section 112 of the CAA for industrial, 

commercial, and institutional boilers and process heaters, as well as air emission requirements 

under section 129 of the CAA for commercial and industrial solid waste incineration units. 

Preamble Outline 

I. Statutory Authority 

II. List of Abbreviations and Acronyms 

III. Introduction - Summary of Regulations being Finalized 

A. Identifying Which Non-Hazardous Secondary Materials Are or Are Not Solid 

Wastes When Used in a Combustion Unit 
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1. Non-hazardous secondary materials that are legitimately used as fuels 

within the control of the generator are not solid waste when used in 

combustion units 

2. Scrap tires that are legitimately used as a fuel that are removed from 

vehicles and managed under the oversight of established tire collection 

programs are not solid waste when used in combustion units 

3. Resinated wood that is legitimately used as a fuel is not a solid waste when 

used in a combustion unit 

4. Non-hazardous secondary materials that are legitimately used as 

ingredients are not solid waste when used in combustion units 

5. Discarded non-hazardous secondary materials that have undergone 

processing to produce legitimate fuel or ingredient products are not solid 

waste when used in combustion units 

6. Non-hazardous secondary materials used as a fuel for which a non-waste 

determination has been granted are not solid waste when used in 

combustion units 

B. Codification of the Legitimacy Criteria 

IV. Background 

A. What do CAA Sections 112 and 129 Require? 

B. What Is the History of CISWI, CISWI Definitions, and Boiler Rulemakings? 

C. Why Is the Court’s Decision Affecting the CAA Rules Relevant to RCRA? 

D. What is the History of the Definition of Solid Waste? 

1. Statutory Definition of Solid Waste 
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2. Solid Waste Program, RCRA Subtitle D 

3. Hazardous Waste Program, RCRA Subtitle C 

4. Case Law on the Definition of Solid Waste 

5. Concept of Legitimacy 

 E. Summary of the ANPRM 

 F. Summary of the Proposed Rule 

 G. Use of Secondary Materials 

 1. Introduction 

 2. Secondary Materials Use and Benefits 

V. Comments on the Proposed Rule 

A. Proposed Approach 

 1. Definition of the Term Discard 

2. Processing Requirements 

B. Comments on Specific Materials Used as Fuel 

1. Traditional Fuels 

2. Manure 

3. Other Biomass 

4. Pulp and Paper Sludge 

5. Scrap Tires 

6. Resinated Wood Residuals 

7. Used Oil 

8. Coal Refuse 

9. Coal Combustion Residuals 
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10. Sewage Sludge 

11. Processed Fats 

C. Comments on Specific Materials Used as Ingredients 

1. Cement Kiln Dust 

2. Coal Combustion Residuals 

3. Foundry Sand 

4. Blast Furnace Slag/Steel Slag 

D. Comments on Legitimacy Criteria for Fuels 

1. Managed as a Valuable Commodity 

2. Meaningful Heating Value and Use as a Fuel 

3. Have Contaminants at Comparable Levels or Lower Than Traditional 

Fuels 

E. Comments on Legitimacy Criteria for Ingredients 

1. Managed as Valuable Commodities 

2. Useful Contribution 

3. Quantifying an Ingredient’s Contribution to Production/Manufacturing 

Activity 

4. Contaminants in Ingredients 

5. Comparing contaminant levels in products 

F. Comments on Non-Waste Determination Petitions 

G. Comments on the Other Approaches for Defining Solid Wastes 

VI. Summary of Major Differences between the Proposed Rule and Final Rule 

VII. Detailed Discussion and Rationale for Today’s Final Rule 
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A. Traditional Fuels 

B. Non-Hazardous Secondary Materials Used as Fuel That Remains Within the 

Control of the Generator 

 1. Scope and Applicability 

 2. Restrictions and Requirements 

C. Materials That Have Not Been Discarded: Scrap Tires Collected Under 

Established Tire Collection Programs 

 1. Scope and Applicability 

 2. Restrictions and Requirements 

D. Materials That Have Not Been Discarded: Resinated Wood Residuals 

 1. Scope and Applicability 

 2. Restrictions and Requirements 

E. Non-Hazardous Secondary Materials Used as an Ingredient 

 1. Scope and Applicability 

 2. Restrictions and Requirements 

F. Discarded Non-Hazardous Secondary Materials That Have Undergone Processing 

to Produce Legitimate Fuel or Ingredient Products 

 1. Scope and Applicability 

 2. Restrictions and Requirements 

G. Non-Waste Determination Petitions 

 1. Description of the Petition Criteria for the Non-Waste Determination 

 2. Non-waste Determination Petition Process 

 3. Petition Decisions Utilizing State Environmental Agency Program’s Input 
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H. Legitimacy Criteria 

 1. Legitimacy Criteria for Fuels 

 2. Legitimacy Criteria for Ingredients 

I. Determining That Non-Hazardous Secondary Materials Meet the Legitimacy 

Criteria 

VIII. Effect of Today’s Final Rule on Other Programs 

A. Clean Air Act 

B. Renewable Energy 

C. Subtitle C Hazardous Waste Program 

IX. State Authority 

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

B. State Adoption of the Rulemaking 

C. Clarifications on the Relationship to State Programs 

X. Cost and Benefits of the Final Rule 

XI. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory Planning and Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation and Coordination with Indian Tribal 

Governments 

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

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

Distribution or Usage 

I. National Technology Transfer Advancement Act 

J. Executive Order 12898: Federal Actions to Address Environmental Justice in 

Minority Populations and Low-Income Populations 

K. Congressional Review Act 

I. Statutory Authority 

The U.S. Environmental Protection Agency (EPA) is promulgating these regulations 

under the authority of sections 2002(a)(1) and 1004(27) of the Resource Conservation and 

Recovery Act (RCRA), as amended, 42 U.S.C. 6912(a)(1) and 6903(27). Section 129(a)(1)(D) 

of the Clean Air Act (CAA) directs EPA to establish standards for Commercial and Industrial 

Solid Waste Incinerators (CISWI), which burn solid waste (section 129(g)(6) of the CAA, 42 

U.S.C. 7429). Section 129(g)(6) provides that the term ‘solid waste’ is to be established by EPA 

under RCRA. Section 2002(a)(1) of RCRA authorizes the Agency to promulgate regulations as 

are necessary to carry out its functions under the Act. The statutory definition of “solid waste” is 

provided in RCRA section 1004(27). 

II. List of Abbreviations and Acronyms 

AASHTO American Association of State Highway and Transportation Officials 

ANPRM Advanced Notice of Proposed Rulemaking 

ASME American Society of Mechanical Engineers 

ASTM American Society for Testing and Materials 

Btu British Thermal Unit 
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CAA Clean Air Act 

CAFO Concentrated Animal Feeding Operations 

C&D Construction and Demolition 

CBO Carbon Burn-Out Unit 

CCA Chromated Copper Arsenate 

CCR Coal Combustion Residuals 

CFB Circulating Fluidized Bed 

CFR Code of Federal Regulations 

CISWI Commercial and Industrial Solid Waste Incinerator 

CKD Cement Kiln Dust 

CWA Clean Water Act 

DSE Domestic Sewage Exemption 

DSW Definition of Solid Waste Rule (2008) 

EG Emission Guidelines 

EGU Electric Utility Steam Generating Unit 

EPA U.S. Environmental Protection Agency 

GACT Generally Available Control Technology 

GHG Greenhouse Gas 

HAP Hazardous Air Pollutant 

IWI Institutional Waste Incinerator 

LCA Life Cycle Analysis 

MACT Maximum Achievable Control Technology 

MEK Methyl Ethyl Ketone 
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NESHAP National Emission Standards for Hazardous Air Pollutants 

NHSM Non-Hazardous Secondary Material 

NSPS New Source Performance Standards 

OCC Old Corrugated Cardboard 

OSWI Other Solid Waste Incinerator 

PC Portland Cement 

PIC Product of Incomplete Combustion 

POTW Publicly Owned Treatment Works 

PVC Polyvinyl Chloride 

RCRA Resource Conservation and Recovery Act 

RFS Renewable Fuel Standards 

SSI Sewage Sludge Incinerator 

SWDA Solid Waste Disposal Act 

TCLP Toxicity Characteristic Leaching Procedure 

TDF Tire-Derived Fuel 

U.S.C. United States Code 

USGS U.S. Geological Survey 

VSMWC Very Small Municipal Waste Combustor 

III. Introduction – Summary of Regulations being Finalized 

In today’s rule, EPA is finalizing standards and procedures for the identification of nonhazardous secondary materials that are solid wastes when used as fuels or ingredients in 

combustion units. We have defined “secondary material” as any material that is not the primary 

product of a manufacturing or commercial process, and can include post-consumer material, off-
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specification commercial chemical products or manufacturing chemical intermediates, postindustrial material, and scrap (codified in §241.2). We have defined a “non-hazardous secondary 

material” as a secondary material that, when discarded, would not be identified as a hazardous 

waste under 40 CFR part 261(codified in §241.2). 

The Agency first solicited comments on which non-hazardous secondary materials used 

as fuels or ingredients in combustion units are solid wastes under RCRA in an Advanced Notice 

of Proposed Rulemaking (ANPRM), which was published in the Federal Register on January 2, 

2009 (74 FR 41). We then published a proposed rule on June 4, 2010 (75 FR 31844). 

Today’s preamble is organized as follows: This section of the preamble (Section III) 

describes the principal regulatory provisions that are finalized in this rule; Section IV describes 

the background of this final rule, including a brief history of this rulemaking in conjunction with 

the relevant rules being finalized under sections 112 and 129 of the CAA; Section V contains a 

discussion of the major public comments received on the June 4, 2010 proposal, along with the 

Agency’s response to these comments; Section VI explains the ways in which the June 2010 

proposal differs from today’s final rule; Section VII provides a detailed explanation of and 

rationale for the regulations being promulgated today; Section VIII describes the effect of 

today’s final rule on other programs; Section IX discusses how today’s rule affects the states’ 

authority over solid waste pursuant to subtitle D of RCRA; Section X describes the costs and 

benefits associated with today’s rule; and Section XI describes this rule’s compliance with the 

appropriate statutory and executive orders reviews. 

Below is a summary of the principal elements of the regulations being promulgated 

today. 

A. Identifying Which Non-Hazardous Secondary Materials Are or Are Not Solid Wastes 
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When Used in a Combustion Unit 

In general, non-hazardous secondary materials burned in combustion units are solid 

wastes, with the following exceptions: (1) non-hazardous secondary materials that are 

legitimately used as fuels within the control of the generator are not solid waste when used in 

combustion units (discussed further below—codified in §241.3(b)(1)); (2) scrap tires that are 

legitimately used as a fuel that are removed from vehicles and managed under the oversight of 

established tire collection programs are not solid waste when used in combustion units 

(discussed further below—codified in §241.3(b)(2)(i)); (3) resinated wood that is legitimately 

used as fuel is not a solid waste when used in a combustion unit (discussed further below—

codified in §241.3(b)(2)(ii)); (4) non-hazardous secondary materials that are legitimately used as 

ingredients are not solid waste when used in combustion units (discussed further below—

codified in §241.3(b)(3)); (5) discarded non-hazardous secondary materials that have undergone 

processing to produce legitimate fuel or ingredient products are not solid waste when used in 

combustion units (discussed further below—codified in §241.3(b)(4)); or (6) non-hazardous 

secondary materials used as a fuel for which a non-waste determination has been granted are not 

solid waste when used in combustion units (discussed further below—codified in §241.3(c)). 

Materials are considered legitimate fuels or ingredients if they conform to the criteria 

codified in §241.3(d), which are designed to ensure that the fuel or ingredient is not being 

“sham” recycled for the sole purpose of avoiding being considered a waste. The legitimacy 

criteria for non-hazardous secondary materials used as fuels and ingredients in combustion units 

are discussed below in the “Codification of the Legitimacy Criteria” section. 

Materials designated as “traditional” fuels are not wastes when used in combustion units. 

We are finalizing a definition of traditional fuels (codified in §241.2) that applies to this subpart. 
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Traditional fuels means materials that are produced as fuels and are unused products that have 

not been discarded and therefore, are not solid wastes, including: (1) fuels that have been 

historically managed as valuable fuel products rather than being managed as waste materials, 

including fossil fuels (e.g., coal, oil and natural gas), their derivatives (e.g., petroleum coke, 

bituminous coke, coal tar oil, refinery gas, synthetic fuel, heavy recycle, asphalts, blast furnace 

gas, recovered gaseous butane, and coke oven gas) and cellulosic biomass (virgin wood); and (2) 

alternative fuels developed from virgin materials that can now be used as fuel products, 

including used oil which meets the specifications outlined in 40 CFR 279.11, currently mined 

coal refuse that previously had not been usable as coal, and clean cellulosic biomass, which 

includes forest-derived biomass (e.g., green wood, forest thinnings, clean and unadulterated bark, 

sawdust, trim, and tree harvesting residuals from logging and sawmill materials), corn stover and 

other biomass crops used specifically for energy production (e.g., energy cane, other fast 

growing grasses), bagasse and other crop residues (e.g., peanut shells), wood collected from 

forest fire clearance activities, trees and clean wood found in disaster debris, clean biomass from 

land clearing operations, and clean construction and demolition wood. Such historically 

managed traditional fuels and alternative fuels developed from virgin materials are not secondary 

materials or solid wastes unless discarded before they are used. 

1. Non-hazardous secondary materials that are legitimately used as fuels within the control of 

the generator are not solid waste when used in combustion units.

 Except as otherwise provided, under this provision—40 CFR 241.3(b)(1)—EPA would 

consider non-hazardous secondary materials used as fuels in combustion units which remain 

within the control of the generator and that meet the specified legitimacy criteria (as codified in 

§241.3(d)(1)) as not being a solid waste. The legitimacy criteria for non-hazardous secondary 
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materials used as fuels in combustion units are discussed below in the “Codification of the 

Legitimacy Criteria” section. Non-hazardous secondary materials would be considered “within 

the control of the generator” under the following circumstances: 

(1) They are generated and burned in combustion units at the generating facility (as defined 

in §241.2); or 

(2) They are generated and burned in combustion units at different facilities, if the facility 

combusting the non-hazardous secondary material is controlled (as defined in §241.2) by the 

generator; or 

(3) Both the generating facility and the facility combusting the material are under control of 

the same person (as defined in §241.2). 

2. Scrap tires that are legitimately used as a fuel that are removed from vehicles and managed 

under the oversight of established tire collection programs are not solid waste when used in 

combustion units. 

 Under this provision—40 CFR 241.3(b)(2)(i)—EPA would consider scrap tires used as a 

fuel in a combustion unit that are removed from vehicles and collected and managed under the 

oversight of established tire programs, provided these materials satisfy the specified legitimacy 

criteria (as codified in §241.3(d)(1)). This provision would not differentiate between scrap tires 

that are used as a fuel within the control of the generator from those that are not. For the 

purposes of this rule, the term “vehicle” is defined as any mechanical means of conveyance that 

employs the use of tires. “Established tire collection program” (as defined in §241.2) means a 

comprehensive collection system that ensures scrap tires are not discarded and are handled as 

valuable commodities in accordance with §241.3(d)(1)(i) from the point of removal from the 

vehicle through arrival at the combustion facility. The legitimacy criteria for non-hazardous 
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secondary materials used as fuels in combustion units are discussed below in the “Codification of 

the Legitimacy Criteria” section. 

3. Resinated wood that is legitimately used as a fuel is not a solid waste when used in a 

combustion unit. 

 Under this provision—40 CFR 241.3(b)(2)(ii)—EPA would consider resinated wood 

used as a fuel in a combustion unit as not being a solid waste, provided these materials satisfy the 

specified legitimacy criteria (as codified in §241.3(d)(1)). This provision would not differentiate 

between resinated wood that is used as a fuel within the control of the generator from those that 

are not. Resinated wood (as defined in §241.2) means wood products (containing resin 

adhesives) derived from primary and secondary wood products manufacturing and comprised of 

such items as board trim, sander dust, and panel trim. The legitimacy criteria for non-hazardous 

secondary materials used as fuels in combustion units is discussed below in the “Codification of 

the Legitimacy Criteria” section. 

4. Non-hazardous secondary materials that are legitimately used as ingredients are not solid 

waste when used in combustion units. 

Under this provision—40 CFR 241.3(b)(3)—EPA would consider non-hazardous 

secondary materials used as ingredients in combustion units and that meet the specified 

legitimacy criteria as not being solid waste. This provision does not differentiate between 

ingredients that are used within the control of the generator from those that are not. Ingredient 

(as defined in §241.2) means a non-hazardous secondary material that is a constituent in a 

compound, process or product. A discussion of the legitimacy criteria (as codified in 

§241.3(d)(2)) for non-hazardous secondary materials used as ingredients in combustion units is 

included below in the “Codification of the Legitimacy Criteria” section. 
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5. Discarded non-hazardous secondary materials that have undergone processing to produce 

legitimate fuel or ingredient products are not solid waste when used in combustion units. 

Under this provision—40 CFR 241.3(b)(4)—EPA would consider discarded nonhazardous secondary materials that have been sufficiently processed into fuel or ingredient 

products and used in a combustion unit as not being a solid waste, provided these materials 

satisfy the specified legitimacy criteria (as codified in §241.3(d)(1) for fuels and (d)(2) for 

ingredients). Processing (as defined in §241.2) means any operations that transform the 

discarded non-hazardous secondary material into a legitimate fuel or ingredient product, and 

includes, but is not limited to, operations that remove or destroy contaminants; operations that 

significantly improve the fuel characteristics of the material, e.g., sizing or drying the material in 

combination with other operations; operations that chemically improve the as-fired energy 

content; and operations that improve the ingredient characteristics. Minimal operations that 

result only in modifying the size of the material by shredding do not constitute processing for the 

purposes of this definition. Prior to any processing, the discarded non-hazardous secondary 

material would be considered a solid waste and would be subject to the appropriate federal, state, 

and local laws and regulations. 

6. Non-hazardous secondary materials used as a fuel for which a non-waste determination 

has been granted are not solid waste when used in combustion units.

Under this provision—40 CFR 241.3(c)—EPA would consider non-hazardous secondary 

materials used as fuels that have been transferred to a third party, but have been granted a nonwaste determination from EPA, to not be a solid waste when used in combustion units.1

 This 

provision establishes a non-waste determination case-by-case process that provides persons with 

 

1

 As noted previously, scrap tires and resinated wood would not be considered a solid waste even if transferred to a 

third party provided these secondary materials meet the legitimacy criteria. 
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an administrative process for receiving a formal determination from EPA that their nonhazardous secondary material fuel that has not been managed within the control of the generator 

(as defined in §241.2), has not been discarded, and is indistinguishable in all relevant aspects 

from a fuel product, is not a solid waste when used as a fuel in a combustion unit. Any petition 

that is submitted to EPA requesting a non-waste determination must demonstrate that the nonhazardous secondary material has not been discarded in the first instance, satisfies the specified 

legitimacy criteria for fuels (as codified in §241.3(d)(1)), and satisfies the following five criteria: 

(1) whether market participants treat the non-hazardous secondary material as a fuel rather than 

a solid waste; (2) whether the chemical and physical identity of the non-hazardous secondary 

material is comparable to commercial fuels; (3) whether the non-hazardous secondary material 

will be used in a reasonable time frame given the state of the market; (4) whether the constituents 

in the non-hazardous secondary material are released to the air, water or land from the point of 

generation to the point just prior to combustion of the non-hazardous secondary material at levels 

comparable to what would otherwise be released from traditional fuels; and (5) other relevant 

factors. These criteria are codified in §241.3(c)(1). 

The process for receiving a non-waste determination is codified in §241.3(c)(2). In order 

to obtain a non-waste determination, a facility that is interested in using non-hazardous 

secondary materials as fuel in combustion units that would otherwise be regulated as a solid 

waste must apply to the Regional Administrator per the procedures described in §241.3(c). The 

application must address the relevant criteria discussed above. The Regional Administrator will 

evaluate the application and issue a draft notice tentatively granting or denying the application. 

Notification of this tentative decision will also be provided by newspaper advertisement or radio 

broadcast in the locality where the combustion unit is located. The Regional Administrator will 
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accept comments on the tentative decision for at least 30 days, and may also hold a public 

hearing upon request or at his discretion. The Regional Administrator will issue a final decision 

after receipt of comments and after the hearing (if any). 

B. Codification of the Legitimacy Criteria 

This provision—40 CFR 241.3(d)—codifies the legitimacy criteria for fuels and 

ingredients. In order to be considered a non-waste fuel, non-hazardous secondary materials used 

as a fuel in combustion units must meet the legitimacy criteria codified in §241.3(d)(1). To meet 

the fuel legitimacy criteria, the non-hazardous secondary material must be managed as a valuable 

commodity, have a meaningful heating value and be used as a fuel in a combustion unit that 

recovers energy, and contain contaminants at levels comparable to or lower than those in 

traditional fuels which the combustion unit is designed to burn. 

 In order to be considered a non-waste ingredient, non-hazardous secondary materials 

used as an ingredient in combustion units must meet the legitimacy criteria codified in 

§241.3(d)(2). To meet the ingredient legitimacy criteria, the non-hazardous secondary material 

must be managed as a valuable commodity, provide a useful contribution to the production or 

manufacturing process, be used to produce a valuable product or intermediate, and must result in 

products that contain contaminants at levels that are comparable to or lower than those found in 

traditional products that are manufactured without the non-hazardous secondary material. 

Non-hazardous secondary materials that are discarded in the first instance (abandoned, 

disposed of, or thrown away) would still be a solid waste even if they satisfy the legitimacy 

criteria, unless they were processed into legitimate non-waste fuel or ingredient products or, in 

the case of fuels, have received a non-waste determination from EPA.

IV. Background 
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The discussion below is a summary of what was included in the Advanced Notice of 

Proposed Rulemaking (ANPRM) and in the preamble to the proposed rule. However, because it 

continues to be relevant to several of the key concepts being finalized today, it is provided here 

as background for the benefit of the reader. (For a more detailed discussion of what was 

included in the ANPRM and the proposed rule, we refer the reader to the ANPRM (74 FR 41, 

January 2, 2009) and the proposed rule (75 FR 31843, June 4, 2010).) The records and 

documents comprising the ANPRM and proposed rule are included in the administrative record 

for this rulemaking. To the extent there are any inconsistencies or differences between the 

ANPRM, the proposed rule, and this final rule, the statements in this final rule govern. 

A. What do CAA Sections 112 and 129 Require? 

CAA section 112 requires EPA to promulgate regulations to control emissions of 1872

HAP from sources in each source category listed by EPA under section 112(c). The statute 

requires the regulations for major sources3

 to reflect the maximum degree of reduction in 

emissions of HAP that is achievable taking into consideration the cost of achieving the emission 

reduction, any non-air quality health and environmental impacts, and energy requirements. For 

existing sources, the emissions standards must be at least as stringent as the average emissions 

limitation achieved by the best-performing 12 percent of units in the category or subcategory for 

categories and subcategories with at least 30 sources, and by the best-performing five sources in 

the category or subcategory for categories and subcategories with fewer than 30 sources. For 

new sources, the emissions standards must be at least as stringent as the emissions limitation 

 

2

 EPA has delisted 3 of the 190 HAP initially listed in section 112(b)(1): Methyl ethyl ketone, glycol ethers, and 

caprolactam. 

3

 A “major source” is any stationary source that emits or has the potential to emit considering controls, in the 

aggregate, 10 tons per year or more of any HAP or 25 tons per year or more of any combination of HAP. CAA 

section 112(a)(1). 
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achieved by the best-performing similar source. CAA section 112(d)(3). This level of 

stringency is commonly referred to as the MACT “floor.” Also, beyond-the-floor standards may 

be established where EPA determines that such standards are “achievable” taking into account 

costs and other factors. 

 Like the CAA section 112 standards, the CAA section 129 standards are based on a 

MACT floor. Also, as with the CAA section 112 standards, beyond-the-floor standards may be 

established where EPA determines it is “achievable” taking into account costs and other factors. 

Although CAA section 129 “establishes emission requirements virtually identical to section 

[112’s],” Nat’l Lime Ass’n v. EPA, 233 F.3d at 631, the two sections differ in three primary 

respects. First, CAA section 112 requires that MACT standards be established for major sources 

of HAP emissions, but provides discretionary authority to establish standards based on 

“generally available control technology” (GACT) for area sources of HAP emissions.4

 On the 

other hand, under CAA section 129, EPA must issue MACT standards for all solid waste 

incineration units in a given category regardless of size. Second, CAA section 129 requires that 

specific numeric emission limitations must be established for the following nine pollutants, plus 

opacity (as appropriate): cadmium, carbon monoxide, dioxins/furans, hydrogen chloride, lead, 

mercury, NOx, particulate matter (total and fine), and SO2.

5

 These nine pollutants represent the 

minimum that must be regulated; EPA has the discretion to establish standards for other 

 

4

 An “area source” is any stationary source of HAP that is not a major source. CAA section 112(a)(2). Area sources 

may be regulated under CAA section 112(d)(2) standards if the Administrator finds that the sources “presen[t] a 

threat of adverse effects to human health or the environment (by such sources individually or in the aggregate) 

warranting regulation under this section.” Section 112(c)(3). Certain categories of area sources must be regulated in 

accordance with section 112(c)(3) and (k)(3)(B). 5

 Of these nine pollutants, cadmium, dioxins/furans, hydrogen chloride, lead, and mercury are also regulated HAP 

pursuant to CAA section 112. However, particulate matter and carbon monoxide are commonly used as surrogate 

emission standards to control specific CAA section 112 HAP (e.g., CAA section 112 HAP metal and organic 

emissions). 
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pollutants as well. Under CAA section 112, the Agency must establish emissions standards for 

any of the 187 HAP, as necessary, 42 U.S.C. § 7429(d), although the Agency can use surrogate 

emissions standards (e.g., particulate matter to control non-mercury metals) to control specific 

section 112 HAP. Third, CAA section 129 includes specific requirements for operator training, 

pre-construction site assessments, and monitoring that are not included in CAA section 112. See 

CAA section 129(a)(3), (c) and (d). Rather, CAA section 112’s implicit authority and CAA 

sections 113 and 114’s explicit authority is relied upon to include provisions as necessary to 

assure compliance with and enforcement of the section 112 emission limitations. It is important 

to note that CAA section 129(h)(2) specifies that no solid waste incineration unit subject to the 

performance standards under CAA sections 111 and 129 shall be subject to the standards under 

CAA section 112(d). 

B. What Is the History of CISWI, CISWI Definitions, and Boiler Rulemakings? 

EPA promulgated a final rule setting forth performance emissions standards for 

Commercial and Industrial Solid Waste Incineration Units (referred to as the “CISWI Rule”). 65 

FR 75338 (December 1, 2000). Under CAA section 129, the term “solid waste incineration unit” 

is defined, in pertinent part, to mean “a distinct operating unit of any facility which combusts any 

solid waste material from commercial or industrial establishments...” 42 U.S.C. § 7429(g)(1). 

The CAA also specifically excludes the following types of units from the definition of “solid 

waste incineration unit”: (1) incinerators or other units required to have a permit under section 

3005 of RCRA; (2) material recovery facilities (including primary and secondary smelters) 

which combust waste for the primary purpose of recovering metals; (3) qualifying small power 

production facilities, as defined in section 3(17)(C) of the Federal Power Act, or qualifying 

cogeneration facilities, as defined in section 3(18)(B) of the Federal Power Act, which burn 
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homogeneous waste (such as units which burn tires or used oil, but not including refuse-derived 

fuel) for the production of electric energy or in the case of qualifying cogeneration facilities 

which burn homogeneous waste for the production of electric energy or steam or forms of useful 

energy (such as heat) which are used for industrial, commercial, heating or cooling purposes, or 

(4) air curtain incinerators, provided that such incinerators only burn wood wastes, yard wastes 

and clean lumber and that such air curtain incinerators comply with the opacity limitations to be 

established by the Administrator by rule. Id. CAA section 129 further states that the term “solid 

waste” shall have the meaning “established by the Administrator pursuant to the Solid Waste 

Disposal Act.” Id at 7429(g)(6).6

The CISWI Rule established emission limitations for new and existing CISWI units for 

the following pollutants: cadmium, carbon monoxide, dioxins/furans, hydrogen chloride, lead, 

mercury, oxides of nitrogen (NOx), particulate matter (PM), sulfur dioxide (SO2), and opacity. 

In addition, the rule established certain monitoring and operator training and certification 

requirements. 

The CISWI Rule was challenged in Sierra Club v. EPA (No. 01-1048)(DC Cir.). 

However, after promulgation of the CISWI Rule, the DC Circuit issued its decision in a 

challenge to EPA’s MACT standards for the cement kiln industry. See Cement Kiln Recycling 

Coalition v. EPA, 255 F. 3d 855 (DC Cir. 2001)(“Cement Kiln”). As a result, EPA requested, 

and was granted, a voluntary remand without vacatur, of the CISWI rule, in order to address the 

concerns related to the issues that were raised by the court in Cement Kiln. Because the CISWI 

rule was not vacated, its requirements remain in effect. See Sierra Club v. EPA, 374 F. Supp. 2d 

30, 32-33 (D.D.C. 2005). 

 

6

 The Solid Waste Disposal Act, as amended, is commonly referred to the Resource Conservation and Recovery Act 

or RCRA. 
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 On September 22, 2005, EPA issued revised definitions of “solid waste,” “commercial or 

industrial solid waste incineration unit,” and “commercial or industrial waste” (the “CISWI 

Definitions Rule”). See 70 FR 55568. In the CISWI Definitions Rule, EPA defined 

“commercial and industrial solid waste” to exclude solid waste that is combusted at a facility in a 

combustion unit whose design provides for energy recovery or which operates with energy 

recovery. Therefore, a unit combusting solid waste with energy recovery was not considered a 

CISWI unit. 

 The CISWI Definitions Rule was vacated by the D. C. Circuit in NRDC v. EPA (489 F.3d 

1250 (D.C. Cir. 2007))(“NRDC”). The court stated that the statute unambiguously requires any 

unit that combusts “any solid waste material at all” – regardless of whether the material is being 

burned for energy recovery – to be regulated as a “solid waste incineration unit.” Id. at 1260. In 

the same decision, the court also vacated and remanded EPA’s emissions standards for 

commercial, industrial, and institutional major source boilers and process heaters (the Boiler 

MACT Rule), concluding that the universe of sources subject to that rule would be much smaller 

if it did not include units that combust solid waste for the purposes of energy recovery. 

 In response to the D.C. Circuit’s decision, EPA proposed revised emissions standards for 

boilers, process heaters, and CISWI units. Specifically, on June 4, 2010, the Agency proposed 

new National Emissions Standards for Area Source Industrial, Commercial, and Institutional 

Boilers (75 FR 31896), National Emission Standards for Hazardous Air Pollutants for Major 

Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters (75 FR 32006), 

and Standards of Performance for New Stationary Sources and Emission Guidelines for Existing 

Sources: Commercial and Industrial Solid Waste Incineration Units (75 FR 31938). These 

proposed emissions standards were established based on the criteria proposed in the 
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Identification of Non-Hazardous Secondary Materials Rule that are Solid Waste proposed rule 

(75 FR 31844). 

C. Why Is the Court’s Decision Affecting the CAA Rules Relevant to RCRA? 

In responding to the court's vacatur and remand of the CISWI Definitions Rule and the 

Boiler MACT Rule, EPA is establishing, under RCRA, which non-hazardous secondary 

materials7 are “solid waste.” This is necessary because, under the court’s decision, any unit 

combusting any “solid waste” at all must be regulated as a “solid waste incineration unit,” 

regardless of the function of the combustion device. If a non-hazardous secondary material (also 

referred to as a “secondary material” in this rulemaking) is not a “solid waste” under RCRA, 

then a unit combusting that material must be regulated pursuant to CAA section 112 if it is a 

source of hazardous air pollutants (HAP). Alternatively, if such material is classified as a “solid 

waste” under RCRA, then a unit combusting that material must be regulated under CAA section 

129, unless it is within the scope of one of the exclusions from the definition of “solid waste 

incineration unit” in section 129(g)(1) of the CAA. 

In addition to this final rule, EPA is concurrently finalizing air emission requirements 

under CAA section 112 for industrial, commercial, and institutional boilers and process heaters, 

as well as air emission requirements under CAA section 129 for CISWI units. For a discussion 

of what requirements are being promulgated today pursuant to the relevant CAA rules, please see 

the respective final actions included in today’s Federal Register. These include: National 

Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and 

 

7

 A secondary material is any material that is not the primary product of a manufacturing or commercial process, and 

can include post-consumer material, post-industrial material, and scrap. Many types of secondary materials have 

Btu or material value, and can be reclaimed or reused in industrial processes. For purposes of this notice, the term 

secondary materials include only non-hazardous secondary materials. See also American Mining Congress v. EPA, 

824 F.2d 1177 (D.C. Cir. 1987) in which the U.S. Court of Appeals for the District of Columbia Circuit discussed 

secondary materials. 
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Institutional Boilers (EPA-HQ-OAR-2006-0790); National Emission Standards for Hazardous 

Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process 

Heaters (EPA-HQ-OAR-2002-0058); and Standards of Performance for New Stationary Sources 

and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste 

Incineration Units (EPA-HQ-OAR-2003-0119).

D. What is the History of the Definition of Solid Waste? 

1. Statutory Definition of Solid Waste. 

RCRA defines “solid waste” as “...any garbage, refuse, sludge from a waste treatment 

plant, water supply treatment plant, or air pollution control facility and other discarded 

material... resulting from industrial, commercial, mining, and agricultural operations, and from 

community activities...” (RCRA section 1004 (27) (emphasis added)). The key concept is that of 

“discard” and, in fact, this definition turns on the meaning of the phrase, “other discarded 

material,” since this term encompasses all other examples provided in the definition. 

2. Solid Waste Program, RCRA Subtitle D. 

The regulations that pertain to non-hazardous solid waste (RCRA subtitle D) contain five 

definitions of the term “solid waste.” (See 40 CFR 240.101(y); 40 CFR 243.101(y); 40 CFR 

246.101(bb); 40 CFR 257.2; and 40 CFR 258.2.) These regulatory definitions largely mirror the 

statutory definition of solid waste with some clarifications applicable to the specific regulatory 

section. The RCRA statutory definition of solid waste has also been repeated in the CAA 

emission guidelines for other solid waste incineration units (e.g., see 40 CFR 60.2977 and 

60.3078). 

Until this proceeding, EPA has not focused on the specific parameters of the definition of 

solid waste as it applies to non-hazardous solid waste programs under RCRA subtitle D, as these 
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programs are largely regulated and implemented by the states. Under RCRA subtitle D, EPA has 

promulgated criteria for municipal solid waste landfills and approves state solid waste landfill 

permitting programs; however, it is the states that fully implement these programs. EPA does 

not have the same role in these programs as it does in the hazardous waste programs established 

under RCRA subtitle C. As a result, EPA has not promulgated detailed regulations defining 

“solid waste” for purposes of the subtitle D (non-hazardous) programs. States have promulgated 

their own laws and regulations for what constitutes solid waste and have interpreted those laws 

and regulations to determine what types of non-hazardous secondary materials management 

activities constitute discard (and therefore involve the management of a solid waste). 

Pursuant to CAA section 129, however, the Agency must now determine at the national 

level the requirements and procedures for identifying non-hazardous secondary materials that are 

solid waste under RCRA subtitle D so that EPA can establish appropriate emissions standards 

under CAA sections 112 and 129. We emphasize that we are articulating a narrow definition in 

this final rule and are not making solid waste determinations that cover other possible secondary 

material end uses. 

3. Hazardous Waste Program, RCRA Subtitle C.

The RCRA subtitle C hazardous waste federal program has a long regulatory history in 

defining “solid waste” for purposes of the hazardous waste regulations. However, the 40 CFR 

261.2 regulatory definition of solid waste explicitly applies only to wastes that also are 

hazardous for purposes of the subtitle C regulations (see 40 CFR 261.1(b)(1)). EPA emphasizes 

that it is not reopening any of its subtitle C regulations in today’s final rule. 

 Under subtitle C of RCRA, EPA promulgated a final rule on October 30, 2008, which 

revised the requirements regulating hazardous secondary materials when they are recycled via 
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reclamation (The 2008 Definition of Solid Waste (DSW) Final Rule).8 On January 29, 2009, the 

Sierra Club filed a lawsuit challenging the rule in the U.S. Court of Appeals for the District of 

Columbia Circuit (D.C. Circuit), Docket No. 09-1041. In addition, Sierra Club submitted to the 

Administrator of EPA an administrative petition under RCRA section 7004(a), 42 U.S.C. 

6974(a). The administrative petition requested that the Agency repeal the October 2008 

revisions to the 2008 DSW Final Rule and stay the implementation of the rule.9 EPA reviewed 

the administrative petition, held a public meeting10 and requested written comments on the 

petition. As a result of settlement in the litigation, Sierra Club has withdrawn its administrative 

petition but EPA has agreed to issue a proposal to consider the issues raised in the petition.11 As 

a result, EPA plans to develop a proposed rule asking for comment on potential revisions to the 

October 2008 DSW Final Rule. Under the settlement agreement with the Sierra Club in the D.C. 

Circuit litigation, EPA has committed to a proposed rule on or before June 30, 2011 and to take 

final action on the proposed rulemaking on or before December 31, 2012.12 This subsequent 

proposed rule will apply to the regulation of hazardous secondary materials under subtitle C of 

RCRA and is not, at this time, affecting today’s final rule. 

4. Case Law on the Definition of Solid Waste.

Partly because the interpretation of what constitutes a solid waste is the foundation of the 

hazardous waste regulatory program (i.e., secondary material must qualify as “solid waste” 

 

8

 See “Revisions to the Definition of Solid Waste,” Final Rule, October 30, 2008, at 73 FR 64667. 

9

 A copy of Sierra Club’s Petition to the U.S. EPA to Reconsider and Repeal the Definition of Solid Waste Final 

Rule (DSW Rule) can be found in the docket for the 2008 DSW Final Rule. See Docket ID: EPA-HQ-RCRA-2009-

0315; Document ID No. EPA-HQ-RCRA-2009-0315-0002. 10 The public meeting was announced in a May 27, 2009 Federal Register notice, which also described possible 

actions and optional paths forward. 

11 See 74 FR 25200. The transcript of the public hearing can also be found in the docket for the DSW Final Rule. 

See Docket ID: EPA-HQ_RCRA-2009-0315, Document ID No. EPA-HQ-RCRA-2009-0315-0024. 12 A copy of the settlement agreement, entitled “EPA’s and Sierra Club’s Lodging of Settlement and Motion to 

Sever and Hold Case in Abeyance,” can be found at http://www.epa.gov/osw/hazard/dsw/sierraclubdsw.pdf. 
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before it can be classified as “hazardous waste”), there have been a number of court opinions 

discussing the meaning of “solid waste” in litigation challenges to rules issued under RCRA 

subtitle C. From these cases, a few key principles emerge which guide our thinking on the 

definition of solid waste in today’s final rule. 

First, the ordinary plain-English meaning of the term, “discard,” controls. See American 

Mining Congress v. EPA, 824 F.2d 1177 (D.C. Cir. 1987) (“AMC I”). The ordinary plainEnglish meaning of the term discarded means “disposed of,” “thrown away,” or “abandoned.” 

The court specifically rejected a more expansive meaning for discard that would encompass any 

materials “no longer useful in their original capacity” even if they were not destined for disposal. 

824 F.2d at 1185-87. The Court further held that the term “discarded materials” could not 

include materials “...destined for beneficial reuse or recycling in a continuous process by the 

generating industry itself. (824 F.2d at 1190). 

Subsequent to AMC I, the court discussed the meaning of discard in particular cases. In 

American Petroleum Institute v. EPA, 906 F.2d 729 (D.C. Cir. 1990) ("API I"), the court rejected 

EPA's decision not to regulate recycled air pollution control equipment slag based on an Agency 

determination that waste “ceases to be a ‘solid waste’ when it arrives at a metals reclamation 

facility because at that point it is no longer ‘discarded material.’” 906 F.2d at 740. Instead, the 

court stated that these materials are part of a mandatory waste treatment plan for hazardous 

wastes prescribed by EPA and continued to be wastes even if recycled. 906 F.2d at 741. 

Further, a material is a solid waste regardless of whether it “may” be reused at some time in the 

future. American Mining Congress v. EPA, 907 F.2d 1179 (D.C. Cir. 1990) ("AMC II"). 

One of the more important holdings of a number of court decisions is that simply because 

a waste has, or may have, value does not mean the material loses its status as a solid waste. See 
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API I, 906 F.2d at 741 n.16; United States v. ILCO Inc., 996 F.2d 1126, 1131-32 (11th Cir. 

1993)(“ILCO”); Owen Steel v. Browner, 37 F.3d 146, 150 (4th Cir. 1994)(“Owen Steel”). ILCO

and Owen Steel, however, seem to recognize that legitimate products made from wastes are, 

themselves, products and not wastes. 

Association of Battery Recyclers v. EPA, 208 F.3d 1047 (D.C. Cir. 2000) (“ABR”) 

reiterated the concepts discussed in the previous cases. The Court held that it had already 

resolved the issue presented in ABR in its opinion in AMC I, where it found that “...Congress 

unambiguously expressed its intent that ‘solid waste’ (and therefore EPA’s regulatory authority) 

be limited to materials that are ‘discarded’ by virtue of being disposed of, abandoned, or thrown 

away” (208 F.2d at 1051). It repeated that materials that are reused within an ongoing industrial 

process are neither disposed of nor abandoned (208 F.3d at 1051–52). It explained that the 

intervening API I and AMC II decisions had not narrowed the holding in AMC I (208 F.3d at 

1054–1056). 

Notably, the Court did not hold that storage before reclamation automatically makes 

materials “discarded.” Rather, it held that “... at least some of the secondary material EPA seeks 

to regulate as solid waste (in the mineral processing rule) is destined for reuse as part of a 

continuous industrial process and thus is not abandoned or thrown away” (208 F.3d at 1056). In 

this regard, the court criticized all parties in the case – industry, as well as EPA – because they 

“presented this aspect of the case in broad abstraction, providing little detail about the many 

processes throughout the industry that generate residual material of the sort EPA is attempting to 

regulate . . .. ” (Ibid). 

American Petroleum Institute v. EPA, 216 F.3d 50, 55 (D.C. Cir. 2000) (“API II”), 

decided shortly after ABR and considered by the court at the same time, provides further 
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guidance for defining solid waste, but in the context of two specific waste streams in the 

petroleum refining industry. The court overturned EPA’s determination that certain recycled oil 

bearing wastewaters are wastes (216 F.3d at 55-58) and upheld conditions imposed by the 

Agency in excluding petrochemical recovered oil from the definition of solid waste (216 F.3d at 

58-59). In the case of oil-bearing wastewaters, EPA had determined that the first phase of 

treatment, primary treatment, results in a waste being created. 216 F.3d at 55. The court 

overturned this decision and remanded it to EPA for a better explanation, neither accepting 

EPA’s view nor the contrary industry view. The court noted that the ultimate determination that 

had to be made was whether primary treatment is simply a step in the act of discarding, or is it 

the last step in a production process before discard? 213 F.3d at 57. In particular, the court 

rejected EPA’s argument that primary treatment was required by regulation, and instead stated 

that EPA needed to “set forth why it has concluded that the compliance motivation predominates 

over the reclamation motivation” and “why that conclusion, even if validly reached, compels the 

further conclusion that the wastewater has been discarded.” 213 F.3d at 58. 

The court also considered whether material is discarded in Safe Food and Fertilizer v. 

EPA, 350 F.3d 1263 (D.C. Cir. 2003) (“Safe Food”). In that case, among other things, the court 

rejected the argument that, as a matter of plain meaning, recycled material destined for 

immediate reuse within an ongoing industrial process is never considered "discarded," whereas 

material that is transferred to another firm or industry for subsequent recycling must always be 

solid wastes. 350 F.3d at 1268. Instead, the court evaluated “whether the agency's interpretation 

of ... 'discarded' . . . is, reasonable and consistent with the statutory purpose. . . ." Id. Thus, EPA 

has the discretion to determine if material is not a solid waste, even if it is transferred between 

industries. 
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We also note that the Ninth Circuit has specifically found that non-hazardous secondary 

materials may, under certain circumstances, be burned and not constitute a solid waste under 

RCRA. See Safe Air For Everyone v. Waynemeyer (“Safe Air”), 373 F.3d 1035 (9th Cir., 2004) 

(Kentucky bluegrass stubble may be burned to return nutrients to the soil and not be a solid 

waste). 

5. Concept of Legitimacy.

 An important element under the RCRA subtitle C definition of solid waste (and an 

important element of today’s final rule) is the concept of legitimate use/reuse and recycling. 

Although today’s final rule does not address the Agency’s hazardous waste regulations, EPA 

believes the concept of legitimacy is an important one in determining when a secondary material 

(whether hazardous or non-hazardous) is genuinely recycled and not discarded under the guise of 

recycling. 

Under RCRA subtitle C, some hazardous secondary materials that would otherwise be 

subject to regulation under RCRA’s “cradle to grave” hazardous waste system are not considered 

solid wastes if they are “legitimately recycled” or legitimately reused as an ingredient or 

substitute for a commercial product. The principal reasoning behind this construct is that 

use/reuse or recycling of such secondary materials often closely resembles normal industrial 

production, rather than waste management. 

However, since there can be considerable economic incentive to manage recyclable 

materials outside of the RCRA hazardous waste regulatory system, there is a clear potential for 

and historical evidence of some handlers claiming they are recycling, when in fact they are 

conducting waste treatment and/or disposal in the guise of recycling. EPA considers such 

“sham” recycling to be, in fact, discard and these secondary materials being sham recycled are 
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solid wastes (or hazardous waste if the material is listed as or exhibits a characteristic of 

hazardous waste pursuant to 40 CFR 261). 

 To guard against hazardous secondary materials being discarded in the guise of recycling, 

EPA has long articulated the need to distinguish between “legitimate” (i.e., true) recycling or 

other use and “sham” (i.e., fake) recycling; see the preamble to the 1985 hazardous waste 

regulations that established the definition of solid waste under RCRA subtitle C (50 FR 638; 

January 4, 1985). A similar discussion that addressed legitimacy as it pertains to burning 

hazardous secondary materials for energy recovery (considered a form of recycling under RCRA 

subtitle C) was presented in the January 9, 1988 proposed amendments to the definition of solid 

waste (53 FR 522). 

Then on April 26, 1989, the Office of Solid Waste13 issued a memorandum that 

consolidated the various preamble and other statements concerning legitimate recycling into a 

list of questions to be considered in evaluating the legitimacy of hazardous secondary materials 

recycling (OSWER directive 9441.1989(19)). This memorandum (known to many as the 

“Lowrance Memo,” a copy of which is included in the Docket to today’s rule) has been a 

primary source of information for the regulated community and for overseeing agencies in 

distinguishing between legitimate and sham recycling. 

In the October 30, 2008 DSW Final Rule, EPA finalized several exclusions from the 

definition of solid waste for hazardous secondary materials being reclaimed and a non-waste 

determination process for persons to receive a formal determination that their hazardous 

secondary materials are not solid wastes when legitimately reclaimed. In that action, EPA 

codified in 40 CFR 260.43 the requirement that materials be legitimately recycled as a condition 

 

13 On January 9, 2009, the Office of Solid Waste was renamed the Office of Resource Conservation and Recovery. 
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for the exclusion for hazardous secondary materials that are legitimately reclaimed under the 

control of the generator (40 CFR 261.2(a)(2)(ii) and 40 CFR 261.4(a)(23)) and as a condition of 

the exclusion for hazardous secondary materials that are transferred for the purpose of legitimate 

reclamation (40 CFR 261.4(a)(24) and 40 CFR 261.4(a)(25)). As part of that final rule, EPA 

also codified the legitimate recycling provision specifically as a requirement for the non-waste 

determination process (40 CFR 260.34). 

Pursuant to a settlement agreement with Sierra Club, in which they agreed to withdraw 

their petition for administrative rulemaking, the Agency agreed to prepare a notice of proposed 

rulemaking, which will solicit comment regarding potential revisions to the 2008 DSW Final 

Rule. In this subsequent proposed rule, EPA has agreed that it will solicit comment on the issues 

raised in Sierra Club’s administrative petition, including the issues that were listed by EPA as 

topics for discussion during the Agency’s public hearing on the 2008 DSW Final Rule. The 

definition of “legitimacy” is one of the issues that will be reconsidered in this subsequent 

proposed rule. 

This subsequent DSW proposed rule is, by necessity, in a different proceeding from the 

rule we are promulgating today. EPA cannot presuppose the results of the DSW rule, but still 

needs to issue a final rule dealing with legitimacy criteria in today’s separate rule affecting nonhazardous secondary materials. The same concept—legitimacy—applies to both rules, but, at 

this point, EPA cannot reconcile the differences between the legitimacy criteria in each rule, if 

there are indeed any substantive differences. As a result, each rule will have its own definition 

of legitimate recycling. Although the Agency is revisiting the definition of legitimacy in the 

context of regulations promulgated pursuant to RCRA subtitle C, EPA continues to believe that 

the principle of “legitimacy” is an important element in the recycling of both hazardous and non-
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hazardous secondary materials. That is, the concept of legitimate recycling is crucial to 

determining whether a hazardous or non-hazardous secondary material being recycled is truly 

being recycled or is, in fact, being discarded through sham recycling and thus, is a solid waste. 

E. Summary of the ANPRM 

In the ANPRM, the Agency considered various guiding principles, including the concept 

of discard, and if discarded, whether the secondary material has been processed to produce a 

non-waste fuel or ingredient product, and the concept of legitimacy,14 in determining if 

secondary materials used in combustion units are solid wastes. Based on these guiding 

principles, the Agency identified a number of scenarios in evaluating the usage of secondary 

materials (e.g., as fuels or ingredients) and whether these secondary materials should be 

considered solid wastes under RCRA when used in combustion devices, such that units burning 

these secondary materials would be subject to regulation under CAA section 129, rather than 

subject to CAA section 112. The ANPRM identified several cases where such secondary 

materials are not solid wastes when combusted, and thus, subject to CAA section 112. These 

scenarios were: (1) traditional fuels, (2) non-hazardous secondary materials used as legitimate 

“alternative” fuels that have not been previously discarded, (3) non-hazardous secondary 

materials used as legitimate “alternative fuels” resulting from the processing of discarded 

secondary materials, (4) non-hazardous secondary materials used as legitimate ingredients, and 

(5) hazardous secondary materials that may be excluded from the definition of solid waste under 

RCRA subtitle C because they are more like commodities than wastes. All other cases where 

 

14 The Agency discussed various criteria regarding the concept of legitimacy. Specifically, with respect to 

secondary materials used as a fuel, they 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 handled as a valuable commodity, the secondary 

material provides a useful contribution, the recycling results in a valuable product, and the product does not contain 

contaminants that are significantly higher in concentration than traditional products. If these criteria are not met, 

then sham recycling may be indicated and the secondary material may be a solid waste. 
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non-hazardous secondary materials are combusted would be considered “solid wastes” and 

subject to CAA section 129. Specifically: 

• Traditional Fuels: EPA identified in the ANPRM fossil fuels (e.g., coal, oil, and natural 

gas) and their derivatives (e.g., petroleum coke, bituminous coke, coal tar oil, refinery 

gas, synthetic fuel, heavy recycle, asphalts, blast furnace gas, recovered gaseous butane, 

and coke oven gas), as well as cellulosic biomass (e.g., wood) as traditional fuels. Such 

traditional fuels have been used historically as fuels and have been managed as valuable 

products, such that they are considered unused products that have not been discarded and 

therefore, are not solid wastes. In addition, EPA also identified as traditional fuels wood 

collected from forest fire clearance activities and tree and uncontaminated wood found in 

hurricane debris if not discarded, if managed properly, and if burned as a legitimate fuel. 

• Non-Hazardous Secondary Materials Used as Legitimate “Alternative Fuels” That 

Have Not Been Previously Discarded: The ANPRM indicated that, in addition to 

traditional fuels, there may be a category of non-hazardous secondary materials that are 

legitimate alternative non-waste fuels, even though they may not have been traditionally 

used as fuels, because of changes in technology and in the energy market. Biomass was 

discussed as one large category of these alternatives fuels. EPA also discussed that scrap 

tires used as tire-derived fuel (TDF), which includes whole or shredded tires, that have 

not been previously discarded, could also be considered legitimate fuels that meet the 

legitimacy criteria (see Materials Characterization Paper on Scrap Tires in the docket for 

today’s rule for a complete discussion on contaminants in TDF [EPA-HQ-RCRA-2008-

0329]). We noted that in many cases, scrap tires are collected pursuant to state tire 

oversight programs (e.g., used tires from tire dealerships that are sent to used tire 
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processing facilities) are handled as valuable commodities, and, therefore, have not been 

abandoned, disposed of, or thrown away. We noted that because states typically regulate 

these programs under their state solid waste authorities, it was not the Agency’s intent to 

undercut the state’s authority in this area. We, therefore, requested comment on whether 

scrap tires collected pursuant to state tire oversight programs should be considered a nonwaste fuel when combusted, and whether an EPA designation specifying that scrap tires, 

for example, managed pursuant to state collection programs would adversely impact a 

state’s ability to manage such a program. Other non-traditional alternative fuels that EPA 

identified in the ANPRM, and for which the Agency solicited comment include 

construction and demolition materials, scrap plastics, non-hazardous solvents and 

lubricants, and wastewater treatment sludge. 

• Non-Hazardous Secondary Materials Used as Legitimate “Alternative Fuels” 

Resulting from the Processing of Discarded Secondary Materials: The Agency also 

discussed the concept of processing of discarded non-hazardous secondary materials, 

such that legitimate fuel products may be extracted, processed, or reclaimed from a nonhazardous secondary material that has been discarded in the first instance and that such 

products would generally not be considered solid wastes. The principle behind this idea 

of processing a solid waste to produce a product is common to industrial processes. 

(Note: Until a legitimate product has been extracted, processed, or reclaimed, the nonhazardous secondary material has been discarded and is a solid waste.) The ANPRM 

identified a number of non-hazardous materials that can be processed into a legitimate 

fuel, including biomass, coal fines, used oil, tires and landfill ash. Of course, the degree 

of processing necessarily will vary depending on the specific material, but the objective is 
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the same—that is, the product from processing must be a legitimate fuel (i.e., a material 

with a meaningful heating value, with contaminants that are not present at significantly 

higher concentrations than those of traditional fuel products, and managed as a valuable 

commodity). 

• Non-Hazardous Secondary Materials Used as Ingredients: In addition to legitimate 

fuel products, the ANPRM also recognized that non-hazardous secondary materials that 

have not been discarded can be used as legitimate ingredients, and identified cement kiln 

dust (CKD), bottom ash, boiler slag, blast furnace slag, foundry sand, and secondary 

glass material as secondary materials that could be considered as legitimate ingredient 

products. If, on the other hand, such non-hazardous secondary materials have been 

discarded, the ANPRM identified such secondary materials as solid wastes, unless they 

are sufficiently processed into a legitimate product, as would be the case for discarded 

materials that could become products after being processed. 

• Hazardous Secondary Materials That May be Excluded from the Definition of Solid 

Waste Under RCRA Subtitle C Because they are More Like Commodities Than 

Wastes: The final category identified in the ANPRM are hazardous secondary materials 

that are recycled and are specifically identified in the subtitle C hazardous waste rules as 

secondary materials that may be burned under certain conditions, but are not considered 

solid wastes, at least for purposes of the hazardous waste regulations. The ANPRM 

indicated that EPA was interested in extending this determination so that these materials 

also are not considered solid wastes under RCRA subtitle D. The Agency indicated that 

it believed that it had sufficient information in the rulemaking records for the various 
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hazardous secondary materials—that is, black liquor and spent sulfuric acid,15 and 

comparable fuels16 to conclude that these subtitle C exclusions are broadly applicable to 

the definition of solid waste under subtitle D of RCRA when these secondary materials 

are used as a fuel or ingredient. 

The ANPRM indicated that in all other cases where secondary materials were combusted, 

they would be considered “solid wastes” under RCRA subtitle D and thus, subject to CAA 

section 129. However, the Agency solicited comment on many aspects of these scenarios. In 

addition, the ANPRM also solicited comment on the following four issues: (1) whether there are 

circumstances where discarded secondary materials—once recovered from the environment—

that can be directly used as a legitimate fuel or ingredient product without processing should not 

be considered a solid waste; (2) whether there are other approaches for determining that nonhazardous secondary materials when used as a legitimate fuel is not a solid waste, and 

specifically took comment on an approach presented to EPA by industry representatives17; (3) 

whether to consider non-hazardous secondary materials that receive a state beneficial use 

determination for use as a fuel or ingredient in a combustion unit as not being a solid waste; and 

(4) how to address biofuels and byproducts from the production of biofuels—that is, whether 

 

15 A determination was made that black liquor reclaimed in a pulping liquor recovery furnace and then reused in the 

pulping process and spent sulfuric acid used to produce virgin sulfuric acid were not solid wastes because these 

hazardous secondary materials were determined to be an integral part of the manufacturing process. 16 A determination was made with respect to comparable fuels that certain hazardous secondary materials meet 

specific requirements to ensure that the materials toxic constituents and physical properties are similar to 

commercial (benchmark) fuels, and therefore, are products and not solid wastes. 17 Industry representatives suggested that non-hazardous secondary materials should be evaluated, on a case-by-case 

basis, to identify which criteria have been satisfied and determine whether the material is legitimately handled as a 

fuel. Criteria identified by industry stakeholders include: handling and storage of materials to minimize loss, use of 

materials within a reasonable period of time, material value (e.g., whether there is a market for the material as a fuel, 

internal or external to the company), material managed and treated as a commodity, and processing of material to 

enhance fuel value. See 74 FR 60 for the ANPRM’s description of this approach. A copy of this industryrecommended approach entitled, “Outline of Regulatory Approach to Determine Materials Considered Fuels – not 

Solid Wastes – under RCRA,” is also included in the docket for this rulemaking. 
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such secondary materials should be considered a waste or not when combusted. (For a more 

detailed discussion of the ANPRM, see 74 FR 41, January 2, 2009) 

F. Summary of the Proposed Rule 

The proposal maintained many of the concepts and provisions discussed in the ANPRM, 

including the concept of discard and the legitimacy criteria. However, the basic framework 

differed from the ANPRM based partly on the approach taken in the Definition of Solid Waste 

final rule promulgated on October 30, 2008 (see 73 FR 64668), based partly on the comments 

received on the ANPRM, as well as EPA’s interpretation of whether these secondary materials 

were discarded. For example, comments received on the ANPRM from some states suggested 

that non-hazardous secondary material fuels that are transferred to a third party have entered 

what is traditionally considered to be the “waste stream” (and have been regulated by the states 

as wastes) and therefore should appropriately be considered wastes (e.g., scrap tires, regardless 

of whether they were collected and managed pursuant to state programs or recovered from 

legacy waste piles). 

As a result of comments like these and the Agency’s re-examining our interpretation of 

the application of the discard concept to various non-hazardous secondary materials, the Agency 

altered its position in the proposed rule. Whereas the ANPRM had indicated that there may be a 

number of non-hazardous secondary materials that would not be considered discarded even if the 

original generator sent them to another entity outside of its control, the proposed rule assumed 

that non-hazardous secondary materials that are used as fuels and are managed outside the 

control of the generator are solid wastes, unless they were processed into non-waste fuel 

products or the Agency grants a non-waste determination (through a case-by-case petition 

process) that such non-hazardous secondary materials are not solid wastes because they have not 
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been discarded and are indistinguishable in all relevant aspects from a fuel product. 

In the proposal, EPA stated that when non-hazardous secondary material fuels are 

transferred to another party, the Agency generally believed that the material is discarded, since 

the generator has relinquished control of the secondary material and the entity receiving such 

materials may not have the same incentives to manage them as a useful product, which results in 

the materials being discarded. The Agency noted that this lack of incentive to manage as a 

useful product has been well-documented in the context of hazardous secondary material 

recycling as evidenced by the results of the environmental problems study performed in support 

of the 2008 DSW Final Rule and believed that this finding also held true for non-hazardous 

secondary materials that are used as fuel. 

The proposed rule considered non-hazardous secondary materials used as ingredients that 

are used in combustion units to not be solid waste if they were not discarded in the first instance 

and if they met the legitimacy criteria, irrespective of whether they have been transferred to a 

third party. The Agency stated that it was not proposing to differentiate ingredients that are used 

within the control of the generator from those that are not since we believed the use of nonhazardous secondary materials as ingredients is considered to be more integral or akin to use in a 

commercial manufacturing process and thus, these non-hazardous secondary materials would not 

be considered discarded provided they satisfy the legitimacy criteria. 

The proposed rule also included a petition process for receiving non-waste 

determinations, which was an additional area for comment in the ANPRM, but not included as 

an approach or scenario that was specifically presented. One of the differences between the 

ANPRM and the proposed rule was the classification of “clean” biomass and on-specification 

used oil as traditional fuels. In addition, the proposed rule did not address hazardous secondary 
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materials excluded from the definition of solid waste under subtitle C of RCRA, concluding that 

it does not need to address this exclusion in this rulemaking since these secondary materials have 

already been excluded from the definition of solid waste as hazardous secondary materials and 

therefore, should not be addressed in the proposed rule, which deals with the definition of solid 

waste for non-hazardous secondary materials used in combustion units. 

Finally, the proposed rule also revised the contaminant legitimacy criteria, stating that 

non-hazardous secondary materials used as fuels in combustion units must contain contaminants 

at levels “comparable” to or less than those in traditional fuels which the combustion unit is 

designed to burn, whereas the ANPRM had stated that non-hazardous secondary materials used 

as fuel could not contain contaminants that were “significantly higher” than traditional fuel 

products. In the proposed rule, EPA explained its rationale for making this change, stating that 

the requirement that non-hazardous secondary materials have contaminants at levels comparable 

to or less than traditional fuels would ensure that the burning of any secondary materials in 

combustion units will not result in discard of materials or their contaminants and thus, will not 

result in increased releases to the environment that could adversely impact the health and 

environment of the local community. A similar change was made to the contaminant legitimacy 

criterion for ingredients, with the comparison being made between products manufactured with 

and without non-hazardous secondary materials. 

Thus, in the proposed rule, the Agency considered all non-hazardous secondary materials 

burned in combustion units as solid wastes except for the following circumstances: (1) nonhazardous secondary materials used as a fuel that remains within the control of the generator 

(whether at the site of generation or another site within the generator’s control) that meets the 

legitimacy criteria; (2) non-hazardous secondary materials used as an ingredient in a 
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manufacturing process (whether by the generator or a third party) that meets the legitimacy 

criteria; (3) legitimate fuel or ingredient products that are produced from the processing of 

discarded non-hazardous secondary materials18; and (4) non-hazardous secondary materials 

handled outside the control of the generator, but has been determined through a case-by-case 

non-waste determination petition process to not have been discarded and to be indistinguishable 

in all relevant aspects from a fuel product. 

G. Use of Secondary Materials 

1. Introduction. 

The U.S. is pursuing an approach to materials management that employs the concepts of 

life cycle assessment19 and full cost accounting.20 Within the context of RCRA,21 this final rule 

aims to facilitate materials management to the extent allowed by the statute, through the 

establishment of a regulatory framework that guides the beneficial use of various secondary 

materials, while ensuring that such use is protective of human health and the environment. EPA, 

in conjunction with the states, seeks to further facilitate this objective through research, analysis, 

incentives, and communication. The Agency recognizes that secondary materials are widely 

used today as fuels and/or ingredients in industrial processes. We expect these uses will continue 

and expand in future years as effective materials management becomes more critical to a 

 

18 As we state throughout the preamble, prior to the production of the legitimate fuel or ingredient product, the nonhazardous secondary material is considered a solid waste and would be subject to the appropriate federal, state, and 

local requirements. 

19 The terms “life cycle analysis” and “life cycle assessment” are commonly used interchangeably. Life cycle 

assessment is a system-wide analytical technique for assessing the environmental (and sometimes economic) effects 

of a product, process, or activity across all life stages. 20 Full cost accounting is an accounting system that incorporates economic, environmental, health, and social costs 

of a product, action, or decision. 

21 RCRA section 6901(c) – Materials: The Congress finds with respect to materials, that—(1) millions of tons of 

recoverable material which could be used are needlessly buried each year; (2) methods are available to separate 

usable materials from solid waste; and (3) the recovery and conservation of such materials can reduce the 

dependence of the United States on foreign resources and reduce the deficit in its balance of payments. 
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sustainable society. The use of secondary materials from a variety of non-traditional sources, 

including the use of energy-containing secondary materials, is expected to play an important role 

in future resource conservation efforts. 

The use of secondary materials as alternative fuels and/or ingredients in manufacturing 

processes using combustion not only recovers valuable resources, it is known to contribute to 

emission reductions. For example, both greenhouse gas (GHG) and particulate matter (PM) 

emissions have been reduced as a co-benefit of the use of secondary materials.22 The use of 

secondary materials, such as use as a fuel in industrial processes may also result in other benefits, 

including reduced fuel imports, reduced negative environmental impacts caused by previous 

dumping (e.g., tires), and reduced methane gas generation from landfills. 

Secondary materials may, in some cases, be more appropriately defined as “byproducts,”23 reflecting their inherent resource recovery value in the generation and production of 

heat, energy, and/or marketable products or intermediates. Secondary materials can provide 

microeconomic (firm level) and macroeconomic benefits when legitimately used as effective 

substitutes for, or supplement to virgin materials. Economic efficiencies can be improved with 

the use of secondary materials, when substituted for increasingly scarce virgin materials, because 

the use of such secondary materials often results in an equivalent level of outputs at lower overall 

resource use, or in turn, greater outputs could be generated using the same amount of resource 

 

22 For example, the GHG emissions rate associated with the combustion of scrap tires is approximately 0.081metric 

tons of carbon dioxide equivalents (MTCO2E) per million metric British thermal units (MMBtu) of scrap tires 

combusted, while the GHG emissions rate for coal is approximately 0.094 MTCO2E per MMBtu. Combined with 

the avoided extraction and processing emissions 0.006 MTCO2E/MMBtu for coal, the total avoided GHG is 0.019 

MTCO2E per MMBtu. Substituting tire-derived fuel for coal would also avoid an estimated 0.246 Lbs/MMBtu of 

PM associated with extraction and processing of the coal. Please see the Materials Characterization Papers in the 

docket for further details on these estimates, and other estimates of avoided emissions associated with burning tires 

and other secondary materials as fuel. 

23 For purposes of this action, we define by-product as a secondary or incidental material derived from the primary 

use or production process that retains value in the marketplace or to an end user. 
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inputs. When this occurs, monetary savings resulting from reduced resources and expenditures 

would, theoretically, be applied to a higher and better use in the economy. This helps advance 

economic growth as a result of improved industrial efficiency,24 which, in turn, helps move the 

country toward material sustainability and energy self sufficiency, while protecting human health 

and the environment. 

2. Secondary Materials Use and Benefits. 

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

ingredients in manufacturing or service processes. Based on our research conducted in support 

of the January 2, 2009 ANPRM, we identified eight non-hazardous secondary material fuels or 

fuel groups and six non-hazardous ingredients, or ingredient groups. The eight fuel source 

materials were: the biomass group (pulp and paper residuals, forest derived biomass, agricultural 

residues, food scraps, animal manure, and gaseous fuels); construction and demolition materials 

(building related, disaster debris, and land clearing debris); scrap tires; scrap plastics; spent 

solvents; coal refuse; waste water treatment sludge, and used oil. The six secondary material 

ingredients were: blast furnace slag; CKD; the coal combustion residuals (fly ash, bottom ash, 

and boiler slag); foundry sand; silica fume; and secondary glass material. The ANPRM discussed 

and described these key secondary materials. In addition, we developed Materials 

Characterization Papers for each of these fuel and ingredient materials. These papers were 

included in the docket for the ANPRM, as well as the docket for the proposed rule. 

 In preparing the proposed rule, we developed three additional Materials Characterization 

Papers for auto shredder residue, purification process byproducts, and resinated wood products. 

 

24 Opportunities for improved economic efficiency are recognized through the Action Statement of the U.S. Business 

Council For Sustainable Development: “Promoting Sustainable Development by Creating Value Through Action 

Establishing Networks and Partnerships, and Providing a Voice for Industry.” 
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For today’s final rule, we have updated and revised all of the existing Materials Characterization 

Papers for which we received additional data and information. We have included these updated 

Materials Characterization Papers in the docket for this final rule. We believe that the nonhazardous secondary fuels and ingredients discussed in this series of Materials Characterization 

Papers account for the vast majority of all non-hazardous secondary materials used in 

combustion processes in the U.S. 

V. Comments on the Proposed Rule 

Under the approach outlined in the proposed rule, non-hazardous secondary materials 

were defined as a solid waste unless: (1) the non-hazardous secondary material is used as a fuel 

and remains within the control of the generator that meets the legitimacy criteria; (2) the nonhazardous secondary material is used as an ingredient that meets the legitimacy criteria; (3) the 

discarded non-hazardous secondary material has been sufficiently processed to produce a nonwaste fuel or ingredient product that meets the legitimacy criteria; or (4) through a case-by-case 

petition process, EPA has determined that the non-hazardous secondary material has not been 

discarded and is indistinguishable in all relevant aspects from a fuel product. 

 The Agency also took comment on two other approaches regarding the combustion of 

non-hazardous secondary materials. Under the first approach, identified in the proposal as the 

“Alternative Approach,” all non-hazardous secondary materials and ingredients that were 

combusted at facilities that were not within the control of the generator were considered a solid 

waste. Thus, unlike the proposal, ingredients that are combusted at facilities that were not within 

the control of the generator, legitimate fuels and ingredients that are produced from the 

processing of discarded non-hazardous secondary materials, and non-hazardous secondary 

materials that may not be considered a solid waste under a non-waste determination process 
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would all be considered solid wastes under this alternative. Put another way, only those nonhazardous secondary materials that were combusted within control of the generator that meet the 

legitimacy criteria would be considered a non-waste. Traditional fuels also would not be 

considered a solid waste. 

 The second alternative that EPA took comment on was a more far reaching regulatory 

approach, as suggested by some commenters, in which only traditional fuels are not solid wastes 

and all non-hazardous secondary materials burned for energy recovery or as an ingredient are 

considered discarded, and therefore, solid wastes.25

This Section discusses the comments that EPA received, as well as our response to those 

comments. Specifically, comments regarding the overall proposed approach pertaining to the 

definitions of discard and processing are discussed in Section V.A; comments on specific 

materials used as fuels, including traditional fuels are discussed in Section V.B; comments on 

specific materials used as ingredients are discussed in Section V.C; comments on the legitimacy 

criteria for fuels and ingredients are discussed in Sections V.D and V.E respectively; comments 

on the petition process are outlined in Section V.F; and comments on the other approaches for 

which EPA solicited comments are discussed in Section V.G. 

A. Proposed Approach

1. Definition of the Term Discard. 

 Under the proposed rule, non-hazardous secondary materials that are discarded are 

considered to be a solid waste. On the other hand, secondary materials that have not been 

 

25 On August 18, 2009, EPA received a letter signed by nearly one hundred community groups and citizens that 

urged for an expansive definition of solid waste for the purposes of combustion and argued against the general 

approach of the ANPRM. A copy of this letter has been placed in the docket to today’s final rule. The letter 

highlights stakeholder concerns regarding the differences between CAA sections 112 and 129 and argues against an 

overly narrow definition of solid waste. 
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discarded, such as secondary materials that are managed within the control of the generator and 

meet the specified legitimacy criteria would not be considered a solid waste. Many of the 

comments discussed the definition of the term “discard” and instances in which the term should 

or should not apply. 

 As discussed below, environmental groups argue, generally, that any secondary material 

burned for energy recovery is a solid waste. These commenters object to allowing control by the 

generator to be relevant to rendering material a non-waste, even if burned under the legitimacy 

criteria, claiming that these materials are wastes. 

 Industry commenters, on the other hand, assert that the secondary materials used in their 

operations exhibit value as evidenced by their purchase price, their use as inputs and products, 

their role in ongoing recycling programs, their use as fuels, and/or their use in “routine 

transactions” or processing operations. Based on these characteristics, industry commenters 

maintain that such secondary materials should not be considered discarded. Industry 

commenters also assert that EPA cannot define something as “discarded” when transferred to a 

third party and express concern that the concept of discard is ambiguous or incorrectly 

interpreted by EPA in the proposed rule. 

In addition, while industry commenters favor allowing the generator to burn secondary 

materials as non-wastes, they also argue that materials are not wastes so long as they are 

combusted legitimately even if the material has been discarded in the first instance. They argue 

that the proposed rule effectively makes the act of moving materials from one party to another 

the equivalent of "discard," regardless of intent. These commenters claim that EPA’s definition 

of solid waste is overly restrictive and yields little environmental gain. Certain comments 

maintain that as long as a non-hazardous secondary material meets the legitimacy criteria for use 
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as a fuel, and it is combusted as a fuel, it is not a waste. These comments state that secondary 

materials cannot be assumed to be part of the solid waste disposal problem merely because the 

original generator of the materials transfers them to another entity. In fact, depending on the 

nature of the transaction, this transfer may indicate that the company values the material. 

a. Comments from Environmental Groups 

Comment: 

Case law prevents EPA from finding that secondary materials burned for energy recovery 

are not solid wastes. The D.C. Circuit holding in AMC I that material “recycled and reused in an 

ongoing manufacturing or industrial process” is not “discarded” does not apply to secondary 

materials burned for energy recovery even if legitimately recycled and reused. AMC I only 

addresses reclamation of secondary materials. Moreover, EPA incorrectly relies on case law to 

give it discretion to define “discard.” According to the comment, EPA is wrongly implying that, 

under case law, the meaning of “discard” is ambiguous and that the Agency has discretion to 

define burning for energy recovery as either discard or not. 

 EPA’s Response: 

EPA disagrees with this comment. To reply to this commenter, EPA is relying on its 

explanations in the ANPRM and the proposal, as well as the discussion reiterated in this 

preamble. See especially discussions of the law in the proposed rule at 75 FR 31850-52 (section 

titled, “Case Law on Definition of Solid Waste”); 31858-59 (Comment/Response section titled 

“Meaning of Discard”); and 31885-87 (section titled “Alternative Approach”). That is, EPA sees 

nothing in the comment that would change the legal basis for this rule. However, the Agency 

believes it needs to clarify the more obvious inaccuracies in the comment. 

 First, EPA freely admits, as stated in the proposal, that the secondary materials at issue in 
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AMC I were not burned for energy recovery. See, for example, 75 FR 31887. However, the 

plain logic of the court’s opinion and the plain meaning of the statute are unmistakable. EPA 

does not have the discretion to cover as solid waste secondary materials recycled in a continuous 

industrial process, even if they are used in a combustion unit. Indeed, if EPA were to assert 

jurisdiction for materials recycled in a continuous process for energy recovery, it appears highly 

likely that the Agency’s rule would be invalidated in a litigation challenge. 

 In addition, EPA has not at any time since the ANPRM in this proceeding stated that the 

term “discard” is ambiguous. It is clear that EPA’s jurisdiction under RCRA applies 

unambiguously to materials that are discarded and the definition is unambiguous in that it means 

thrown away, disposed of or abandoned. It is the application of the definition to particular 

instances that gives rise to ambiguity. The ABR court plainly stated that the term may be 

ambiguous as applied to some situations, but not as applied to others. 208 F.3d at 1056, See 

also 75 FR 31887. The comment simply begs the question when it claims EPA is relying on an 

ambiguous meaning to claim discretion. EPA has no discretion in certain cases. For example, 

the Agency may not regulate secondary materials recycled in a continuous industrial process. 

On the other hand, EPA may have to exercise discretion to determine whether particular 

materials are recycled in a continuous process and whether materials recycled in other ways are 

solid wastes. Agency discretion applies to the application of the discard definition. 

 Comment: 

EPA’s proposal acknowledges that burning a secondary material for energy recovery is 

not “traditional” recycling. Thus, EPA may not consider burning for energy recovery as 

recycling because the term, “recycling,” is not given its ordinary meaning. See 75 FR at 31872. 

 EPA’s Response: 
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EPA disagrees with the conclusion of the comment, but needs to correct the record. EPA 

received a comment in response to the ANPRM that requested the Agency to apply the 

legitimacy criteria to situations where the recycling does not include burning for energy 

recovery. The commenter referred to these other situations as “traditional” recycling. EPA’s 

response noted that this regulation specifically applies to whether non-hazardous secondary 

materials in a combustion unit are legitimately recycled or not. This is the general policy in this 

regulation, since states may regulate non-hazardous secondary materials recycled in ways not 

involving combustion units, but EPA is required to determine which non-hazardous secondary 

materials are solid waste when combusted for purposes of CAA sections 112 and 129. 

In its response to the comment wrongly referring to “traditional” recycling, the Agency 

used the same term as the commenter. This was a mistake, since the Agency makes clear 

virtually every where else in the rulemaking record that recycling includes legitimate burning for 

energy recovery and this is very clearly understood by almost all of the commenters. The 

Agency views the comment’s distinction as a semantic matter, not as a practical application of 

the term “traditional.” This mistake is hereby corrected for purposes of the final rule. 

“Traditional” recycling may include burning for energy recovery of secondary materials. 

 Comment: 

EPA effectively concedes that the “ordinary everyday” meaning of “discarded material” 

includes “secondary materials” when they are burned – no matter who burns them and regardless 

of whether energy is recovered from the combustion process. The comment cites the preamble 

to the proposed rule in several places where EPA notes that combustion of secondary materials is 

“commonly” associated with disposal. See 75 FR at 31859, 31877. 

 The comment states, further, EPA’s sense of what constitutes discard is not the ordinary 
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sense of the term by citing the Agency’s discussion of the benefits of burning secondary 

materials. 75 FR at 31849. In addition, according to the comment, EPA is unlawfully seeking to 

exclude from the definition of solid waste by its discussion of the benefits of burning the 

following materials: pulp and paper residuals, agricultural residues, food scraps, animal manure, 

construction and demolition waste, disaster debris, land clearing debris, scrap plastics, spent 

solvents, coal refuse, waste water treatment sludge and used oil. 75 FR at 31850. 

 EPA’s Response: 

Other responses deal with the legal arguments made by this particular comment on how 

the statute and case law deal with the definition of solid waste. However, the Agency believes it 

necessary to address some of the comment’s specific inaccuracies separately. 

First, EPA in no way “concedes” that all materials burned for energy recovery are 

discarded in the ordinary sense of the term. To the extent that the Agency notes certain public 

perceptions, it plainly states (on the same pages cited in the comment) that these are 

misconceptions because they do not take into account that a secondary material may often be 

used to produce a safe fuel product that is a valuable commodity or that a secondary material that 

is burned in a combustion unit does not necessarily have high levels of contaminants. 75 FR 

31859. 

 In addition, EPA refers to the same misconceptions when it discusses whether product 

fuels may be processed or extracted from materials once discarded. EPA notes that fuel 

processed or extracted from discarded non-hazardous secondary materials should not necessarily 

be considered solid waste, just as recycled newspapers, recycled aluminum, re-refined oil, to 

name but a few, are not considered solid waste. Moreover, the misperception that contaminant 

levels are high in combusted secondary materials affects the perception that there needs to be a 
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very high threshold with respect to the level of processing that must take place to render a 

discarded material into a non-waste product. 75 FR 31877. 

 Finally, EPA does not understand the comment’s citation to 75 FR 31849-50 as 

containing statements regarding the Agency’s “sense” of discard or the fact that the Agency is 

seeking to exclude various materials from the definition of solid waste. These pages only discuss 

the benefits of secondary material combustion without opining on whether the combusted 

materials would or would not be a waste. EPA cannot understand the comment’s motivation in 

making these statements. 

 Comment: 

RCRA’s statutory language shows that Congress did not intend EPA to exclude 

secondary materials that are burned for energy recovery from the definition of solid waste. In 

particular, section 3004(q) directs EPA to issue regulations both for facilities that produce fuels 

from hazardous waste and for facilities that burn “for purposes of energy recovery” any fuel that 

is produced from hazardous waste or any fuel that contains any hazardous waste. Thus, EPA 

may not declare that hazardous wastes and hazardous waste derived fuels are not discarded when 

burned for energy recovery. The comment concedes that section 3004(q) addresses hazardous 

waste, but maintains that the provision is strongly indicative of Congress’ intent that burning a 

material for energy recovery does not transform that material into a non-waste. 

 EPA’s Response: 

EPA disagrees with this comment. Section 3004(q) only applies to specific provisions of 

the statute and in no way can it be considered to present a sweeping bar to the Agency’s ability 

to interpret the statute. In fact, since Congress only addressed these provisions in the hazardous 

waste subtitle of RCRA, the more logical interpretation is that such provisions would not be 
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applicable to other parts of the statute. Section 3004(q) very clearly provides that a material 

must be a hazardous waste, first, before its provisions apply. EPA needs to make the 

determination that material is a hazardous waste before even dealing with the restrictions under 

3004(q). Thus, it does not apply to the present rule where EPA must first determine whether the 

material is a solid waste and there is no question that the materials subject to this rule are 

hazardous wastes. EPA accepts the comment’s concession that 3004(q) only applies to 

hazardous waste. 

 Comment: 

 One comment states that “exemptions” in EPA’s rule from the definition of solid waste 

violate the CAA. EPA interprets this comment to mean that the commenter sees violations of the 

CAA for any non-hazardous secondary material the Agency has decided is not a solid waste. 

The comment states the following: “Congress was not concerned either about the ownership of a 

waste material that was being burned or about whether energy was recovered from the 

combustion process; it simply wanted to ensure that all waste combustion units were subject to 

the protective control, monitoring, siting, training, and reporting requirements that it found 

necessary and appropriate for these units.” 

The comment makes four points to support its contention: 

1. The proposed rule is a transparent attempt to exempt facilities that recover energy 

from the section 129 standards and would shrink the population of facilities covered 

to 175, a number far less than Congress intended. 

2. Section 129(g)(1) makes clear that Congress viewed refuse-derived fuel as waste and 

EPA includes “refuse-derived” fuel as a non-waste. 
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3. Section 129(h)(5) shows that Congress viewed the universe of “fuel” to consist of 

“waste” on the one hand and “fossil fuel” on the other. Congress’s definition of 

“municipal waste” expresses the intent that facilities that burn non-fossil fuels and are 

not covered by the express exclusions in section 129(g)(1) must meet the section 129 

incinerator standards. 

4. Because EPA would allow energy recovery facilities controlled by the generator to 

burn non-hazardous secondary materials under section 112, EPA’s regulations would 

improperly allow hospital-owned medical waste incinerators to burn medical and 

infectious wastes and would not be incinerators subject to the section 129 incinerator 

standards. 

 EPA’s response: 

 EPA disagrees that these provisions of the CAA are relevant to this regulation. EPA is 

not creating exemptions to section 129 for facilities that recover energy. Rather, EPA is 

establishing a definition of non-hazardous solid waste, which, as specified by CAA section 

129(g)(6), governs the meaning of “solid waste” under section 129. Because Congress 

specifically directed that “solid waste” have the meaning established by the Administrator under 

RCRA, instead of defining the term under RCRA, the CAA definition of “municipal waste” is 

not relevant to this action. 

 If any or all of the commenter’s contentions are correct, section 129 would not provide 

that the term “solid waste” shall have the meaning promulgated by EPA under RCRA. There 

would simply be no reason for EPA to consider the RCRA definition, since section 129 would 

take care of the issue. Section 129(g)(6) would be meaningless. 

 The commenter further argues that EPA should consider the CAA when defining solid 
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waste under RCRA. The CAA does not direct the Agency to consider the language of section 

129 when establishing a RCRA definition. So long as EPA’s rule is consistent with the RCRA 

definition of “solid waste,” it must stand. That is, as long as the definition of solid waste is 

consistent with RCRA, and the Agency issues emissions standards for all units that burn 

commercial and industrial solid waste in the CISWI rule, the standards under section 129 are 

valid. Therefore, we believe the commenter’s general argument is without merit. 

 With respect to each of the supporting points: 

1. Contrary to the commenter’s assertion, EPA is not “exempting” energy recovery 

facilities from the section 129 standards. The Agency is simply interpreting the term 

“solid waste” under RCRA. The number of facilities that are combusting solid waste 

is not relevant to this interpretation. Moreover, there is no indication in the CAA of 

the number of facilities Congress intended to be covered under section 129 of the Act. 

2. The comment is incorrect that section 129, by excluding “refuse-derived fuel” from 

the exclusion in 129(g)(1)(B) was somehow defining the term as being included in 

the term, “solid waste,” under RCRA. Again, if that were the case, section 129(g)(6) 

would be superfluous. Nevertheless, today’s rule identifying which non-hazardous 

secondary materials that are solid wastes when combusted does not include fuel 

derived from municipal waste refuse under 129(g)(5). Some fuels may be processed 

from solid waste, but that determination by the Agency stands or falls based on the 

RCRA statute and case law, not the CAA. EPA is not defining “refuse derived fuel” 

in this RCRA rule. The validity of EPA’s interpretation on whether commodity fuels 

may be processed, or extracted, from a waste must stand or fall based on the RCRA 

definition, not provisions of the CAA. 
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3. EPA disagrees with the statement that the CAA considers “the universe of ‘fuel’ to 

consist of ‘waste’ on the one hand and ‘fossil fuel’ on the other.” Again, the CAA is 

not defining solid waste. Solid waste is defined under RCRA as material that is 

“discarded.” There is no distinction anywhere in RCRA that would indicate that 

anything other than a fossil fuel must be a waste. 

4. This rule does not address whether or not medical waste is a solid waste under 

RCRA. EPA issued regulations under section 129 of the CAA establishing emission 

standards for hospital and medical waste, and today’s action does not affect those 

regulations. [74 FR 51367]. 

Comment: 

EPA’s distinction between materials burned for energy recovery and those burned for 

destruction has already been rejected as irrelevant in NRDC. 489 F.3d at 1257-1258. 

EPA’s Response: 

EPA agrees that the D.C. Circuit has rejected for purposes of combusting materials under 

CAA section 129 a distinction between fuels and wastes. However, EPA is not making that 

distinction in this rule. EPA agrees that units combusting solid waste are generally subject to 

emission standards issued under section 129 whether those wastes are fuels or not. Moreover, 

nothing in the NRDC case addresses EPA’s discretion to interpret the term “solid waste” under 

RCRA rulemaking. This issue was simply not before the Court in NRDC. 

It is clear that wastes may have fuel value. EPA, in this rule, is making a distinction 

between materials that are discarded and those that are not. One of the considerations is whether 

material is really being burned for destruction and is, therefore, a waste. If it is not being burned 

for destruction, other factors need to be considered to determine whether the non-hazardous 
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secondary material is a waste. 

Another way of describing EPA’s evaluation process is that to decide whether a 

secondary material is a waste, EPA evaluates, among other things, whether such material is 

discarded in the first instance. If not, the Agency needs to consider whether that material is 

legitimately burned for energy recovery. One of the legitimacy criteria is the consideration of 

whether the non-hazardous secondary material has meaningful fuel value or is simply being 

burned for destruction – that is, incinerated. If there is no meaningful fuel value, the nonhazardous secondary material is simply being destroyed. 

If there is meaningful fuel value, EPA must consider other factors, including whether the 

non-hazardous secondary material is managed as a commodity and whether contaminants 

indicate that incineration (destruction) is the real reason for burning. A decision as to whether a 

non-hazardous secondary material is a waste depends on a number of factors, all of which need 

to be considered by the Agency before it decides whether such secondary material is a waste or 

not. The focus of the comment on each factor EPA considers, as opposed to the totality of the 

factors, is simply not helpful. 

Comment: 

It is irrelevant whether non-hazardous secondary materials are burned at a facility 

controlled by the generator. Even EPA does not believe its argument because it admits that a 

secondary material could still be a waste even if it is recycled on-site or within the control of the 

generator and cites the court's holding in API II. Instead of defending its condition as relevant to 

whether a non-hazardous secondary material is or is not discarded, the Agency merely says that 

the secondary material must both be within the control of the generator and must pass the 

legitimacy criteria. By punting to its legitimacy criteria, EPA effectively concedes that its “‘on-
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site’ problem” renders irrelevant the condition that non-hazardous secondary materials be burned 

at a facility within control of the generator. 

 EPA’s Response: 

EPA disagrees with this comment. If the non-hazardous secondary material remains 

within the control of the generator, it is more likely to be a material that is saved and not thrown 

away or abandoned. The Agency has explained that case law would not allow it to determine 

that secondary materials are wastes if they are recycled as fuels within a continuous industrial 

process. EPA cannot evaluate every non-hazardous secondary material, but believes this 

standard would cover all secondary materials that are recycled as a fuel within a continuous 

process. EPA, however, acknowledges that this may capture non-hazardous secondary materials 

which may be a waste, but this is unlikely. There may also be non-hazardous secondary 

materials transferred to another party that may not be a waste and EPA is attempting to deal with 

those categories of non-hazardous secondary materials on a case-by-case basis. However, EPA 

believes that it is a reasonable interpretation of the statutory definition of discard to consider that 

a non-hazardous secondary material within the control of its generator that is legitimately burned 

as a fuel is not a solid waste. 

 EPA is careful to note that "legitimacy" is shorthand for referring to non-hazardous 

secondary materials that are not thrown away, is saved and is reused by being burned for its 

value as a fuel. EPA also examines how the non-hazardous secondary materials is managed and 

the extent to which contaminants in the secondary material may indicate that the real reason for 

burning the secondary material is simply its destruction – referred to as “sham” recycling. Thus, 

the Agency is not simply "punting" to its legitimacy criteria, but believes they provide a valid 

basis for showing that a non-hazardous secondary material is more commodity-like than waste-
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like. 

b. Comments from Industry Groups 

Comment:

A number of industry comments object to EPA’s explanation for determining the extent 

to which transfer of secondary materials between companies for use as a fuel renders the nonhazardous secondary materials discarded. According to the comments, EPA not only makes the 

transfer of secondary materials an indication of discard, but transfer becomes the primary and 

controlling condition for determining whether secondary materials will be classified as fuel 

commodities or solid waste. One commenter in this general category claims that EPA is 

forbidding economic reuse of such materials by anyone other than the generator without prior 

government permission. 

 Moreover, the commenters claim that EPA cannot make a sweeping and arbitrary 

assumption in categorizing these transferred materials as “discarded” and then place the burden 

on the regulated community to challenge the assumption through submission of a petition to 

declare the material a non-waste. According to the commenters, it is incumbent upon EPA to 

explain why a material is discarded before the Agency can put the burden on companies to 

submit non-waste petitions if the companies want to claim the secondary material is not a waste. 

 The Safe Food case states that firm-to-firm transfers “are hardly good indicia” of discard. 

If a fuel can meet all of the legitimacy criteria (managed as a valuable commodity, have 

meaningful heating value, not contain elevated levels of contaminants), it cannot reasonably be 

said to be discarded just because it is sold or otherwise transferred to an entity separate from the 

generator. Assuming all relevant legitimacy criteria are met, the transfer of secondary materials 
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between companies is simply not relevant for determining whether such materials have been 

discarded. In fact, depending on the nature of the transaction, this transfer may be a good 

indicator that a company values the material. 

 EPA cannot support its position by referring to over-accumulation of scrap tires resulting 

in massive piles of discarded tires. Those materials did not meet the legitimacy criteria and 

should be treated as discarded. Such a reference does not rehabilitate EPA’s presumption that 

mere transfer of a non-hazardous secondary material could cause the mismanagement that 

resulted in the tire piles. 

 Nor can EPA support its position that state agencies consider materials wastes when 

transferred to third parties for use as fuels. States can make mistakes, as they did regarding used 

oil, which they classified as a waste, but changed direction after EPA promulgated its used oil 

regulations at 40 CFR Part 279. 

 One comment states, on the basis of case law on abandonment, that to be abandoned 

there must be a clear and unequivocal intent to abandon on the part of the owner and that the 

burden is on whoever alleges abandonment to establish that intent. Of particular significance is 

the principle in the common law that abandonment does not occur where a direct transfer of 

ownership to another party occurs. Where a generator conveys title to a secondary material to a 

third-party, no abandonment occurs, whether there is payment for the material or not. Nor, if the 

material is actually recycled (i.e., used, reused, or reclaimed), would such material ordinarily be 

deemed to be “disposed of” or “thrown away.” Materials legitimately burned for energy 

recovery or used as ingredients in combustion units are neither disposed of nor abandoned and 

do not meet the ‘plain-English meaning’ of . . . ‘discard.’ 
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 Merely because one party has relinquished control of a secondary material does not make 

it a waste nor does the fact that a receiving party may not have the same incentives to manage 

them as a useful product. EPA cannot indict all parties that in fact do manage these secondary 

materials as a useful product. Indeed, a generator’s use of a secondary material does not 

guarantee its proper use, yet EPA allows the legitimacy criteria to suffice in situations in which 

the generator retains control of the non-hazardous secondary material and legitimately recycles 

it. 

 Further, EPA seems to contradict itself because it does not presume discard of ingredients 

transferred to other companies and gives no reason as to why fuels should be treated differently. 

EPA only states, without giving a reason, that it believes that the use of non-hazardous secondary 

materials as ingredients is considered to be more integral or akin to use in a commercial 

manufacturing process and thus, these non-hazardous secondary materials should not be 

considered discarded provided they meet the legitimacy criteria. After all, commercial 

manufacturing processes require both ingredients and energy (e.g., fuels). 

 EPA’s Response: 

 EPA disagrees with these comments to the extent they argue that the Agency has 

arbitrarily determined that secondary materials transferred between companies are wastes. 

Instead, EPA has evaluated whether certain categories of materials are discarded or not. The 

Agency has not adopted the extremes of saying that all burning of secondary material, regardless 

of ultimate use, is waste treatment or that any secondary material that is recycled for legitimate 

fuel value is a commodity and not a waste. Wastes may have value, but are still wastes. 
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 Between these broad parameters, EPA has examined a number of specific materials, 

recycled on-site and transferred for recycling, and determined whether they would be 

appropriately placed within the waste or non-waste categories. EPA would consider transferred 

materials not to be wastes if it could make the appropriate findings for those categories. In fact, 

the Agency does so with respect to scrap tires harvested from vehicles and resinated wood 

residuals. 

 Consideration of over-accumulation of scrap tires resulting in massive piles of discarded 

tires is not being cited as support for the proposition that all transfers of secondary materials 

result in waste treatment, but only for the proposition that the Agency needs to be careful in 

examining whether secondary materials may be transferred as commodity fuels or as wastes. 

Further, EPA is not relying on state determinations regarding whether secondary materials are 

wastes, specifically tires, but is instead allowing state tire programs that meet certain parameters 

to affect an EPA determination that transferred scrap tires are not wastes. 

 Any of EPA’s decisions regarding specific materials, if challenged, must stand or fall 

based on its individual merit. For example, resinated wood residuals are routinely transferred 

between either intra- or inter- company facilities and used as either “furnish” (i.e., raw materials) 

or fuel at the receiving facilities. The material being transferred off-site is used and handled in 

the same manner that resinated wood residuals are when generated on-site (such that it is 

impossible to distinguish between materials that are being used as a raw material and those that 

are being used as a fuel). Accordingly, these materials are not solid wastes whether used within 

the same company or transferred to another company. See below, at sections V.B.6 for 
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discussion of EPA’s response to comments and the Agency rationale for how resinated wood 

should be treated for purposes of this rule. 

 Other materials would also be non-wastes based on the Agency’s analysis of the industry 

in general or, based on a lack of data or knowledge, an effective presumption that recycling 

materials for a fuel is primarily an on-site activity only. For example, we generally believe that 

use of old corrugated cardboard (OCC) rejects (clay, starches, other filler and coating materials, 

as well as fiber) are not discarded when used within the control of the generator, since these 

secondary materials are part of the industrial process. OCC rejects can include, and are usually 

burned in conjunction with, other fuels (such as bark) at pulp and paper mills that recycle fibers. 

These materials are not generally transferred off-site, and must pass the legitimacy criteria to be 

a non-waste fuel. 

 Still other non-hazardous secondary materials may be processed or extracted from wastes 

to produce fuel commodities. Examples include tire-derived fuel processed from scrap tires 

retrieved from waste tire piles, and coal refuse retrieved from legacy piles that have been 

processed through the use of grizzlies, screens, and blending to improve the quality, remove 

metal objects, and reduce the concentrations of various constituents. To the extent that EPA has 

indicated that particular categories of non-hazardous secondary materials are wastes when 

transferred off-site to a third party, the Agency provides companies with the opportunity to 

petition EPA for a non-waste determination; we believe a petition process is essential because 

many non-hazardous secondary materials are recycled and managed in many different ways, and 

the Agency may lack the specific details in certain cases to know whether or not such nonhazardous secondary materials are or are not solid wastes. 
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 Thus, EPA is not making a sweeping arbitrary assumption in categorizing transferred 

secondary materials as discarded. In addition, EPA is not, in any sense, forbidding economic 

reuse of such materials by anyone other than the generator without prior government permission 

(through the petition process). The effect of this regulation would simply be to require the nonhazardous secondary materials designated as wastes to be combusted only in facilities regulated 

under section 129 of the CAA, while non-waste fuels could be combusted under section 112 of 

the CAA. 

 EPA finds irrelevant the citations to case law cited by the commenters on these issues. 

EPA notes that the following quotation appears in Safe Food at 1268: 

As firms have ample reasons to avoid complete vertical integration, see generally Ronald 

Coase, "The Nature of the Firm," 4 Economica 386 (1937), firm-to-firm transfers are 

hardly good indicia of a "discard" as the term is ordinarily understood. 

EPA finds no evidence of the relevance of “vertical integration” to this regulation and no 

commenter has indicated its relevance. Nor is EPA referring to transfer as the definitive criterion 

for discard. Instead, EPA has examined the issue of company-to-company transfers in the 

context of specific secondary materials and to the extent the Agency has found either discard or 

no legitimate recycling, it is requiring companies to file a non-waste petition in order to allow the 

Agency to review the specifics of their cases. 

 In addition, citations to case law on abandonment issues between private parties are not 

relevant to this case of government regulation. The cases do not consider the factors that are 

relevant to EPA’s determination under this rule. In this rule EPA needs to decide whether 

secondary material is discarded in the first instance, or whether the transfer represents a 
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legitimate non-waste activity. To represent a legitimate non-waste activity, if the material has 

not been discarded in the first instance, it must be handled as a valuable commodity, must have 

meaningful heating value, and must not have contaminant levels that show the material is 

transferred to destroy unwanted constituents instead of for its fuel value. 

The key is to determine how the non-hazardous secondary materials fare under the 

analysis of whether the secondary material is a waste or not. A waste owner may not be 

“abandoning” a waste when it sends it to another company, but the non-hazardous secondary 

material is still a solid waste if it has been discarded in the first instance (tires in junk yard piles) 

or if the receiver is not burning the secondary material legitimately as a fuel (construction debris 

highly contaminated with lead paint). 

 EPA also disagrees with the comment that the Agency is inconsistent by allowing the 

legitimacy criteria to suffice for generators, but not for the transferred material. The key point 

regarding the legal basis of this approach is that EPA is accounting for the likelihood that 

secondary materials recycled within a continuous industrial process by being burned for energy 

recovery or as an ingredient would not be a solid waste under the law. As stated in the preamble 

to the proposed rule, EPA believes that its formulation that secondary materials recycled or 

reused legitimately under the control of the generator will cover all, or almost all, secondary 

materials recycled or reused in a continuous industrial process. See 75 FR 31886-87. EPA thus, 

rejects the environmental groups’ argument that any combustion of secondary material is a 

waste, even under the generator’s legitimate control, as well as the industry’s argument that any 

legitimately transferred material is not a waste. The situation in which secondary material is 

transferred to another company presents more complicated issues. 
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Comment: 

EPA has no authority under section 129 of the CAA to regulate the use of non-hazardous 

secondary materials as ingredients. EPA’s section 129 authority is limited to “solid waste 

incineration units,” which the statute defines as units that “combust” solid waste. This statutory 

definition does not say EPA can regulate units that “treat” solid waste (as provided in RCRA 

subtitle C). Nor does it say that EPA can regulate units that “use” solid waste. For example, the 

feedstock for clinker that is placed into the kiln is not “combusted” – rather, it is incorporated 

into the clinker product. Similarly, non-hazardous secondary materials that may be used as 

substitutes for mined or virgin feedstock become incorporated into the clinker product and are 

not “combusted.” 

EPA’s Response: 

This comment is not relevant to this regulation, which determines whether a secondary 

material is a solid waste, or not under RCRA. Clearly, EPA has the authority to interpret RCRA 

to decide whether non-hazardous secondary materials are solid wastes or not. Whether EPA may 

cover ingredients used in combustors under section 129 of the CAA is a matter for regulations 

under that statute. 

 Comment: 

 EPA asserts in its preamble that any material that is discarded must be considered forever 

discarded (and therefore remain a solid waste) no matter what value or use it may have to 

another person who may retrieve the material. This logical leap defies common sense, and is not 

in any manner compelled by the statutory language or judicial precedent. 

 It is illogical and nonsensical to hold that a material must be considered forever 

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

 According to the comment, the RCRA subtitle C case API I, which deals with hazardous 

waste under RCRA, in no way impairs EPA’s ability to craft a subtitle D rule that could allow 

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

comment acknowledges that in API I, the court disapproved of the concept that a material that 

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

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

comment goes on to say, however, that the court only stated that it believed it would be 

“unlikely” that EPA could successfully maintain the position that a discarded material could 

cease to be a solid waste when recycled. The court reasoned that for EPA to reach such a 

conclusion, the Agency would have to reconcile this position with RCRA’s acknowledged 

objective to establish a cradle-to-grave regulatory structure for the safe handling of hazardous 

wastes. 

 The comment argues that this language of the opinion is a “critical” element of the 

decision and only applies to hazardous wastes. Therefore, it does not apply to non-hazardous 

waste. The comment goes on to say that EPA cites no case law, and they are aware of none, in 

which a court has ruled that a discarded non-hazardous material must forever be deemed 

discarded no matter what beneficial use it may subsequently be put to. 

 EPA’s Response: 
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 EPA disagrees with this comment. In the first place, the Agency is not saying that wastes 

are “forever” discarded. Wastes may be processed into materials that are not wastes. The 

important point, here, is that a waste does not automatically lose its waste designation solely

because some person has found value in the material. Something has to happen to that waste to 

make it a non-waste. 

 Judicial interpretations of the statutory definition of discard very plainly hold that a 

material that has become a waste – because it is discarded – may not lose its waste status “just 

because a reclaimer has purchased or finds value” in the waste. ILCO at 1131; OWEN STEEL at 

150. Furthermore, in ABR, the court stated, “The point of AMC II, and for that matter API, is 

that once material qualifies as ‘solid waste,” something derived from it retains that designation 

even if it might be reclaimed and reused at some future time.” ABR at 1056. 

 EPA notes in a response to a comment elsewhere in this preamble that these cases do not 

prevent the Agency from considering that wastes may be processed in some way into non-waste 

products. Nevertheless, the cases unmistakably hold that secondary materials do not lose their 

waste status simply because they have value. 

 The commenter’s reference to the API I case’s mention of the purposes behind the 

hazardous waste regulation’s “cradle to grave” regime is not “critical” to the court’s holding. 

The court only was opining on a hypothetical situation should EPA return to the court in a future 

case. It certainly was not necessary to the holding in the case and must only be considered dicta. 

EPA believes it has crafted a valid interpretation of the statute based on other relevant case law 

on the subject. 

EPA also acknowledges that persons may find value in materials that have been thrown 

away, such as the chest of drawers to which the comment refers. However, this regulation deals 
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with fuels and ingredients that are used in combustors, and EPA is not evaluating other materials 

when beneficially used. In fact, EPA has specifically indicated that the Agency is not making a 

determination that non-hazardous secondary materials are, or are not, solid wastes for other 

possible beneficial end uses. Such beneficial use determinations are generally made by the states 

for these other end uses, and EPA will continue to look to the states in making such 

determinations. Thus, EPA does not need to resolve the hypothetical situation as to when the 

chest of drawers becomes a non-waste. Moreover, EPA does not wish to opine as to the waste 

designation of any artist’s work that is made from material found in a junk yard. 

Comment: 

In the proposed rule, the Agency indicated that the 2008 DSW Final Rule included a third 

part in the definition of “under the control of the generator.” Specifically, the 2008 DSW Final 

Rule also applies to hazardous secondary materials that are generated pursuant to a written 

contract between a tolling contractor and a toll manufacturer and legitimately reclaimed by the 

tolling contractor. For purposes of that exclusion, a tolling contractor is a person who arranges 

for the production of a product or intermediate made from specified raw or virgin materials 

through a written contract with a toll manufacturer. The Agency requested comment on whether 

to include this option in the final rule. 

Few comments were received on tolling contractors. One commenter stated that to the 

extent that such arrangements facilitate the recycling or use of non-hazardous secondary 

materials and benefit the environment by reusing such materials that might otherwise be 

disposed of, it should be included. A state commented, however, only that tolling contracts 

should not be considered under the control of the generator. 

EPA’s Response: 
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We did not include tolling arrangements as being “within the control of the generator” as 

we viewed this as a specific type of arrangement used in the production of secondary materials 

that are not being used as fuels, and were unaware of these types of contractual arrangements 

where both products and secondary material fuels are sent to what we are calling tolling 

contractors, nor has any comment informed the Agency of such arrangements for fuels. 

 Comment: 

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 RCRA subtitle D context. EPA’s proposal, along with 

the CISWI proposal, draws many lines that would impose major impediments on recycle/reuse. 

Yet EPA never attempts to justify these choices dealing with non-hazardous materials on the 

grounds of protecting human health and the environment. 

EPA’s failure to take both of these factors into account produces results that impede reuse 

and recycling of non-hazardous materials with no benefit to health and the environment. The 

commenters claim this is arbitrary and capricious and a failure of reasoned decision making. 

EPA’s Response:

EPA disagrees that these policy goals provide the legal basis for the Agency’s 

determination whether secondary materials are solid wastes – discarded within the ordinary 

meaning of the term. Broad policy goals stated in the statute do not substitute for the substantive 

statutory requirements which the Agency must follow. In the NRDC case, the D.C. Circuit 

admitted that EPA may have legitimate policy reasons for its decision. However, the Agency 

must still follow the statutory strictures. 

Yes, the Agency should encourage recycling, but it may not encourage that use by 
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allowing discarded materials to be considered non-wastes. The overall congressional policies are 

limited by the substantive statutory requirements. Yes, the Agency must protect human health 

the environment, but its ability to do that is limited to its ability to regulate material that is 

discarded – material that is a solid waste. Once EPA has decided that a secondary material is a 

solid waste, the Agency must establish standards for using it in a combustor subject to the CAA 

section 129 standards. 

We do note that as part of the Agency’s legitimacy criteria, we consider whether there are 

excessive contaminants in the secondary material that is combusted. This analysis delves into 

matters regarding whether the material is actually a waste. However, EPA acknowledges that the 

contaminant analysis, by its very nature, examines matters involving risk – particularly risks 

from the combustion of wastes. Virgin fuels, themselves, however, present risks when 

combusted. Secondary materials that are combusted as wastes present additional risks, against 

which the CAA regulates. 

Comment:

In a similar vein, another industry comment argues that the statutory definition of solid 

waste sets the outer limits of EPA's regulatory authority under RCRA. However, EPA is neither 

required nor authorized to go to the limits of that definition in each of its regulatory programs. 

Each such program, according to this comment, is aimed at specific dangers that the wastes it 

addresses may pose, and each such program must take account other statutory purposes, such as 

encouraging the beneficial reuse of secondary materials. EPA, therefore, should exercise its 

authority to establish a definition of waste that is tailored to address the problems at issue, and 

that does not impermissibly infringe on other statutory goals. 

 EPA’s Response:
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EPA disagrees with this comment. First, general congressional policies that refer to 

encouraging recycling have no place in EPA’s determination as to whether a secondary material 

is a waste or not. For purposes of this rule, EPA is evaluating which non-hazardous secondary 

materials are discarded under the statute. EPA cannot allow secondary materials that are wastes 

to be burned under CAA section 112. 

In deciding which non-hazardous secondary materials are in fact wastes, the Agency may 

need to evaluate a number of circumstances and may have to exercise discretion to decide on 

how the definition of solid waste applies in various circumstances. However, EPA cannot decide 

to develop a narrower interpretation of what constitutes a waste simply because it does not want 

to have secondary materials burned under CAA section129 instead of CAA section 112. EPA 

may not say material is not discarded if, in fact, it is. 

In this case, EPA is under an obligation established by section 129(g)(6) of the CAA to 

determine which non-hazardous secondary materials are solid wastes. EPA has no authority to 

grant waivers simply because it wishes to encourage recycling by making the combustion of 

secondary materials less expensive. 

With respect to RCRA subtitle C regulations, as has been noted throughout this 

proceeding, EPA is not reopening any decisions. Any commenter’s subjective evaluation of 

whether a particular hazardous waste regulation is more stringent than this regulation has no 

relevance to whether a secondary material is discarded for purposes of this regulation. 

EPA has stated that secondary materials excluded from the definition of solid waste 

under the subtitle C regulations will remain non-wastes under this rule. We are not reopening 

the subtitle C rules. EPA also notes that some comments have argued that the legitimacy criteria 

do not apply to the subtitle C rules and, therefore, should not apply to this rule. EPA disagrees 
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with that concept. In fact, the legitimacy criteria in some form apply to all recycling, regardless 

of how it is formulated, even if there is a specific exclusion under RCRA subtitle C. 

2. Processing Requirements. 

Under the proposal, fuels or ingredients that are produced from the processing of 

discarded non-hazardous secondary materials are not a solid waste provided they meet the 

specified legitimacy criteria. Comments from environmental groups rejected in its entirety any 

processing requirement at all. According to these comments, a discarded material remains a 

waste and cannot be rehabilitated to become a commodity fuel. Any fuel derived from a waste 

must be combusted under section 129 of the CAA. 

On the other hand, , industry commenters in general found the proposed definitions of 

“processing” and “sufficient processing” unclear and the processing requirements generally too 

restrictive. Several comments requested that EPA offer further explanation as to why processing 

is necessary in the first instance. In particular, they claimed that the degree of processing 

required by the proposed rule is inappropriate and illogical, arguing that there is no reason to 

impose an artificial and arbitrary requirement that materials first be "transformed” into 

something different. 

 Other commenters argued that materials suitable for use as a fuel or ingredient without 

processing are not solid wastes when combusted, even if they have been previously discarded. 

In other words, if previously discarded, non-hazardous secondary materials can be used as is, as 

fuels or as ingredients, then such non-hazardous secondary materials are not solid waste. As 

long as the fuel or ingredient meets the legitimacy criteria, affected parties should not have to 

process the material, as doing so would be burdensome and unnecessary. Other commenters 
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asserted that minimal processing should be sufficient for a fuel not to be considered a solid 

waste. 

a. Comments from Environmental Groups 

Comment:

EPA is incorrect in defining discarded materials to be considered non-waste product fuels 

if they have been “sufficiently processed.” In the view of this commenter, the D.C. Circuit has 

held plainly and repeatedly that the term solid waste unambiguously includes fuels made from 

processed secondary materials. The comment refers to dicta in the D.C. Circuit opinions of AMC 

I and ABR, in which the court states that EPA may regulate used oil recyclers that collect 

discarded used oils, distill them, and sell the resulting material for use as fuel in boilers. In 

addition, the comment cites cases in other circuits – ILCO and Owen Steel – to the effect that 

wastes may be recycled and that their recycling is irrelevant to the determination as to whether 

they are wastes. In particular, the comment cites the facts in ILCO where the court found used 

batteries to be discarded within the everyday use of the term and that their secondary character as 

recyclable material is irrelevant to that determination. In addition, the comment cites the Owen 

Steel facts where steel slag recycling activities were considered waste treatment even though the 

recycled slag was used commercially. According to the comment, a material is discarded and the 

fact of discard is not changed just because a reclaimer has purchased or finds value in the 

components of such secondary materials. 

EPA’s Response: 

EPA disagrees with the comment, and finds that the commenter reads too much into these 

cases. EPA has repeatedly stated in this rulemaking that it agrees that wastes may be recycled 
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and that the fact of discard does not change solely because the waste may have value. These 

cases do not, however, stand for the proposition that any product resulting from the recycling 

must be a waste. Such a view would make almost every aluminum can from which we drink our 

sodas or newspapers on which we read the news “solid wastes.” 

 With respect to AMC I and ABR, the reference to regulating used oil processing into fuels 

that are sold is, first, not necessary to the decisions. Those cases overturned rules where EPA 

was overly broad in its regulation. The cases were not deciding which situations constitute 

proper regulation by EPA. Nevertheless, the D.C. Circuit, by the terms of its dicta, was only 

referring to regulating the processing activity for the used oil. The court was not referring to 

regulation of the resulting material that was sold to boilers as a fuel. In fact, the court 

acknowledges that the fuel is sold to boilers and in no way opines on whether the resulting fuel is 

a waste. In this rule, also, EPA is not saying that the processing of discarded material is 

excluded from regulation as a waste activity, but only that the resulting fuel is not a waste if it 

has been sufficiently processed and meets the criteria of fuels that are not wastes – referred to as 

meeting the legitimacy criteria. 

As for the other recycling cases, EPA has admitted that the mere fact of recycling does 

not change the nature of a secondary material that has been discarded. Again, AMC I and ABR

cases are not directly on point for deciding whether non-waste products can be extracted from 

discarded material because the courts were not called upon to decide that issue. In both cases, 

however, the courts refer to resulting products that were sold commercially. 

In the ILCO case, the issue was whether reclaimed lead plates from discarded batteries 

were recycled wastes or raw materials used to produce steel ingots. The court found that the lead 

plates were wastes, but only noted that the lead ingots made from the wastes were sold 
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commercially and did not opine as to whether the ingots were wastes. EPA argues that the ingots 

were not wastes, since they were processed into valuable commodities. 

 In Owen Steel, the court found that slag from steel production was a waste and the area 

where the slag was processed was a waste treatment facility. The cured slag was sold for various 

commercial processes, including roadbed construction. The court was not asked to opine, nor 

did it, on whether the roadbed material was a waste. Again, EPA argues that the cured slag 

could be a product produced from the waste, even though the processing activity involved waste 

treatment. 

 EPA does admit that the cases are not directly on point to support the Agency’s 

determination that discarded materials may be processed into legitimate product fuels. The cases 

do seem to recognize, however, that products made from wastes may be products and not wastes. 

 More importantly, the cases do not refute EPA’s essential logic that fuel or ingredients 

processed or extracted from discarded secondary material is analogous to many products that are 

processed or extracted from wastes, such as aluminum cans or recycled paper made from 

recycled secondary materials. The cases indicate that the same logic could apply to fuel 

processed from used oil or lead ingots made from battery lead plates, or roadbed construction 

material made from steel slag. This applies even though the processing or extraction activities 

involve waste treatment. EPA believes that, at a minimum, there are circumstances in which the 

resulting materials are not wastes. 

 EPA’s task in the current rule is to decide when such processing results in a product or a 

waste. To resolve the issue, EPA has identified conditions on the extent of processing that has 

been conducted. That is, the processed discarded material may become a non-waste fuel if 

certain conditions are met—that is sufficient processing has occurred. If so, and if the material 
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meets the legitimacy criteria, the fuel or ingredient product would be considered a non-waste 

material. 

b. Comments from Industry Groups 

Comment: 

 A number of industry commenters object to the processing requirement for discarded 

non-hazardous secondary materials to become non-waste fuels or ingredients. These comments 

contrast with the argument of environmental groups that no processing would transform 

discarded non-hazardous secondary materials into non-waste fuels or ingredients, a contention to 

which the Agency responds to earlier in this preamble. 

 Industry commenters argue that the legitimacy criteria are sufficient and that there should 

be no processing requirement for non-hazardous secondary materials that were discarded and 

could now be used as fuels or ingredients. The general argument is that the very act of retrieving 

a previously discarded material for use as a fuel or an ingredient proves that the material is once 

again wanted by the consumer, regardless of the type or extent of processing which the 

secondary material must undergo. According to these comments, the mere act of removing the 

previously discarded material from the environment for use “conclusively” demonstrates that the 

non-hazardous secondary material has value as a product or intermediate – otherwise, no one 

would invest the significant costs associated with the recovery of these materials. 

 Various activities were specifically mentioned – recovery of coal combustion byproducts 

from landfills, extraction of coal refuse from mine sites and used whole tires retrieved from tire 

piles. With respect to these non-hazardous secondary materials, commenters argue that the 

excessive threshold level of processing makes no sense and that EPA should allow only a 

minimal amount of processing to convert a waste into a product fuel or ingredient. 
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 In particular, the comments argue that normal processing of coal refuse (mining rejects) 

should be sufficient to constitute processing needed to convert previously discarded materials to 

legitimate fuels/ingredients. The same material mined to be used in today’s combustion 

technology is processed in that way and there is no difference between the mined materials.26 

Also, whole tires retrieved from waste tire piles may need only minimal processing for use in 

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

stacks or piles often need no physical processing whatsoever. In contrast, EPA argues that scrap 

tires cannot be considered sufficiently “processed” unless they are physically shredded and 

undergo metals removal processing. 

 Establishment of a threshold level of processing that must take place before a discarded 

non-hazardous material is considered a legitimate fuel or ingredient would also have the perverse 

effect of applying different standards to identical materials. For example, there is no difference 

in the coal refuse or coal combustion byproducts that are recovered from landfills for use in a 

fluidized bed combustion unit or in the cement manufacturing process. 

 Some comments claim that under EPA’s hazardous waste regulations, only minimal 

processing, such as baling or sorting, is required for scrap metal to be excluded from the 

definition of solid waste. The scrap metal, which would otherwise be a hazardous waste, may be 

sent into high-temperature environments, such as electric arc furnaces at steel mills and 

aluminum smelters. EPA had stated that this is a good example of where the level of processing 

necessary to convert a waste material to a non-waste material is dependent on the material itself. 

The comments claim that this is inconsistent with requiring used tires that have been discarded to 

 

26 As discussed later in this preamble, the Agency has changed its view regarding coal refuse that was previously 

abandoned, such that if the discarded coal refuse is processed in the same way as coal is today, the Agency would 

not consider the processed coal refuse a solid waste. 
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not to be considered sufficiently “processed,” unless they are physically shredded and undergo 

metals removal processing. 

 EPA’s Response: 

 As discussed in the case law elsewhere in this preamble, EPA is constrained by the 

statutory definition of solid waste under RCRA and case law that holds a discarded material 

remains a waste regardless of its value. Allowing certain non-hazardous secondary materials to 

be combusted as a fuel under the section 112 standards of the CAA may have beneficial policy 

objectives. However, EPA may not base it decision on the policy, but must evaluate whether a 

secondary material is a solid waste under RCRA. Specifically, the D.C. Circuit in NRDC would 

not allow EPA to establish a policy basis for determining whether section 112 or 129 applies. 

Thus, non-hazardous secondary materials that are wastes and are used as a fuel/ingredient in a 

combustion unit must be used in section 129 units, whereas non-hazardous secondary materials 

that are not wastes and are used as a fuel/ingredient in a combustion unit may be used in section 

112 units. The court stated that “the distinction EPA draws may well be reasonable” referring to 

EPA’s distinguishing between section 112 combustors designed to recover energy and section 

129 incinerators meant to destroy materials. NRDC at 1260. The court, however, was very clear 

that this is not the line drawn by Congress, which intends that any waste material, even if burned 

for energy recovery, must be burned in section 129 combustion units. 

 The Agency, however, believes that the case law would not prohibit the processing or 

extracting of products from non-hazardous secondary materials that were once wastes. This 

latter view is controversial as evidenced by the comments from environmental groups, which 

claim that no amount of processing can convert a waste into a legitimate fuel or ingredient 
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product. EPA, however, does not believe it may interpret the statute or the case law to allow a 

clearly discarded secondary material to become a non-waste solely because it has value. 

 EPA sympathizes with the commenters’ concern that the processing requirement could 

have the effect of applying different standards to identical materials, such as scrap tires. The 

Agency, however, is constrained by the statute and case law. If the non-hazardous secondary 

material is not discarded in the first instance and is legitimately recycled—that is, meets the 

legitimacy criteria, it is not discarded. Once the material has been discarded – thrown into waste 

piles or on stacks – there is no choice. Something other than mere recycling must happen to the 

material before it may lose its waste designation. The mere fact that secondary materials may 

have value after being discarded is not sufficient to rehabilitate it. 

 Accordingly, EPA is not making any changes to the processing requirements for 

discarded scrap tires, although the Agency is providing that tires harvested from vehicles do not 

need to be processed if they were harvested off of the vehicles and are were managed under the 

oversight of an established tire collection program and are legitimately used as a fuel in a 

combustion unit (refer to Section V.B.5 Scrap Tires) to be considered a non-waste fuel. 

For coal refuse, however, EPA has decided that for the final rule, it will make some 

modifications to its determinations regarding sufficient processing. In the proposal, EPA was 

still considering that the coal refuse that was abandoned would require additional processing, 

even though they were the same material as coal refuse currently generated and used in fluidized 

bed combustors as traditional mined coal. EPA has modified its view to provide that the 

discarded coal refuse that is processed in the same way as coal is today would not be considered 

a waste when combusted. For more information on the rationale for this decision, see the 
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Section V.B.8 for a discussion of the comments received on coal refuse and our response to those 

comments.

 Finally, in response to the point that minimal processing is permitted to exclude scrap 

metal from the definition of solid waste in EPA’s hazardous waste regulation, the Agency first 

states that it is not reopening the hazardous waste regulations, including the reasoning in those 

regulations. Besides, the reference to scrap metal in the hazardous waste regulation was only 

used in the preamble to note the fact that the extent of processing in general depends on the 

nature of the material, as we have noted elsewhere in the preamble to today’s rule. Any 

comparison, other than the very general one that processing depends on the material, is not being 

considered by EPA. Whatever the reasoning provided in those regulations, EPA did not cite the 

scrap metal regulation as support for the processing definition. The Agency also points out that 

the scrap metal is not combusted. 

B. Comments on Specific Materials Used as Fuel 

1. Traditional Fuels.

27

 The following discussion describes how EPA has analyzed what is a traditional fuel in 

the ANPRM and the proposal. Next, the Agency shows how it considered various comments on 

the concept of traditional fuels. Section VII.A, based on these analyses and all information in the 

rulemaking record, explains the Agency’s decision on what constitutes a traditional fuel. 

EPA does wish to clarify, however, that it is using the term, “traditional,” more in the 

sense that we have a product that is created for its use as a fuel. Some traditional fuels have been 

 

27 Traditional fuels are not considered secondary materials and therefore, are not considered a solid waste unless 

they themselves have been discarded. However, because the Agency received comments regarding “traditional 

fuels,” including whether certain materials should be considered a traditional fuel, the Agency is addressing those 

comments in this section. 
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used for a long time, while others are “traditional” only in the sense that they are created in the 

“traditional” way that a product is created (or mined), even though they may be newly developed 

fuels. Coal refuse that was formerly not able to be used as a fuel may now be mined for use in 

fluidized bed systems. Perhaps, more obvious is the fact that petroleum, itself, would not have 

been considered a traditional fuel in the early 1800s, nor would uranium. 

The ANPRM, categorized as traditional fuels cellulosic biomass (e.g., wood) and fossil 

fuels (e.g., coal, oil, natural gas), as well as fossil fuel derivatives (e.g., petroleum coke, 

bituminous coke, coal tar oil, refinery gas, synthetic fuel, heavy recycle, asphalts, blast furnace 

gas, recovered gaseous butane, and coke oven gas). Traditional fuels are those that have been 

burned historically as fuels and have been managed as valuable products. They are unused 

products that have not been discarded. The ANPRM also stated that unadulterated or clean 

wood collected from forest fire clearance activities and trees and such wood found in disaster 

debris, likewise, constitute traditional fuels. This basic concept of traditional fuels was discussed 

at 74 FR 53. 

The ANPRM also discussed other legitimate "alternative" fuels that have not been 

previously discarded generally noting that what constitutes a new "fuel" reflects the availability 

of fuel materials generally, the demand for fuel, and technology developments. Thus, there is a 

category of materials that are legitimate alternative fuels that may not have been historically used 

as fuels, but that are nonetheless legitimate fuels today because of changes in technology and in 

the energy market. In cases where these legitimate alternative fuels have not been discarded, 

EPA said that it would not consider them to be solid wastes. This is explained in the ANPRM at 

74 FR 56. 
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The ANPRM stated that much of the biomass currently used as alternative fuels are not 

solid waste since they have not been discarded in the first instance and are legitimate fuel 

products. It noted that biomass can include a wide range of alternative fuels, and can be broken 

down into two different categories--cellulosic biomass and non-cellulosic biomass. Cellulosic 

biomass was described to include forest-derived biomass (e.g., green wood, forest thinnings, 

clean and unadulterated bark, sawdust, trim, and tree harvesting residuals from logging and 

sawmill materials), food scraps, pulp and paper mill wood residuals (e.g., hog fuel, such as clean 

and unadulterated bark, sawdust, trim screenings; and residuals from tree harvesting), and 

agricultural residues (e.g., straw, corn husks, peanut shells, and bagasse). Non-cellulosic 

biomass was described to include manures and gaseous fuels (e.g., from landfills and manures) 

(74 FR 56). 

The ANPRM stated that biomass, especially cellulosic biomass, has a comparable 

composition to traditional fuel products due to the nature of the plants and animals (i.e., they 

would not be considered to have additional "contaminants"). Thus, if they are managed as 

valuable commodities and have meaningful heating value, they would not be considered solid 

wastes. 

The ANPRM distinguished the traditional fuels from non-traditional alternative fuels to 

decide whether they are discarded, or whether they are legitimate alternative fuels. These fuels 

are those in use today that the Agency was evaluating, and continues to evaluate, to determine 

whether they have been discarded and whether they are legitimate alternative fuels (e.g., 

construction and demolition materials, scrap plastics, non-hazardous non-halogenated solvents 

and lubricants, and wastewater treatment sludge)(74 FR 56). 
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The ANPRM also described secondary materials EPA considered to be questionable as to 

whether they are legitimate fuels because they lack adequate heating value (wet biomass), or 

because they may contain contaminants that are significantly higher in concentration than those 

in traditional fuel products to the degree that sham recycling is indicated. The secondary 

materials that were described in the ANPRM that could fall into this category include polyvinyl 

chloride (PVC), halogenated plastics, chromated copper arsenate (CCA) lumber, creosote 

lumber, copper-based treated lumber, lead-based treated lumber, and secondary mill residues, 

such as board, trim and breakage from the manufacture of reconstituted wood/panel products. 

The proposed rule continued to recognize that traditional fuels, as noted above, are not 

solid wastes, but added to that group clean cellulosic biomass and on-specification used oil (75 

FR 31856). Specifically, in the proposal, "clean" biomass material was defined as a nonhazardous secondary material that has not been altered (either chemically or through some type 

of production process), such that it contains contaminants at concentrations normally associated 

with virgin biomass materials (the description of “clean” is being modified slightly for today’s 

rule, see discussion below). Clean cellulosic biomass was described to include forest-derived 

biomass (e.g., green wood, forest thinnings, clean and unadulterated bark, sawdust, trim, and tree 

harvesting residuals from logging and sawmill materials), corn stover and other biomass crops 

used specifically for energy production (e.g., energy cane, other fast growing grasses), bagasse 

and other crop residues (e.g., peanut shells), wood collected from forest fire clearance activities, 

trees and clean wood found in disaster debris, and clean biomass from land clearing operations 

(75 FR 31856). Essentially, “clean” biomass was that biomass material that was simply picked 

up from its environment and burned for fuel. EPA requested comment on whether other types of 
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cellulosic biomass should be designated as clean biomass, and thus a traditional fuel (75 FR 

31856). 

EPA also proposed to add on-specification used oil to the list of “traditional” fuels based 

on the argument that it meets the Agency’s view of fuels that have been managed as valuable 

fuel products rather than being managed as waste materials. 75 FR 31864. The Agency stated 

that under 40 CFR part 279, once used oil is determined to be on-spec, it is no longer regulated 

under the used oil management standards. This means that once the marketer complies with the 

requirements for analysis and record retention, notification, and record tracking shipment to onspecification burners, the oil is no longer subject to other management standards. Moreover, the 

on-specification used oil contains contaminants at levels below the maximum concentration 

limits established in the standards, such that they are either at the same concentration or a lower 

concentration than virgin refined fuel oil. 

EPA acknowledged in the proposal that changes in technology and in the energy market 

over time may result in additional materials being economically viable to be used as alternative 

"traditional" fuels. It also may not always be clear whether a fuel material is a traditional fuel. 

We agreed with commenters to the ANPRM that this rulemaking should be flexible to account 

for increasing use and changes in commodities, technologies, markets, and fuel prices. We, 

therefore, requested comment on whether other fuels in use today should be classified as 

traditional fuels, as well as whether to provide a petition process that would allow a facility or 

person to request that EPA determine whether the fuel that they burn qualifies as a traditional 

fuel. 
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 As also discussed in Section VII, the definition of traditional fuels has been modified in 

today’s rule. The new definition encompasses two categories of fuels: (1) “historically 

managed” fuels, as identified in the proposed rule, and (2) “alternative” fuels, as discussed in the 

ANPRM. Through this revised definition, EPA is recognizing that changes in technology and in 

the energy market over time have resulted in additional materials being economically viable to 

be used as alternative "traditional" fuels. The definition of traditional fuels and clean biomass is 

codified in today’s rule (§241.2). “Traditional fuels” is defined in today’s final rule as materials 

that are produced as fuels and are unused products that have not been discarded and therefore, 

are not solid waste including: (1) fuels that have been historically managed as valuable fuel 

products rather than being managed as waste materials including fossil fuels (e.g., coal, oil and 

natural gas), their derivatives (e.g., petroleum coke, bituminous coke, coal tar oil, refinery gas, 

synthetic fuel, heavy recycle, asphalts, blast furnace gas, recovered gaseous butane, and coke 

oven gas) and cellulosic biomass (virgin wood); and (2) alternative fuels developed from virgin 

materials that can now be used as fuel products, including used oil which meets the 

specifications outlined in 40 CFR 279.11, currently mined coal refuse that previously had not 

been usable as coal , and clean cellulosic biomass. Clean cellulosic biomass includes those 

residuals that are akin to traditional cellulosic biomass such as forest-derived biomass (e.g., 

green wood, forest thinnings, clean and unadulterated bark) sawdust, trim, and tree harvesting 

residuals from logging and sawmill materials), corn stover and other biomass crops used 

specifically for energy production (e.g., energy cane, other fast growing grasses), bagasse and 

other crop residues (e.g., peanut shells), wood collected from forest fire clearance activities, trees 

and clean wood found in disaster debris, clean biomass from land clearing operations, and clean 

construction and demolition wood. “Clean” cellulosic biomass is cellulosic biomass that does 
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not contain contaminants at concentrations not normally associated with virgin biomass 

materials. As indicated above, this description of clean is modified slightly in today’s rule. The 

previous description included non-hazardous secondary material that has not been altered (either 

chemically or through some type of production process), such that it contains contaminants at 

concentrations normally associated with virgin biomass materials. Today’s rule clarifies that 

clean refers to cellulosic biomass. 

 Traditional fuels as described above are not secondary materials or solid wastes. 

 Comment: 

 Several industry commenters suggested that EPA include off-spec used oil, scrap tires, 

resinated wood products, treated wood, pulp and paper mill residues, and recycling process 

residuals in its definition of traditional fuels. They claim that these materials have histories of 

use as valuable fuel products. Another commenter suggested that secondary materials from new 

processes to meet Renewable Fuel Standards (RFS) should be defined as traditional fuels. 

According to the commenter, not defining those materials as traditional fuels could lead to 

reduced beneficial use, could negatively impact the economics of these newly developing 

processes, and could increase the use of conventional fossil fuels. This could significantly harm 

the prospects of reaching RFS goals. 

 EPA Response: 

 For a discussion of comments and EPA responses related to each of the individual 

materials listed above and their use as traditional fuels, see their respective subsections within 

Section V.B. Regarding the RFS program, the Agency disagrees with the commenter that 

materials from processes to meet the RFS standard should be defined as traditional fuels. Under 
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the RFS program, EPA is responsible for developing and implementing regulations to ensure that 

transportation fuel sold in the U.S. contains a minimum volume of renewable fuel. Today’s rule 

addresses only the use of non-hazardous secondary materials as a fuel or ingredient in 

combustion units, and does not impact other end uses of these materials, including their use as a 

transportation fuel. 

 Comment: 

 There are many other materials that might be considered as secondary materials, but 

because of their energy content, have been identified as viable fuels, particularly as the cost of 

fossil fuels have increased over time. Citing phrases from the proposed rule, one commenter 

stated that “Changes in...the energy market,” as well as systems designed and installed by 

cement plants in order to manage these materials (“changes in technology”), would suggest that 

materials, such as plastics, paper and paper residues, and tires should qualify under this 

definition of “traditional fuels.” 

 EPA Response: 

 As indicated in the discussion above, EPA agrees that there is a category of materials that 

are legitimate alternative fuels that have not been discarded and may not have been traditionally 

used as fuels (i.e., a product that is created for its use as a fuel), but that are nonetheless 

legitimate fuels today because of changes in technology and in the energy market. Such 

alternative fuels would include clean cellulosic biomass, currently mined coal refuse, and onspecification used oil. See the respective subsections within Section V.B for a further discussion 

of each of these materials. As discussed in the proposed rule, the Agency believes materials, 

such as plastics, paper and paper residues and tires that are not managed under a state tire 
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collection program have been discarded, and thus would not be considered traditional fuels or 

legitimate alternative fuels. 

 Comment:

 Another commenter stated that EPA does not say why it regards certain fuels as 

“traditional” and, indeed, stresses that the term “traditional” “should be flexible to account for 

increasing use and changes in commodities, technologies, markets, and fuel prices.” Thus, EPA 

makes clear that the term “traditional fuels” will accommodate fuels that are anything but 

“traditional.” EPA provides no basis at all for assuming that none of the fuels it labels 

“traditional” are not actually waste. 

EPA Response: 

EPA disagrees with the commenter. As described in the ANPRM and proposed rule, 

traditional fuels, such as fossil fuels have been burned historically as fuels and have been 

managed as valuable products. They are considered unused products and are not secondary 

materials and are not solid wastes unless discarded. We added “alternative fuels” to the 

definition of traditional fuel in today’s rule to recognize that changes in technology and in the 

energy market have resulted in additional materials being economically viable to be used as 

alternative "traditional" fuels. The definition is codified in §241.2 in response to comments 

received on the proposal and to provide clarity in the application and the meaning of traditional 

fuel. 

Comment: 

Other commenters suggested that, in order to further clarify the definition of traditional 

fuel, if a fuel was on record as being used before a specific year, e.g., 1980, that it be categorized 
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as a traditional fuel. Still other commenters suggested that additional rule text is needed to 

clarify that non-hazardous secondary materials used traditionally as fuels are not solid wastes. 

Finally, to address any ambiguity about which materials are traditional fuels, another commenter 

stated that EPA should include a petition process in the rule that would allow sources to seek a 

determination on whether a material may be considered a traditional fuel.

EPA’s Response: 

As described in the ANPRM and proposed rule, traditional fuels, such as fossil fuels have 

been burned historically as fuels and have been managed as valuable products. They are 

considered unused products and are not secondary materials unless discarded. We do not agree 

that a specific year should be identified to define historically managed traditional fuels. First, it 

is not clear what year should be selected and why and what the basis for picking a particular year 

would be. In addition, as we noted in the proposal, the wide variability of historic use and 

management of this category of fuels does not lend itself to identification of a specific year. As 

discussed above, EPA does wish to clarify that it is using the term, “traditional,” more in the 

sense that we have a product that is created for its use as a fuel. Some traditional fuels have been 

used for a long time, while others are “traditional” only in the sense that they are created in the 

“traditional” way that a product is created (or mined), even though they may be newly developed 

fuels. 

The Agency received only a few comments that supported a petition process for 

traditional fuels. In light of the time and resource intensive nature of such a process for the 

petitioner, the Agency believes that the revised codified definition in today’s rule together with 

the preamble discussion should provide the basic guidance needed for the regulated facility to 
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determine whether the material qualifies as a traditional fuel. Therefore, today’s rule does not 

include a petition process for an Agency determination that a material is, or is not, a traditional 

fuel. However, any person can petition EPA under 40 CFR 260.20 for any modifications to its 

regulations. Thus, if a person believes that additional materials should be included as a 

traditional fuel or alternative fuel, they may petition EPA under that provision to request such a 

change through rulemaking. In addition to the specific changes requested, the petition would 

also need to include a justification and rationale for the change. 

Comments: 

“Hogged fuel” should be added to the list of “clean” biomass materials. Hogged fuel is 

bark and other wood removed from the tree that cannot be chipped and used in making pulp, 

paper, and wood products. 

EPA’s Response: 

 We believe that the materials described by the commenter as “hogged fuel” are currently 

covered by the terms “clean and unadulterated bark” and “tree harvesting residuals from logging 

and sawmill materials” within the definition of traditional fuel. However, we are aware that 

there are varying definitions of "hogged fuel" and point the readers to the sections describing 

traditional fuel and secondary materials to determine if their hogged fuel would be considered a 

traditional or alternative fuel. 

2. Manure. 

 The proposed rule explained that the Agency lacked sufficient data to evaluate whether 

manure burned for energy recovery is a waste. As a result, we did not take a position one way or 

the other, but rather requested comment, information and data on the legitimacy criteria, which 

are designed to determine whether a secondary material when combusted is a waste. 
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Specifically, these criteria deal with the levels of the various contaminants in manure, the energy 

content of manure, and on how manure is handled from its point of generation to the point it is 

used as a fuel. 

The proposal also stated, however, that if manure is processed into biofuels (for example, 

by anaerobic digesters), such biofuels would be considered a legitimate non-waste fuel that has 

been processed from a non-hazardous secondary material provided “the biofuel” meets the 

legitimacy criteria—that is, provided it is managed as a valuable commodity, has a meaningful 

heating value and contains contaminants at levels that are comparable to traditional fuels. The 

proposal again acknowledged, however, that we had limited data on biofuels that are produced 

from animal manures, and requested that commenters provide additional data on the extent to 

which manures are currently processed into biofuels, as well as data to support whether biofuels 

produced from manure meet our legitimacy criteria. See 75 FR at 31863. 

 Comment: 

The Agency received comments both supporting and opposing the designation of manure 

as a waste. Specifically, two commenters asserted that poultry litter that is burned as a fuel poses 

health hazards (e.g., from arsenic that is added to poultry feed), but provided no data to support 

this position. Another comment submitted in response to the ANPRM stated that, due to the 

nature of manure, there is the possibility of widespread environmental harm due to the release of 

pathogens from animal manure, and that concentrated animal feeding operation (CAFO) wastes 

are known to contain heavy metals, halogens, dioxins, and other hazardous compounds. They 

assert chicken litter has elevated arsenic levels and that swine waste has high amounts of 

ammonia, nitrogen, and phosphorous. Still another commenter suggested that poultry waste that 

is burned in power plants emit more pollutants per million Btus when compared to coal fired 
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power plants. Another commenter referenced a 2008 report that described the risks associated 

with CAFOs.28 This report stated that CAFOs are sited in rural communities that bear the brunt 

of the harm caused by CAFOs, including the frequent presence of foul odors and water 

contaminated by nitrogen and pathogens, and that the massive use of antibiotics in CAFOs, 

especially for non-therapeutic purposes, such as growth promotion, contributes to the 

development of anti-biotic resistant pathogens that are more difficult to treat. Finally, one 

Midwest state commented that when manure supply significantly exceeds demand for manure as 

a fertilizer, the excess is treated as a waste and should be regulated as a waste under this rule. 

 On the other hand, a commenter argued that EPA should not classify poultry litter as a 

solid waste and provided contaminant data on poultry litter generated in the United Kingdom.29 

Another commenter described how their company collects poultry litter from growers for use as 

a fuel in dedicated (off-site) biomass power plants. The commenter asserts that the poultry litter 

satisfies all the legitimacy criteria. Specifically, this commenter describes operations where the 

poultry litter is managed as a valuable product by the poultry litter generators and transporters, as 

well as by the power plants. The commenter describes poultry litter generators as collecting the 

litter on a continual basis and storing it in enclosed poultry barns. The poultry litter is then 

transported in completely covered trucks to the power plant where it is unloaded in a fully 

enclosed fuel hall and is tested for fuel quality to ensure contractual obligations are being met by 

the growers. After sampling, the trucks dump the litter into a concrete reception pit within the 

fuel hall. The commenter also asserts that poultry litter satisfies the contaminant legitimacy 

criterion, but only provided data on sulfur and chlorine levels, noting the reported chlorine levels 

 

28 Gurian-Sherman, Doug, CAFOs Uncovered: The Untold Costs of Confined Animal Feeding Operations, Union of 

Concerned Scientists (April 2008). 

29 This commenter reported poultry litter as having sulfur, chlorine, and nitrogen levels of 0.35%, 0.16%, and 3.3%, 

respectively, and a net heating value of 4,900 Btu/lb. 
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averaged 0.7 percent (on a dry basis). They also provided data on the heating values of poultry 

litter that ranged from 3-4,000 Btu/lb, explaining that this material is a self-sustaining fuel 

(requiring no supplemental fuel). 

Finally, two states commented that manure is excluded from the definition of solid waste 

under their laws and regulations. One of these states exclude manure from being defined as a 

solid waste when it is returned to the soil as fertilizer or as a soil conditioner, the other exempts it 

from its statutory definition of solid waste. 

 Regarding our request for comment on the extent to which manures are currently 

processed into biofuels, as well as data to support whether biofuels meet the legitimacy criteria, 

one state referenced a June 2009 Report to Congress30 that reviewed the current commercial use 

of manure to energy systems, and found that few exist, and that it is unlikely in the near term 

future for more to be developed due to technological and economic barriers. Another state 

commented that they were aware of one gasification system that has been built on a pilot scale 

that uses chicken and poultry litter as a feedstock. A Tribe requested that EPA finalize 

legitimacy criteria that does not discourage the development of biogas technology since it is a 

clean carbon-neutral fuel needed to help address climate change. This Tribe explained that its 

renewable energy plans focus, in part, on production of biogas from animal, cheese, and other 

organic material, and requested that EPA either exempt biogas from the contaminant legitimacy 

criterion or require that, overall, contaminants in gaseous fuels not be “significantly higher” in 

concentration than contaminants found in traditional fuel products that the combustion unit is 

designed to burn. The Tribe is concerned that a direct numerical comparison of contaminant 

levels of biogas to natural gas that requires all contaminants in biogas to be equivalent or below 

 

30 USDA, June 2009. Manure Use for Fertilizer and for Energy Report to Congress. Economic Research Service. 

June 2009, pp. 32-39. http://www.ers.usda.gov/publications/ap/ap037/ap037.pdf. 
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the concentrations found in natural gas would discourage the development of biogas technology. 

 EPA’s Response: 

Upon reviewing the comments and data received, we conclude that animal manure that is 

used as a fuel “as generated” does not satisfy the legitimacy criteria, and thus is solid waste when 

burned as a fuel. Specifically, as discussed later in this section, we know that animal manures 

contain pathogens at levels that are not comparable to traditional fuels. (Note: As discussed in 

Section V.D.3, and based on comments received, we have modified our definition of 

“contaminant” to include pathogens, since they are undoubtedly discarded, i.e., disposed of, in 

the combustion process.) We further find that the levels of certain other pollutants, such as 

nitrogen and chlorine, in certain types of manure, may not be comparable to those levels found in 

traditional fuels that otherwise would be burned. This is based on data found in a North Carolina 

State University31 study that indicate some types of manure have higher levels of nitrogen and 

chlorine when compared to traditional fuels that otherwise would be burned in the energy 

recovery device.32 This same study reported pathogen levels for many types of manure that are 

not comparable to the levels found in traditional fuels.33,34 

 We also conclude that most manure that is used as a fuel is not managed as a valuable 

fuel commodity from the point of generation, including management practices that occur in open 

 

31 Animal and Poultry Manure Production & Characterization. North Carolina State University Cooperative 

Extension Service. Raleigh, NC. 

http://www.bae.ncsu.edu/programs/extension/manure/awm/program/barker/a&pmp&c/ 32 Some manures were listed as having the following mean levels for chlorine and nitrogen: Cl- 1% by weight and 

N – 3.5% by weight reported as total Kjeldahl nitrogen as N. By comparison, coal contains chlorine levels ranging 

from as low as 0.01% to as high as 0.74 percent and nitrogen levels ranging from 0.6% to 1.9%. 

33 For example, it was reported that fresh dairy manure has mean levels of salmonella bacteria, fecal coliform 

bacteria, fecal streptococcus bacteria, streptococcus bacteria, and total coliform bacteria of 3.3x104

, 1.9x108, 

1.2x109

, 1.5x109, and 2.8x108 col/gm, respectively. Pathogens have not been reported to be present in traditional 

fuels that otherwise would be burned. 

34 Although EPA did not receive data on the extent to which pathogens are present in traditional fuels, EPA believes 

pathogens are not present in traditional rules at the levels that have been reported for manure. 
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lots to facilitate drying and pathogen reduction.35 Information submitted by one commenter 

suggests that the decision to use stored manure as a fuel may not be made until after the material 

has been in storage for an extended period of time. Thus, the manure when used as a fuel may 

not be used within a reasonable time frame, which is another requirement of this legitimacy 

factor. 

 We also find that manure that is used as a fuel does not satisfy our meaningful heating 

value criteria, since data shows that most manure, as generated, would have heating values lower 

than 5,000 Btus/lb, as-fired. In fact, the U.S. Department of Agriculture noted that for manure to 

be considered to have fuel value, that it typically should have a moisture content of less than 25 

percent. It is our understanding that most manure that is excreted—that is, as generated, would 

have a moisture content of greater than 25 percent. We note that, to satisfy the legitimacy 

criteria, today’s final rule requires that facilities that burn non-hazardous secondary materials 

with a heating value of less than 5,000 Btus/lb would need to demonstrate that such nonhazardous secondary materials have meaningful heating value by describing whether the energy 

recovery unit can cost-effectively recover meaningful energy from the manure (see Section 

V.D.2). While one commenter provided data to show that a power plant that is dedicated to 

burning poultry litter would meet the meaningful heating value criteria, even though the Btu 

content of the poultry litter is less than 5,000 Btu/lb, as-fired, we believe that this data can’t be 

used to suggest that all or most manure that has a heating value of less than 5,000 Btu/lb, asfired, could meet this demonstration. 

 We acknowledge, however, the possibility that farms or other facilities may manage 

 

35 In more arid areas, manure stockpiles may be uncovered because the potential of addition of moisture from 

precipitation or humidity is low. In less arid areas, these stockpiles are generally covered to prevent moisture 

addition and maintain the material properties. 
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manure as a valuable fuel commodity and that this manure could also satisfy EPA’s contaminant 

and heating value legitimacy criteria. Such material would not be considered a solid waste as 

long as it was never previously discarded. In such situations the facility may petition EPA for a 

non-waste determination, or alternatively, submit an applicability determination to EPA, that 

explains how they satisfy the criteria that are included in this final rule. For example, the 

previously described company that collects poultry litter from growers for use as a fuel in 

dedicated (off-site) biomass power plants may petition the Agency using the procedures outlined 

in this final rule if they believe they satisfy all the criteria. 

While we find that the majority of the manures, as generated, that are directly used as 

fuels would not satisfy the legitimacy criteria, and thus would be solid waste if burned, we 

expect that manure can be processed into a non-waste gaseous fuel (e.g., via anaerobic digestion 

or gasification processes). This gaseous fuel would also have to satisfy the legitimacy criteria 

(e.g., contaminant legitimacy), and while we did not receive data on contaminant levels of 

gaseous fuels that are, or could be, produced, we generally expect that a system could be 

designed to produce a clean gaseous fuel that would satisfy all of the legitimacy criteria. 

 We partially agree with the commenter that was concerned about the legitimacy criterion 

that would require contaminants in biofuels to either be equivalent to, or lower than, levels found 

in natural gas. While we believe it is beneficial to promote the use of clean burning fuels, such 

as biofuels, we also believe that non-waste fuels produced from secondary materials should have 

comparable or lower levels of contaminants relative to traditional fuels used today, since gaseous 

fuels that are produced from secondary materials have the potential to have elevated levels of 

contaminants (such as sulfur). As a result, we believe it is appropriate to require, as proposed, 

that contaminants be comparable, or lower than, those levels found in traditional fuels. 
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However, as discussed in Section V.D.3, we are not defining comparable to mean “equivalent to 

or lower than.” Rather, EPA is generally defining “comparable to or lower than” to mean 

contaminants can be present in non-hazardous secondary materials within a small acceptable 

range, or at lower levels, relative to the contaminants found in the traditional fuels. Thus, 

biofuels that are produced from non-hazardous secondary materials can have contaminants that 

are somewhat higher than the traditional fuel that otherwise would be burned and still qualify as 

being comparable, and would not be considered a solid waste. 

 Comment: 

Manure used as a fuel that would otherwise be applied to the land covered under a 

nutrient management plan36 is in no way discarded. 

 EPA’s Response: 

As discussed previously, we conclude that manure that is used as a fuel in a combustion 

unit is a solid waste. However, manure may also be beneficially used in other end uses, such as a 

fertilizer. As we have noted elsewhere in the preamble to today’s rule, EPA is not making any 

determination whether non-hazardous secondary materials are or are not solid wastes for other 

possible beneficial end uses. Such beneficial use determinations are generally made by the states 

for these other beneficial uses, and EPA will continue to look to the states to make such 

determinations. 

Comment: 

Combustion of manure is simply one of the ways of realizing the carbon value of manure 

 

36 A nutrient management plan is defined in the U.S. Department of Agriculture Natural Resources Conservation 

Service (NRCS) Standard (590) as, “Managing the amount, source, placement, form and timing of the application of 

nutrients and soil amendments.” The NRCS nutrient management standard (590) is the guidance provided to NRCS 

field staff and other planners when providing technical assistance to producers participating in voluntary programs. 

The purpose of the 590 standard is to meet the nutrient needs of the crop to be grown, while minimizing the loss of 

nutrients to surface and ground water. 
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(for energy production/recovery rather than as a soil amendment) and should not be considered 

in any way as a means of “discard,” since the inherent value of manure as a fertilizer is 

essentially preserved in the resultant ash. 

EPA’s Response: 

Both wastes and non-wastes can be utilized as fuels. Whether or not the resultant ash can 

be beneficially used as a fertilizer is not relevant to the question of whether manure is discarded 

when it is burned as a fuel, which is what EPA is to base its decision on. Based on the data 

available to the Agency, we believe that manure that is burned as a fuel, as generated, is being 

discarded. For example, contaminants (e.g., pathogens and possibly other contaminants) are 

known to be contained in manure at levels that are significantly higher relative to traditional 

fuels and thus, are undoubtedly destroyed (i.e., discarded) or emitted (if not properly controlled) 

to the environment during the combustion process. As a result, EPA concludes that manure is in 

fact discarded from the point it is first generated to when it is burned. 

Comment: 

Given the biological basis of agricultural products and by-products and the unique nature 

of the transfer of agricultural commodities among entities, the commenter requests that EPA 

presumptively grant a non-waste determination for manure that is used as a combustion fuel 

outside the control of the generator that would otherwise meet the legitimacy criteria. The 

commenter states that crops grown from a cropping operation may be sold/provided to an animal 

production operation as a feed input, with the manure from the animal production operation 

being sold/provided to a community based or regional energy production system as one of many 

fuel sources from that area, with the resultant ash from the energy production system sent back to 

the cropping operation as a fertilizer source. The commenter then explains that the cropping and 
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animal production operator may be the same entity, and asserts that the transfer among entities in 

this instance is to facilitate energy recovery, not disposal. 

EPA’s Response: 

 We are designating manure as a solid waste because it is plainly handled as a waste 

rather than a commodity and because it does not satisfy the three legitimacy criteria. Moreover, 

data was not provided that would allow the Agency to presumptively grant a non-waste 

determination for manure that is used as a fuel outside the control of the generator. As a result, 

we conclude the final rule cannot presumptively grant a non-waste determination for manure that 

is used as a fuel outside the control of the generator. We note, however, that sources may 

petition the Agency for a non-waste determination for materials managed outside the control of 

the generator. See Section VII.G.

Comment: 

Modern manure management systems that are designed and operated in accordance with 

applicable Federal, Tribal, State, and/or local regulations and requirements for air and water 

quality should be considered to meet the “adequate containment” requirements. 

EPA’s Response: 

EPA does not agree with the commenter that the statement “manure management 

systems that are designed and operated in accordance with applicable Federal, Tribal, State, 

and/or local regulations and requirements for air and water quality should be considered to meet 

the “adequate containment” requirements” in itself, is sufficient for EPA to conclude that these 

systems satisfy the containment requirements. These Federal, Tribal, State, and/or local 

regulations and requirements would have to be examined on a case-specific basis to determine 

whether manure that is used as a fuel is managed as a valuable commodity pursuant to EPA’s 
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solid waste criteria. From the descriptions of the management practices that have been provided 

to EPA, such as stockpiling manure in open lots to facilitate drying, we disagree that these 

regulations and requirements could allow the manure to be considered a non-waste material since 

it would not meet the “manage as a valuable commodity” legitimacy criterion. 

Comment: 

Manure satisfies EPA’s meaningful heating value legitimacy criterion since it typically 

has energy contents ranging from 6,000 to 8,000 Btu/lb on a dry basis. 

EPA’s Response: 

The data provided by the commenter summarizes heating values on a “dry basis,” rather 

than on an “as-fired” basis that accounts for the moisture content of the material, and thus, this 

data is not relevant to the “meaningful heating value” legitimacy criterion. To satisfy the 

meaningful heating value criterion, the non-hazardous secondary material must have at least 

5,000 Btu/lb, as fired (accounting for moisture), since the as-fired energy content is the relevant 

parameter that must be assessed to determine if it is being disposed rather than used as a fuel. 

See Section VII.H.1. Alternatively, if the non-hazardous secondary material has a meaningful 

heating value of less than 5,000 Btu/lb, “as fired,” the source must demonstrate that a meaningful 

heating value is derived from the manure. As previously discussed, the data available to EPA on 

an “as fired” basis would suggest that much of the manure would have heating value levels of 

less than 5,000 Btu/lb. While one commenter provided data showing poultry litter would meet 

the meaningful heating value criterion even though the Btu content of the poultry litter is less 

than 5,000 Btu/lb, as-fired, we believe that this limited data can’t be used to suggest that all or 

most manure that has a heating value of less than 5,000 Btu/lb, as-fired, could meet this 

demonstration. 
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 Comment: 

Based on the available data and the fact that ash from manure combustion is still suitable 

as a fertilizer, the commenter believes that manure does not contain contaminants that are 

significantly higher in concentration than traditional fuels. 

 EPA’s Response: 

Whether the resultant ash is suitable as a fertilizer is not directly relevant to EPA’s solid 

waste determination for secondary materials used as a fuel since contaminants that are present in 

manure “as generated” can also be destroyed (discarded) in the combustion process or be directly 

emitted to the environment, if they are not sufficiently combusted and/or controlled by the 

combustion unit’s air pollution control system. Contaminants in manure that may be used as a 

fuel must be present at comparable or lower levels relative to traditional fuels for the manure to 

satisfy the contaminant legitimacy criterion. As previously discussed, EPA concludes that 

manure does not satisfy this contaminant criterion for pathogens, and may not satisfy this 

criterion for other pollutants as well (e.g., nitrogen, chlorine, and manganese). Thus, manure that 

is burned as a fuel, as generated, is more appropriately regulated under the CAA section 129 

emission standards so as to ensure the combustion unit is properly designed to handle, treat, and 

control waste material with elevated contaminants. 

3. Other Biomass. 

The proposed rule preamble discussed many different forms of biomass, including 

cellulosic and non-cellulosic biomass.37 How the final rule views clean biomass was addressed 

earlier in Section V.B.1, which addresses traditional fuel. Manure was discussed in the previous 

section (V.B.2), while pulp and paper sludges and resinated wood residuals will be discussed in 

 

37 75 FR 31861 – 31863 
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more detail in Sections V.B.4 and V.B.6, respectively, of this preamble. This section discusses 

other biomass materials that may be burned as a fuel, and whether or not they would be 

considered a solid waste when combusted as a fuel. Specifically, the proposed rule identified 

lead-painted wood and wood treated with pentachlorophenol, copper-based and borate-based 

compound treatments as solid wastes due to elevated contaminant levels relative to traditional 

fuels. Moreover, the proposed rule explained that, to the extent that any treated wood materials 

are identified as a hazardous waste, it would not be eligible to be burned in a non-hazardous 

waste combustion unit. We also specifically requested comment on the levels of contaminants in 

creosote-treated lumber due to the uncertainty associated with the level of contaminants (e.g., 

levels of polycyclic aromatic hydrocarbons present in creosote).38 We received comments on 

construction and demolition (C&D)-derived wood, treated wood, and OCC rejects. 

Comment: 

Since creosote is a derivative of coal, itself a traditional fuel, the comments argued that 

creosote-treated wood should also be considered a traditional fuel. They suggested that this 

material is treated as a valuable commodity and has been used as a fuel for over a decade. One 

commenter provided data that showed that the mobility of contaminants indicates that p-cresol 

leaches at 75 percent of the hazardous waste toxicity characteristic leaching procedure (TCLP) 

levels in new ties, but that this is reduced to less than 10 percent in ties that are over 10 years old. 

Another commenter provided the average results from 605 TCLP tests and 605 totals analyses 

for metals on creosote-treated wood. These results were below TCLP limits for all of the 

contaminants it contains (i.e., cresol, m,p-cresol, o-cresol leached an average of 1.23 mg/L, 0.90 

mg/L, 0.35 mg/L, respectively), although two compounds, 2,4-dinitrotoluene and 

 

38 75 FR 31863 
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hexachlorobenzene, leached at levels close to the toxicity characteristic (TC) regulatory level 

(both leached at 0.09 mg/L with a standard deviation of 0.03).39 Another commenter submitted a 

compositional analysis that compared the levels of constituents in creosote (not creosote-treated 

wood) to crude coke oven tar, a traditional fuel. For example, creosote contains between 8.00 – 

17.30% of naphthalene and 0.50 – 0.80% quinoline, respectively, while crude coke oven tar 

contains between 3.00 – 11.00% naphthalene and 0.18% quinoline). Besides naphthalene and 

quinoline, data was also submitted for other compounds found on either the CAA section 112 

HAP list, including biphenyl and dibenzofuran. The data submitted showed that all contaminants 

were present in the creosote at levels greater than in crude coke oven tar.40 Other studies 

compared metal contaminants (As, Cr, Pb, and Cu) in creosote- and pentachlorophenol-treated 

wood (<1.97 ppm As, <4.21 ppm Cr, <64.13 ppm Pb, and 7.65 ppm Cu) to that of wood chips, 

bark, yard waste, and forest residuals and found that the levels were comparable (<3.61 ppm As, 

0.12 – 4.77 ppm Cr, <17.5 ppm Pb, and <6.44 ppm Cu).41

Finally, a study was submitted that demonstrated that the co-firing of creosote- and 

pentachlorophenol-treated wood (10/90 treated wood/coal mix) results in a reduction of 79 - 107 

ppm of oxides of sulfur (SOx), 78 - 100 ppm of oxides of nitrogen (NOx), and 0.4 - 0.5 ppm of 

total hydrocarbon (expressed as propane) emissions compared to those from samples of Upper 

Freeport coal. The same study, however, found that there was an increase of 17 – 84 ppm in HCl 

emissions when co-firing with treated wood, although the study noted these levels of HCl 

 

39 See document EPA-HQ-RCRA-2008-0329-0875.1 

40 See document EPA-HQ-RCRA-2008-0329-0767.1 

41 Holtzman, M.I. and R.S. Atkins, 1995. “Emissions from Combustion of Treated Wood Fuel and Tires in Industrial 

Boilers,” Presented to the Air and Waste Management Association’s Annual Meeting, June 18-23, 1995. 
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emissions could be within the range from coal found in other areas of the U.S. 42 HCl is listed on 

the CAA 112 HAP list. Other data were submitted that showed that PAHs emissions from a 

combustion unit are less when burning treated wood (50/50 mixture of creosote- and 

pentachlorophenol-treated wood) than when combusting untreated wood. Data were also 

provided that indicated that pentachlorophenol and total chlorophenols were destroyed by 

combustion at greater than 99.9% removal efficiency.43

EPA’s Response:

We do not agree with commenters that creosote-treated wood should be considered a 

traditional fuel (either an historically managed traditional fuel or an alternative fuel as defined in 

§241.2) solely based on the fact that it is manufactured using coal tar and wood, which are 

considered traditional fuels. Creosote was not derived for the purposes of creating a fuel, or the 

wood treated with creosote to produce a fuel, but the creosote was produced and used as a wood 

preservative. It is not made from virgin materials, but is a secondary material. Creosote is 

derived from coal tar through a distillation process and, therefore, creosote has different 

chemical concentrations than coal tar. While we recognize that creosote-treated wood has been 

utilized as a fuel for over ten years, few markets are available for creosote-treated wood due to 

concerns about the contaminants. This suggests the need to use burning as a waste treatment 

activity. 

The TCLP data generally indicates that the material, on average, is not a hazardous 

waste. This does not mean, however, that the material is not a non-hazardous solid waste. 

 

42 Freeman, M.C., W.J. O’Dowd, T.D. Brown, R.A. Hargis, Jr., R.A. James, S.I. Plasynski, G.F. Walbert, A.F. 

Lowe, and J.J. Battista, Jr. “Pilot-Scale Air Toxics R&D Assessment of Creosote-Treated and PCP-Treated Wood 

Co-firing for Pulverized Coal Utility Boiler Applications.” U.S. Department of Energy’s National Energy 

Technology Laboratory. 

http://www.netl.doe.gov/technologies/coalpower/cctc/cctdp/bibliography/misc/pdfs/haps/2002-710.pdf 43 Smith, S.T., 1996. “Stack Testing Report, Koppers Industries, Inc., Grenada Plant, Tie Plant, MS,” Submitted to 

the Mississippi Department of Environmental Quality, May 6. 
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Leaching data is not relevant to determine whether or not the treated wood is being discarded. 

We do note that the average values and standard deviations provided for 2,4-dinitrotoluene and 

hexachlorobenzene suggest that a few samples actually failed the TCLP test and would be 

classified as a hazardous waste. Creosote-treated wood that is classified as a hazardous waste 

must be managed as a hazardous waste, which is outside the scope of this rulemaking. Even 

though most creosote-treated wood is nonhazardous, the presence of hexachlorobenze, a CAA 

112 HAP, as well as the other HAPs, in creosote-treated lumber suggests that creosote-treated 

wood include contaminants at levels that are not comparable to those found in wood or coal, the 

fuel that creosote-treated wood would replace.44 Although not a criterion for legitimacy, the 

emissions studies showing that burning creosote and pentachlorophenol wood results in the 

increased emissions of HCl (a CAA 112 HAP) indicates that the burning of this secondary 

material is a waste activity and not similar to burning traditional fuels. Accordingly, creosote 

treated wood does not meet the legitimacy criterion for contaminants and, therefore, should be 

considered a waste when burned as a fuel. 

In regards to wood treated with pentachlorophenol, no additional contaminant data was 

provided that would reverse our position from the proposal, which determined pentachlorophenol 

was a solid waste due to concerns of elevated levels of contaminants.45 While some commenters 

pointed to data that indicates that pentachlorophenol-treated wood (as well as creosote-treated 

wood) would have similar or lower air emissions to non-treated woods, this is not the criterion or 

test for determining legitimacy as combustion systems vary greatly. To be considered a 

legitimate non-waste fuel, the non-hazardous secondary material itself must have contaminant 

 

44 See Preliminary Characterization Study Prepared In Support of the Proposed Rulemaking –Identification of 

Nonhazardous Secondary Materials That Are Solid Waste: Traditional Fuels and Key Derivatives, EPA-HQRCRA-2008-0329-0461.21 

45 75 FR 31863 
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levels that are comparable to (or less than) those in traditional fuels. Thus, the final rule will 

retain the proposed approach, which considered wood treated with pentachlorophenol a solid 

waste, assuming that the pentachlorophenol treated-wood is not classified as a hazardous waste. 

Hazardous wastes are not covered under the scope of this rulemaking. 

Comments: 

Comments were submitted that argued that wood treated with borate-based compounds or 

copper napthenate did not contain any contaminants, but only contaminant data was supplied for 

wood treated with borate-based compounds. That study indicated that the most prevalent borate 

treatment, disodium octaborate tetrahydrate, contained 1.5 ppm of As, <1 ppm of Cd, <2.5 ppm 

of Cr, <5 ppm of Co, <0.02 ppm of Hg, <2.5 ppm of Ni, and 0.67 ppm of Se.46 Since these 

levels represent the contaminant concentration of the borate treatment, the resulting wood that is 

treated with this compound would contain even lower concentrations of contaminants. 

EPA’s Response: 

With respect to borate-treated wood, after reviewing data from the one commenter, which 

shows that the levels of contaminants in this material are comparable to those found in 

unadulterated wood for the seven contaminants for which data was presented, we believe that 

such treated-wood meet the legitimacy criterion on the level of contaminants and comparability 

to traditional fuels. Therefore, borate-treated wood could be classified as a non-waste fuel, 

provided they met the other two legitimacy criteria and provided that the contaminant levels for 

any other HAPs that may be present in this material are also comparable to or less than those in 

traditional fuels. We also are aware that some borate-treated wood is subsequently treated with 

other chemicals, such as creosote, to provide an insoluble barrier to prevent the borate 

 

46 See document EPA-HQ-RCRA-2008-0329-1569 
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compounds from leaching out of the wood. We did not receive data on the contaminant levels of 

the resulting material, but data presented on creosote treated lumber indicates that this nonhazardous secondary material would likely no longer meet the legitimacy criteria and would be 

considered a solid waste when burned as a fuel. 

With regard to wood treated with copper napthenate, no additional contaminant data was 

provided that would reverse our position in the proposed rule, which considered wood treated 

with copper napthenate a solid waste because of concerns of elevated levels of contaminants.47 

We acknowledge today, as we did in the proposed rule, that we do not have sufficient 

information on the contaminant levels in wood treated with copper napthenate.48 Thus, if a 

person can demonstrate that copper napthenate treated-wood would meet the legitimacy criteria 

and, if discarded, demonstrate that they have sufficiently processed the material, that person can 

handle its copper napthenate treated-wood as a non-waste fuel. 

Comments: 

Commenters argued that, although C&D-derived wood is discarded by construction and 

demolition sites, it is sufficiently processed into a non-waste fuel. It is received at a mixed C&D 

processing facility as part of loads from construction and demolition sites. Potential 

contaminants are removed as much as possible before it enters the plant. Clean C&D wood is 

then separated out from the rest of the incoming stream one of two ways; either through 

mechanical means or through humans sorting along a specially built picking line. Painted and 

treated wood is identified either visually or utilizing x-ray fluorescence (XRF) analyzers. After 

separation, the wood is ground to a specific size and density per the specification of the plant 

using the biomass product. The creation of natural wood products follows a similar processing 

 

47 75 FR 31863 

48 75 FR 31863 
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path, except that C&D wood is more carefully prepared because of the chemical analysis the 

C&D product undergoes. 

Commenters also stated that C&D-derived wood meets the legitimacy criterion for 

having a meaningful heating value. They stated that C&D-derived wood has a heating value of 

between 7,000 – 8,200 Btu/lb, and thus, should be considered a non-waste fuel. Data from one 

plant that combusts C&D-derived wood found that it had a heating value that ranges from 6,700 

– 9,000 Btu/lb, with an average value of 8,200 Btu/lb. 

One company provided chemical constituent data on C&D-derived wood that is utilized 

at their plant in order to demonstrate that the material meets the legitimacy criterion for 

contaminants. The results of this analysis found that the chemical constituents were comparable 

to or lower to those found in coal (of unknown source or type). See Table 1 below for the results 

of this study. 

Table 1. Comparison of contaminant concentrations in samples of coal and C&D-derived 

wood.49

Material 

Coal (unknown 

source or type) 

C&D-derived 

wood 

Sample Size 16 14 -16

Median 

contaminant 

concentrations 

Cl 

(lb/billion Btu) 46.0 56.0

(ppm) 391 - 644 459.2

# of non-detects 0 0

Hg 

(lb/billion Btu) 0.00622 0.0046

(ppm) 0.05287 - 0.08708 0.03772

# of non-detects 0 0

 

49 Source: EPA-HQ-RCRA-2008-0329-0774; Since the legitimacy criterion for contaminants compares 

concentrations per mass of the material (not per the heating value of the material), all concentrations reported in 

pounds per billion Btu (lb/billion Btu) were converted into parts per million (ppm) with the assumption that C&Dderived wood has a heating value of 8,200 Btu/lb (as fired) and that sub-bituminous and bituminous coal (the most 

common types of coal to be utilized in combustion units) have a heating value of 8,500 – 14,000 Btu/lb (per 

Preliminary Characterization Study Prepared In Support of the Proposed Rulemaking –Identification of 

Nonhazardous Secondary Materials That Are Solid Waste: Traditional Fuels and Key Derivatives, EPA-HQRCRA-2008-0329-0461.21). 
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Pb 

(lb/billion Btu) 0.374 0.488

(ppm) 3.18 - 5.24 4.00

# of non-detects 0 0

Cd 

(lb/billion Btu) 0.00465 0.0218

(ppm) 0.03923 - 0.06510 0.17876

# of non-detects 7 2

Some commenters discussed studies that concluded that the use of appropriately 

processed C&D wood is similar in its emission profile to that of virgin wood, although some 

older studies indicated an increase in metals emissions (likely due to the inclusion of treated 

wood).50 Another commenter submitted a life-cycle assessment that described how the recovery 

of C&D wood as a fuel decreased greenhouse gas emissions. This study found that combusting 

all C&D wood generated in New Hampshire per year (280,000 tons) will off-set energy from the 

northeast power grid and, therefore, result in 70,000 – 130,000 tons less of carbon emissions, 600 

tons/year less of particulate matter, 430 tons/yr less of NOx, 2,300 tons/yr less of SOx, 890 

tons/yr less of CO, and 10 pounds/yr less of lead. Even when compared simply to the 

combustion of virgin wood, it was found that C&D-derived wood combustion had lower 

impacts: 16,700 metric tons of carbon equivalents were offset, 50 tons/yr less of particulate 

mater, 200 tons/yr less of NOx, 485 tons/yr less of SOx, and 69 tons/yr less of CO. 51

EPA’s Response: 

The proposed rule included clean construction wood in the definition of traditional fuels. 

 

50 U.S. EPA, ‘‘Wood Products in the Waste Stream: Characterization and Combustion Emissions, Vol. 1,’’ 

November 1996. 

National Council for Air and Stream Improvement, Inc. Technical Bulletin (TB) 906, ‘‘Alternative Fuels Used in the 

Forest Products Industry: Their Composition and Impact on Emissions.’’ September 2005. 

Larsen, F.S., W.H. McClennen, X. Deng, G.D. Silcox-Person, and K. Allison, 1992. “Hydrocarbon and 

Formaldehyde Emissions from the Combustion of Pulverized Wood Waste.” Combustion Science and Technology, 

85 (1-6) p. 259 – 269. 

51 Jambeck, J., A. Carpenter, K. Gardner, and K. Wietz, 2007. “University of New Hampshire Life-Cycle 

Assessment of C&D Derived Biomass/Wood Waste Management,” University of New Hampshire, Durham, NH, 

December 5. 
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The final rule retains this conclusion, although clarifies the definition of traditional fuels to 

include alternative fuels. Clean cellulosic biomass is an alternative fuel as they are clean 

cellulosic materials that are indistinguishable in composition from wood that is commonly 

burned in combustion units (See the explanation in Section V.A). We note that the final 

definition of traditional fuels clarifies that this category includes clean demolition wood as well. 

However, discarded C&D-derived wood that is not clean would not be considered a 

traditional fuel, but a solid waste under today’s rule. C&D-derived wood, however, can be 

classified as a non-waste fuel if it has been sufficiently processed and meets the legitimacy 

criteria. C&D-derived wood is typically sorted to remove contaminants (e.g., lead-painted wood, 

treated wood, non-wood materials), and size reduced prior to burning, producing material that 

likely meets the processing and legitimacy criteria for contaminants. The data provided by one 

company demonstrates that C&D-derived wood can be sufficiently processed to meet the 

legitimacy criterion for four contaminants, even when these contaminants are compared to 

untreated wood concentrations presented in the background document, Preliminary 

Characterization Study Prepared In Support of the Proposed Rulemaking –Identification of 

Nonhazardous Secondary Materials That Are Solid Waste: Traditional Fuels and Key 

Derivatives.

52 A complete determination, however, would also include the comparison of As 

and Cr concentrations. We would also note that based on the data presented, C&D derived wood 

also meets the meaningful heating value criterion. 

With respect to those comments that argued that C&D derived wood have an emissions 

profile similar to that of virgin wood and that it would decrease greenhouse gas emissions, as we 

have noted previously, this is not the criterion or test for determining legitimacy. To be 

 

52 EPA-HQ-RCRA-2008-0329-0461.21 
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considered a legitimate non-waste fuel, the non-hazardous secondary material itself must have 

contaminant levels that are comparable to (or lower than) those in traditional fuels. We would 

also note that because we had no information from the studies on the extent that these C&D 

materials were sufficiently processed to remove the contaminants of concern, we do not know 

what the emissions results from the submitted studies represent. In addition, technology to 

remove contaminants from the C&D debris stream has increased considerably and CCA was 

discontinued as a wood treatment for residential uses as of December 31, 2003.53 Thus, older 

studies may not properly reflect C&D-derived wood that is produced today. 

Comment: 

Some comments argued that there should be a de minimis exemption for C&D-derived 

wood that is processed to remove painted and treated materials, because while most of the 

contaminants are removed from the C&D derived wood, there still may be a small or de minimis

amount remaining on it. Additionally, they also argued that while most non-wood contaminants 

are removed, there might still remain some small or de minimis amounts of other materials (e.g., 

paper, insulation, etc.). 

EPA’s Response: 

C&D-derived wood can contain de minimis amounts of contaminants and other materials 

provided it meets the legitimacy criterion for contaminant levels. 

Comment: 

Comments argued that OCC rejects, also known in the industry as “recycling process 

residuals,” are never discarded, and therefore, should be considered a traditional fuel because 

they do not leave the plant, but are usually burned on-site as a fuel. In some cases, however, 

 

53 68 FR 17366 
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they do leave the plant to be burned in municipal or commercial energy facilities or employed as 

a fuel pellet ingredient. 

In addition, while some commenters argued that they did not believe OCC rejects are 

ever discarded, they provided information on how OCC rejects are sufficiently processed to 

remove contaminants if they are determined to be discarded. For example, strings, wires, rags, 

and heavy objects are removed using manual and centrifugal force, while plastic and nonrecyclable paper fibers are removed through screens. 

Commenters also stated that OCC rejects meet the legitimacy criterion for contaminants 

as they have lower contaminants than traditional fuels. One comment provided data from 10 

samples of OCC rejects from one company and 16 samples of coal (of unknown type or origin) 

to substantiate that claim (see Table 2). 

Table 2. Comparison of contaminant concentrations in samples of coal and OCC rejects.54

Material 

Coal (unknown 

type or origin) 

OCC 

Rejects 

Sample Size 16 10 

Median 

contaminant 

concentrations 

Cl 

(lb/billion Btu) 46.0 23.5 

(ppm, estimated) 391 - 644 87.0 

# of non-detects 0 0 

Hg 

(lb/billion Btu) 0.00622 0.00324 

(ppm, estimated) 0.05287 - 0.08708 0.01199 

# of non-detects 0 0 

Pb 

(lb/billion Btu) 0.374 0.281 

(ppm, estimated) 3.18 - 5.24 1.04 

# of non-detects 0 1 

Cd (lb/billion Btu) 0.00465 0.00558 

 

54 Source: EPA-HQ-RCRA-2008-0329-0774; Since the legitimacy criterion for contaminants compares 

concentrations per mass of the material (not per the heating value of the material), all concentrations reported in 

pounds per billion Btu (lb/billion Btu) were converted into parts per million (ppm) with the assumption that OCC 

rejects have a heating value of 3,700 Btu/lb (as fired) and that sub-bituminous and bituminous coal (the most 

common types of coal to be utilized in combustion units) have a heating value of 8,500 – 14,000 Btu/lb (per 

Preliminary Characterization Study Prepared In Support of the Proposed Rulemaking –Identification of 

Nonhazardous Secondary Materials That Are Solid Waste: Traditional Fuels and Key Derivatives, EPA-HQRCRA-2008-0329-0461.21). 
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(ppm, estimated) 0.03923 - 0.06510 0.02065 

# of non-detects 7 2 

Commenters also claimed that OCC rejects meet the legitimacy criterion for being 

managed as a commodity, as they are managed in the same manner as analogous fuels – bark. 

Prior to burning, this material is co-mingled with bark on the bark pile. 

Furthermore, commenters stated that OCC rejects pass the legitimacy criterion for having 

a meaningful heating value. For example, a commenter submitted data that indicated that, on a 

dry basis, OCC rejects have a heating value of 9,100 Btu/lb, while, as fired, they have a heating 

value of 3,700 Btu/lb.55 Another commenter submitted ten tests at plants from one company that 

found that the heating value of OCC rejects ranged from 8,700 -13,600 Btu/lb on a dry basis.56

Another commenter submitted a study by the National Council for Air and Stream 

Improvement to demonstrate that air emissions from burning OCC rejects are comparable to 

burning wood. In this study, emissions results were provided from three plants that burned 4.4 – 

30% OCC rejects with 70% - 95.6% wood and compared it to emissions from the same three 

plants when they only burned wood. Emissions were tested for total particulate matter (TPM), 

SO2, NOx, CO, and HCl. The results found that burning OCC rejects did not result in increased 

emissions of TPM, SO2, NOx, or CO, but occasionally resulted in a small increase in HCl 

emissions.57

EPA’s Response: 

We do not agree with the commenters that OCC rejects should be considered a traditional 

fuel or alternative fuel since this non-hazardous secondary material, consisting of recycled paper 

 

55 Source: EPA-HQ-RCRA-2008-0329-0871.1 

56 Source: EPA-HQ-RCRA-2008-0329-0774.1 

57 National Council for Air and Stream Improvement, Inc. Technical Bulletin (TB) 906, ‘‘Alternative Fuels Used in 

the Forest Products Industry: Their Composition and Impact on Emissions.’’ September 2005. 
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and paper products, is not made from virgin materials. Additionally, recycling of OCC and the 

subsequent use of OCC rejects is a relatively recent activity. We believe that these materials are 

not discarded when used within the control of the generator, such as at pulp and paper mills, 

since these secondary materials are part of the industrial process. This non-hazardous secondary 

material must still pass the legitimacy criteria to be a non-waste fuel. 

The data that was submitted during the comment period would seem to suggest that it 

would or could meet the legitimacy criteria. For example, the data received indicated that OCC 

rejects have contaminant concentrations that are comparable to, if not less than, coal, wood, and 

bark, which are all traditional fuels used at pulp and paper mills. While the meaningful heating 

value of the OCC rejects is lower than 5,000 Btu/lb, as fired, it can still meet this criterion if it 

can be demonstrated that the unit can cost-effectively recover energy from a non-hazardous 

secondary material. The information submitted also demonstrates that OCC rejects are managed 

as a valuable commodity as they are managed in the same manner as the analogous fuel – bark. 

With respect to the OCC rejects that are shipped off-site for use by another company, the 

Agency does not have the information to conclude that such secondary materials are a non-waste 

fuel. We would need information that such activity is being performed as a legitimate fuel 

activity, not as waste activity. Therefore, the Agency believes OCC rejects that are shipped offsite for burning would be considered a solid waste. However, if the OCC rejects are sufficiently 

processed to produce a legitimate fuel product, or if a person submits and is granted a non-waste 

determination for such OCC rejects, than such secondary material when combusted would be 

considered a non-waste fuel. 

4. Pulp and Paper Sludge. 
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In the proposal, EPA determined that pulp and paper sludge58 is not a waste when used as 

a fuel within the control of the generator. This was based on limited contaminant data and 

information that these sludges are generally used on-site by generators to fuel their boilers and 

are treated like valuable commodities. Comments on the ANPRM had stated that these residuals 

are primarily composed of biomass and that emissions from burning these non-hazardous 

secondary materials are essentially the same as emissions from burning other biomass fuels, such 

as bark or wood. Emissions data contained in one report indicated that when sludges were 

burned at levels below about 10 to 15 percent of total heat input, that such burning would not 

result in elevated levels of criteria or criteria-related pollutants, forty-eight organic compounds, 

and metals. 

However, given the limited data, EPA requested additional comment on contaminant 

levels and the appropriateness of considering these sludges to be non-wastes. EPA also noted, as 

an alternative, that it could consider these sludges to be wastes because of chlorine levels in the 

sludge. 59 

Comment: 

Pulp and paper sludges should be considered a traditional fuel because it has been utilized 

as a fuel since the early 1960’s. In 2004, 22% of the pulp and paper sludge was used as a fuel. 

EPA’s Response:

We do not agree that pulp and paper sludges should be considered a traditional fuel. 

While some portion of the pulp and paper industry uses these sludges as a fuel, it is not the 

industry norm or used as a fuel by a majority of the industry. For example, in 2002, 52% of pulp 

 

58 Pulp and paper sludge includes both primary and secondary wastewater treatment sludges. Primary sludges 

consist of wood fiber and inorganic materials, while secondary sludges are primarily microbial biomass. 

59 75 FR 31862-63 
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and paper sludges was landfilled or stored in lagoons.60 Thus, these materials have not been 

historically managed as fuels. Pulp and paper sludges also would not be considered an 

alternative fuel, since they are not derived from virgin materials. Pulp and paper mills burn these 

secondary materials for energy recovery, but also for waste minimization purposes.61 Therefore, 

the Agency does not consider pulp and paper sludges a traditional or alternative fuel. 

Comment: 

The proposed approach that pulp and paper sludges burned within the control of the 

generator as a fuel would not be considered a solid waste needs clarification. Specifically, 

clarification is needed to determine if pulp and paper sludges that do not leave the site and have 

not been discarded (1) can be used as a fuel and (2) must pass the legitimacy criteria. 

EPA’s Response: 

The final rule retains the proposed approach, which considered pulp and paper sludges 

that remain within the control of the generator and are burned in a combustion unit as a fuel are 

considered a non-waste fuel. However, such pulp and paper sludges must pass the legitimacy 

criteria to demonstrate that these non-hazardous secondary materials are “legitimate fuels” in 

order to be considered a non-waste fuel. 

Comment. 

Commenters argued that pulp and paper sludges are not discarded if used off-site as they 

are used as a legitimate fuel at other locations. One commenter, who identified itself as a power 

 

60 Thacker, W., 2007. “Recycling Paper Mill By-products on Forest Lands: By-product Composition, Potential 

Applications, and Industry Case Studies.” Presentation to EPA Office of Solid Waste Staff, Washington, DC, 

January 23, http://www.epa.gov/osw/conserve/rrr/imr/irc-meet/03-paper.pdf. 61 Someshwar, A.V. and A.K. Jain, 2006. “Alternative Fuels Used in the Forest Products Industry: Their 

Composition and Impact on Emissions,” Technical Bulletin No. 906, National Council for Air and Stream 

Improvement, Gainesville, Florida. 

Vance, E. 2000. “Recycling Paper Mill By-products on Forest Lands: By-product Composition, Potential 

Applications, and Industry Case Studies” The Forest Alternative: Principles and Practice of Residuals Use. 

University of Washington College of Forest Resources Publication, Seattle, WA, p. 193-207. 
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plant, utilizes pulp and paper sludges generated less than a mile away and stated that the material 

is loaded into trucks for the short haul to the steam boilers, dumped into the wood handling 

system, conveyed to covered storage where it is contained and burned in the boiler all within the 

span of several hours. They suggest that this is a legitimate use of pulp and paper sludges offsite and is, therefore, not a waste. 

EPA’s Response: 

We agree that the use of secondary materials off-site (which we assume the commenter 

means not within the control of the generator) is not always indicative of waste activity and 

would generally agree that the case of the power plant provides an example of when secondary 

materials may be legitimately used as non-waste fuels by a different company. However, we do 

not have information generally about the transfer of pulp and paper sludges to other companies 

to make a broad determination about pulp and paper sludges used off-site as a fuel. (See Section 

V.A.1 for a more detailed discussion of this issue and the EPA’s response.) Thus, we will retain 

the proposed approach that pulp and paper sludges that are transferred to a different company for 

use as a fuel will be considered a solid waste. With that said, we encourage the use of the nonwaste determination petition process to address those instances where transfer of the nonhazardous secondary material to a different company meets the relevant criteria—that the 

secondary material has not been discarded in the first instance and is indistinguishable in all 

relevant aspects from a fuel product. 

Comment: 

Commenters stated that pulp and paper sludges are adequately processed such that when 

discarded (i.e., sent off-site to another pulp and paper mill or to a power plant), it is a non-waste 

fuel. Processing is primarily performed by dewatering. In fact, 84% of all pulp and paper 
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sludges are dewatered using belt filter presses or screw presses.62 One state commenter stated 

that some mills further process pulp and paper sludges into dried pellet products for use as a fuel. 

EPA’s Response: 

We do not agree that dewatering alone meets our definition of processing.63 While 

dewatering does improve the fuel characteristics of the material, this action is not sufficient to 

make the material sufficiently processed into a non-waste fuel as it is generally part of normal 

waste management activities (e.g., prior to landfilling, or prior to burning the sludge for disposal 

in an incinerator). Thus, when sent off-site, pulp and paper sludges are considered discarded 

and, therefore, a solid waste. In the case of pelletizing the material for use as a fuel, we do not 

have sufficient information to make a determination on whether this would be considered 

sufficient processing. If the pelletizing process is used to manufacture the sludge into a form that 

improves its fuel value, we would agree that this is indicative of fuel activity (similar to 

pelletizing sewage sludge, which was used as an example of sufficient processing in Section 

VII.D.4 of the proposed rule)64 and we would consider those activities to meet the definition of 

processing. 

Comment: 

To show that pulp and paper sludges meet the legitimacy criteria for contaminants, three 

commenters submitted a total of 24 characterizations of pulp and paper sludge cake from 16 pulp 

and paper mills. These characterizations showed that contaminants were found at non-detect 

levels. For example, As, Cr, Hg, and Pb were at levels of <0.4 ppm, <21.4 ppm, <0.44 ppm, and 

 

62 See document EPA-HQ-RCRA-2008-0329-0871 

63 See the discussion on dewatering of sewage sludge in Section VII.F of the proposed rule, 75 FR 31878 

64 75 FR 31878 
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<21.6 ppm, respectively.65 Elevated levels (6.36 – 45.8 ppm) of methyl ethyl ketone (MEK) 

were found in five out of eight samples from one pulp and paper mill, although we do not know 

to what extent this data is reflective of pulp and paper sludges generally since eight other 

samples (three from the same mill and five from five other mills) had non-detect levels of MEK 

at a detection level of <0.013 ppm. 

Chlorine levels among an unknown number of pulp and paper sludge samples were noted 

by one commenter to have an arithmetic mean of 465 ppm, a median of 318 ppm, a maximum 

level among mill means of 2,399 ppm, and a maximum among individual analyses of 4,800 ppm 

(all on a dry weight basis). This is compared to a USGS database on U.S. coals to have an 

arithmetic mean of 614 ppm and a maximum among individual analyses of 8,800 ppm (both on 

an as-is basis, which has <10% moisture). However, one sample provided in the comments had 

a chlorine concentration of 16,550 ppm (as received), while another had a chlorine concentration 

of 23 ppm (as fired). Other samples had chlorine concentrations of between 1,050 – 4,800 ppm 

(dry basis). Commenters also argued that combustion of high chlorine content in some pulp and 

paper sludge is not a waste treatment activity. Sources that produce secondary materials that 

have heat value can increase their energy efficiency by re-using these materials as a fuel. 

Materials are chosen for their constituents that are beneficial to the combustion or manufacturing 

process; more often, the materials are chosen for extracting their energy value. 

In terms of meeting the legitimacy criteria for a meaningful heating value and 

management as a valuable commodity, comments were submitted that pulp and paper sludges 

have a heating value of between 3,300 – 9,500 Btu/lb, on a dry basis; no information was 

 

65 Document EPA-HQ-RCRA-2008-0329-1395; National Council for Air and Stream Improvement, Inc. Technical 

Bulletin (TB) 906, ‘‘Alternative Fuels Used in the Forest Products Industry: Their Composition and Impact on 

Emissions.’’ September 2005. 
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submitted on the “as fired” heating value of pulp and paper sludges. Commenters also argued 

that pulp and paper sludges meet the legitimacy criterion for being managed as a valuable 

commodity as they are dewatered to increase their energy value, collected on a continual or 

frequent basis (as produced), further processed and consolidated, including the removal of 

biosolids. One state commenter stated that some mills make a dried pellet product from the 

sludges for use as a fuel. One power plant that utilizes pulp and paper sludge generated less than 

a mile away stated that the material is loaded into trucks for the short haul to the steam boilers, 

dumped into the wood handling system, conveyed to covered storage where it is contained and 

burned in the boiler all within the span of several hours. 

 EPA’s Response: 

The final rule will retain the proposed approach—pulp and paper sludges managed within 

the control of the generator are a non-waste fuel as they meet all three of the legitimacy criteria, 

as discussed below. 

The proposed rule acknowledged a general lack of data regarding contaminant levels in 

pulp and paper sludges and specifically requested data on the issue in order to make a 

determination of whether pulp and paper sludges meets the third criterion of comparable 

contaminant levels to traditional fuels. The information we received indicates that these nonhazardous secondary materials meet the contaminant legitimacy criterion. While commenters 

compared contaminant levels in pulp and paper sludges to those in coal and found lower levels, 

we also found it appropriate to compare the contaminant concentrations to untreated wood since 

wood is also burned in pulp and paper mills. Since levels of chlorine in untreated wood are as 

high as 11,890 ppm, even the high end of the range of chlorine in pulp and paper sludges is 

comparable to that in untreated wood. When comparing to the information that we have 
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compiled on coal, we find that chlorine levels in coal are reported to be as high as 7,400 ppm, 

and that average chlorine values for bituminous and subituminous coal are 1,200 ppm and 140 

ppm, respectively. Thus, the average chlorine levels reported in most pulp and paper sludge are 

also likely to be comparable with average chlorine levels found in bituminous coal.66 We note 

that there is one sample in the submitted data set that has a chlorine concentration of 16,550 

ppm. We do not consider this to be comparable to the levels found in coal and, where it is 

replacing coal, would consider this material to be a solid waste. However, since this was the 

only sample with such a high concentration of chlorine, we do not think that it is representative 

of pulp and paper sludges generally. 

The levels of metals were also lower in pulp and paper sludges than untreated wood and 

coal. For example, untreated wood has levels of As, Cr, Hg, and Pb as high as 6.8 ppm, 130 

ppm, 2 ppm, and 340 ppm, respectively, while coal has levels of As, Cr, Hg, and Pb as high as 

80 ppm, 121.3 ppm, 2 ppm, and 80 ppm, respectively.65 These levels are all greater than those 

submitted in the comments for pulp and paper sludges. We did receive data on some elevated 

levels of MEK in five samples from one mill, but we do not believe that this data changes are 

view that these sludges generally meet the contaminant legitimacy criterion. In particular, EPA 

removed MEK from the CAA 112 HAP list in 2005,67 and thus, MEK is no longer considered a 

“contaminant” in evaluating the contaminant legitimacy criterion. 

While pulp and paper sludges can have a heating value below 5,000 Btu/lb, even on a dry 

basis, pulp and paper mills do try to improve the heating value through dewatering. Thus, we 

 

66 See the Material Characterization Papers for Pulp and Paper Sludges and for Traditional Fuels that are located in 

the docket for today’s rule (EPA-HQ-RCRA-2008-0329). 67 The Agency removed MEK from the list of HAP because it concluded that the potential exposures to MEK 

emitted from industrial processes may not reasonably be anticipated to cause human health or environmental 

problems. 
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believe that pulp and paper sludges generally meet the meaningful heating value legitimacy 

criterion. Also, since pulp and paper sludges are handled promptly (i.e., not stored for long 

periods of time and are contained in storage units along with traditional fuels (such as wood and 

bark) with minimal loss (similar to a valuable commodity), we agree that pulp and paper sludges 

are managed as a valuable commodity. 

Comment: 

Emission tests from two states were said to have shown no significant change in 

emissions associated with the combustion of pulp and paper mill sludge, although the specific 

emission test results were not provided in these comments. One other commenter stated that any 

emissions from those materials will be accounted for in the source's emission limits in its permit. 

One other commenter submitted a study by the National Council for Air and Stream 

Improvement (2006), which summarizes many different studies on the emissions from the 

combustion of pulp and paper sludges. Some studies show that keeping the amount of pulp and 

paper sludges to no more than 10 – 15% of the total heat input will result in no increased 

emission impacts. However, two studies stated that dioxin and furan emissions could result from 

the burning of pulp and paper sludges and that the levels of these compounds in the emissions 

are directly relevant to the amount of chlorine in the sludges. Thus, chlorine levels should not be 

greater than those in found in wood. 68

EPA’s Response: 

First, we would note that emissions testing results is not the criterion or test for 

determining legitimacy as combustion systems vary greatly and this rule aims to determine what 

is a solid waste. To be considered a legitimate non-waste fuel, the non-hazardous secondary 

 

68 National Council for Air and Stream Improvement, Inc. Technical Bulletin (TB) 906, ‘‘Alternative Fuels Used in 

the Forest Products Industry: Their Composition and Impact on Emissions.’’ September 2005. 
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material itself must have contaminants at levels that are comparable to (or lower than) than those 

in traditional fuels. From the data available, it shows that chlorine levels in pulp and paper 

sludges are typically at levels that are lower than those found in coal and wood, as noted above. 

Nevertheless, we also recognize that high chlorine levels are an indicator that the combustion of 

such materials may result in increased emissions of dioxins and furans, such that if chlorine 

levels in pulp and paper sludges are excessively high, it may be an indication that the burning of 

those sludges is more reflective of waste management. Thus, chlorine levels in pulp and paper 

sludges should particularly be monitored and evaluated as part of a plants determination that 

their pulp and paper sludges meet the contaminant legitimacy criterion. 

5. Scrap Tires. 

 In the proposal, EPA stated that whole used tires, including those collected from tire 

dealerships and automotive shops and overseen by a state tire collection oversight program, are 

initially abandoned and thus meet the plain meaning of discard. As a result, whole used tires that 

are not processed into a legitimate fuel or ingredient (e.g., shredded/chipped with steel belts 

removed) were considered a solid waste. EPA acknowledged that whole tires can be legitimately 

burned as a fuel, but because they have been discarded, were considered solid wastes and subject 

to the incinerator requirements in section 129 of the CAA, unless processed into a non-waste fuel 

product, in which case it would continue to be subject to the section 112 requirements of the 

CAA. 

 However, EPA requested comment in the proposed rule on the discard interpretation 

stated in the ANPRM that non-hazardous secondary materials collected and sent for legitimate 

use as fuels are not discarded and are not solid wastes. EPA also solicited comment on the 

processing requirements for whole tires, as well as fuel contaminant data on whole tires or tire-
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derived fuel (TDF) chips as compared to coal, the replacement fuel. 

 In order to clarify the context of the proposed rule comments, the Agency describes the 

background below in “a. Background; Scrap Tire Approach in ANPRM and Proposal.” The 

comments and EPA’s responses are listed in “b. Scrap Tire Comments.” 

a. Background; Scrap Tire Approach in ANPRM and Proposal. 

 ANPRM Scrap Tire Approach.

69 As part of its discussion regarding non-hazardous 

secondary materials used as legitimate “alternative” fuels that have not been previously 

discarded, the ANPRM noted that scrap tires used as tire-derived fuel, which include whole tires 

or tires that have been processed and have not been previously discarded, are legitimate nonwaste fuels if they meet the legitimacy criteria i.e., they are handled as valuable commodities, 

have meaningful heating value, and do not contain contaminants that are significantly higher in 

concentration when compared to traditional fuel products (see Materials Characterization Paper 

on Scrap Tires in the docket for today’s rule for a complete discussion on contaminants in TDF 

[EPA-HQ-RCRA-2008-0329]). We noted that in many cases, scrap tires that are collected 

pursuant to state tire oversight programs (e.g., scrap tires from tire dealerships that are sent to 

used tire processing facilities) are handled as valuable commodities, and, therefore, have not 

been abandoned, disposed of, or thrown away (not discarded). We also noted that because State 

Agencies typically regulate these programs under their state solid waste authorities, it was not 

the Agency’s intent to undercut the states’ authority in this area. We, therefore, requested 

comment on whether scrap tires collected pursuant to state tire oversight programs have been 

discarded, and whether an EPA designation specifying that scrap tires, for example, managed 

pursuant to state tire collection programs are not solid wastes, would adversely impact a state’s 

 

69 The Advanced Notice of Proposed Rulemaking (ANPRM), was published in the Federal Register on January 2, 

2009 (74 FR 41). This reference can be found on page 57 of the FR notice. 
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ability to manage such a program. 

Proposed Rule Scrap Tire Approach.70 The proposal took a different approach regarding 

the use of scrap tires when used as a fuel, based on comments received on the ANPRM. 

Specifically, some states argued that non-hazardous secondary material fuels that are transferred 

to a third party have entered what is traditionally considered to be the “waste stream” (and have 

been regulated by the states as wastes) and therefore should appropriately be considered wastes. 

Scrap tires, regardless of whether they were collected and managed pursuant to state programs or 

recovered from legacy waste piles, would be an example of such materials. As a result, the 

Agency re-examined its position of how the concept of discard applies to scrap tires. Whereas 

the ANPRM had indicated that there may be some number of secondary materials that would not 

be considered discarded even if the original generator sent them to another entity outside of its 

control, the proposed rule took the position that non-hazardous secondary materials that are used 

as fuels and are managed outside the control of the generator are solid wastes unless they were 

processed into non-waste fuel products or a case-by-case non-waste determination petition was 

granted by EPA. 

 Proposal Kept ANPRM Scrap Tire Approach as an Option. In the ANPRM, we 

considered scrap tires (except from tire dumps) that were collected under state tire collection 

programs as non-waste as described above. We reconsidered that position in the proposed rule 

as follows: “...tires collected under these recycling programs are discarded and are solid wastes. 

EPA proposes this formulation for tires, but is asking for further comment on the ANPRM 

formulation that secondary material collected and sent for legitimate use as fuels are not 

discarded and are not solid wastes.... EPA may issue a final rule containing either set of 

 

70 The proposed rule, published on June 4, 2010 in the Federal Register (75 FR 31844) has numerous references to 

scrap tires. The statement referenced can be found on pages 31874 and 31875. 
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provisions depending on information received in the comment period and other information 

available to the Agency.” 

 The Scrap Tire Approach in the Final Rule. Based on the proposed rule comments and 

all other relevant information in the rulemaking record, EPA has modified its approach for scrap 

tires in this final rule. Under today’s rule, scrap tires are considered a non-waste when used as a 

fuel under the following scenarios: 

 (1) Scrap tires that are removed from vehicles and collected and managed under the 

oversight of established tire collection programs (as defined at §241.2) are non-waste fuels71 

when burned as a fuel in a combustion unit. See details at §241.3(b)(2)(i). 

 (2) Scrap tires that undergo a sufficient level of processing (as defined at §241.2 and 

detailed in the scrap tire response to comments) are considered a non-waste, when used as fuel in 

a combustion unit, independent of whether they have been previously discarded. See details at 

§241.3(b)(4). 

 All other scrap tires are considered a waste when combusted, unless a non-waste 

determination petition is granted per the requirements in §241.3(c). 

 The comments that led to this approach are further described in the response to comments 

below and in Section VII.C. 

b. Scrap Tire Comments. 

 Comment: 

 

71 As described elsewhere, these tires do not need processing (as described in §241.3(b)(4)), in order to be 

considered non-waste since they were not "discarded in the first place.” Since these tires were “not discarded in the 

first place,” boilers and cement kilns can use them as non-waste fuel as whole tires, shredded, or fully processed 

TDF at their discretion (provided they meet the legitimacy criteria). Regardless, most types of combustors require 

TDF chips, cement kilns are the notable exception. 
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 Many of the commenters that compared the approach for whole scrap tires in the 

ANPRM (described previously in this section) with the proposed approach, preferred the 

ANPRM approach and believed it was an accurate assessment of how scrap tires are managed. 

Many of those commenters argued that whole scrap tires that are handled in this situation have 

not been discarded when removed from cars for use as a fuel if there is a process or network that 

ensures their safe handling prior to use as a fuel. In addition, many commenters listed the 

attributes that make it a good fuel, in particular they noted that the heat value for TDF is higher 

than typical solid fuels including coal. 

 Commenters disagreed with the assumption that we made in the proposed rule that offsite/third party use of scrap tires equated to discard. Commenters stated that merely sending 

material to another person does not make the activity “discard” per se. In addition, commenters 

said that the owner of the car does not abandon, dispose of, nor throw away the tire when a tire is 

changed at a tire shop. These tires are destined for a beneficial use and are managed as a 

valuable product. Commenters disagreed with EPA’s statement in the proposal that scrap tires 

are “discarded” when removed from the automobile because the generator has relinquished 

control and the entity receiving the tires may not have the same incentives to manage them as a 

useful product. For example, one scrap tire commenter summarized the discard issue and 

suggests that if transfer to a third party does not equate to discard for hazardous in specific 

instances, then EPA is able to make distinctions for non-hazardous secondary materials like 

scrap tires: “EPA’s proposed approach stands in stark contrast to EPA’s approach to hazardous 

secondary materials.... In the Subtitle C regulation, EPA was careful to identify circumstances 

where discard would occur based on a record of damages arising from cases of hazardous 

material recycling. EPA then shaped its transfer-based exclusion from the definition of solid 
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waste to regulate only transfers where discard is taking place. See 73 FR at 64677-78. In 

contrast, with respect to non-hazardous secondary materials, EPA has no record identifying 

circumstances where discard may occur and yet is proposing to determine that all transferred 

material is discarded. Any definition of solid waste that sweeps so broadly exceeds EPA’s 

authority under RCRA. EPA’s proposed approach also stands in stark contrast to the approach 

and guiding principle outlined in the ANPRM. In the ANPRM, EPA did not assume that all nonhazardous secondary material that is transferred outside the control of the generator is discarded. 

Instead, as in its Subtitle C regulations, EPA was guided by the “overall principle ... that 

materials treated as a commodity, rather than as a waste, are not discarded and are not solid 

wastes so long as they are legitimately recycled.” 74 FR at 53. If such an approach is 

appropriate for hazardous substances, a similar or perhaps less demanding determination would 

be still more appropriate for non-hazardous secondary materials. First, the dangers of sham 

recycling are far less. Second, the fact that industrial boilers are similar and are regulated in 

similar manner from industry to industry makes distinctions between industries uniquely hard to 

justify. EPA offers no persuasive evidence to overcome these considerations. As noted earlier, 

EPA says only that it “believes” that such materials have been discarded and that third parties 

“may not” have the same incentive to manage these materials properly as the generator. EPA 

offers a few off point examples but makes no effort to investigate this issue in any detail. 

Furthermore, EPA’s approach ignores the fact that there is an established market infrastructure 

for the sale and purchase of secondary fuels such as TDF. As a result, TDF is subject to normal 

business practices, including contractual arrangements that establish specifications for TDF. Just 

as a fuel supplier needs to provide a specific type of fuel oil to meet a customer’s demands, so 

does the supplier of secondary fuels. The supplier will comply with the specification demanded 
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by the customer or they will lose the business. As a matter of company policy, most generators 

of secondary material fuels take reasonable precautions to evaluate where their materials are 

going as part of risk management.” 

 Commenters also disagreed with our assumptions that led to the Agency’s discard 

position in the proposal with regard to third party use of scrap tires as follows. 

 Point 1 - They disagreed that third party handlers would lack an incentive to manage 

them as a useful material72 because, scrap tires have an exceptionally high rate of use in various 

markets for scrap tires in addition to others comments on the value of the beneficial uses. 

 Point 2 - Commenters also disagreed that scrap tires have the same market incentives for 

misuse as does hazardous waste, which EPA referenced in the proposal73, because, in part, 

hazardous waste are likely to have a relatively negative monetary value. They said that those 

EPA arguments based on hazardous waste are not relevant to scrap tire markets and usage and is 

inappropriate to use the rationale based on hazardous waste cases. Scrap tires do not have the 

environmental and economics risks associated with hazardous waste. 

 

72 The comments are in regard to this statement in the proposal: “When non-hazardous secondary material fuels 

are transferred to another party, we generally believe that the material is discarded since the generator has 

relinquished control of the secondary material and the entity receiving such materials may not have the same 

incentives to manage them as a useful product, which results in the materials being discarded.” See EPA’s statement 

in the proposal at 75 FR 31844, page 31875. 

73 The comments are in regard to this statement in the proposal as well as other references to hazardous waste: 

“This lack of incentive to manage as a useful product has been well documented in the context of hazardous 

secondary material recycling as evidenced by the results of the environmental problems study performed in support 

of the DSW [hazardous waste] final rule. (This scenario does not apply to transfers taking place under the transfer 

based exclusion for hazardous secondary materials that are generated and then transferred to another company for 

the purpose of reclamation.) However, this finding also holds true for non-hazardous secondary materials that are 

used as fuel.” See EPA’s statement in the proposal at 75 FR 31844, page 31875. 
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Point 3 - Furthermore, commenters disagreed that there was currently a pattern of discard 

at third party scrap tire reclaimers74 than can be processed and generating stockpiles as possible 

evidence of the lack of incentive to perform actual recycling). 

Point 4 - Commenters did acknowledge that there were problems in the past with tire 

dumps, but since tires are now effectively managed and brought to markets, the overaccumulation, disposal, and dumping that occurred in the past (as mentioned in the proposal75) is 

less of an issue now. In justifying this statement, many commenters discussed the success of 

eliminating tire dumps. Specifically, they argued that fewer than one million tires remain in 

stockpiles, compared to an estimate of one billion in 1990. It is clear the total number of tires 

discarded in tire dumps is being reduced annually, not increasing due to the improper 

management which the proposal postulated regarding the current management practices at third 

party sites. Also, they argued that of the 300 million scrap tires that are generated each year, 

scrap tires are reported to have the second lowest disposal rate at 10.7% in 2007, with lead acid 

batteries having the lowest disposal rate. 

Point 5 -Commenters, mainly from industry, also disagreed with our statement in the 

proposal76 that secondary material fuels that are transferred to a third party have entered what is 

traditionally considered to be the "waste stream" and therefore should appropriately be 

 

74 The comments are in regard to this statement in the proposal: “As discussed in the DSW final rule, this pattern of 

discard at off-site, third party reclaimers appears to be a result of inherent differences between commercial recycling 

and normal manufacturing. As opposed to manufacturing, where the cost of raw materials or intermediates (or 

inputs) is greater than zero and revenue is generated primarily from the sale of the output, secondary materials 

recycling, including when used as a fuel, can involve generating revenue primarily from receipt of the secondary 

materials. 

Recyclers of secondary materials in this situation may thus respond differently than traditional manufacturers to 

economic forces and incentives, accumulating more inputs (secondary materials) than can be processed and 

generating stockpiles with sometimes little incentive to perform actual recycling. 

75 See EPA’s statement in the proposal at 75 FR 31844, page 31875 

76 See EPA’s statement in the proposal at 75 FR 31844, page 31875
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considered solid wastes. Some commenters (including some states), however, agreed that states 

tend to initially regard tires as waste until they are beneficially used. 

 EPA’s Response: 

 The ANPRM noted that scrap tires that are collected pursuant to tire programs (e.g., scrap 

tires from tire dealerships that are sent to used tire processing facilities) are collected and 

handled as valuable commodities, and, therefore, have not been abandoned, disposed of, or 

thrown away. The ANPRM had indicated that there are instances where non-hazardous 

secondary materials would not be considered discarded even if the original generator sent them 

to another entity outside of its control. The proposed rule took an approach that assumed nonhazardous secondary materials that are used as fuels and are managed outside the control of the 

generator are solid wastes, unless they were processed into legitimate non-waste fuel products or 

a non-waste determination petition was granted by EPA. However, in the proposed rule, the 

Agency was open to an alternate interpretation and requested further comment on the ANPRM 

formulation that scrap tires collected and sent for legitimate use as fuels are not discarded and are 

not solid wastes, and specifically indicated that the Agency “may issue a final rule containing 

either set of provisions depending on information received in the comment period and other 

information available to the Agency.” 

 After careful consideration of the comments and all the material in the rulemaking record, 

including documents cited in the ANPRM and the preamble to the proposed rule, the Agency 

agrees that a system where scrap tires are removed from vehicles77 and are collected and 

managed under the oversight of established tire collection programs are not “discarded in the 

 

77 For purposes of today’s rule, the term “vehicle” is meant to include any is a mechanical means of conveyance that 

employs the use of tires. 

. 
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first instance.” Such tires (including both whole tires and tires that have been shredded - with or 

without metal removal78) are non-waste when used as a fuel in appropriate combustion units. 

These programs ensure that the tires are not discarded en route to the combustor for use as fuel 

and are handled as a valuable commodity as required in the legitimacy criterion in today’s rule at 

§241.3(d)(1)(i). Scrap tires also meet the rest of the legitimacy criteria for fuel. They meet the 

requirement for meaningful heating value, required per §241.3(d)(1)(ii) in that scrap tires have a 

higher heating value (12,000 Btu/lb to 16,000 Btu/lb) as compared to coal (the replacement fuel). 

Scrap tires also meet the requirement specified at §241.3(d)(1)(iii) for the non-hazardous 

secondary materials to have lower or comparable contaminants as compared to the traditional 

fuel it is replacing. Refer to the specific response to comments on contaminants. 

 Established tire collection programs promote the collection of scrap tires and coordinate 

with tire dealerships, haulers, processors, and end users. The existing tire collection programs 

form an established collection infrastructure. These established tire collection programs together 

with state bans on landfilling in most states79 effectively result in the beneficial reuse of tires (as 

fuel or used in other scrap tire markets) as the sole80 end use option for scrap tires in those states. 

 While the Agency recognizes that there will be differences between the various 

established tire collection programs, at a minimum, the following components would need to be 

included as part of any established tire collection program: (1) a comprehensive system that 

prevents tires from being abandoned when the scrap tires are harvested from vehicles and 

collected at the various businesses where they are removed; these tires are not considered 

 

78 If scrap tires are not discarded in the first place, they do not have to be processed per the standards in today’s rule, 

but they can be converted to rough shreds or processed into TDF chips at the discretion of the combustor and still be 

a non-waste fuel. If the scrap tires were discarded, they have to be processed (with metal removal) per the standards 

in today’s rule in order to be a non-waste fuel. 

79 A few states allow tires cut up in smaller pieces to be landfilled, while fewer still allow whole tires in landfills. 80 Note, a commenter has indicated that some states are considering revoking their tire landfill ban if combustors are 

no longer choosing to use tires for fuel based on the outcome of this rule. 
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“discarded in the first instance” per this rule; and (2) standards for the scrap tires to be managed 

as a valuable commodity. These programs should ensure storage does not exceed reasonable 

time frames, the scrap tires are managed in a manner consistent with the analogous fuel (coal), 

and a system is in place to prevent scrap tires from being discarded (according to the plain 

language definition) en route to the combustor (and during any processing prior to combustion). 

 An example of this type of program is a tire dealership that has prearranged agreements 

where the combustor pays for the delivery of the tires harvested from vehicles and can track the 

delivery and has contractual obligations for a safe delivery. Another example is the Texas 

system where tires are not seen as waste, but have specifications for tracking and safe delivery to 

the end use markets. 

These programs neither allow for an opportunity for quality tires intended as a fuel to be 

discarded in the first place nor discarded in transit. Established tire collection programs are 

defined in today’s rule at §241.2. These tires have not been “disposed of, abandoned, or thrown 

away” through the initial process of removing them from cars or collecting them under 

established tire collection programs. 

 It is the combustor’s responsibility to confirm that the whole tires are not discarded and 

were handled appropriately under the established tire collection program. Notification and 

recordkeeping requirements with regard to the use of non-hazardous secondary materials under 

CAA 112 and 129 rules, including whole tires managed under established tire collection 

programs, are outlined in Section VII.I. 

 This approach for scrap tires is supported by comments from auto maintenance shops, tire 

retailers, and others in the automotive business. These commenters discussed the management 

of tires collected from tire and auto-related shops under established tire collection programs. 
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Typically, the state and private programs work together to encourage the processing, reuse, 

and/or recycling, which results in a market demand for scrap tires to be collected, but the use as 

fuel is more independently sustainable in the free market.81 In the event the combustor is 

disposing via combustion (i.e., not utilizing the energy from combustion), it is a waste. 

 With the approach described in today’s rule, EPA is recognizing that some specific types 

of secondary materials are more like valuable commodities than solid wastes, and the act of 

transferring them to a third party does not automatically involve discard. As commenters noted, 

the mere relinquishing of ownership does not make something a waste. 

 We also recognize that the basis for the final position on scrap tires is different from the 

proposal and is more in line with our original position in the ANPRM. The overall rationale for 

the position in the final rule regarding scrap tires is included in Section VII, entitled “Detailed 

Discussion and Rationale for Today’s Final Rule.” 

 Comment: 

 A number of commenters stated that the concentration of contaminants that are found in 

tire-derived fuel TDF chips (or whole tires) are comparable (or less than) those found in the 

traditional fuels that it would be replacing. In the proposed rule, we requested data on the TDF 

contaminants that are HAPs, as listed in section 112(b) of the CAA and the nine pollutants, as 

listed in section 129(a)(4) of the CAA. Some commenters provided independent test results that 

correlated to those contaminants and the results showed a trend that the contaminants were 

generally comparable to or lower than coal, the replacement fuel, (although individual tests and 

comparisons vary). In addition to independent data, some commenters referenced EPA’s 

 

81 The recovery and management of tires that are removed from tire piles are largely supported or subsidized by 

State Agencies and these whole tires are considered discarded and waste when used as a fuel. This is not the case 

for the tires we are calling non-waste that are annually generated and are collected off the vehicles and sent for use 

as fuel. 
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Material Characterization Papers (used to support the proposed rule), and the TDF American 

Society for Testing and Materials (ASTM)82 data on chemical constituents and fuel 

characteristics. The TDF and coal data were typically reported as elemental analyses. 

Specifically, commenters provided the following TDF concentrations for CAA section 

112(b) HAP (some are also CAA 129 pollutants):83, 84 

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

• calcium—3,780 ppm (although listed as “calcium cyanamide” in the HAP list); 

• chlorine—non-detect to 1,490 ppm (also listed in the CAA 129 pollutant list as 

“hydrogen chloride”); 

• chromium—less than 5 up to 97 ppm85; 

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

• manganese—less than 100 ppm86; and 

• mercury—non-detect up to levels in low-mercury coals (also in the CAA 129 

pollutant list). 

These contaminant levels, the commenters argue, are at or below documented levels in coals. 

Although barium and zinc are not CAA 129 pollutants or HAP, commenters mentioned that 

barium was non-detectable and one commenter mentioned that data available from the USGS 

 

82 ASTM (American Society for Testing and Materials) or ASTM International, is a globally recognized leader in 

the development and delivery of international voluntary consensus standards. 

83 This is the available data for the elements or the compounds (that are among the nine CAA section 129(a)(4) 

pollutants or are on the 187 HAP listed in CAA section 112(b)) that were reported in comments, as well as data from 

the scrap tire Material Characterization Paper referenced by commenters. Since TDF is usually co-fired with coal, 

the results can include contaminants that originated from the coal. 84 Refer to the Materials Characterization Papers for traditional fuels in the docket for today’s rule. 85 If this is present from the steel wire, it is not expected to be released during typical boiler combustion. 86 If this is present from the steel wire, it is not expected to be released during typical boiler combustion. 
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database showed coal can have much higher concentrations of zinc87 than TDF. It was also 

reported that the steel wire in tires is 98.5% iron (which is not a HAP). As noted previously, 

many commenters argue that the small amount of steel wire in typical TDF is not considered a 

contaminant that could result in emissions. Rather, it presents a handling concern when used as 

boiler fuel; specifically, the TDF needs to have the exposed wire removed so that it is “flowable” 

like coal. One commenter went on to say that they can recycle metals from TDF postcombustion. A large number of commenters stated that the metal from tires is a necessary 

ingredient in the formation of clinker in cement kilns and becomes part of the clinker product, 

and is in no way considered a “contaminant” in cement kilns88. 

 Many of the commenters also reiterated that the constituents in TDF fuel product do not 

lead to emission problems as evidence by comparable or lower emissions for the following CAA 

129 pollutants according to their tests: carbon monoxide (some higher some lower, but 

comparable), dioxins/dibenzofurans (some commenters stated no significant difference, while 

others claimed emission reductions), hydrogen chloride (specifically mentioned reduction in 

cement kilns), oxides of nitrogen (usually combustors witness the greatest reductions in this 

pollutant when using TDF89), and sulfur dioxide (usually reduced when using TDF). Many 

commenters thought that we should also take into consideration the reduction in greenhouse 

gases and the emissions improvements.90 On the other hand, a number of commenters voiced 

concerns about emissions from scrap tires used as fuel, anticipating that they increased emissions 

 

87 The commenter said the coal sample was 51,000 ppm zinc, while coal is usually less than 100 ppm. TDF usually 

has higher concentrations of zinc than the coal average. 88 See the comment on cement kilns for more information relative to cement kiln usage. 

89 Commenters often said this is the biggest benefit in using TDF. State regulators are said to suggest the use of 

TDF if a combustor has a problem with NOx emissions. 

90 Refer to the Materials Characterization Papers for a detailed summary of the contaminant data for TDF, including 

data provided by commenters. 
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(including those pollutants listed in section 129 of the CAA). A commenter cited that emissions 

increases were expected for a paper mill that was testing a substitution of TDF for wood. 

 Although we requested data on fuel contaminants, some contaminant data was reported 

as emission results. Results of a rather large study were reported by a commenter: “In 2008, 

PCA member companies completed a study on the impact of TDF firing on cement kiln air 

emissions. The study’s data set included emission tests from thirty-one of the cement plants 

presently firing TDF. Dioxin-furan emission test results indicated that kilns firing TDF had 

emissions approximately one-third of those kilns firing conventional fuels – this difference was 

statistically significant. Emissions of particulate matter (PM) from TDF-firing kilns were 35% 

less than the levels reported for kilns firing conventional fuels (not statistically significant due to 

the low PM emissions reported for essentially all cement plants). Nitrogen oxides, most metals, 

and sulfur dioxide emissions from TDF-firing kilns also exhibited lower levels than those from 

conventional fuel kilns. The emission values for carbon monoxide and total hydrocarbons were 

slightly higher in TDF versus non-TDF firing kilns. However, none of the differences in the 

emission data sets between TDF versus non-TDF firing kilns for sulfur dioxide, nitrogen oxides, 

total hydrocarbons, carbon monoxide, and metals were statistically significant. Separate studies 

conducted by governmental agencies and engineering consulting firms have also indicated that 

TDF firing either reduces or does not significantly affect emissions of various contaminants from 

cement kilns.” 

 EPA’s Response: 

The Agency assessed the contaminants in TDF using the data submitted and the proposed 

rule data (referenced above) and compared it to the concentrations in coal, the traditional fuel 
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that scrap tires would be replacing.91 While the level of contaminants in TDF or tires vary 

slightly92 between test results for the scrap tires and for the type of fuel that was used for 

comparison purposes (i.e., coal, the replacement fuel), this data supports the commenters’ 

position that the level of contaminants in TDF (or whole tires) are comparable to (if not less 

than) those found in the traditional fuel that it would be replacing.93 Coal has a number of 

contaminants that are not present or not tested in TDF. See Materials Characterization Papers on 

Traditional Fuels and on Scrap Tires in the docket for today's rule for a complete discussion on 

contaminants in TDF (EPA-HQ-RCRA-2008-0329). 

The Agency has determined that the concentration of iron in the wire (98.5 percent) from 

processed TDF chips is comparable to those in coal. However, iron is not a HAP, nor are the 

other components of the wire expected to be released to the emissions in a typical boiler. Rather, 

the wire ends up in the bottom ash such that, according to one commenter, the metal can be 

recovered. If the scrap tires were discarded (i.e., recovered from a tire dump), they would need 

to be processed into TDF chips with some removal of the metal wire (per the processing 

specifications described in a response to comments below) in order to be a non-waste fuel. 

Based on the comments, we recognize that this is more important for handling, than for 

emissions. We would also note that the steel wire in the whole tires used in cement kilns is 

regarded differently since it is needed to become part of the cement. That is, if the non-

 

91 The “contaminants” are the nine CAA section 129(a)(4) pollutants and the 187 HAP listed in CAA section 112(b). 

Agency has also added pathogens to the list of constituents to be considered for comparison. However, the Agency 

does not expect that pathogens will be present in TDF. 

92 The elemental constituents in coal vary regionally so the test result comparisons to TDF also vary. For example, 

the relative percentage of some elements is sometimes slightly higher in some tests and lower in others. Overall we 

find that TDF and coal have a comparable level of contaminants. 

93 While zinc has been reported to have higher levels in TDF than in coal, zinc is neither a HAP or one of the nine 

pollutants identified in section 129(a)(4) of the CAA and thus, would not be a contaminant for consideration. 
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combustible ingredient in feedstocks that are necessary (e.g., iron) for clinker production are not 

longer used, those materials must be replaced. 

 Finally, although we focus on the contaminants in fuel since that is the relevant criterion 

as it relates to the legitimacy criteria, we do recognize the value of the greenhouse gas, as well as 

other criteria pollutant improvements using scrap tires as stated in the proposal and also raised by 

commenters. Specifically, the use of secondary materials as alternative fuels and/or ingredients 

in manufacturing processes using combustion not only recovers valuable resources, it is known 

to contribute to emission reductions. For example, GHG has been reduced as a co-benefit of the 

use of secondary materials—the GHG rate associated with the combustion of scrap tires is 

approximately 0.09 MTCO2E94 per million Btu of scrap tires combusted, while the GHG 

emissions rate for coal is approximately 0.094 MTCO2E per million Btu. Combined with the 

avoided extraction and processing emissions 0.006 MTCO2 E/million Btu for coal, the total 

avoided greenhouse gas is 0.019 MTCO2 E per million Btu. Also, substituting TDF for coal 

would avoid an estimated 0.246 Lbs/million Btu of particulate matter associated with extraction 

and processing of the coal. 

Relative to criteria pollutants, historical EPA and test program data demonstrate that, 

while emission rates vary over different TDF levels at different facilities, criteria pollutant 

emissions from combusting TDF have been found a majority of the time to be reduced or not 

very much different than those from other conventional fossil fuels, provided combustion occurs 

in a well-designed, well-operated and well-maintained combustion device. In fact, results from a 

dedicated tires-to-energy (100% TDF) facility indicate that it is possible to have emissions much 

lower than those produced by existing solid-fuel-fired boilers (on a heat input basis) with a 

 

94 Metric tons of carbon dioxide equivalent (MTCO2E)M
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specially designed combustor and add-on controls.95 Typically boilers use a mix of TDF and 

coal; they have comparable emissions with or without TDF with the same air pollution control 

device. We are not aware any small area sources that are able to use TDF for fuel. (See the 

Materials Characterization Papers in the docket for further details on these GHG estimates, and 

other estimates of avoided emissions associated with burning tires and other secondary materials 

as fuel.) 

. Finally, we would also note that the use of secondary materials, such as use as a fuel in 

industrial processes may also result in other benefits, including reduced fuel imports, reduced 

mining impacts, and reduced negative environmental impacts caused by previous dumping (e.g., 

tires). 

 Comment: 

 Some industry commenters claimed that the proposed rule would increase the costs for 

facilities that use scrap tires as a fuel due to the imposed costs for unnecessary processing, and 

would negatively affect them and existing tire recycling programs. According to the many 

comments by tire retailers, tires are a material handled as a commodity. Under the third party 

processing requirements in the proposed rule, they estimated substantially increased costs to 

remove the tires they handle from their shops. This would also have the effect of causing the 

tires to be seen as “waste-like” since their monetary value would be reduced. 

 EPA’s Response: 

 As a result of the changes made to the final rule concerning scrap tires that are collected 

as part of an established tire collection program, we anticipate that there will be no or minimal 

 

95 See, for example, Reisman JI (1997) Air Emissions from Scrap Tire Combustion, Appendix: Emissions Data from Controlled 

Tire Burning. Technical Report prepared for USEPA. Office of Research and Development, Washington, DC EPA 1997 at 

http://www.epa.gov/ttn/catc/dir1/tire_eng.pdf 
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changes, to the current system that prevents scrap tires from being discarded. Thus, we do not 

believe that the costs for the tire retailers will increase, as anticipated by the commenters. 

 Comment: 

 A number of state environmental agencies recommended that scrap tires not be 

considered a solid waste when combusted, because of potential impacts on their state programs. 

These state environmental agencies, however, typically preferred EPA to consider scrap tires a 

waste at least until it arrives at the combustion unit (or otherwise reasonably processed into a 

product according to some State Agency commenters). Many of these states noted the beneficial 

aspects of using whole scrap tires as a fuel and were concerned with the negative impacts and 

possible interference to the success of their beneficial use programs (typically for noncombustion determinations) and requested clarification on the scope and impact of this rule for 

all non-hazardous secondary materials, including scrap tires. For instance, they asked if the rule 

would affect or interfere with state solid waste regulations, laws, and beneficial use programs. 

They also requested that EPA clarify the implications to a state program if the scrap tires are 

considered non-waste when used as fuel for federal purposes, but are considered waste according 

to the state recycling and waste management programs (until beneficially used or made into a 

non-waste product). 

 EPA’s Response: 

 As discussed, the Agency has decided to identify scrap tires that are removed from 

vehicles and collected as part of an established tire collection program as a non-waste fuel when 

combusted. Thus, we believe that the concerns or impacts on the effective collection and use as 

a tire-derived fuel product should no longer be a concern. However, this approach would not 

address the request from state agencies that we identify scrap tires as a waste until combusted. 
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As discussed previously, existing RCRA case law on hazardous wastes would not allow EPA to 

declare that a discarded material ceases to be a waste solely by the fact that it is beneficially 

used. Wastes may be used beneficially. Accordingly, once a non-hazardous secondary material 

(such as scrap tires retrieved from waste tire piles) is identified as a waste, its arrival at a facility 

for combustion would not change its status. EPA has also expressed the belief that case law 

would not prevent wastes from being processed into materials that are no longer wastes. 

However, that would require changing the material sufficiently so that a new fuel product is 

created. 

 In response to the states question concerning conflicting and concurrent interpretations of 

state and federal waste status (when used as fuel), EPA would like to clarify that non-hazardous 

secondary materials may be simultaneously regulated as a non-waste fuel or ingredient for use in 

combustion units under the federal program, but as a solid waste by the state’s solid waste 

programs. That is, non-hazardous secondary materials that are designated as a non-waste by 

today’s rule, while not subject to the section 129 CAA standards, could be subject to the state 

standards that identify the same non-hazardous secondary material as a solid waste. The federal 

rule does not affect the state waste determination (except in situations where the state can be no 

more stringent than the federal program and when the state is making waste determinations for 

TDF when combusted). For more information about state agency concerns with regulating nonhazardous secondary materials, not just scrap tires, refer to Section IX.A, “Applicability of State 

Solid Waste Definitions and Beneficial Use Determinations.” 

 Finally, we would note, and as stated elsewhere in this preamble, this rule only addresses 

those non-hazardous secondary materials that are burned in combustion units as a fuel or 

ingredient. Thus, we are not making any determination that non-hazardous secondary materials 
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are or are not solid wastes for other possible beneficial uses. Such beneficial use determinations 

are generally made by the states for these other beneficial uses, and EPA will continue to look to 

the states in making such determinations. 

 Comment: 

 One commenter stated that “[b]urning in incinerators, kilns, boilers, etc. is not the highest 

best use of scrap tires,” and that with proper processing, they can be used in many value-added 

recycling processes. Many other commenters were opposed to the combustion of any nonhazardous secondary materials as a fuel, including scrap tires in CAA section 112 regulated 

units, and support the recycling or reuse of scrap tires for other uses instead of combustion. 

 EPA’s Response: 

 The issue that EPA is addressing in this rule is whether the burning of non-hazardous 

secondary materials, including scrap tires (whether whole or as TDF) is considered waste 

management. This is critical since the status of scrap tires—that is, whether they are a waste or 

not, determines which CAA emission standards the non-hazardous secondary material would be 

subject to. With that said, EPA supports the broad use of scrap tires in many different markets 

(e.g., recycled rubber products, use in asphalt, and in civil engineering projects). The Agency 

also believes that the use of scrap tires as a fuel is a valuable use and should remain a component 

in the overall suite of recycling/management options provided the combustion units are subject 

to appropriate standards. In some cases, other recycling markets may not be available if TDF 

was not used a fuel. For example, in the standard process of shredding tires for tire-derived fuel 

(TDF), finer pieces are created as a by-product appropriate for recycled rubber products. In most 

cases, it would be too expensive to process the scrap tires solely for the recycling of this rubber 

(according to sources in the scrap tire program). Comments on the ANPRM and the proposal led 
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us to believe that the non-combustion markets for scrap tires could not handle the surplus and 

will reverse the trend in cleaning up tire dumps and will lead to many tires disposed in scrap tire 

piles. 

Specifically, in 2007, 89.3% percent of the scrap tires generated in the U.S. by weight 

were collected and consumed in end-use markets. The total volume of scrap tires consumed in 

these end use markets reached approximately 4,105.8 thousand tons of tires out of an estimated 

4,595.7 thousand tons of tires generated in the U.S. By comparison, in 1990, only eleven percent 

of tires were consumed on a per tire basis.96 Of the scrap tires that are collected annually and 

used in beneficial use end markets, about half are used for their fuel value, while the remainder 

are used in value-added recycling processes as the commenter preferred. We recognize that 

regionally, there are sometimes scrap tire shortages in an area that could support more noncombustion uses (as compared to the market demand for scrap tire usages). That is, some states 

are net importers and have very healthy markets using scrap tires as commodities, while other 

states do not have as much demand for scrap tires. The EPA supported scrap tire program is 

described on our website (http://www.epa.gov/osw/conserve/materials/tires/index.htm). 

 Comment: 

 EPA describes coal and petroleum coke as traditional fuel. Based on the extensive use 

developed over the last 20-30 years in the industry, many of the alternative fuels, such as TDF 

can also be considered traditional. A number of commenters cited that scrap tires have been 

used as a fuel for a long time (since the late 70’s) which should qualify as “historical use” and 

should be regarded as a traditional fuel. The cement kiln’s industry goals have emphasized use 

of alternate fuels and raw materials based on the industry increasing its reliance on this type of 

 

96 These tire figures are compiled by RMA and are developed jointly with state scrap tire programs and listed in 

“U.S. Scrap Tire Markets 2007.” The report can be found at http://www.rma.org/scrap_tires/. 
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material since the 1980s. The use of TDF is a long-standing and customary practice now 

characteristic of cement manufacturing fuel options. In fact, commenters have argued that the 

number of major industrial boilers and cement plants utilizing TDF as a supplemental fuel has 

risen dramatically over the last 19 years and decreased the dependence on virgin fuel sources. 

 Other commenters mentioned that the components of tires are derived from hydrocarbons 

(like fossil fuels, such as coal, oil, and natural gas) and natural “biogenic” sources (the rubber), 

and therefore, they should be considered a traditional fuel. Still other commenters mentioned 

that TDF should be considered a traditional fuel since it should qualify for the same reasons as 

on-spec used oil. Finally other commenters argued that scrap tires should be considered a 

traditional fuel based on the comparable contaminant content and superior Btu value (at 12,000 

Btu/lb to 16,000 Btu/lb), as compared to coal. 

 EPA’s Response: 

 We do not agree with the commenters that scrap tires should be considered a historically 

managed traditional fuel or alternative fuel. In fact, until this rulemaking, we are not aware that 

anyone has considered or identified scrap tires as a traditional fuel. While we recognize that 

scrap tires may have been used as a fuel since the 1970’s, we would also note that tires are not 

produced for their fuel value, even though the components of tires are derived from 

hydrocarbons and natural biogenic source. Further, scrap tires are not derived from virgin 

material fuels (e.g., as is the case of coal refuse derived from virgin coal). 

 Comment: 

 Some commenters regarded the combustion of non-hazardous secondary materials, 

including scrap tires, as waste disposal and therefore the combustion unit that burns these 

secondary materials should be regulated as an incinerator. Another commenter was concerned 
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with a combustor accepting fees to accept non-hazardous secondary materials and argued that 

waste-burning boilers can receive a pass-through portion of tipping fees and can also collect fees 

“to dispose of” the material through combustion at “clean energy” projects. The commenter 

went on to say that the fuel at these facilities is in no way sold in the marketplace the way that 

traditional fuels are sold for profit. In fact, the economic model is reversed, so that the 

combustion facility is paid to take the secondary material. 

 EPA’s Response: 

 The question of whether or not a non-hazardous secondary material, including scrap tires 

is or is not a solid waste, depends on whether it has been discarded, and whether it could 

legitimately be considered a fuel-like material, by meeting the legitimacy criteria. As we have 

discussed elsewhere in this preamble, we believe that scrap tires when collected as part of an 

established tire collection program and sent to a combustion unit for use as a fuel, or when 

sufficiently processed to produce a tire-derived fuel, have not been discarded and are not solid 

waste. These secondary materials are more akin to non-waste fuels in these instances. Thus, we 

disagree with the commenters who argue that the combustion of non-hazardous secondary 

materials, including scrap tires, always constitutes waste management. 

On the other hand, where scrap tires or any other non-hazardous secondary materials are 

disposed of (part of the plain meaning of discard) via combustion, they are a waste. For 

example, if a combustion unit’s main purpose is to provide heat to dry a product, but they 

consistently have a surplus of tires received with a tipping fee and operate the unit without a 

product being dried, they are in effect destroying the scrap tires. In this case, they would be 

considered solid wastes, and the combustion unit would be subject to the CAA 129 standards. 

With respect to the situation where a facility accepts scrap tires for a tipping fee (as opposed to 
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paying for the fuel), that can be an indicator that disposal may be occurring, but is not 

determinative to indicate that such transactions always constitute waste management. Rather, 

this factor should be considered, in light of the other circumstances, in determining whether or 

not scrap tires when combusted as a fuel are or are not a solid waste. The tipping fees encourage 

over-accumulation leading to combustion for disposal versus a being used as a valuable 

replacement fuel. 

 Comment: 

 A commenter described the associated environmental justice impacts that would occur at 

sites that would receive scrap tires if the proposed rule went into effect, as compared to the 

current environmental justice impacts associated with cement kiln sites. The commenter 

provided an analysis that they said showed a decreased chance of impacting environmental 

justice communities based on the demographic analysis at cement kilns versus the alternative 

sites. The commenter claimed that the processing described in the proposed rule would 

effectively prohibit them from using scrap tires as a fuel and will result in more scrap tires being 

disposed of or unnecessarily processed at sites that are more likely to be in environmental justice 

communities, as EPA’s environmental justice analysis indicates. 

The commenters’ analyses indicated that cement kilns tend to be located in areas with 

fewer minorities than the national average, as well as fewer minorities as compared to the larger 

set of sites that use non-hazardous secondary materials that may become CISWI facilities, tire 

processors, and RCRA subtitle D facilities (as EPA assessed in the “Review of Environmental 

Justice Impacts”97). The commenter stated that “EPA’s data shows vividly that there are no 

 

97 EPA’s “Review of Environmental Justice Impacts” that the commenter referenced, can be found in the docket for 

today’s rule (EPA-HQ-RCRA-2008-0329-0519). Cement kilns and other combustors that use non-hazardous 
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Environmental Justice issues at any of the cement plants in its CISWI database.” The 

commenter also argued that land disposal (or processing) sites already have environmental 

justice issues and that the proposed rule would make it worse by having more scrap tires diverted 

to waste tire piles or processors. Another commenter indicated that states are considering 

removing landfill bans on whole tires if this rule goes into effect, and argued that the proposed 

rule would cause an increase in the number of tires going to landfills or stockpiles and would 

have a disparate impact on adjacent communities and mentioned the risks of fires and mosquito 

born vectors at tire piles. 

 EPA’s Response: 

 In the evaluation regarding the use of whole scrap tires (predominantly used as a fuel in 

cement kilns) and whether or not they should be considered solid wastes if collected as part of an 

established tire collection program, we considered the environmental justice demographics and 

impacts that would result at cement kilns. Based on our review of the demographics at cement 

kilns, on average, they are located in areas with fewer minorities and less poverty than RCRA 

subtitle D disposal sites, processing sites, and facilities assessed to become CISWI CAA section 

129 incinerators. 

 Whole scrap tires can be used as a non-waste fuel in cement kilns under today’s rule 

when they were harvested off of vehicles and managed under the oversight of an established tire 

collection program prior to being delivered to the combustion unit. Based on our most recent 

demographic data, we agree with the commenter that sending whole tires to cement kilns as a 

non-waste fuel is not expected to have a negative impact on environmental justice communities. 

In fact, it appears that it would have benefits since RCRA subtitle D disposal sites, processing 

 

secondary materials were included in the CISWI database used for EPA’s demographics (many of the units in the 

CISWI database were not regulated as incinerators). 
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sites, and facilities assessed to become CISWI CAA 129 incinerators (the sites that would be 

accepting scrap tires if not burned as a fuel in cement kilns) are more likely to be located in 

environmental justice communities. Thus, while this was not the primary basis on which this 

decision was made, the Agency believes it important that its decision would lessen the impacts 

on environmental justice communities. 

 Comment: 

 EPA never explains why it believes that, in the context of a secondary material that does 

not need processing or perhaps needs only minimal processing to serve as a wholly bona fide 

fuel, that scrap tires cannot be considered sufficiently “processed” unless they are physically 

shredded and undergo metals removal processing. We note that whole tires that have long been 

buried or stacked in aging piles may need minimal processing for use in cement kilns, such as 

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

need no physical processing whatever. EPA never explains why it thinks this much processing is 

necessary for tires to escape the “discard” rubric and serve as bona fide fuels in portland cement 

kilns. The result of this faulty logic is that beneficial reuse of significant amounts of nonhazardous secondary materials will be greatly discouraged, and there will be no health or 

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

represents a “classic case of arbitrary and capricious rulemaking.” 

 The portland cement industry simply cannot afford to jeopardize its product by using 

alternate fuels that affect cement quality. EPA justifiably had a concern (reflected in the earlier 

RCRA subtitle C rulemaking and policy documents it cites) that unscrupulous parties seeking to 

avoid the expensive subtitle C cradle-to-grave regime had incentives to claim that the hazardous 

waste they were burning was a bona fide fuel. At that stage in RCRA subtitle C development 
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(mid 1980s), burning of hazardous materials for bona fide energy recovery purposes was exempt. 

This concern simply does not apply to the situation in which non-hazardous secondary materials 

are being burned in fully regulated industrial furnaces such as portland cement kilns. 

 Ironically, EPA has long recognized that products from portland cement kilns burning 

hazardous waste fuel are not adversely affected in any manner. In 1995, after reviewing 

exhaustive data presented in a petition filed under the Toxic Substances Control Act (TSCA), 

EPA rejected the petitioners’ request that products produced from cement kilns that burn 

hazardous waste fuel carry warning labels because EPA found there was no difference in 

contaminant levels (or risks) in the product. 60 FR 39169 et seq., August 1, 1995. As recently 

as 2007, EPA’s Assistant Administrator for Solid Waste and Emergency Response (OSWER) 

stated in a letter to the Center for Maximum Potential Building Systems that “there is no 

difference in the cement from kilns burning hazardous waste compared to cement produced by 

kilns not burning hazardous waste.” 

 Moreover, NSF International has reviewed data from several portland cement kilns 

burning hazardous waste fuel to assess whether the product from such kilns could be safely used 

in concrete water pipes and water storage tanks. These studies have uniformly concluded that 

there is no statistical difference in contaminants between clinker or products made from kilns 

burning hazardous waste fuel as compared to kilns using only fossil fuels. 

 The commenters representing cement kilns also noted that a cement kiln is not a boiler or 

an incinerator. One of the commenters went on to say that “in enacting CAA section 129, 

Congress was focused exclusively on “incinerators.” Incinerators burn waste materials solely for 

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

Moreover, in all the rulemaking and litigation that prompted this proposed rule – culminating in 
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the NRDC case ... EPA, the parties, and the Court were focused exclusively on incinerators and 

boilers. Like incinerators, boilers do not use “ingredients.” Unlike incinerators, boilers may 

burn waste materials for energy recovery purposes. But the only product they make is steam, 

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

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

respects. First, it is one type of “industrial furnace” which, unlike boilers and incinerators, 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. The commenter referred to 40 CFR 260.10. 

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

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

this rulemaking, the commenter stated that portland cement kilns have been included in this 

proposal in a manner that could have very adverse impacts on a kilns’ ability to use nonhazardous materials beneficially; the commenter went on to argue that a significant flaw in the 

proposal is its failure to recognize key the differences between portland cement kilns as 

compared to incinerators and boilers. 

 Response: 

 These comments may express legitimate policy concerns. However, they are essentially 

irrelevant to the exercise EPA is undertaking in the rulemaking. Tires from tire dumps are 

clearly wastes because they have been disposed for a long time. The tires were clearly 

abandoned if they were left in a tire dump. EPA understands the commenter’s remarks that 

cement kilns are not “boilers” nor were designed to be “incinerators,” but kilns are clearly 
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“combustors” under the CAA and the Agency needs to decide whether CAA section 112 or 129 

standards would apply. 

With respect to the comments regarding “processing,” EPA’s intention is to provide a 

standard for turning clearly discarded material into a non-waste. EPA acknowledges that there is 

no direct case on point in which a court has opined on how a material may lose its status as a 

waste98. The comment assumes all fuel is not a waste. As EPA has repeatedly stated in this 

preamble, a waste may be used beneficially and may, indeed, be a bona fide fuel. This is 

consistent with the D.C. Circuit’s opinion in NRDC v. EPA. A combustor that burns solid 

waste, even for energy recovery, must be regulated under CAA 129. If the kiln is regulated 

under CAA 129, no processing is needed for a waste scrap tire to be burned as a bona fide fuel. 

Given the statutory provisions and case law, EPA is constrained to argue that discarded 

materials are solid wastes and would need to be burned under CAA section 129 standards. EPA 

notes that environmental groups would argue that all units combusting tires must be subject to 

emissions standards issued under section 129 even if the tires have been processed into a 

separate tire-derived fuel, and the comments include policy arguments to support this contention. 

The point of the comment is that requiring units to meet emissions standards issued under 129 

would discourage burning of tires as an environmentally beneficial replacement for nonrenewable fuels, yet environmental groups would argue that tires should nevertheless be subject 

to such standards. EPA’s focus, however, must be on the definition of solid waste under RCRA 

and the comment gives the Agency no basis to determine what kind of activity would make the 

waste a non-waste. Whether the material is a bona fide fuel does not provide the answer to that 

inquiry. 

 

98 Although, we recognize that some states have systems in place where materials lose the waste status if 

beneficially used according to the state’s standards. 
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EPA sees no reason based on these comments to eliminate the processing requirement for 

this final rule. 

 Comment: 

The commenters that addressed the specific level of processing for whole scrap tires 

disagreed with EPA on the amount of processing required before TDF should be considered a 

non-waste fuel. In addition, many of the commenters had different interpretations of our 

proposed wire removal requirements and on the term “relatively wire free” (since some 

incorrectly believed that the proposed standard was up to 99% or absolutely no wire). 

Furthermore, many of these same commenters argued that the proposed processing requirements 

for units that use TDF chips were unrealistic and would dramatically increase processing costs, 

while a few commenters cited that many processors could not even achieve the specified level of 

wire removal. These changes would significantly deter facilities from using TDF that they 

regarded as a product. In fact, a number of commenters, including some state agencies, 

questioned the value of requiring unnecessarily costly processing of whole scrap tires that are to 

be used as a fuel in units, such as cement kilns, since the wire in the scrap tires can be beneficial 

due to the properties of the iron oxide resulting from the tire combustion in the cement kilns. 

Other commenters noted that the presence of steel in the whole scrap tires or TDF should be 

irrelevant to their waste status since the wire removed is for improvement in handling—that is, 

the TDF needs to have the exposed wire removed so that it is “flowable” like coal within the 

combustion unit, as well as any loose wire removed since it can also cause handling issues in the 

units, not emissions. 

A few commenters claimed that TDF processed to two-inch pieces was seen as the higher 

end TDF product and that this should be our standard. In particular, one commenter that markets 
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TDF as a product, “request that the EPA use the widely accepted nominal two-inch minus, 90%+ 

wire free standard that has been standard in the industry for years” since this would accurately 

define a product. The commenter said that “TDF meeting this 90%+ wire free standard typically 

has a wire content of between 2% and 8% by weight.” In addition, some state agencies have 

been known to specify two-inch TDF as a product rather than a waste, while rough shreds used 

for fuel in some combustors (bigger than two inches) are seen as a waste material (not a product) 

by those states. The size restriction is more prevalent in specification for TDF than specifying a 

percentage of metal. 

Other commenters argued that a product is created when tires are processed at any level 

that makes it “TDF” and mentioned that the ASTM describes a process that creates a “product” 

called TDF. Another commenter mentioned that a necessary component in the processing of 

shredded tires is to remove the protruding wire from the shreds and to sort the rubber pieces from 

the wire remnants called “free wire.” The commenter said that this part of processing is typically 

necessary in order for it to be sold as a TDF product to boilers. The commenter went on to say 

that the completion of this last step can be tested by spreading out the TDF chips in a single layer 

and passing a very strong magnet over them to see if any free wire remains. That commenter 

reasoned that TDF chips that pass the magnet test and had the free wire removed should qualify 

as a non-waste TDF product. 

EPA’s Response: 

In the situation where tires are discarded in the first place or otherwise do not meet the 

legitimacy criteria, processing is needed before it is considered a non-waste fuel (i.e., tires that 

are not collected from vehicles as part of an established tire collection program per 

§241.3(b)(2)(i). We disagree with those commenters who addressed the level of processing 
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needed before TDF is considered a non-waste as these commenters are answering a different 

question: how much processing is necessary before whole scrap tires can be burned properly in 

any particular combustion unit? 

However, the question that EPA needs to answer is how much processing is sufficient 

before whole scrap tires are considered a non-waste fuel where the scrap tires are not collected as 

part of a scrap tire collection program? Examples of sufficient processing for other nonhazardous secondary materials include the following: processing of used oil to produce onspecification used oil and the construction and demolition (C&D) wood processed into fuel by 

sorting to remove contaminants (e.g., lead-painted wood, treated wood, non-wood materials), 

and sizing it. In all these instances, the non-hazardous secondary material is being sufficiently 

changed, either chemically or physically to produce a non-waste product. 

Thus, while insufficiently processed discarded tires can be burned in boilers as a fuel, 

such TDF would still be considered a waste-derived product because the Agency does not 

believe that simply shredding or quartering whole tires, or removing some dirt, is adequate to 

produce a non-waste product for use as fuel according to today’s rule (refer to the processing 

definition in §241.2 Definitions). While the extent of processing that may be required may vary 

for different types of non-hazardous secondary materials, the Agency strongly believes that a 

sufficient amount of processing must occur to produce a non-waste product from secondary 

materials. 

One commenter mentioned, boiler operators are able to recycle the metal from the wire 

post-combustion (although minimal). This is after it has been cleaned of the rubber particles via 

the combustion process, so this iron can be recovered and recycled (not disposed in emissions). 

However, whether or not the metal from the wire (post-combustion) can be recycled does not go 
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to the question of whether or not the non-hazardous secondary material has been “sufficiently 

processed” to produce a non-waste product. 

 With respect to the technical question of how much wire must be removed before the 

amount of processing is considered sufficient, the specific unit types that use TDF chips require 

different levels of metal removal for handling concerns as noted by commenters. The ASTM 

Standard D 6700 “Standard Practice for use of Scrap Tire-derived Fuel”99 describes the process 

for “dewired” and has a helpful guideline on the appropriate amount of wire removal for 

different unit types under the topic titled “Handling Considerations Conveying, Grate and Ash.” 

However, the ASTM standard is concerned with proper dewiring and not whether the resultant 

material is a waste or non-waste fuel. 

 In the proposed rule, EPA referred to the level of processing in varied terms (“relatively 

wire free,” “processed to the Standard Practice for Use of Scrap Tire-Derived Fuel ASTM 

Standard D 6700-01,” “wire removed,” “steel belts removed,” and “sufficiently processed”). In 

general, we believe that to be considered sufficiently processed, there has to be metal removed 

and, it should be at the level of wire removal that is specific to the combustion unit as mentioned 

above. Thus, we would agree with the commenter who requested that TDF that has been 

chipped/shredded, sorted and dewired (or at least 90%+ wire free) would be considered 

sufficiently processed. However, this may not be the only standard, to the extent that other unit 

types require different levels of metal removal. 

With respect to the commenter that suggested the removal of free wire as an indicator of 

sufficient processing, we would agree that the removal of free wire (as described by the 

 

99 ASTM Standard D6700-01, 2006, “Standard Practice for Use of Scrap Tire-Derived Fuel," ASTM International, 

West Conshohocken, PA, 2003, DOI: 10.1520/C0033-03, www.astm.org. 

This standard can be obtained through the following website http://www.astm.org/Standards/D6700.htm. 
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commenter) is a necessary component of processing scrap tires into a non-waste product for the 

purposes of this rule, but that alone, may not be sufficient to meet our definition of processing. It 

could qualify if, according to product specifications appropriate for the particular combustion 

unit, it is processed into TDF chips and enough wire is removed from the TDF and the loose free 

wire is removed (to the degree practical) appropriate to the unit. 

However, we would also note, as is the case for all types of solid fuel, proper 

characterization of the size and composition of TDF are important factors that combustion unit 

operators assess to determine if the TDF is a suitable fuel for their specific combustion unit 

design.100 For example, ASTM Standard D 6700, describes standard practices for using TDF as 

fuels, and also specifies sampling and analysis methods and procedures that apply to TDF that 

cover composition and fuel characterization analyses. The standards also address the size of the 

tire pieces and metal content in order to optimize combustion. The ASTM Standard D 6700 

“Standard Practice for use of Scrap Tire-derived Fuel” also describes the process for “dewired” 

TDF and has a helpful guideline on the appropriate amount of wire removal for different unit 

types under the topic titled “Handling Considerations Conveying, Grate and Ash.” 

 In summary, EPA considers that previously discarded tires that have been made into TDF 

(shredded/chipped, sized, sorted, and with a significant portion of the metal belts or wire 

removed, at a level appropriate for the unit), meet the definition of “sufficient processing.” 

 Finally, as discussed above, the final rule also allows for scrap tires that have been 

harvested from vehicles (as part of a scrap tire collection program) to be used as a non-waste 

fuel. The question of processing into TDF or the “extent of processing” is only relevant if they 

 

100 With regard to the legitimacy criteria discussed in Section V.D, the heating value of scrap tires (12,000 Btu/lb to 

16,000 Btu/lb) is the highest of all non-hazardous secondary materials, except used oil (17,800 Btu/lb), and higher 

than typical coal values. Contaminants of potential concern have been measured for both materials: the constituents 

are comparable. 
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are using these scrap tires that have been discarded.101 Scrap tire processors typically enter into 

contracts with the end users of these products that specify that the processed tires meet certain 

specifications (i.e., size of chips and possibly other considerations) to ensure that the product that 

is produced consistently meets the needs of that particular end use. Boilers, unlike cement 

kilns,102 benefit from TDF that has been processed into small chips that feed in the combustion 

unit like coal and the reduction of metal to improve its handling and operational qualities in the 

combustion unit. For instance, the removal of the exposed wire around the perimeter of the tire 

chips makes it “flowable” like coal in the combustion unit. 

6. Resinated Wood Residuals. 

The proposed rule described resinated wood products as those generated during the 

manufacture of particleboard, medium density fiberboard, and hardboard and includes materials, 

such as board trim, sander dust, and panel trim. The proposal indicated that such resinated wood 

products were considered a non-waste fuel when burned in a combustion unit as a fuel because 

this secondary material generally meets the legitimacy criteria. We acknowledged, however, that 

we had limited data on the level of contaminants in resinated wood products, but the data we had 

did generally indicate that this non-hazardous secondary material would meet the legitimacy 

criterion for contaminants. In order to gather additional information on which to base our 

decision, we requested comment and data on the contaminant levels contained in these secondary 

materials, as well as the appropriateness of calling them a non-waste. 

Comment: 

 

101 Since scrap tires that are harvested from vehicles (as part of a tire collection program) can be burned as whole 

tires and still be considered a non-waste fuel, the Agency does not believe it appropriate to require such tires to meet 

the level of processing (as defined in §241.2). However, other scrap tires, e.g., those that are removed from tire piles 

would need to be processed (as defined in §241.2) in order to be burned as a non-waste fuel. 

102 We note that most cement kilns use whole tires as fuels, as opposed to TDF chips, because their process does not 

require the TDF to be in the form of small chips to use it as a fuel, and does not require removal of the metal (since 

they use the metal as an ingredient). 
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The American Mining Congress v. EPA case states that secondary materials beneficially 

used within the generating industry, not within the generating plant, is part of a continuous 

industrial process and thus, not a solid waste. Therefore, transfer of materials within the 

generating industry would have to be considered a non-waste fuel. 

Some commenters contend, however, that any secondary material burned for energy 

recovery is a solid waste, regardless of whether it remains within the control of the generator. 

These commenters object to allowing control by the generator to be relevant to rendering 

material a non-waste, even if burned under the legitimacy criteria, claiming that these materials 

are wastes. EPA admits that a secondary material could still be a waste even if it is recycled onsite or within the control of the generator and cites the court's holding in API II. 

EPA’s Response: 

First, EPA needs to correct some of the industry and environmental group 

misrepresentations of the cases on the definition of solid waste. In AMC I, the court was only 

noting that secondary materials reclaimed within a continuous process are not wastes and are not 

subject to EPA’s jurisdiction as solid wastes. The case is actually a narrow discussion of one 

basic principle regarding what is not discarded. The court does not even state whether any 

particular material is discarded. For example, while there is a reference to used oil that could be 

discarded, the court in no sense was saying that all used oil is discarded. In fact, in API II the 

court specifically noted that in AMC I they “did not address the discard status of any of the 

particular materials discussed in the briefs.” 216 F.3d at 56. The court freely admitted in API II

that its “prior cases have not had to draw a line for deciding when discard has occurred” but only 

dealt with the extreme cases of materials that were either wastes or non-wastes. 216 F.3d at 57. 

As the various definition of solid waste cases hold, the ultimate issue for deciding when 
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most materials are discarded is whether EPA’s determination complies with the arbitrary and 

capricious standard of the Administrative Procedure Act (APA). Sweeping formulations 

involving whether a process is within an “industry” is not helpful, nor is it consistent with the 

case law. EPA, and the courts, reject any formulation that under AMC I the statement that 

discard cannot be found in the case of immediate recycling within a continuous industrial process 

means ipso facto that any material transferred within an “industry,” even between companies 

located in New York and California, is not a waste. EPA’s decision on whether resinated wood 

is a waste (within the control of the generator or if transferred) is based on the circumstances 

under which the material is handled and combusted. Merely keeping material on-site will not 

render it a non-waste, nor will mere transfer make the material a waste. 

Comment: 

Trim, sawdust, shavings, sander dust and other residual materials from producing panels 

and other engineered wood products containing resins have been widely used as fuels by wood 

product plants since the industry began in the 1950s and should, therefore, be classified as a 

traditional fuel. In fact, the wood product plants have been designed so as to specifically utilize 

these residuals that the process creates. In fact, these facilities would not be able to operate as 

designed without this material. The commenters argue that there are no significant contaminants 

in resinated wood residuals that are used as fuels. None of the constituents are among the 

contaminants controlled under CISWI. This fact provides sufficient justification to accept 

resinated fuels as traditional fuels from the standpoint of contaminants. 

EPA’s Response: 

We do not agree with those commenters who argue that resinated wood residuals should 

be considered a traditional fuel, since it can have contaminants at levels greater than traditional 
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fuels (as discussed below). We recognize, however, that much of the resinated wood residuals 

are used as a product fuel, and that the plants have been designed to catch and then burn these 

residuals to supply energy and heat to other parts of the plant. EPA recognizes that some 

specific types of non-hazardous secondary materials, such as resinated wood residuals, are more 

like valuable commodities than solid wastes. Resinated wood is a secondary material that, upon 

examination, is not discarded when used on-site or transferred off-site to a different company. 

Thus, EPA would consider resinated wood residuals used as a fuel in a combustion unit as not 

being a solid waste, provided these materials satisfy the specified legitimacy criteria for fuels. 

Comment: 

Commenters argued that resinated wood residuals are often used off-site in a manner that 

does not constitute discard and the secondary materials should not be classified as solid waste 

when transferred between facilities or companies. As much as 6% of resinated wood residuals 

are sold into the fuel market and are routinely transferred between either intra- or inter- company 

facilities and used as either “furnish” (i.e., raw materials) or fuel at the receiving facilities. Intercompany transfers are typically managed through buy-sell contracts that likely do not specify 

how the materials will be used because the receiving facility likely mixes the purchased material 

with self-generated materials. Those combined materials are either used as furnish or fuel in 

accordance with the needs of the facility at the time. Because these resinated materials are 

bought and sold and used in a manner – either as furnish or fuel – similar to how self-generated 

resinated materials are used. This transaction does not constitute discard and the materials 

should not be classified as solid waste simply due to the transfer between facilities or between 

companies. 

EPA’s Response: 
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We agree that transferring materials between companies or facilities does not necessarily 

mean that the material has been discarded. As resinated wood residuals transferred off-site are 

utilized in the same manner as self-generated resinated wood residuals (i.e., contained in the 

same bins as furnish materials used in the product, transferred via conveyors or ducts) which the 

plants are specifically designed to burn as a fuel, we agree that this does not constitute discard. 

Thus, we believe that resinated wood residuals are not solid waste when transferred off-site for 

use as fuel, provided the material meets the legitimacy criteria and has not been otherwise 

deemed to be discarded. We have codified this concept under 40 CFR 241.3(b)(2)(ii). 

Comment: 

Processing should not be necessary when utilizing the material on-site or off-site to be 

considered a non-waste fuel. However, resinated wood residuals are generally chipped or 

hogged to reduce its size before burning. This should be sufficient to meet the processing 

requirement. 

EPA’s Response: 

We generally agree with the commenters that resinated wood residuals do not need to be 

processed, but if processed, such as by chipping or hogging, this level of processing would not 

affect the status of this material. 

 Comment: 

Resinated wood residuals have contaminants that are comparable to traditional fuels. The 

list of resins and adhesives include constituent chemicals that are on the hazardous air pollutant 

list. Notably, phenol, formaldehyde, methylene di-isocyanate and epichlorohydrine are HAPs. 

However, these individual components react completely within the resin curing process, leaving, 

in the worst case, only trace amounts of the HAP. With the exception of formaldehyde, 
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undetectable or extremely low levels of these HAPs remain behind after the resin/adhesive cure. 

As noted in the comments referenced in the proposal, miniscule amounts of formaldehyde 

remain in some resinated wood residuals, less than 0.02%, a number that is expected to fall as the 

California Air Resource Board (CARB) Composite Wood Airborne Toxic Control Measure 

(ATCM) is implemented nationwide, per the new Public Law No: 111-199 (which establishes 

consistent standards for wood products across the country). Further, since formaldehyde is 

found in natural wood, it should not be considered a contaminant in resinated wood. 

EPA’s Response: 

The proposed rule acknowledged a general lack of data regarding the levels of 

formaldehyde in these non-hazardous secondary materials and specifically requested data on this 

issue. While we received only limited contaminant information during the comment period, the 

data we do have suggests that the levels of formaldehyde in these resinated wood residuals is at 

non-detect levels. The existing data we have is that resinated wood residuals contain “free” 

formaldehyde at levels less than 0.02 percent (or 200 ppm). In addition, new rules as mandated 

by the CARB Composite Wood ATCM, per new Public Law No. 111-199, will reduce the 

formaldehyde levels even further to levels that are comparable to unadulterated wood. We also 

have limited data on the formaldehyde levels in traditional fuels. Specifically, we have limited 

data that natural wood has between 0.6 and 8.5 ppm of formaldehyde,103 but we have no data on 

formaldehyde levels in other traditional fuels, such as coal, oil, and natural gas. We do know, 

however, that organic materials produce formaldehyde. For example, studies have shown that 

 

103 Weigl, M., R. Wimmer, E. Sykacek, and M. Steinwender, 2009. “Wood-borne formaldehyde varying with 

species, wood grade, and cambial age,” Forest Products Journal 59(1/2) 88-92 

Meyer, B. and C. Boehme, 1997. “Formaldehyde Emission from Solid Wood,” Forest Products Journal 47(5) 45-48. 

Killiam, B. “Background Formaldehyde Emissions for Solid Wood,” Temple-Inland Forest Products Corporation, 

Diboll, TX. 
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formaldehyde is generated from coal piles.104 

Thus, considering the fact that new rules will reduce the amount of formaldehyde to 

levels comparable to unadulterated wood, we have concluded that resinated wood residuals when 

burned as a fuel by the generator or outside the control of the generator and not discarded should 

be considered a non-waste fuel. However, as we have noted elsewhere, the generator of these 

secondary materials would still need to demonstrate that such residuals meet the legitimacy 

criteria. Thus, they would need to show that the levels of formaldehyde, as well as other possible 

contaminants, in the resinated wood residuals are at levels comparable to those found in 

traditional fuels, which in this case would be natural wood. We would note that we would not 

consider levels of formaldehyde of 200 ppm or slightly less to be comparable since the levels in 

unadulterated wood are at least two orders of magnitude smaller. The levels would need to be 

lower to be considered comparable to those found in natural wood. 

Comment: 

The comments indicated that resinated wood residuals have about 5 percent moisture 

content, with heating values typically between 8,500 – 9,000 Btu/lb (as fired). This fuel value is 

equal to or better than unadulterated wood, which has a higher moisture content. 

The comments also argue that resinated wood residuals are managed as a commodity as 

they are typically pneumatically transferred through ducts, stored temporarily in a fuel silo, and 

then utilized in boilers to provide heat to hot presses and dryers. In fact, wood product plants 

have been designed so as to specifically utilize these residuals that the process creates and would 

 

104 Cohen, H. and U. Green, 2009. “Oxidative decomposition of formaldehyde catalyzed by bituminous coal,” 

Energy Fuels 23(6) 3078 – 3082. 

Nehemia, V., S. Davidi, and H. Cohen, 1999. “Emission of hydrogen gas from weathered steam coal piles via 

formaldehyde as a precursor: I. Oxidative decomposition of formaldehyde catalyzed by coal – batch reactor studies,” 

Fuel, 78(7) 775 – 780. 

Nehemia, V., 1997. “Oxidative decomposition of formaldehyde catalyzed by coal,” Fuel and Energy Abstracts 38(6) 

p. 386. 
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not be able to operate as designed without this material. 

EPA’s Response: 

The heating value range presented (8,500 – 9,000 Btu/lb) indicates that resinated wood 

residuals meet the meaningful heating value criterion as it is greater than the heating value of 

unadulterated wood. We also agree with the commenters that resinated wood residuals meet the 

legitimacy criterion for being managed as a valuable commodity since these residuals are 

managed as a primary fuel for wood products manufacturers. We acknowledge that wood 

products manufacturing plants were specifically designed to burn these resinated wood residuals 

to power the facility. In addition, wood product manufacturers have designed their plants to use 

their residuals (including placing the material in silos and transferring the material via conveyor 

belts and ducts) that supply the process both as a raw material and as a fuel, indicating that the 

resinated wood residuals are managed as a valuable commodity. 

Comment: 

Commenters referred to studies that show that the combustion of resinated wood 

residuals does not produce adverse air emissions. EPA’s “Wood Products in the Waste 

Stream—Characterization and Combustion Emissions” (1996) describes studies that were 

conducted to determine if various types of wood produce more non-criteria air pollutants than 

typical wood sources. Air emissions and fuel materials were sampled at six different processors 

and boilers. Fuel materials that were used at the boilers were a mixture of wood produced at 

construction and demolition sites at the time: unadulterated lumber, treated wood (including 

CCA-treated wood), resinated wood residuals, and painted wood (including lead-based paint). 

The study concludes that organic compounds that are emitted include aldehydes, benzene, 

phenol, and polynuclear aromatic hydrocarbons (PAH). These compounds are formed as 
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products of incomplete combustion and did not appear to be a function of wood composition or 

source. Instead, they appear to be an indicator of combustion inefficiency. “Good” combustion 

conditions appear to minimize organic emissions. Metals usually found in wood combustor 

particulate include As, Cr, Cu, Pb, Zn, Al, Ti, Fe, and Mg. Metals were found to be higher in 

samples taken, although this could be a result of the inclusion of treated wood in the samples 

combusted. Metals control efficiency appears to be roughly equivalent to total particulate 

control efficiency. Chlorinated organic compounds, such as dioxins, furans, polychlorinated 

biphenyls, chlorinated phenols, and chlor-benzenes were measured at extremely low 

concentrations or were reported to be less than minimum detection limits. 

One commenter argued that, since resins contain only carbon, hydrogen, oxygen, and 

nitrogen, the wood and its adhesives will convert to carbon dioxide, water, and nitrogen oxides 

(which would be produced even if nitrogen is not present in the fuel, since nitrogen represents 

approximately 80% of air) under normal conditions that normally occur in industrial wood 

combustion units. Thus, the products of combustion from wood are the same from the adhesives. 

Adhesives are expected to be more combustible than wood, due to their simpler structure and 

lower molecular weights. Conditions which assure the complete combustion of wood are 

adequate to assure the complete combustion of these adhesives. Although it is possible that 

different types of compounds could be produced from the adhesives than from wood and that 

more of certain types of compounds might be produced from one fuel or another, there does not 

appear to be any scientific basis for a presumption that emissions from incompletely combusted 

adhesives are more harmful than emissions from incompletely combusted wood. In fact, the 

results of toxicity studies commissioned by National Forest Products Association in response to 

New York State law which requires manufacturers to provide data on the toxicity of smoke from 
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their products indicate that smoke from glued wood products is no more toxic than wood smoke. 

There are a few halogen-containing synthetic polymers, such as polytetrafluorethylene, which 

can produce more hazardous fumes, but they are not normally used in wood products. 

The commenter also submitted data on HCl and NOx emissions from burning sander dust 

that was not yet published. Emissions from five combustion systems that burned a combination 

of sander dust and hog fuel were sampled. One test was run only using hog fuel (which 

consisted primarily of bark). Results are presented in Table 3. The commenter argued that these 

results prove that HCl and NOx emissions from the combustion of resinated wood residuals are 

comparable to the combustion of hog fuel alone. In fact, the three samples that contained the 

lowest percentages of sander dust (0%, 15%, and 25%) produced the greatest percentages of 

chloride in the fuel emitted as HCl and nitrogen in the fuel that was subsequently emitted as 

NOx. 

Table 3. Emissions data from six combustors that burned hog fuel or a combination of hog fuel 

and sander dust. 

Sample Number 1 2 3 4 5 6 

Fuel mixture, %Hog fuel/Sander 

dust 100/0 75/25 85/15 60/40 60/40 60/40 

Hog Fuel content 

(%, dry basis) 

Chloride 0.02 0.01 0.01 0.02 0.02 0.02

Nitrogen 0.58 0.56 0.56 0.51 0.58 0.56

Sulfur 0.02 0.04 0.04 0.04 0.05 0.03

Sander dust content 

(%, dry basis) 

Chloride - 0.18 0.18 0.16 0.15 0.15

Nitrogen - 3.7 3.7 3.2 3.4 3.8

Sulfur - 0.05 0.05 0.06 0.04 0.03

Total Fuel Content 

(lb/hr) 

Chloride 1.7 3.3 2.1 6.0 6.4 5.6

Nitrogen 49 84 60 136 151 143

Emissions 

(lb/hr) 

HCl 0.17 0.19 0.08 0.09 0.11 0.16

NOx 26 53 31 45 48 53

Emissions 

(lb/MMBtu) 

HCl 0.0024 0.0038 0.0017 0.0012 0.0015 0.0023

NOx 0.38 1.08 0.69 0.62 0.64 0.75

% of Cl in Fuel Emitted as HCl 9.6% 5.5% 3.5% 1.4% 1.7% 2.8%

% of N in Fuel Emitted as NOx 16.1% 19.3% 15.7% 10.1% 9.7% 11.2%
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EPA’s Response: 

We recognize that the studies have shown that there are decreased HAP emissions from 

burning resinated wood residuals. As we have stated previously, the criterion or test in 

determining the legitimacy criterion is based on the level of contaminants in the secondary 

material itself, and not by comparing the differences in emissions. However, increased levels of 

formaldehyde in the emissions from wood product manufacturing plants would confirm that the 

burning these materials is indicative of waste activity. 

In response to some of the specific comments made, we would note that none of the 

studies or data provided information on formaldehyde emissions, the HAP that we identified that 

we were most concerned with in the proposal.105 While the EPA study did state that organics 

were not detected above typical wood fuel, it is not possible to ascertain what percentage of the 

material that was burned was represented by the resinated wood residuals. Thus, we do not 

know how much resinated wood materials were in the samples that were tested and how it 

correlates to the emissions data. 

We also acknowledge that resins are made from H, N, C, and O. However, our concern 

rests with the amount of formaldehyde (which is a HAP and also is made of H, C, and O) that is 

generated in the stack. While formaldehyde may be generated as a product of incomplete 

combustion, it may also be emitted from the stack if it is present in the fuel material and is not 

combusted at all. In other words, if some of the formaldehyde escapes combustion while in the 

fuel chamber and is emitted in the stack, more formaldehyde is likely to escape. A unit 

combusting 10 tons of formaldehyde is likely to result in more formaldehyde emissions than a 

 

105 75 FR 31862 
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unit combusting one ton of formaldehyde simply due to the fact that there is more formaldehyde 

in the fuel. Therefore, none of the information provided alleviates our concern regarding 

formaldehyde emissions. However, given that Public Law No. 111-199 will decrease 

formaldehyde to levels that are comparable to unadulterated wood, the combustion resinated 

wood residuals should not increase the amount of formaldehyde that is emitted. 

7. Used Oil.

 In the ANPRM, EPA had stated that off-specification (or “off-spec”) used oil that is 

collected from repair shops is generally thought to be originally discarded, but that onspecification (or “on-spec”) used oil was considered to be a product fuel, not a waste, because it 

meets the fuel specification requirements of 40 CFR 279.11.106 However, between the ANPRM 

and the proposal, EPA modified its view of on-spec used oil and identified it as a traditional fuel 

because the Agency had decided that the on-spec used oil is similar in composition to virgin fuel 

oil and has been historically managed as a valuable fuel product rather than as a waste.107 

While EPA considers on-spec used oil to be an alternative fuel and thus, within our 

definition of traditional fuel (see Section VII.A), the Agency finds that the rationale in the 

ANPRM also provides a valid reason for considering on-spec used oil to be a legitimate product 

fuel and not a solid waste. The proposal also referred to the provisions of 40 CFR Part 279 that 

allows off-specification used oil to be processed into on-specification used oil.108 Used oil may 

be rendered on-specification, therefore, either by being generated that way or by being processed 

under existing EPA regulations. These circumstances are not changed by EPA’s issuing today’s 

rule. 

 

106 See 74 FR at 58. 107 See 75 FR 31855, 31861, 31864 108 75 FR 31865, 31877 
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On the other hand, we still consider off-spec used oil to be a solid waste, as it contains 

contaminants at levels that are not comparable to those in traditional fuels. Such used oil could 

be generated at industrial or commercial establishments, such as from repair shops, or is 

generated by homeowners who change their own oil (referred to as “do-it-yourself” or “DYI” 

oil). Under the existing used oil regulations promulgated under RCRA, off-spec used oil can 

only be used in limited devices, as identified in 40 CFR 279.61, including small oil-fired space 

heaters provided the burner meets the provisions of 40 CFR 279.23. The restrictions for off-spec 

used oil are closely related to those for waste activities, as opposed to commodity-like activities, 

including the very small burners. 

Comment: 

Many argued that all used oil is a traditional fuel and should not be considered a solid 

waste regardless of its chemical composition, as it is treated as a valuable product no different 

than virgin fuel oil. Thus, some commenters agreed with EPA that on-spec used oil is a 

traditional fuel, but disagreed with the Agency’s determination that off-spec used oil is a solid 

waste. 

 Other commenters believe that that used oil, both on- and off-spec, falls within the 

“ordinary everyday sense” of discarded materials whether they are burned or not and that all 

used oil should be classified as a solid waste. Indeed, EPA does not identify any situation in 

which these secondary materials are not wastes, except when they are burned for energy 

recovery. Thus, EPA is essentially claiming that non-hazardous secondary materials, including 

used oil, which would otherwise indisputably be wastes become non-wastes solely because they 

can be burned with energy recovery. Neither RCRA nor any of the case law interpreting RCRA 

lends the slightest support to that notion. 
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EPA’s Response: 

We disagree that off-spec used oil should be considered a traditional fuel, or even a nonwaste fuel, since as we have discussed elsewhere in the preamble, such used oil contains 

contaminants at levels that are not comparable to (or lower than) in traditional virgin refined fuel 

oil. In fact, off-spec used oil may contain contaminants at levels that are significantly higher 

than those in traditional virgin refined fuel oil. On the other hand, used oil that has been 

determined to be on-spec contains contaminants at levels below the maximum concentration 

limits established in the standards, levels that EPA considers to be comparable to (or less than) 

those in traditional virgin refined fuel oil.109 In accordance with 40 CFR part 279, once used oil 

is determined to be on-spec, it is no longer regulated under the used oil management 

standards.110

We also disagree that we are defining the use of used oil as fuel oil as the only situation 

where used oil is not a solid waste. RCRA is silent on the issue of whether or not used oil is or is 

not a solid waste. This rulemaking effort is the first to determine in which situations used oil 

would be considered a solid waste. Additionally, 40 CFR 279 puts very few restrictions on the 

use of on-spec used oil, which indicates that the Agency has historically viewed this material as a 

commodity and not a waste. We are also simply not opining on other situations where used oil is 

used beyond its use as fuel as it does not matter for federal law. States may make their own 

decisions on whether other uses are solid wastes. 

Comment: 

 

109 See Used Oil Final Rule, 50 FR 49181 (November 29, 1985). 110 Once used oil is claimed to be on-spec and the marketer complies with the requirements for analysis and record 

retention, notification, and record tracking shipment to on-specification burners, it is no longer subject to other 

management standards. We note that today’s rule does not change any of the regulations in place that regulate onspec used oil. 
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Industry commenters argue that off-specification used oil should not be considered a 

solid waste for a number of reasons relating to the statute and EPA regulations, as well as policy 

preferences. (EPA responds to each of the comments separately, below. The comments also 

refer to on-specification used oil in much of the argument. However, we have dealt with onspecification used oil above. The comments and responses below only deal with offspecification used oil issues.) 

Comment:

Section 3014 of RCRA did not classify used oil as a waste and instead established a 

separate regulatory program for used oil. This section provides EPA with authority to regulate 

used oil that is recycled, independent of any determination whether or not used oil is a waste. 

Moreover, RCRA section 1004(37) defines used oil to include “recycled oil” that is “burned.” 

Consistent with this provision, the used oil regulations in 40 CFR part 279 state "EPA presumes 

that used oil is to be recycled unless a used oil handler disposes of used oil, or sends used oil for 

disposal." 40 CFR 279.10(a). The commenters claim that these provisions mean that “disposal” 

is separate from “burning” because “disposal” must be separate from “recycling.” Thus, 

“recycling” is separate from “solid waste” because the two terms are mutually exclusive. 

In addition, the 40 CFR part 279 regulations already define what is legitimate used oil 

recycling under section 3014 of RCRA, which includes recycling of off-specification used oil 

with appropriate environmental safeguards. EPA cannot now reverse this determination without 

a reasoned analysis. 

Another provision of EPA’s hazardous waste regulations, 40 CFR section 261.33, 

supports this position with respect to whether off-specification used oil is a solid waste. Under 

this provision, commercial chemical products and intermediates and off-specification variants 
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listed as hazardous wastes in 40 CFR 261.33, as well as some other materials not relevant here, 

are solid wastes when burned for energy recovery unless the commercial chemicals are 

themselves fuels. Commercial chemicals that are themselves fuels are not wastes when burned 

for energy recovery. According to the comments, even off-specification variants of the 

commercial chemical products may be burned as fuels and not be considered solid waste. See 40 

CFR §§ 261.33(a) and (b); 40 CFR 261.2(c)(2)(B)(ii). The argument is that off-specification 

used oil should also be treated as a non-waste when burned for energy recovery. That is, used 

oil, even if off-specification, should be considered a product and not a waste under the rationale 

that used oil is a commercial chemical product. Further, EPA should not treat off-specification 

potentially hazardous wastes different from off-specification non-hazardous wastes. 

EPA’s response: 

EPA disagrees that this analysis of the statute and regulations shows that off-specification 

used oil is not a solid waste. The Agency agrees that section 3014 of RCRA does not classify 

used oil as either a waste or a commodity. However, section 1004(37), also, does not define 

“recycled oil” as either a waste or a commodity. As EPA has explained elsewhere in this 

preamble, the recycling of secondary materials, per se, does not mean that such materials are 

either wastes or not. Wastes may have value and may be recycled, but they are still wastes. 

Wastes may be recycled by being “burned,” as provided under 1004(37), or may be recycled in 

any number of other ways. The mere fact that the secondary material is recycled is not 

dispositive for determining whether it is a waste. Thus, under the statute, contrary to the 

commenter’s view, “recycling” and “solid waste” are not mutually exclusive. This means that 

EPA must decide whether the secondary material is a waste based on the definition of solid 

waste in RCRA 1004(27) by deciding whether material is “discarded” in the plain meaning of 
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the word. 

Similarly, Part 279 does not provide that the terms, “recycling” and “solid waste,” are 

mutually exclusive. Section 279.10(a) does distinguish between materials that are clearly 

“disposed of” by, for example, being thrown into a landfill, but makes no determination as to 

whether recycled secondary material is “discarded” in any other sense. Both ILCO and Owen 

Steel, for example, provide examples of recycling of wastes. As EPA continues to emphasize, 

despite protestations to the contrary by many commenters on this rule from industry, states and 

environmental groups, wastes may be recycled even by being burned for energy recovery, but 

they are still wastes. Whether the material is a waste or not depends on the factors EPA has 

identified in this rule and is not affected by circular interpretations of definitions in the statute or 

the regulations. 

EPA has determined that off-specification used oil is a solid waste when burned for 

energy recovery because it has greater contaminant levels than fuel oils and its markets are 

limited due to this contamination. 40 CFR part 279, moreover, treats off-spec used oil more like 

a waste since it restricts its burning to particular facilities and forbids it in others. In particular, 

40 CFR part 279 restricts the burning of off-specification used oil to industrial furnaces, 

industrial boilers, utility boilers, certain used oil-fired space heaters, and hazardous waste 

incinerators and specifically excludes non-industrial boilers, such as those located in apartment 

and office buildings, schools, and hospitals. For a more detailed discussion of off-spec used oil 

see 75 FR 31865. On-specification used oil, on the other hand, is not a waste because it has 

contaminant concentrations similar to fuel oils. Due to this, 40 CFR part 279 does not restrict 

where on-specification used oil can be burned. The definitions cited by the commenters in the 

statute and regulations do not affect these determinations. 
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Section 261.33, also, does not affect EPA’s interpretation of the waste status of used oil. 

That provision deals with hazardous wastes and EPA has repeatedly stated that it is not 

reopening its RCRA subtitle C regulations for comment. In any event, however, section 261.33 

provides that chemicals manufactured as a fuel may be burned for energy recovery. It does not 

apply to secondary materials that may later be used as fuels when their original use was different. 

Furthermore, EPA is not making any changes to 40 CFR part 279 by virtue of this rule. 

The Agency is not reversing itself on any part of 40 CFR part 279. Part 279 makes no 

determination regarding the nature of the CAA regulations for any facilities that burn used oil 

and EPA is not amending 40 CFR part 279 to state whether any used oil is a waste or not. Based 

on the current provisions of 40 CFR part 279, EPA believes it is entirely reasonable for the 

Agency to find that on-specification used oil is not a waste, while off-specification used oil is a 

waste. Also, we would note that off-spec used oil may still be burned in the same types of 

facilities provided in Part 279, but the CAA must determine how they are to be controlled based 

on the fact that the off-spec used oil is a waste. 

Comment: 

If EPA classifies burning off-specification used oil as a waste, it will no longer be 

covered by the Part 279 Used Oil Management Standards. As EPA noted when it promulgated 

the Part 279 Used Oil Management Standards, section 3014 only authorizes the regulation of oil 

that is destined for recycling, not oil that is “discarded.” 

EPA’s Response: 

EPA disagrees with this comment. As noted above, EPA is not changing the used oil 

regulations and off-spec used oil burned as a waste would still be subject to 40 CFR part 279. 

The commenter is conflating the clear disposal of used oil – throwing it in a landfill, for example 
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– with the concept of “discard.” “Discard” is not used in 40 CFR part 279 and “disposal” is not a 

congruent term to “discard.” That is, the regulations at 40 CFR part 279 do not discuss or 

address whether used oil has been discarded; rather the requirements ensure that used oil that is 

recycled is done so in a manner that protects human health and the environment. 

Also, as noted repeatedly in this rulemaking record, wastes may be recycled as a fuel, but 

they would still be wastes and would be discarded. The determination in this rule that off-spec 

used oil is a waste only means that the facilities that burn it are burning it as a waste and they 

will be subject to CAA authorities as appropriate. EPA has not previously opined as to the 

consequences under the CAA of the various facilities that burn used oil. 

Comment: 

If EPA fails to classify off-specification used oil as a product, it will be in violation of the 

Congressional mandate to promulgate regulations that “do not discourage the recovery or 

recycling of used oil, consistent with the protection of human health and the environment.” 42 

U.S.C. 6935(a). 

EPA’s Response: 

EPA disagrees with the implication of this comment. The Agency is constrained by the 

provisions of RCRA that define solid waste as material that is discarded. Even though EPA may 

want to issue a regulation that encourages recycling by promulgating less stringent regulations, 

the Agency must still follow the statute. 

Comment: 

Commenters argued that contaminant concentrations found in off-spec used oil is 

comparable to traditional fuels. Table 4 summarizes data presented in the comments on the 

contaminant levels in off-spec used oil as compared to fuel oil and coal. In U.S. Study 1, 55 
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samples were collected “throughout the USA” from facilities that combust used oil in space 

heaters and/or small boilers. Two of the 55 samples were off-spec; one was off-spec for total 

halogens and the other was off-spec for cadmium. The researchers identified the used oil offspec for total halogens was an industrial oil that contains non-hazardous chlorinated paraffin and 

the other was from a military operation. In the U.S. Study 2, researchers looked at a database of 

used oil samples maintained by a national commercial laboratory. The database contained over 

3,500 used oil samples from the U.S. and other countries on which over 17,000 analyses were 

performed from 2008 to present. Between 24 and 53 samples in this dataset exceed the 

specification for one of the contaminants – specifically for total halogens and chromium. The 

researchers speculated that the high levels of halogens were due to non-hazardous chlorinated 

paraffin which is used (added to the oil by lubricant manufacturers) in industrial oils designed to 

encounter high pressure. The researchers did not speculate on the reasons for the high levels of 

chromium. In the Canadian study, 230 samples of used oil were collected from various 

businesses in Ontario, Canada between 2003 and 2010. Of those samples, four were off-spec for 

arsenic, but not by significant amounts. The commenters did not speculate on the reasons for the 

high levels of arsenic. 

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

Material 

U.S. 

Study 

1 111

U.S. 

Study 

2 112

Canadian 

Study113

Fuel Oil 

No. 

1,2,4,6 

97,98 Coal 97,98

# Samples 2 24 – 53 4 unknown unknown

Year 2010 2010 

2003 - 

2010 unknown unknown

Contaminant Total Minimum 2,700 NR 42.2 <500 13,140

 

111 Source: EPA-HQ-RCRA-2008-0329-0799.2 112 Source: EPA-HQ-RCRA-2008-0329-1273.1 Attachment B 113 Source: EPA-HQ-RCRA-2008-0329-0799.4 
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Concentrations Halogens 

(ppm) 

Maximum 6,170 NR 151.0

Median 4,435 6,642 80.5

Average 4,435 9,409 88.6

As 

(ppm) 

Minimum <1.0 NR 5.1

<0.23 1.0 – 120 Maximum <1.0 NR 6.7

Median <1.0 <1.0 6.1

Average <1.0 1.95 6.0

Cd 

(ppm) 

Minimum 0.30 NR <0.92

<1.2 0.2 - 5.0 Maximum 2.60 NR <1

Median 1.45 0.13 0.97

Average 1.45 0.69 0.97

Cr (ppm) 

Minimum <4.0 NR <1.2

<2.3 1.0 – 90 Maximum <4.0 NR 2.2

Median <4.0 16.0 2.0

Average <4.0 20.9 2.0

Pb (ppm) 

Minimum 14 NR <4.6

7 - 57 0.5 - 0.9 Maximum 15 NR 17.0

Median 15 11.0 5.6

Average 15 35.2 8.2

NR = Not Reported 

EPA’s Response: 

While data was submitted regarding higher levels of contaminants in coal than in off-spec 

used oil, coal is not an appropriate comparison for used oil since some combustion units that 

burn used oil can alternatively only burn fuel oil and not coal (such as space heaters). Thus, used 

oil should be compared to fuel oil. The specifications promulgated under 40 CFR 279.11 were 

developed by looking at contaminants in fuel oil and the risks posed by contaminants. The data 

submitted states that the average total halogen content of off-spec used oil from one study is 

9,409 ppm (with the on-spec concentration of 4,000 ppm maximum). Also, off-spec used oil 

contains as much as 21 ppm of Cr, on average, (with the on-spec concentration of 10 ppm 

maximum). Thus, off-spec used oil does not meet the legitimacy criterion for contaminants. 

When EPA created the specification levels set in 40 CFR 279.11, it identified those levels 

as being comparable to fuel oils. EPA maintains that these levels are appropriate standards to 
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measure what should and should not be burned in CAA 112 and 129 units. Thus, off-spec used 

oil (those oils that do not meet the specification levels set in 40 CFR 279.11) is deemed to have 

more contaminants than fuel oils produced for burning and, therefore, are a solid waste. 

Comment: 

EPA is ignoring the fact that the level of contaminants in a secondary material is not 

dispositive of whether or not a secondary material is a waste. It is merely an indicator of 

whether or not EPA should look more closely at the recycling activity when making the waste 

determination. Levels of contaminants only insignificantly higher than those found in traditional 

fuels hardly imply a purpose of disposal, assuming the secondary material being combusted is 

otherwise a valuable fuel. Only when a material contains contaminants at significantly elevated 

levels does it begin to become reasonable to presume that there may be an intention to discard. 

EPA’s Response: 

We agree that contaminant levels are an indicator of waste activity and we have 

investigated the case of off-spec used oil to fully assess if its use in a combustion unit is truly a 

waste activity. Off-spec used oil has few outlets due to its contamination levels. This is clearly 

indicative that its use in combustion is indicative of a waste activity. In addition, it is clear from 

the data in Table 4 that off-spec used oil does not contain comparable levels of contaminants to 

fuel oils. 

Comment: 

In the context of determining whether a hazardous secondary material is a solid waste, 

EPA recognizes that legitimate recycling can occur even if the material has higher levels of 

toxics than virgin materials. To show this, the comment cites a discussion by the Agency in an 

earlier rule in which foundry sands are reused for mold making in a facility’s sand loop. The 
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comment argues that it is relevant that the sands used to make the molds may have significantly 

higher concentrations of hazardous constituents than virgin sand. However, because the sand is 

part of an industrial process where there is little chance of the hazardous constituents being 

released into the environment or causing damage to human health and the environment, these 

levels would not affect the legitimacy of the recycling process. 

EPA’s Response: 

EPA disagrees with this comment. In the first place, the Agency is not reopening its 

hazardous waste regulation. EPA’s identification of the legitimacy criteria is based on the record 

for today’s action, and does not address hazardous waste. In any event, the discussion of 

foundry sand contamination, even though it would be a hazardous waste without application of 

the legitimacy criteria for that rule, presents what appears to be a vastly different recycling 

situation. In this rule, combustion will result in releases to the air. This is why the rule calls for 

restrictions on burning. The foundry sand example is a closed loop system and is not implicated 

by contamination problems that releases lead to the atmosphere. We would also note that in a 

March 28, 2001 letter from Elizabeth Cotsworth, then Director of the Office of Solid Waste and 

Eric Schaeffer, then Director of the Office of Regulatory Enforcement to Amy Blankenbiller of 

the American Foundry Society, we also discussed the use of foundry sand as part of the sand 

loop for mold-making being part of a continuous industrial process.114 However, the letter also 

made clear that the letter did not address the thermal processing of sand, which would be a 

combustion unit, and would be more equivalent to a scenario that is addressed in today’s final 

rule. 

Comment: 

 

114 A copy of this letter can be found in the docket to today’s rule. 
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Commenters argued that processing of off-spec used oil is contrary to the goals of energy 

efficiency and wise resource utilization. They argued that the rule should continue to 

allow/follow the rules set forth in 40 CFR 279.11 as it pertains to used oil as a viable and not 

discarded fuel. That is, if off-spec used oil is blended with virgin oil or on-spec used oil to meet 

the 40 CFR part 279 used oil specs, the resulting oil should be considered a legitimate fuel 

product. 

Other commenters argued, however, is that when these materials are distilled into fuel, 

they are still wastes, regardless if they have been blended or processed to obtain an on-spec 

material. Wastes are always wastes and their status cannot be changed through simple 

processing. 

EPA’s Response: 

We do not agree with commenters that this is contrary to the goals of the EPA, namely 

the protection of human health and the environment. Off-spec used oil contains more 

contaminants than traditional fuels, and thus, is not a traditional fuel. However, we encourage, 

and the RCRA used oil regulations currently allow, the processing of off-spec oil to create onspec oil as per 40 CFR 279.50, which states that processing “includes, but is not limited to: 

blending used oil with virgin petroleum products, blending used oils to meet the fuel 

specification, filtration, simple distillation, chemical or physical separation and re-refining.” 

There is nothing in today’s rule that would change this requirement. 

We also disagree with commenters that processing of off-spec used oil into on-spec used 

oil still renders it a waste. EPA’s regulations at 40 CFR 279.11 state that, once oil is determined 

to be on-specification in accordance with the regulations in Part 279, the used oil regulations do 

not apply to the material. On-specification used oil is for all intents and purposes the same as oil 
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refined as a product fuel in the first instance and the Agency is not reopening its Part 279 

regulations. 

Comment: 

Commenters argued that used oil, particularly from automobiles, is on-specification and 

facilities that burn automobile oil should be allowed to burn them under CAA section 112, along 

with other on-spec used oil. Comments base this determination on the elimination of leaded 

gasoline. Commenters also supplied studies to support this assertion.115 

EPA’s Response: 

The regulations promulgated today do not address provisions for space heaters. EPA 

intends to conduct further investigations of used oil for use in space heating equipment. 

However, the data provided in the comments indicates that a very small portion of used oil is offspec. Assuming the data is representative of used oil, most used oil will be an alternative fuel 

(within the definition of a traditional fuel). This does not allow us to make a broad classification 

that, because only a small portion of used oil is off-spec, used oil can be generally classified as 

on-spec. On the other hand, the data in the studies submitted by commenters indicate that used 

oil obtained from small, private automobiles serviced by DIYers and auto repair shops will be 

on-spec, which would not be a solid waste. 

Comment: 

Many commenters stated that there are numerous auto repair shops that use used oil to 

fuel their space heaters, which do not (or would not likely) meet the air pollution controls 

required by the CAA section 129 standards. The commenters argue that such auto repair shops 

 

115 See documents EPA-HQ-RCRA-2008-0329-0799; EPA-HQ-RCRA-2008-0329-1273.1; EPA-HQ-RCRA-2008-

0329-1686 
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will no longer be able to use off-spec used oil in their space heaters if off-spec used oil is 

determined to be a solid waste. 

Moreover, commenters assert that auto repair shops will likely not want to take on the 

additional burden of testing the used oil to determine if it is on-spec in order to use some portion 

of the material in their space heaters without having to comply with section 129 standards. They 

further assert that these shops may illegally dispose of used oil if they cannot burn it in their 

space heaters and they are not located near a processor. Commenters expressed concerns that 

they may also stop collecting used oil from individuals who remove their own used oil (do-ityourselfers, or DIYers) as they have no incentive to take the DIYers oil, which may lead to 

DIYers illegally disposing of their used oil. 

EPA’s Response: 

In this rule, EPA is determining whether off-specification used oil is a solid waste. EPA 

has determined it is. Actions that the owners of space heaters will or will not take are not 

relevant to the determination that off-spec used oil is a solid waste. However, EPA’s regulations 

under CAA 129 do not apply to space heaters at this time. Regardless, anyone wishing to prove 

that the material is on-spec can use other information besides analyses. The regulation under 40 

CFR 279.72 states that used oil fuel can be determined to be on-spec by “performing analyses or 

obtaining copies of analyses or other information documenting that the used oil fuel meets 

specifications.” 

8. Coal Refuse.

116 

 

116 The proposed rule differentiated between coal refuse and mined landfill ash. For a discussion regarding the use 

of mined landfilled ash as a fuel, see the coal combustion residuals section for fuels (Section V.B.9); for a discussion 

regarding the use of these non-hazardous secondary materials as ingredients, see the coal combustion residuals 

section for ingredients (Section V.C). 
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Coal refuse refers to any by-product of coal mining or coal cleaning operations. Coal 

refuse is generally defined by a minimum ash content combined with a maximum heating value, 

measured on a dry basis. Coal refuse consists primarily of non-combustible rock with attached 

coal that could not be effectively separated in the era in which it was mined. Due to advances in 

coal preparation technology over the past century, the processing of coal has evolved such that 

materials that are now generated in the coal mining process, which would have been considered 

coal mining rejects in the past and discarded in waste piles, are now handled and processed as 

coal. In the early twentieth century, coal preparation involved simple size segregation into lump 

coal for domestic use and intermediate-sized coal for industrial use. Coal fines were considered 

unfit for use and were disposed of as mine rejects in discarded coal refuse piles. Today, however, 

coal preparation plants are much more capable of separating coal from mineral matter through 

processes, such as density separation and froth flotation.117 

Thus, the proposed rule differentiated between coal refuse that is currently generated and 

coal refuse that was generated in the past and placed into “legacy” piles. The proposed rule 

considered coal refuse that is currently generated and used as a fuel as not being abandoned or 

disposed of and, therefore, is not considered a solid waste. On the other hand, the proposed rule 

stated that coal refuse placed in legacy piles has clearly been discarded, thus meeting the 

definition of a solid waste material. With regard to coal refuse from legacy piles, the proposed 

rule described the processing of this non-hazardous secondary material as involving separation 

through the use of screens or grizzlies, blending, crushing, or drying. Although we understand 

that virgin coal is similarly processed, the proposal stated that the Agency believes that such 

 

117 See National Research Council of the National Academies (NRC), “Coal Research and Development,” 2007, 

accessed on May 14, 2008 at: http://www.nap.edu/catalog.php?record_id=11977. See generally “Materials 

Characterization Paper on Coal Refuse,” a copy of which is included in the docket for today’s rulemaking. 
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operations would constitute “minimal processing” and would not meet the processing definition, 

as proposed. Thus, under the proposed rule, coal refuse abandoned in legacy piles would be 

considered solid waste, as would the coal refuse that has been processed and used as a fuel in 

what was considered to be a minimal set of sizing activities. 

The proposal also noted one commenter who contended that coal refuse contained 

elevated levels of mercury, chromium, and lead when compared to other coals. Because the 

proposal already determined coal refuse in legacy piles to be a solid waste (discarded and 

insufficiently processed), we did not believe it was necessary to determine whether coal refuse 

from legacy piles would satisfy the contaminant legitimacy criterion. However, the proposed 

rule noted that although coal refuse can contain metals concentrations that are higher than found 

in virgin coal, data also show that emissions levels from some facilities burning coal refuse 

(namely those equipped with circulating fluidized beds (CFBs)) are lower than most existing 

pulverized coal utility boilers. For the proposed rule’s characterization of coal refuse, see 75 FR 

31865-6. 

Accordingly, the Agency seems to have faced a dilemma in deciding how to treat the 

“legacy” piles. This dilemma was reflected in the comments, described below, which shows an 

inherent illogic in treating coal refuse generated from mining operations today and used as fuel 

differently from coal refuse mined from the “legacy” piles, which seem to be no different. 

Comment: 

Responding to EPA’s request for comment regarding whether other fuels in use today 

should also be classified as traditional fuels, several commenters argued that coal refuse should 

be considered a traditional fuel, regardless of when generated, as it has been used as a fuel for 

approximately 30 years. Citing the preamble to the proposed rule, commenters stated that EPA 
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recognized that “changes in technology and in the energy market over time may result in 

additional secondary materials being economically viable to be used as ‘traditional’ fuels,” and 

that the advancement of technology, specifically the advent of circulating fluidized beds (CFBs), 

has allowed coal refuse to be used as fuels for decades.118 Thus, these commenters reason, it is 

most appropriate to consider coal refuse to be a traditional fuel. 

EPA’s Response: 

We begin by recognizing that we have several difficulties in dealing with coal refuse. 

We are faced with a statute that places limits on the Agency’s ability to cover “discarded” 

material. Case law indicates that a material may not lose its waste status merely because it has 

value. As technology advances, material that has been a waste may be no different from material 

that may today be used as a product. EPA, in fact, has no jurisdiction to consider as wastes 

currently mined coal that was formerly “refuse.” The Agency may want to avoid treating the 

materials mined years ago and sitting in piles as being different from the same material mined 

today, but is constrained by the statute. 

Coal refuse is unique, however, from other non-hazardous secondary materials addressed 

in this rulemaking, as it is generated in the process of producing fuels (i.e., the mining of coal for 

use as fuel) and its subsequent use and value as a secondary material is also as a fuel. Since the 

primary product of a coal mining operation is itself fuel, we consider coal refuse to be more akin 

to a raw material that is subsequently processed and utilized to produce a fuel. In other words, 

coal refuse is different from other non-hazardous secondary materials, such as used tires or 

resinated wood residuals, in that it is generated in the production of fuel and can be used itself as 

a fuel (and in fact has never been used for anything else). 

 

118 Referenced citation can be found at 75 FR 31856. 
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The two materials that are used in major quantities today as valuable fuels, but have 

formerly been discarded are coal refuse and tires. A major difference between these two 

materials that EPA finds relevant is that the coal refuse in the legacy piles has never been used 

for anything else and is mined as fuel in the first place. Tires, on the other hand, are originally 

produced for a use that is fundamentally different from its current use as a fuel. Cement kiln 

users do not ask tire manufacturers to produce tires for burning in the kilns. Coal, however, was 

never used for any other activity. It was mined years ago to produce a fuel, but may now be used 

itself as fuel. Therefore, coal refuse is fundamentally different from tires, as well as the other 

non-hazardous secondary materials that are discussed in the preamble to this final rule. 

Responding to commenters that also noted that coal refuse has been used as a fuel for 

thirty years due to advances in technology, we find this information useful, but not determinative 

in our analysis of whether or not coal refuse meets our definition of a traditional fuel. However, 

the fact that coal refuse has been used and managed as a fuel for thirty years when coupled with 

the fact that coal refuse is unique from other non-hazardous secondary materials in that it is a 

byproduct of the fuel production processes and is itself a raw material that can be used as a fuel 

leads us to determine that coal refuse that is currently generated and used as a fuel should be 

considered an alternative “traditional fuel.” However, coal refuse that has been abandoned long 

ago in legacy coal refuse piles would not be considered a traditional fuel that is not subject to 

coverage and assessment in this rule, since it is clearly a material that has been discarded in the 

first instance. 

We note that other non-hazardous secondary materials have also been used as fuels for 

similar lengths of time or even longer, but would not be considered traditional fuels. We again 

emphasize that our decision to classify coal refuse as an alterative fuel is based both on the fact 
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that it has been used and managed as a fuel for thirty years combined with the fact that we 

believe coal refuse to be distinctive among the other non-hazardous secondary materials at issue 

in today’s rule; i.e., coal refuse is in fact raw material coal that is generated as a result of coal 

mining operations whose primary product is fuel. 

We also note that our characterization of coal refuse that is currently generated as an 

alternative fuel is not inconsistent with the proposed rule’s characterization of this material. The 

proposed rule stated that currently generated coal refuse would not be abandoned or disposed of 

and, therefore, not a solid waste. The proposed rule did not, however, specifically state that coal 

refuse that is currently generated is a traditional fuel. For clarity, we believe it appropriate to do 

so today, and will amend our definition of traditional fuels to also include alternative fuels that 

reflect this determination. 

As previously discussed, we do not believe that coal refuse that has been placed in legacy 

piles would meet the definition of traditional fuels, as they clearly have not been historically used 

and managed as a fuel. It is clear that coal refuse abandoned in legacy piles has been discarded 

and managed as a waste. Our rationale for this distinction between coal refuse that is currently 

generated and coal refuse that was placed in legacy piles is further discussed in the comment 

response below. Thus, coal refuse that has been placed in legacy piles would be considered solid 

waste unless it is processed into a legitimate fuel product. We respond to comments received 

regarding the processing of coal refuse later in this section. 

Comment: 

Many commenters stated that all coal refuse should be considered a “fuel,” regardless of 

when the coal refuse is generated and urged EPA to eliminate the “false distinction” based on 
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when the coal was mined (i.e., coal refuse that is mined from legacy piles shares the same 

characteristics as coal refuse that is generated today). 

At least one commenter cited 40 CFR 60.41 as defining “fossil fuel” as “natural gas, 

petroleum, coal, and any form of solid, liquid, or gaseous fuel derived from such materials for 

the purpose of creating useful heat.” The commenter went on to cite 40 CFR 60.41b, which 

states that “Coal means...coal refuse...”119 and argues that this definition in the regulation has 

nothing to do with when the coal refuse was generated and should always be considered a fuel. 

EPA’s Response: 

We disagree with the comments contending that coal refuse placed in legacy piles should 

be characterized and regulated the same as coal refuse that is generated currently, as this fails to 

acknowledge that such coal refuse has been discarded. As has been discussed, the statutory 

definition of solid waste turns on whether or not a material has been discarded in the first 

instance. Courts have consistently held that the term “discard,” is to have the ordinary, plainEnglish meaning (i.e., “disposed of,” “thrown away,” or “abandoned”). As coal refuse placed in 

legacy piles have clearly been abandoned, we cannot ignore the fact that these materials have 

been discarded in the first instance and, therefore, do not agree with the contention that this 

construct represents a “false distinction.” The resulting distinction may lead to results that some 

may find illogical, but we are faced with the definition of “discard” and the fact that the mere 

fact that discarded material may have value does not allow the material to lose its waste status. 

Although we recognize that all coal refuse is (and was) generated during the fuel 

production process and are more akin to raw materials, coal refuse that has been abandoned in 

 

119 “Coal means all solid fuels classified as anthracite, bituminous, subbituminous, or lignite by the American 

Society of Testing and Materials in ASTM D388 (incorporated by reference, see Sec. 60.17), coal refuse, and 

petroleum coke...” See 40 CFR§ 60.41b. 
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legacy piles have not been historically used and managed as a fuel and therefore cannot be 

considered a traditional fuel. Because the technology did not exist that could effectively make 

use of the fuel value of these materials at the time of their generation, they were managed as 

wastes and abandoned in legacy piles. While we believe that currently generated coal refuse 

should now be considered alternative fuels for the reasons stated above, we cannot ignore that 

coal refuse that have been placed in legacy piles have clearly been discarded and, thus, unless 

these materials are “sufficiently processed” and satisfy all legitimacy criteria for fuels, these 

secondary materials would be considered solid wastes when burned as fuels in combustion units. 

 Regarding the comments that argue that EPA has previously defined coal to include 

coal refuse, we note that this information was helpful, but disagree the cited regulatory 

definitions control in this rulemaking. The cited definitions, which are included in the standards 

of performance for new stationary source regulations, were developed pursuant to the CAA and 

do not address the issue of discard. Today’s rulemaking is being promulgated under RCRA, 

which, as mentioned above, hinges on the whether or not the non-hazardous secondary material 

at issue has been discarded. EPA also reemphasizes that the distinction is not between “fuel” 

and “waste,” but between fuel that is a commodity (not a waste because it has not been 

discarded) and waste fuel that has value, but is still a waste. 

In the same CFR sections cited by commenters which define coal as including coal 

refuse, we note that coal refuse is defined as meaning “waste-products of coal mining, cleaning, 

and coal preparation operations (e.g., culm, gob, etc.) containing coal, matrix material, clay, and 

other organic and inorganic material”120 and “any byproduct of coal mining or coal mining 

operations with an ash content greater than 50 percent, by weight, and a heating value less than 

 

120 See 40 CFR 60.41 
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13,900 kJ/kg (6,000 Btu/lb) on a dry basis.”121 We believe that these definitions highlight the 

uniqueness of coal refuse and in fact support the distinction we are making between coal refuse 

that is currently generated and coal refuse that has been placed in legacy piles. That is, it may be 

appropriate to consider coal refuse to be within the definition of coal because it may now be used 

as coal, while at the same time, it may also be appropriate to consider coal refuse to be a “wasteproduct” or “byproduct” of coal mining operations. EPA’s evaluation that coal refuse that is 

currently generated and used as a fuel has never been discarded and should be considered an 

alternative fuel, while discarded coal refuse should be considered a solid waste, is consistent with 

these regulatory definitions. 

Comment: 

Most commenters addressing the issue of processing coal refuse stated that coal refuse 

from legacy piles is processed the same way as is virgin coal; that is, the processing of these 

materials includes the use of grizzlies, screens, and blending to improve the quality, remove 

metal objects, reduce the ash content, reduce the sulfur content, and reduce concentrations of 

various constituents. These comments maintained that this level of processing should satisfy 

EPA’s definition of “processing” because the processing that occurs is designed specifically to 

improve the fuel quality and remove contaminants in the process (for example, metals that are 

removed with ash that is screened out). 

One commenter stated that it is illogical and problematic for EPA to propose a minimal 

level of processing that requires additional activities than are used to prepare virgin materials for 

use. This commenter provides the example of a company that recovers coal refuse from 

previously discarded piles, screen the refuse to remove large pieces of slate and rock, conducts a 

 

121 See 40 CFR 60.41b 
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chemical analysis to identify Btu, ash, and sulfur characteristics, hauls the coal refuse to its 

preparation plant where it is cleaned just like mined coal, and then sold as is or blended with 

mined coal to meet contractual orders. This commenter argues that EPA did not provide 

adequate justification in the proposed rule for why this process would be insufficient to turn a 

once discarded non-hazardous secondary material into a non-waste fuel product. 

Additionally, commenters noted that in the case of facilities burning coal refuse, 

regardless of whether it is generated currently or was placed in legacy piles, the engineering 

design of a CFB is based on the quality of the coal refuse available to be burned in the boiler. In 

other words, considerations for use of the coal refuse as a fuel precede facility construction and 

directly impact boiler design and application. Therefore, coal refuse from legacy piles that is 

processed in this manner (i.e., in the same manner as currently generated coal refuse) should not 

be considered a solid waste. 

EPA’s Response: 

As finalized in §241.2, the term “processing” is defined as meaning “any operations that 

transform discarded non-hazardous secondary material into a non-waste fuel or non-waste 

ingredient product. Processing includes, but is not limited to, operations necessary to: remove or 

destroy contaminants; significantly improve the fuel characteristics of the material, e.g., sizing or 

drying the material in combination with other operations; chemically improve the as-fired energy 

content; or improve the ingredient characteristics. Minimal operations that result only in 

modifying the size of the material by shredding, do not constitute processing for purposes of this 

definition.” We believe that this definition encompasses an appropriate level of processing 

necessary to render a discarded material into a non-waste product. 
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As several commenters noted, the processes that are employed to recover coal refuse that 

has been placed in legacy piles in order to be used as fuels are the same as the processes that 

virgin coal is subject to. As discussed above, we believe that coal refuse is unique from other 

non-hazardous secondary materials in that it is a byproduct of fuel production processes and is 

itself a raw material that can be used as a fuel. Because coal refuse is essentially raw material 

coal, which is generated in the production of fuel and can be used itself as fuel, we agree with the 

commenter who stated that it would be illogical to require a different level of processing for 

discarded coal refuse than is used for virgin coal. Therefore, coal refuse that is recovered from 

legacy piles and used as fuel that is subjected to the types operations that are used to process 

virgin coal, which serve to both increase energy values as well as reduce contaminants, would 

meet our definition of processing and would not be considered solid waste, provided these 

materials satisfy our legitimacy criteria, which we believe they do since currently mined coal is 

certainly a legitimate fuel and is the same as those from the legacy piles. 

Comment: 

EPA received comments providing new contaminant data for coal refuse. However, 

some commenters acknowledged that coal refuse can have higher levels of some metals, but 

agreed with EPA that coal refuse is typically used as a fuel in newer boilers equipped with CFBs, 

which have emissions levels lower than most existing coal utility boilers.122 One commenter 

stated that notwithstanding the higher metals content of coal refuse, CFBs typically capture 

between 90-99 percent of mercury and other metals. While most commenters noted that 

emissions levels associated with burning coal refuse are similar to those found when burning 

 

122 CFBs ability to achieve lower emissions levels is due to several factors: (1) CFB boilers are often newer than 

many existing pulverized coal utility boilers and may be equipped with better particulate matter (PM) controls; (2) 

CFBs utilize lower operating temperatures, which result in lower metal and NOX emissions; and (3) CFB boilers 

often add limestone to their feed to control SO2 emissions, which results in greater fixation to the ash. 
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virgin coal, one commenter did provide a comparison in concentration levels of various 

contaminants between coal refuse and regional coal samples. A selection of the specific data 

provided by the commenter is replicated in Table 5 below: 

Table 5. Comparison of Trace Metal Contents (ppm) of Regional Coal Samples and Coal Refuse 

from Legacy Piles, as provided in comments on the NHSM Proposed Rule. 

Sample 

Description 

Sample 

ID 

Sb As Be Cd Cr Co Pb Mn Hg Ni P Se 

Coal samples 

from USGS 

database – 

Cambria, 

Indiana, and 

Somerset 

Counties, 

PA123

No. 

Samples 

Minimum 

Maximum 

244 

0.11 

7.80 

244 

0 

200 

244 

0.6 

9.5 

244 

0.01 

1.00 

244 

2 

65 

244 

1.5 

34.0 

244 

0.8 

44.0 

244 

2 

390 

244 

0.00 

2.90 

244 

3.4 

86.0 

244 

22 

3400 

244 

0.68 

20.00 

Samples of 

coal refuse 

from legacy 

piles located in 

Cambria, 

Indiana, and 

Somerset 

Counties, PA 

Sample 1 

Sample 2 

Sample 3 

1.5 

1.7 

1.5 

50.7 

53.4 

47.3 

2.1 

2.1 

2.1 

0.3 

0.3 

0.3 

80.2 

84.5 

84.7 

22.7 

23.8 

22.8 

33.1 

35.2 

33.1 

134 

139 

144 

0.644 

0.748 

0.613 

44.7 

50.5 

47.1 

718 

719 

745 

7.8 

8.6 

8.6 

Average 1.6 50.5 2.1 0.3 83.1 23.1 33.8 139 0.668 47.4 727 8.3 

This data indicates that the concentration of the various contaminants in the coal refuse 

samples were lower for almost all constituents (including mercury and lead) when compared to 

regional coal samples. According to this data set, only chromium was consistently higher in the 

coal refuse samples than the regional virgin coal, which also indicates that the difference in 

concentration may be much closer than previously indicated in the preamble to the proposal.124 

Therefore, provided that coal refuse from legacy piles are sufficiently processed, this commenter 

asserts that coal refuse would pass the contaminant legitimacy criterion and should therefore not 

be classified as a solid waste. 

 

123 Coal sample data found in the U.S. Geological Survey—National Coal Resources Data System. For more 

information, see http://energy.er.usgs.gov/coalqual.htm). 124 Data provided by the commenter indicated that the average chromium levels of coal refuse was 83.1 ppm, 

whereas the range of chromium levels for the regional virgin coal samples was between 2-65 ppm. The proposed 

rule noted that chromium levels of coal refuse can be up to four times higher than virgin coal. 
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EPA Response: 

Regarding the contaminant levels in coal refuse in legacy piles, we agree with those 

commenters who acknowledged that coal refuse can have higher concentrations of some metals 

than is found in virgin coal. As noted in the proposed rule, at least one commenter on the 

ANPRM contended that coal refuse could have up to four times more mercury and chromium, 

and three times more lead than virgin coal.125 We note that this commenter did not provide 

primary sources for this data, a point which was raised by at least one commenter. We generally 

recognize, however, that available data show that coal refuse placed in legacy piles often has 

higher metals concentrations than non-refuse coal concentrations, but we would presume that the 

levels of contaminants are the same as in currently mined coal that would have been placed into 

these piles in the past. We also recognize that contaminant levels will vary significantly 

depending upon the region and type of coal at issue.126 

As discussed above, we now believe that coal refuse that is currently generated should be 

considered an alternative fuel. On the other hand, coal refuse that is recovered and processed 

from the discard environment would need to pass the legitimacy criteria in order to be considered 

a non-waste fuel. As coal refuse is recovered from legacy piles are subject to the same 

processes as currently-generated coal refuse in order to meet the same fuel specifications, we 

believe that they would contain any potential contaminants at levels that are comparable to or 

lower than coal refuse that is currently generated. 

We would further note that the contaminant data provided by the one commenter 

demonstrates that there are also examples of coal refuse taken from legacy piles satisfying the 

contaminant legitimacy criterion when directly compared to contaminant levels in coal. Given 

 

125 See 75 FR 31865. 126 See our Materials Characterization Paper on Coal Refuse, located in the docket for today’s final rule. 
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the regional variations in coal compositions, the analysis is on point given the fact that the 

commenter compared similar regional coal refuse and virgin coal samples. Therefore, we agree 

with the commenter that there are instances when coal refuse would also satisfy the contaminant 

legitimacy criterion when compared to virgin coal as well. 

Finally, we would note that although emissions comparisons are not a direct indicator of 

whether these materials satisfy the contaminant legitimacy criterion, the emissions from CFBs 

that use coal refuse as fuel typically have lower levels of emissions than typical pulverized coal 

burners. 

Comment:

Several commenters contended that the management of coal refuse at mining sites is 

already regulated under the Surface Mining Control and Reclamation Act of 1997 (SMCRA) and 

that defining coal refuse as a solid waste would be inconsistent SMCRA. Specifically, some 

commenters point out that although the term “solid waste” under RCRA includes mining waste 

in the definition, EPA determined, in accordance with section 1006(c) of RCRA that provides for 

the integration of RCRA with SMCRA, that materials and products associated with coal mining 

activities should not be regulated as hazardous wastes. 

EPA Response:

RCRA section 1006(c) pertains to hazardous wastes under RCRA subtitle C. As such, it 

is inapplicable for today’s rulemaking, which is solely concerned with non-hazardous secondary 

materials. Thus, we disagree with those commenters who cited section 1006(c) of RCRA and 

argued that regulation of coal refuse found in legacy piles should be deferred to SMCRA. 

SMCRA is concerned with the management and removal of coal refuse piles at mining sites. It 

does not address the issue of “discard,” which is critical to the definition of solid waste under 
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RCRA, and as such, which emission standards coal refuse that are in legacy piles and burned in a 

combustion unit is subject to under the CAA. 

9. Coal Combustion Residuals.

127,128 

Coal combustion residuals (CCRs) are formed during coal-burning processes in power 

plants and industrial boilers, and are produced in various forms that are categorized by the 

process in which they are generated. The proposed rule differentiated between CCRs (which 

include such secondary materials as fly ash, bottom ash, and boiler slag), that are currently 

generated from those CCRs that have been previously disposed of (such as, mined landfill ash) 

and are used as fuels in combustion units. Under the proposed rule, currently generated CCRs 

that have not been discarded in the first instance and satisfy the legitimacy criteria would not be 

considered a solid waste when used as a fuel in combustion units provided the CCRs were 

burned in units within the control of the generator. For example, the proposal described a 

situation where currently generated, high-carbon fly and bottom ash that is taken directly from 

existing boilers is burned within the control of the generator at power generating stations. On the 

other hand, CCRs recovered from landfills or other disposal units would clearly have been 

discarded in the first instance and would therefore have to be sufficiently processed into a nonwaste fuel product and meet the legitimacy criteria in order not to be considered a solid waste 

when used as a fuel. 

 

127 In a separate rulemaking effort, EPA has proposed regulations that will provide for the safe disposal and 

management of coal combustion residuals from utility coal-fired power plants (the “Coal Combustion Residuals 

Proposed Rule”). The proposed rule was published in the Federal Register on June 21, 2010. See 75 FR 35127. 

Today’s final rule does not affect that rulemaking effort, as our rule considers the use of coal combustion residuals 

in combustion units as fuels or ingredients, while the coal combustion residual proposed rule is concerned with the 

safe disposal and management of these residuals in landfills and surface impoundments. For more information on 

the coal combustion residual proposed rule, see Docket ID No. EPA-HQ-RCRA-2009-0640. 128 For a discussion of CCRs used as ingredients, see Section V.C.2 of this final rule. 
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The proposed rule also noted comments received on the ANPRM describing patented 

processes that separate the carbon from the fly ash in order to produce a new fuel product. 

Although this level of processing appeared likely to meet the proposed definition of processing, 

the proposed rule solicited comment on how CCRs are processed. The proposed rule also 

requested comment regarding the extent to which CCRs are recovered from the discard 

environment (e.g., landfills) and used as fuels. For the proposed rule’s discussion of CCRs used 

as fuels, see 75 FR 31865-6. 

 Comment: 

Most commenters argued that CCRs, when used in combustion units, should be classified 

as ingredients rather than as fuels. The commenters often contended that classifying all CCRs as 

ingredients would simplify waste determinations for these secondary materials by clearly 

establishing the appropriate legitimacy criteria that apply (i.e., facilities would not need to 

determine whether the fuel or ingredient legitimacy criteria apply based on the primary purpose 

of the secondary materials). Some commenters acknowledged, however, that CCRs can be 

combusted (e.g., by electric utilities) for energy recovery of carbon content or combustion in 

carbon burn-out (CBO) units for processing marketable fly ash products. 

One commenter described CBO units, which they explained burn “unwanted carbon” 

from fly ash to produce a low-carbon fly ash that is more suitable for use as an ingredient in 

Portland cement, as being typically integrated with power plants. The CBO unit combusts fly 

ash from the power plant in a fluidized bed, extracts the residual energy content of the fly ash to 

fuel the CBO, and returns useful heat to the power plant. The commenter stated that the major 

equipment that comprises the CBO unit includes a fluidized bed combustor and heat exchanger 

to recover heat from the fly ash combustion. This same commenter described the heat generated 
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from the combustion of the carbon in the fly ash as “valuable” and is typically recovered from 

the CBO and used to heat the host plant’s condensate stream, which reduces the amount of 

extraction steam required. In reasoning that this high-carbon fly ash should be considered an 

ingredient, however, the commenter notes that energy generated from burning the secondary 

material is of secondary importance to the production of the valuable low-carbon fly ash to be 

sold to cement kilns. 

EPA’s Response: 

We do not agree with commenters that all CCRs, when used in combustion units, should 

categorically be defined as ingredients. As some commenters acknowledged, some CCRs are 

indeed used for their fuel value as opposed to their ingredient value, especially when re-burned, 

as in the case of their use in combustion units by electric utilities. Therefore, we cannot 

categorically classify CCRs as ingredients when it is clear that, in some cases, these secondary 

materials are being burned for their fuel value and/or to produce a new secondary material (i.e., 

low-carbon fly ash). In cases where the primary purpose of using CCRs is for their fuel value 

and not for the ingredient value (e.g., by electric utilities in utility boilers), the secondary 

materials must meet the requirements for fuels, including the legitimacy criteria, in order to not 

be considered a solid waste. In other words, to the extent that CCRs are used as fuels, these 

secondary materials must remain within the control of the generator and meet the legitimacy 

criteria for fuels or be sufficiently processed into a new fuel product in order not to be considered 

a solid waste. We note, however, that sources may petition the Agency for a non-waste 

determination for secondary materials managed outside the control of the generator, including 

CCRs. See Section VII.G.

 Regarding CBO units that burn high-carbon fly ash, creating both energy, as well as a 
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new marketable ingredient (i.e., low carbon fly ash), we believe this activity would not constitute 

use of these secondary materials as ingredients. When the fly ash goes into a CBO unit, it is 

clearly not being used as an ingredient, but is used to produce an ingredient. It is less clear, 

however, whether this activity represents a legitimate use of these secondary materials as fuels or 

should be considered a type of waste management. The commenter states that burning of this fly 

ash in CBO units provides “valuable heat” and indicates that the energy is used in turn to power 

the CBO or returned to the power plant, which indicates that the burning of the fly ash could 

constitute a legitimate use as a fuel. On the other hand, the same commenter also noted that the 

fuel value is “secondary” to its value as an ingredient and the CBO process as removing 

“unwanted carbon” from the fly ash, which may suggest that the fly ash is being burned as a 

waste activity (i.e., the destruction of the unwanted carbon in order to generate a marketable 

product). 

Unfortunately, from the comments received, we are not able to make a categorical 

determination whether or not the burning of fly ash in these units would constitute “discard,” as 

it is unclear whether the carbon is being destroyed or whether it is actually used for its fuel value. 

In other words, the CBO unit is either "destroying" the carbon, which would make these 

materials a solid waste, or the carbon is being recovered and used as a fuel, in which case these 

materials would not be considered a solid waste provided they meet the legitimacy criteria. 

While the CBO units are burning the ash to create a marketable product, in so doing they 

are also utilizing the separated carbon for its fuel value. The commenter indicates that use of 

high carbon-fly ash in these CBOs may have more than marginal energy value and can even be a 

source of additional power to an adjoining power plant. While we do not have sufficient 

information to make a categorical determination regarding the use of fly ash as a fuel in these 
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CBO units, we believe it appropriate for these units to consider the legitimacy criteria in order to 

determine whether or not the fly ash is being burned for discard or burned legitimately for its 

fuel value. 

As discussed in Section VII.H, we believe that the legitimacy criteria are critical to 

ensuring that non-hazardous secondary materials are being legitimately used and not simply 

discarded via sham recycling. To the extent that a CBO unit can determine that it meets the 

legitimacy criteria for fuels (including whether the fly ash has meaningful heating value and is 

used as a fuel in a combustion unit that recovers energy), we would consider such a use to be 

legitimate. We emphasize, however, that mere destruction of the unwanted carbon would clearly 

represent discard and would by definition fail the meaningful heating value legitimacy criterion. 

We also note that it is not clear from the comments how the CBO unit recovers energy and 

whether it would meet our definition of a legitimate energy recovery device. For a discussion of 

legitimate energy recovery devices, see the Response to Comments on Sewage Sludge (Section 

V.B.10). If these units do not legitimately recover energy, they would not meet the meaningful 

heating value criterion. See also Section VII.B, which discusses the types of notification and 

recordkeeping requirements, including documentation as to how the non-hazardous secondary 

material meets the legitimacy criteria, that a facility using these secondary materials as fuels that 

remain within the control of the generator are subject to. 

 Finally, we note that the resulting low-carbon fly ash would be considered a new 

secondary material, which would be considered an ingredient if it is later used in the production 

of cement. 

Comment:

One commenter, a utility, stated that the proposed rule’s setting of minimum energy 
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content values for a secondary material to be used as a fuel and not be considered a solid waste 

(i.e., the meaningful heating value legitimacy criterion) is inappropriate for the re-burning of fly 

ash when producing concrete quality fly ash, as the coal ash used for re-burn is selected based on 

its mineral content, combined with the mineralogy of the coal currently being used as a fuel. The 

fuel value of the fly ash is only one technical consideration when introducing coal ash in 

combustion systems for creating concrete quality fly ash and requiring a minimum heating value 

may restrict the use of high quality fly ash for use in concrete and other applications. 

EPA’s Response: 

We appreciate that the fuel value is only one of several considerations made when 

selecting fly ash for re-burn; however, in order for fly ash that is re-burned to not be a solid 

waste under today’s final rule, it would need to either remain within the control of the generator 

and meet the legitimacy criteria for fuels, including the meaningful heating value criterion, or, if 

discarded, be processed into a new, legitimate fuel product. Some commenters stated that the 

energy content of fly ash when burned is returned as useful heat. Based on the comments 

received, however, it is unclear whether the fly ash in that instance would meet the meaningful 

heating value criterion, as these comments do not include enough information about how much 

energy is being recovered from the use of these secondary materials as fuels. In order to not be 

considered a solid waste, the facility must determine whether the fly ash meets the legitimacy 

criteria, including whether the fly ash has meaningful heating value and is used as a fuel in a 

combustion unit that recovers energy. 

We also note that we are not establishing a bright line test for satisfying the meaningful 

heating value test. Rather, for purposes of meeting the legitimacy criteria for fuels, we would 

consider non-hazardous secondary materials with an energy value greater than 5,000 Btu/lb, as-
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fired, to have a meaningful heating value, and satisfy this legitimacy criterion. However, for 

facilities with energy recovery units that use non-hazardous secondary materials as fuels with an 

energy content lower than 5,000 Btu/lb, as fired, we believe it is also appropriate to allow a 

person to demonstrate that a meaningful heating value is derived from the non-hazardous 

secondary material if the energy recovery unit can cost-effectively recover meaningful energy 

from the non-hazardous secondary materials used as fuels. See Section VII.H.1 for a discussion 

of how non-hazardous secondary materials can satisfy the meaningful heating value criterion for 

fuels. 

Comment: 

Some commenters argued generally that EPA should not restrict the source of coal ash 

that is re-burned and should allow coal ash that is used as a fuel to be transferred between 

facilities and retrieved from landfills because it is being beneficially used. One of these 

commenters described how one of its power plants re-burns coal ash that it receives from two 

other power plants that it also owns. This same commenter also noted that it re-burns coal ash in 

one of its power plants that it has retrieved from an off-site landfill. 

EPA’s Response: 

As discussed in Section V.A.1, EPA is not making a sweeping arbitrary assumption in 

categorizing transferred secondary materials as discarded. Instead, EPA has evaluated whether 

certain categories of materials are discarded or not. The Agency has not adopted the extremes of 

saying that all burning of secondary material, regardless of ultimate use, is waste treatment or 

that any secondary material that is recycled for legitimate fuel value is a commodity and not a 

waste. Wastes may have value, but are still wastes. 
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 Between these broad parameters, EPA has examined a number of specific materials, 

recycled on-site and transferred for recycling, and determined whether they would be 

appropriately placed within the waste or non-waste categories. EPA would consider transferred 

non-hazardous secondary materials not to be wastes if it could make the appropriate findings for 

those categories. In fact, the Agency does so with respect to scrap tires harvested from vehicles 

and resinated wood residuals. 

Commenters discussing scrap tires and resinated wood residuals, however, provided 

specific information regarding how these secondary materials were managed when they no 

longer remained within the control of the generator and the frequency with which these materials 

were collected and transferred off-site. For example, resinated wood residuals are routinely 

transferred between either intra- or inter- company facilities and used as either “furnish” (i.e., 

raw materials) or fuel at the receiving facilities. The material being transferred off-site is used 

and handled in the same manner that resinated wood residuals are used when generated on-site 

(such that it is impossible to distinguish between materials that are being used as a raw material 

and those that are being used as a fuel). 

On the other hand, commenters discussing the use of CCRs as fuels outside the control of 

the generator did so only in general terms. Commenters provided legal arguments that case law 

holds that transfer of such materials between companies were irrelevant for determining whether 

a recycled material was properly viewed as a solid waste. See Section V.A.1 for our response to 

these legal arguments on the issue of “transfer” as it relates to the concept of discard. However, 

these commenters did not specify how the proposed rule’s presumption that non-hazardous 

secondary materials that are used as fuels and are managed outside the control of the generator 
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are solid wastes was inappropriate for CCRs. In general, the D.C. Circuit has not accepted such 

presentations in “broad abstraction.” See ABR at 1056. 

Because commenters did not provide sufficient information detailing how CCRs are 

managed when transferred outside the control of the generator, we are unable to determine 

whether such movement of CCRs outside the control of the generator is or is not indicative of 

discard. As such, we believe that such a determination is best left to the non-waste petition 

process, as finalized in today’s rule. As we’ve discussed, we believe this petition process is 

essential because many non-hazardous secondary materials are recycled and managed in many 

different ways, and the Agency may lack the specific details in certain cases to know whether 

such non-hazardous secondary materials are or are not solid wastes. For a discussion of nonwaste determination petitions, see Section VII.G of today’s rule. 

Regarding the commenter who described how one of its power plants re-burns coal ash 

that it receives from two other power plants it also owns, we believe that such a situation would 

fall within the definition of “within the control of the generator,” as codified in §241.2. For the 

purposes of today’s final rule, “within the control of the generator” means that the non-hazardous 

secondary material is generated and burned in combustion units at the generating facility; or that 

such material is generated and burned in combustion units at different facilities, provided the 

facility combusting the non-hazardous secondary material is controlled by the generator; or both 

the generating facility and the facility combusting the non-hazardous secondary material are 

under the control of the same person. We have also codified the definition of “control” as 

meaning the power to direct the policies of the facility, whether by the ownership of stock, 

voting rights, or otherwise, except that contractors who operate facilities on behalf of a different 
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person as defined in this section shall not be deemed to “control” such facilities. See §241.2. As 

the commenter states that it owns the other two plants, such intra-company movement would 

ensure that the materials would remain within the control of the generator and, therefore, such 

CCRs would not be considered a solid waste when used as a fuel provided they meet the 

legitimacy criteria. In the instance where a facility is re-burning coal ash that is recovered from 

landfills, such coal ash is a solid waste, as this material has clearly been discarded. Coal ash that 

is recovered from landfills must be sufficiently processed in order to no longer be considered a 

solid waste. 

Comment: 

 We received a few comments regarding the extent to which CCRs are mined from 

landfills (i.e., recovered from the discard environment). One commenter asserted that it was 

unaware of any recovery of CCR from disposal sites, while one another commenter 

acknowledged that while it could utilize recovered landfill fly ash, it was not currently doing so. 

Still another commenter stated it removes CCRs from landfills and that such removal for either 

energy recovery or beneficial reuse was facilitated by a regulatory innovation program sponsored 

by the state and endorsed by EPA. Consequently, this commenter commonly re-burns coal ash 

that is recovered from landfills. This commenter notes that it has developed and uses patented 

processes to use this fly ash, but does not provide specific details regarding how these secondary 

materials are processed. 

 EPA’s Response: 

 It does not appear that it is a widespread practice for CCRs to be recovered from the 

discard environment (e.g., landfills) and beneficially used. However, from comments received 

both on the ANPRM and the proposed rule, it appears that at least some CCRs are being 
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recovered from the discard environment or could be recovered from the discard environment—

for example by the one commenter citing its participation in a state regulatory innovation 

program. Although we recognize the benefits associated with recovering CCRs from landfills, 

these non-hazardous secondary materials have clearly been discarded in the first instance and 

would have to be sufficiently processed into a new fuel product (or ingredient product) to not be 

considered a solid waste when used in combustion units. As we’ve stated elsewhere in the 

preamble, today’s final rule is limited to CCRs used as fuels or ingredients in combustion units. 

In other words, today’s rulemaking should not impact other potential beneficial uses of CCRs, 

such as using these secondary materials as a base material to replace stone or gravel under roads, 

parking lots and buildings. 

Comment: 

EPA received comments on the ANPRM stating that there are at least four patented 

processes for removing unwanted carbon from fly and bottom ash that allow the processed ash to 

produce both technically compliant ash for use in concrete and a separate carbon stream that can 

be re-introduced into the boiler for its fuel value. One electric utility, commenting on the 

proposed rule, also mentioned patented processes for using CCRs recovered from landfills. 

However, neither of these commenters provided specific details regarding how the CCRs are 

actually processed. 

EPA’s Response: 

Unfortunately, EPA did not receive sufficient information during the comment period 

describing the types of processes that CCRs undergo to be able to make a categorical 

determination whether the patented processes referenced in the proposed rule would meet the 

definition of processing being promulgated in today’s final rule. Although we did receive some 
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information regarding how CCRs are processed, we continue to believe, as we stated in the 

proposed rule, that certain operations are currently being utilized to recover CCRs from the 

discard environment that would likely meet our definition of “processing.” For example, we are 

aware of at least one electric utility that recovers ash from ponds or landfills and then separates 

this secondary material into its fundamental components: carbon, silicates, and high-density, 

iron-rich materials. A coarse carbon-fuel product is then recovered by density separation using 

concentrating spirals. A fine carbon-fuel product is also recovered with flotation cells.129 We 

believe that this type of processing operation is likely to meet our definition of processing, as it 

appears that these operations in fact remove contaminants and improve the fuel characteristics of 

recovered CCRs. Consequently, CCRs recovered from the discard environment and then used as 

a fuel in a combustion unit would be a solid waste, unless these secondary materials have been 

sufficiently processed.130 

10. Sewage Sludge. 

The proposed rule classified sewage sludge (or wastewater treatment sludge) generated 

from publicly owned treatment works (POTWs) as solid waste when burned as fuels in 

combustion units. However, the proposed rule also specifically solicited comment on whether it 

is within the Agency’s discretion to provide a regulatory solid waste exclusion for sewage sludge 

when burned in incinerators in order to preserve the current framework for regulating sewage 

sludge managed under section 405 of the Clean Water Act (CWA) and to avoid redundancy. 

When making the determination that sewage sludge is a solid waste when burned as a fuel in a 

 

129 See “Materials Characterization Paper on Coal Combustion Residuals-Coal Fly Ash, Bottom Ash, and Boiler 

Slag.” A copy of this document has been placed in the docket for today’s rule. 

130 We note, however, that burning any secondary material, including CCRs, in a combustion unit would not 

constitute “processing,” as determining whether or not a material is a solid waste must occur prior to its placement 

in the combustion unit. To consider the burning of such materials as “processing” would be circular. 
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combustion unit, the proposed rule stated that the Domestic Sewage Exclusion (DSE) under 

RCRA (see 261.4(a)) does not apply to the sludge generated from the treatment process and thus, 

sewage sludge is a solid waste if discarded. The proposed rule also noted that burning sewage 

sludge without energy recovery (i.e., burned for destruction) would constitute discard. 

Responding to commenters describing POTWs that recover heat in the form of usable heat via 

waste heat boilers, the proposed rule stated that the Agency does not consider waste heat boilers 

to be legitimate energy recovery devices, but rather these combustion units are burning the 

sewage sludge primarily for disposal purposes. Finally, the proposed rule stated that sewage 

sludge would likely not satisfy the contaminant legitimacy criterion, as data indicates that 

sewage sludge often contains metals at levels that are significantly higher in concentration when 

compared to traditional fuels. For the proposed rule’s discussion of sewage sludge, see 75 FR 

31866-7. 

Comment: 

Several commenters argued that EPA has the discretion to exclude or exempt sewage 

sludge from this rulemaking and should exercise that discretion in order to preserve the current 

framework for regulating the burning of sewage sludge pursuant to 40 CFR 503 (Part 503), 

which codifies regulations developed under the authority of section 405 of the CWA. These 

commenters also note that EPA has a non-discretionary duty to consider all environmental laws 

to prevent duplication when promulgating regulations under section 1006(b) of RCRA and that 

deeming sewage sludge a solid waste to be regulated under section 129 of the CAA violates 

EPA’s non-discretionary duty to harmonize environmental laws because emissions from sewage 

sludge incinerators (SSIs) are already comprehensively regulated under other statutes. 

 EPA’s Response:
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We agree with the commenters that section 1006(b) requires EPA to integrate RCRA 

requirements with the requirements of the CWA and the CAA, as well as other laws. Section 

1006(b) also states that such integration shall be effected only to the extent that it can be done in 

a manner consistent with the goals and policies expressed in RCRA and in the other acts referred 

to in section 1006(b). Thus, while we recognize that emissions from SSIs have been regulated 

under other statutes, the purpose of today’s final rule is not to regulate emissions from SSIs, but 

rather to determine whether sewage sludge is or is not a solid waste to allow the Agency to 

decide whether the material must be combusted under emissions standards developed under 

section 112 or 129 of the CAA. Sewage sludge is one of many non-hazardous secondary 

materials that are discussed and analyzed in this final rule. 

We also note that section 405(d)(5) of the CWA states that nothing in section 405 is 

intended to waive more stringent requirements established by the CWA or by any other law. 

This provision clearly states that section 405 of the CWA does not preempt other regulation. 

Therefore, we believe today’s final rule is consistent with the goals and policies of RCRA, the 

CWA, and the CAA and thus, satisfies the requirements of section 1006(b). 

Comment: 

Commenters asserted that Congress wrote section 112 of the CAA to regulate sewage 

sludge emissions, stating that section 112(e)(5)131 of the CAA directs EPA to issue emissions 

standards under section 112(d) for POTWs, including SSIs. These commenters also argued that 

sewage sludge quality and incineration is strictly regulated under the CWA and that the current 

regulatory structure under both the CWA and section 112 of the CAA is effective and should not 

 

131 CAA section 112(e)(5) states, “The Administrator shall promulgate standards pursuant to subsection (d) of this 

section applicable to publicly owned treatments works (as defined in Title II of the Federal Water Pollution Control 

Act [33 U.S.C.A. § 1281 et seq.] not later than 5 years after November 15, 1990.” 
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be altered. 

EPA Response:

Today’s final action is defining solid waste under RCRA and as such we are not 

addressing the definition of POTW under the CWA nor the requirements of the CAA. 

Comment: 

Several commenters reiterated the position that the DSE applies to sewage sludge 

generated by POTWs and, therefore, stated that sewage sludge is exempted from the definition of 

solid waste under RCRA. Citing the preamble to the 1980 RCRA subtitle C regulations, at least 

one commenter stated that the Agency indicated that once the to-be-developed regulation under 

section 405 of the CWA is promulgated, sewage sludge would be exempt from coverage under 

other sets of regulations.132 The same commenter also cites the 1990 Petroleum Refinery 

Primary and Secondary Oil/Water/Solids Separation Sludge Listings Rule (1990 Listings Rule), 

which states “It should be noted that if wastewaters generated at petroleum refineries are 

discharged to a POTW and such wastewaters are mixed with domestic sewage from 

nonindustrial sources, the sludges generated in the POTW are covered under the domestic 

sewage exclusion and are not included in today’s listings.”133

EPA’s Response: 

For the same reasons stated in the proposed rule, we do not agree with the comments 

suggesting that the DSE applies to the sludge generated from the treatment process. EPA has 

long viewed sewage sludge generated from POTWs as a solid waste, beginning with the 1980 

Identification and Listing of Hazardous Waste rulemaking. In that final rule, EPA stated that the 

DSE is “only applicable to non-domestic wastes that mix with sanitary waste in a sewer system 

 

132 See 45 FR 33102 (May 19, 1980). 133 See 55 FR 46364 (November 2, 1990) (Footnote 14). 
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leading to a POTW.”134 In that same rule, EPA further said it decided not to exclude sewage 

sludge from regulation under RCRA, since the statutory expressions regarding the definitions of 

“solid waste” and “sludge” was clear.135 

We agree that the 1980 Identification and Listing of Hazardous Waste rulemaking 

referenced by the commenter states that once the regulations are promulgated under section 

405(d) of the CWA, sewage sludge will be exempted from coverage from “other sets of 

regulations.” The preamble continues, however, to state: “In particular sewage sludge that 

qualifies as a hazardous waste will be exempted from this Part [261] and Parts 262 through 265” 

once this program is promulgated under CWA section 405. However, this exclusion is 

specifically limited to RCRA subtitle C (i.e., hazardous waste),136 and does not apply to the 

subtitle D program under RCRA. 

Regarding the citation from the 1990 Listings Rule, we believe this footnote is in error 

and is inconsistent with our historic interpretation of the scope of the DSE, as discussed both in 

the proposed rule and today’s final rule. We continue to believe that the DSE does not apply to 

the sludge generated from the treatment process. 

Comment: 

Several commenters stated that sewage sludge has meaningful heating value and that 

 

134 Id at 45 FR 33097. 135 Id at 45 FR 33101. “Under Section 1004(27) of RCRA, the definition of “solid waste” specifically includes 

“sludge from a waste treatment plant.” In defining “sludge,” Section 1004(26A) includes wastes from a “municipal

wastewater treatment plan.” Because of these very clear statutory expressions, EPA must regulate sewage sludge 

under RCRA...”

136 We would note that even though the CWA section 405(d) regulations have been promulgated, EPA never 

exempted sewage sludge from the subtitle C hazardous waste regulations, and thus, sewage sludge that exhibits any 

of the characteristics of hazardous waste must be managed as a hazardous waste. See 45 FR 33102, May 19, 1980 

where it states, “The Agency’s strategy for the development of a comprehensive sewage sludge management 

regulation will eventually result in the establishment of a separate regulation. Once such a regulation is in place, 

sewage sludge will be exempted from coverage under other sets of regulations. . . .Pending promulgation of this 

comprehensive sewage sludge regulation, sewage sludge will not be specifically excluded from Subtitle C.” 
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EPA should re-evaluate its description of this criterion. Commenters argued that EPA’s 

determination that waste heat boilers do not qualify as combustion units that recover energy is 

arbitrary and does not recognize the significant value of waste heat boilers and their role in 

energy generation. One commenter, a regional sewer district that estimated roughly 93 percent 

of its sewage sludge was “incinerated,” stated that four of its boilers had produced a total of 2.5 

billion pounds of high pressure steam over a twenty-five year span by converting the heat 

generated from burning sewage sludge in multiple hearth incinerators to high pressure steam. 

EPA Response: 

We continue to believe that most sewage sludge is burned not for energy recovery, but 

for destruction. Sewage sludge burned in an incinerator for the purposes of destruction would 

clearly meet the meaning of discard, and thus be a solid waste. While we recognize that waste 

heat boilers are useful devices for providing energy in the form of steam for secondary processes, 

the presence of a waste heat boiler does not, by itself, change the fact that the unit combusting 

the non-hazardous secondary material is primarily an incineration unit burning waste for disposal 

purposes. 

Further, the Agency does not regard waste heat boilers as legitimate energy recovery 

devices because they receive their energy input from the combustion of off-gases via a separate 

combustion chamber. Under the RCRA program, a legitimate energy recovery device is one that 

meets the definition of a boiler or an industrial furnace.137 Among other criteria, a boiler’s 

combustion chamber and primary energy recovery section(s) must be of integral design, unless it 

 

137 See February 28, 1984 Memorandum from John H. Skinner, Director, Office of Solid Waste, to Thomas W. 

Devine, Director, Air and Waste Management Division, EPA Region IV, entitled, “Guidance on Determining When 

a Hazardous Waste Is a Legitimate Fuel That May Be Burned for Energy Recovery in Boiler or Industrial Furnace.” 

A copy of this memorandum is included in the docket for today’s rule. For definitions of “boiler” and “industrial 

furnace” under RCRA, see 40 CFR 260.10. 
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falls under the process heater or fluidized bed combustion exemption. Thus, a combustion 

chamber that is connected by a duct to a waste heat boiler (or recuperator/heat exchanger) does 

not qualify as a legitimate energy recovery device. 

Unlike boilers, which are specifically designed to recover the maximum amount of heat 

from a material’s combustion, waste heat recovery units are designed to cool the exhaust gas 

stream, and/or to recover, indirectly, the useful heat remaining in the exhaust gas from a 

combustion unit that has some other primary purpose (such as an institutional waste incinerator). 

Thus, we continue to believe that sewage sludge is primarily burned for destruction and the 

presence of a waste heat recovery unit would not, by itself, satisfy the meaningful heating value 

legitimacy criteria. 

Comment: 

Regarding the contaminant levels in sewage sludge, a number of commenters noted that 

the pretreatment standards have reduced contaminants (particularly metals) in sewage sludge, 

with a few commenters providing more recent contaminant data for sewage sludge than was 

available in the proposed rule and stated that this new data demonstrates that currently generated 

sewage sludge would meet the contaminant legitimacy criterion.138 The National Association of 

Clean Water Agencies (NACWA) amended the data set included in the proposed rule by 

providing data from a 2006-2007 Targeted National Sewage Sludge Survey (TNSSS). See 

column four of Table 6 below: 

Table 6. Comparison of Toxics of Municipal Wastewater Treatment Sludges to Traditional 

Fuels. 

 

138 The proposed rule included a table comparing sewage sludge data taken from a 1982 40-city study and a 1988 

National Sewage Sludge Survey, cited in the National Biosolids Partnership’s 2005 “National Manual of Good 

Practices for Biosolids,” and coal data taken from a 1998 U.S. EPA report entitled, “Development of Comparable 

Fuels Specifications.” May 1998. 
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Element 40 City Study 

(1982) 

National 

Sewage Sludge 

Survey (1988) 

Targeted National 

Sewage Sludge 

Survey (TNSSS) 

Coal 

Mg/dry kg 

Arsenic 9.9 6.7 6.9 10 

Cadmium 69 6.9 2.6 0.5 

Chromium 429 119 80 20 

Lead 369 134.4 76 40 

Mercury 2.8 5.2 1.2 0.1 

Nickel 135.1 42.7 48 20 

Selenium 7.3 5.2 7 1 

 

Other commenters, however, agreeing that sewage sludge should be considered a solid 

waste, noted that sewage sludge tended to have higher contaminant levels than traditional fuels 

and should be regulated as solid waste when used as a fuel. Although not a part of the proposed 

definition of “contaminants,” some commenters noted the presence of pathogens in sewage 

sludge. 

EPA’s Response: 

The Agency appreciates the more recent and site-specific data provided by several 

commenters. We agree that in most cases, the specific data provided by commenters indicates 

that contaminant levels for most contaminants is not as high as previously reported in the earlier 

studies. However, we note that the TNSSS data provided by commenters still indicates higher 

levels, and those that EPA would not consider to be “comparable” for most of the contaminants 

found in sewage sludge when compared to coal. 

Further, as discussed in Section VII.H.1, based on comments received, we have modified 

our definition of “contaminant” to include pathogens, since they are undoubtedly discarded, i.e., 

disposed of, in the combustion process. As some commenters acknowledged, sewage sludge not 

only contains pathogens, but the incineration of sewage sludge results in the destruction of these 
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pathogens (as well as other emerging contaminants, pharmaceuticals, and other trace 

constituents). Thus, under today’s final rule, we do not believe that sewage sludge would satisfy 

the contaminant legitimacy criterion, both because of the presence of non-comparable levels of 

metals when compared to traditional fuels, as well as the presence of pathogens. 

 Comment: 

Finally, several commenters urged EPA to explicitly limit the scope of the final rule, 

making it clear that this rulemaking would have no regulatory effects or impacts for sewage 

sludge that is not incinerated (e.g., land application). On the other hand, one commenter 

requested that the Agency designate sewage sludge as a solid waste regardless of the manner that 

it is managed for disposal (land application, surface disposal, co-disposal in a municipal solid 

waste landfill, or incineration). 

EPA’s Response: 

We disagree with the one commenter who requested that this rulemaking define sewage 

sludge as a solid waste regardless of its end use (i.e., land application, surface disposal, etc.). In 

this final rule, EPA is articulating a framework for determining whether a non-hazardous 

secondary material is or is not a solid waste when burned as a fuel or ingredient in a combustion 

unit; we are not making solid waste determinations that cover other possible end uses (e.g., land 

application of sewage sludge). It is the Agency’s view that these regulations should not dictate 

to state programs how to characterize and/or regulate this material (as well as any other nonhazardous secondary material), particularly since EPA does not have authority to regulate the 

beneficial use of secondary materials under subtitle D of RCRA. Therefore, EPA agrees with 

those commenters who suggested the limited scope of this final rule and explicitly recognize the 

narrow focus of this rulemaking. 
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11. Processed Fats. 

 Processed fats, including both animal fats and vegetable oils, can be turned into biofuels 

for use in industrial boilers. The proposal did not discuss the use of this non-hazardous 

secondary material or discuss its status as a fuel or waste under this rule. We did receive 

comments pertaining to its status, however. 

Comment: 

 Commenters have argued that processed fats are a traditional fuel as they are not 

discarded and are legitimate fuel products. Specifically, they argue that the use of processed fats 

as fuel has been used in industrial boilers for more than a decade, as evidenced by approval of 

the use of such fats as fuels in air permits for industrial boilers. The commenters also note that 

processed fats are a primary product of the rendering process and not secondary materials or byproducts, are derived from inedible animal products, which are the primary products of value and 

sale of the meat industry and not a secondary material or by-products, and are therefore not a 

solid waste since it or its primary feedstock have never been a waste or discarded. 

Processed fats also are managed as valuable commodities and have meaningful heating 

value. They are managed similar to traditional oils, utilizing the same tanks, hoses, nozzles, and 

tanker trucks, and have a heating value of around 17,000 Btu/lb.139 Processed fats, the 

commenters argue, also have a comparable composition to traditional fuel products. In fact, 

processed fats contain considerably less contaminants (e.g., <0.010% sulfur by weight, 0.022% 

ash by weight) and burn cleaner than many traditional fuels and derivatives (e.g., coal, oil, coal 

tar oil, asphalts, etc). The limited contaminant data that was submitted showed that processed 

 

139 See document EPA-HQ-RCRA-2008-0329-0706.1 

Adams, T.T., J. Walsh, M. Brown, J. Goodrum, J. Sellers, and K. Das, 2002. “A Demonstration of Fat and Grease as 

an Industrial Boiler Fuel,” University of Georgia, Athens, GA. 
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fats had less than 1 ppm of vanadium. Commenters also stated that processed fats have fewer 

contaminants than No. 6 residual oil (2% sulfur content), which will result in lower emissions of 

sulfur dioxide, nitrogen oxides, particulate matter, and carbon monoxide. Furthermore, they 

stated that processed fats also have lower emissions of sulfur dioxide, particulate matter and 

carbon monoxide, as compared to No. 2 distillate oil (0.5% sulfur content). However, no data 

was submitted to validate these statements. 

The commenters also note that the federal government has encouraged the development 

and use of materials, such as processed fats as a clean, renewable fuel that reduces dependency 

on petroleum oils. Since 2006, the use of processed fats as fuel has been encouraged through the 

Alternative Fuel Mixture Credit (26 U.S.C. § 6426(e)). Although the proposed rule is intended 

to facilitate the use of certain materials that would otherwise be treated as waste by allowing 

them to be designated as non-hazardous secondary materials and burned as fuels, the net effect, 

with respect to processed fats, is the opposite. Rather than facilitate the use of processed fats as 

fuel, the rule will effectively end the development of this market. This is because the end result 

under the rule as it currently is proposed is a requirement that each potential customer must 

petition and obtain EPA approval for each facility in which they wish to burn processed fats. 

The burden and delay of submitting to such a process will have a chilling effect on the 

development of new customers and markets for processed fats as fuel. As a practical matter, this 

outcome is contrary to longstanding federal policy encouraging the development and use of 

clean, renewable fuels in place of petroleum and other fossil fuels. 

EPA’s Response: 

 We disagree that process fats are a traditional fuel. Process fats are secondary materials 

as they are produced from inedible parts of animals that were primarily butchered for meat, not 
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for use as a fuel. We recognize, however, that these non-hazardous secondary materials contain 

lower concentrations of contaminants than traditional fuels140 and, as such, are being encouraged 

for use instead of fossil fuels.141 In addition, since the fats are managed the same way that 

traditional oil is, it is evident that the material is handled as a valuable commodity, meeting that 

legitimacy criterion. Additionally, the material meets the legitimacy criterion for a meaningful 

heating value. Since these materials are sometimes not managed within the control of the 

generator (i.e., the butcher, the restaurant, etc.), we believe that the materials are initially 

discarded. However, the rendering process “sufficiently processes” the material into a non-waste 

fuel that meets the legitimacy criteria, as we note above. Thus, the commenters concern that 

non-waste determination petitions would need to be submitted on a case-by-case basis, and 

would have a chilling affect on the development of new customers and markets for processed 

fats, is not the case. Thus, the final rule establishes these non-hazardous secondary materials, 

after being processed, as a non-waste fuel. 

C. Comments on Specific Materials Used as Ingredients 

The ANPRM identified a number of non-hazardous secondary materials that the Agency 

believes are currently being used as legitimate non-waste ingredients in combustion processes. 

The proposed rule then identified the four material groups for which we received the majority of 

the comments on the ANPRM. The four material groups are CKD, CCRs, foundry sand, and 

blast furnace slag/steel slag. The proposed rule did not assume that ingredients used in 

combustion units that are not managed within the control of the generator are discarded materials 

 

140 See the Preliminary Characterization Study Prepared In Support of the Proposed Rulemaking –Identification of 

Nonhazardous Secondary Materials That Are Solid Waste: Traditional Fuels and Key Derivatives, EPA-HQ-RCRA2008-0329-0461.21 

141 While processed fats have the potential to contain pathogens, the process that is used to turn the fats into a fuel 

requires heating the fats to temperatures (i.e., 160o

 – 165o F) that would destroy the pathogens—See Adams, T.T. J. 

Walsh, M, Brown, J. Goodrum, J.Sellers, and K. Das, 2002. “A demonstration of Fat and Grease as an Industrial 

Boiler Fuel,” University of Georgia, Athens, GA. 
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(as is the case for most non-hazardous secondary material fuels), since we believe that nonhazardous secondary materials used as ingredients in manufacturing processes are more akin to 

commodities managed within continuous commerce and are used as an integral part of the 

manufacturing process. That is, non-hazardous secondary materials that are directly used (or in 

the case of previously used materials, reused), function as effective substitutes (i.e., as raw 

materials) in normal manufacturing operations or as products in normal commercial applications, 

and thus, EPA has interpreted the definition of solid waste as excluding non-hazardous 

secondary materials recycled in ways that most closely resemble normal production processes, 

provided they meet the legitimacy criteria. 

Besides the comments on specific non-hazardous secondary materials used as ingredients 

described below, we again note the overarching comment that was raised by some commenters 

that the Agency has no authority under section 129 of the CAA to regulate the use of secondary 

materials as ingredients, as EPA’s section 129 authority is limited to “solid waste incineration 

units,” which the statute defines as units that “combust” solid waste. As discussed in Section 

V.A of today’s final rule, we believe that this comment is not relevant to this regulation, which 

determines whether non-hazardous secondary material is a solid waste, or not under RCRA. We 

believe that EPA has clear authority to interpret RCRA to decide whether non-hazardous 

secondary materials are solid wastes or not. 

1. Cement Kiln Dust. 

CKD is a fine-grained, solid, highly alkaline material removed from the cement kiln 

exhaust gas by scrubbers. Much of the material comprising CKD is incompletely reacted raw 

material, including a raw mix at various stages of burning, and particles of clinker. Generation 

of CKD is directly connected to the production of cement clinker. The proposed rule indicated 
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that CKD used in a cement kiln would not be considered a solid waste when used as an 

ingredient in a combustion unit, so long as it was not discarded in the first instance and satisfies 

the legitimacy criteria for ingredients. Whether CKD remains within the control of the generator 

or is transferred to another person is not in and of itself indicative of discard, as discussed above. 

If CKD has been discarded, however, its use as an ingredient in cement kilns would be 

considered combustion of a solid waste, unless it has been processed to produce a non-waste 

ingredient. 

Comment: 

We received limited comments on CKD. One commenter urged EPA to state that CKD 

that is removed from on-site storage piles or monofills should be considered a legitimate nonhazardous secondary material and should not be considered a solid waste. The commenter 

explains that while CKD may have been previously placed in storage piles or even permitted 

solid waste management units (SWMUs), the technology did not exist previously to reuse the 

material. However, newer kiln systems can now use the CKD that has previously been disposed 

of, and thus, these non-hazardous secondary materials (which are ingredients in the manufacture 

of cement) should not be subject to the CAA section 129 standards. 

 EPA’s Response: 

The commenter acknowledges that even though the CKD has remained on-site, the intent 

or purpose of placing CKD in storage piles or SWMUs was to dispose of them (i.e., discard). 

Additionally, CKD that has been placed in storage piles in this manner would likely not meet the 

legitimacy criterion of “managed as a valuable commodity.” Thus, it would appear in this 

instance that CKD that has been placed in storage piles for the purpose of disposal, even if onsite, has been discarded and would be considered a solid waste if burned in a combustion unit, 
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unless the discarded CKD is processed into a non-waste ingredient product. CKD that has not 

been discarded in the first instance, however, and satisfies the legitimacy criteria would not be 

considered a solid waste when used as an ingredient. 

2. Coal Combustion Residuals.142 

CCRs are formed during the coal-burning processes in power plants and industrial 

boilers, and are produced in various forms (i.e., fly ash, bottom ash, and boiler slag) that are 

categorized by the process in which they are generated. The proposed rule indicated that CCRs 

used as ingredients in combustion units would not be considered solid wastes, provided they 

were not discarded in the first instance and satisfy the legitimacy criteria.143 We also noted that 

CCRs can be used both as an ingredient and as a fuel supplement and proposed that that the 

decision to treat them as a fuel or ingredient should be based on the primary purpose of their use 

in a combustion unit. We took comment on this approach, especially our characterization that 

the primary use of CCRs in cement kilns is generally for their ingredient value, as opposed to 

their fuel value. 

The proposal also indicated that when CCRs are used for their ingredient value, the 

transferring of these materials to another person would not in and of itself be indicative of 

discard. However, to the extent that CCRs have been discarded in the first instance, they would 

have to be processed into a non-waste ingredient product and satisfy the legitimacy criteria in 

order not to be considered a solid waste. We also noted that comments were submitted on the 

 

142 In a separate rulemaking effort, EPA has proposed regulations that will provide for the safe disposal and 

management of coal combustion residuals from utility coal-fired power plants (the “Coal Combustion Residuals 

Proposed Rule”). The proposed rule was published in the Federal Register on June 21, 2010. See 75 FR 35127. 

Today’s final rule does not affect that rulemaking effort, as our rule considers the use of coal combustion residuals 

in combustion units as fuels or ingredients, while the coal combustion residual proposed rule is concerned with the 

safe disposal and management of these residuals in landfills and surface impoundments. For more information on 

the coal combustion residual proposed rule, see Docket ID No. EPA-HQ-RCRA-2009-0640. 143 For a discussion of CCRs used as fuels in combustion units, see Section V.B.9 of this final rule. 
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ANPRM, which described patented processes that remove unwanted carbon from coal fly ash in 

order for these non-hazardous secondary materials to be used as an ingredient. While these 

processes—that is, those that separate carbon from the fly ash to produce technically compliant 

fly ash for use in concrete appear to satisfy our processing requirement, we requested 

commenters provide additional information explaining how this processing is conducted, and 

whether this type of fly ash is used as an ingredient in the clinker production process. The 

proposed rule also requested comment on the extent to which CCRs are recovered from the 

discard environment (e.g., landfills) and used as ingredients in cement kilns, as well as more 

information on the extent to which these CCRs are processed. 

In addressing the commenter who submitted comments on the ANPRM and argued that 

CCRs are solid wastes due to their high concentration of contaminants, the proposal noted that 

the chemical properties of CCRs are influenced to a great extent by the coal burned, the type of 

combustion unit, and the air pollution controls applied.144 Acknowledging that fly ash may 

contain various levels of metals, such as vanadium, zinc, copper, chromium, nickel, lead, arsenic, 

and mercury,145 the proposed rule noted that in a 2008 Report to Congress addressing the use of 

these secondary materials as ingredients in cement and concrete applications, the overall 

conclusion reached with respect to the perceived safety health risk barriers was a positive one, in 

that the risk analyses did not identify significant risks to human health and the environment 

associated with these uses.146 

 

144 For more information on the different types, or ranks, of coal, please refer to the Materials Characterization Paper 

on Traditional Fuels and Key Derivatives, which is located in the docket of today’s final rule. 

145 See “Technical Background Document for the Report to Congress on Removing Wastes from Fossil Fuel 

Combustion: Waste Characterization.” U.S.EPA. March 15, 1999. 

146 “Study on Increasing the Usage of Recovered Mineral Components in Federally Funded Projects Involving 

Procurement of Cement or Concrete to Address the Safe, Accountable, Flexible, Efficient Transportation Equity 

Act: A Legacy for Users. Report to Congress.” June, 3, 2008. EPA530-R-08-007. When analyzing perceived 

safety and health risk barriers associated with the beneficial use of recovered mineral components (including CCRs 
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The proposed rule also noted that the Agency is studying the possible effects of new air 

emission control technologies and configurations on the composition of CCRs and requested 

comment on whether advanced emission control technologies, such as carbon control 

technologies for mercury and NOx, are resulting or will result in increased levels of 

contaminants in coal ash to the extent that coal ash would not satisfy our legitimacy criteria. 

Comment: 

Almost all commenters agreed that the primary purpose when using CCRs in cement 

kilns was to utilize these secondary materials as ingredients. Most commenters further asserted 

that all CCRs, when used in combustion units, should always be classified as ingredients rather 

than as fuels. (See Section V.B.9 for a further discussion on this comment and the Agency’s 

response.) These commenters claimed that any energy value that is recovered is secondary to its 

value as an ingredient, and argued that classifying CCRs always as ingredients would simplify 

the waste determinations for these non-hazardous secondary materials by clearly establishing the 

appropriate legitimacy criteria that apply (i.e., facilities would not need to determine whether the 

fuel or ingredient legitimacy criteria apply based on the primary purpose of the secondary 

materials). 

Some commenters were also concerned that if cement kilns burned high-carbon content 

fly ash (which has more pronounced fuel content), the provisions of this rule applying to fuels 

would be triggered, even though these secondary materials have nearly identical characteristics, 

is managed in an identical manner, and is combusted in the same unit as the material used 

 

et al), this study concluded that “Findings from [several cited] analyses did not identify significant risks to human 

health and the environment associated with the beneficial uses of concern. In addition, [EPA] identified no 

documents providing evidence of damage to human health and the environment from these beneficial uses. Our 

overall conclusions from these efforts, therefore, are that encapsulated applications, including cement and concrete 

uses, appear to present minimal risk.” Id. at 4-11. 
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primarily as an ingredient (i.e., low-carbon content fly ash). 

 EPA’s Response: 

EPA agrees with the commenters that the primary purpose when using CCRs in cement 

kilns is to utilize it as an ingredient. However, we disagree with those commenters that argued 

that all CCRs, when used in combustion units, should be categorically defined as ingredients. As 

some commenters acknowledged (and as we also discussed in Section V.B.9 above), some CCRs 

are indeed used for their fuel value as opposed to their ingredient value, especially when reburned, as in the case of their use in combustion units by electric utilities. Therefore, we cannot 

categorically classify CCRs as ingredients when it is clear that, in some cases, these nonhazardous secondary materials are being burned for their fuel value and/or to produce a new 

secondary material (i.e., low-carbon fly ash). In cases where the primary purpose of using CCRs 

is for their fuel value and not for their ingredient value (e.g., by electric utilities), the secondary 

materials must meet the requirements for fuels, including the legitimacy criteria, in order not to 

be considered a solid waste. 

With respect to the issue of high-carbon fly ash burned in cement kilns, it is not clear the 

extent to which cement kilns burn high-carbon fly ash or rather if commenters were providing a 

hypothetical situation in order to highlight potential issues that could arise for secondary 

materials that could have value as both a fuel and ingredient. It is also unclear whether lowcarbon fly ash is required as a substitute ingredient in Portland cement or if cement kilns can also 

use high-carbon fly ash for its ingredient value. To the extent that these kilns are burning these 

secondary materials for their fuel value as opposed to their value as an ingredient, these 

secondary materials would be subject to the requirements for non-hazardous secondary materials 

used as fuels promulgated in today’s final rule. 
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We note other commenters who describe processes for removing unwanted carbon from 

fly ash in order to produce concrete quality fly ash (lower carbon content), which could suggest 

that cement kilns that burn high-carbon fly ash may be using these secondary materials for their 

fuel value, as well as their ingredient value. These commenters, however, discussed instances 

where fly ash was used as a fuel only in regards to its use in utility boilers and CBO units—

where there is clearly not an ingredient value, as is the case with burning fly ash in cement kilns. 

Comment: 

EPA received comments on the ANPRM stating that there are at least four patented 

processes for removing unwanted carbon from fly and bottom ash that allow the processed ash to 

produce both technically compliant ash for use in concrete and a separate carbon stream that can 

be re-introduced into the boiler for its fuel value. One electric utility, commenting on the 

proposed rule, also mentioned patented processes for using CCRs recovered from landfills. 

However, neither of these commenters provided specific details regarding how CCRs that are 

recovered from the discard environment are actually “processed.” One other commenter 

discussed a two-stage process to maintain low carbon content, but was not aware whether the 

material was used for concrete or clinker production. Another commenter argued that the same 

processes used for currently generated fly ash to separate high-carbon ash from mineral ash 

could be applied to reclaimed fly ash and produce similar secondary ingredients. This 

commenter argued that the processes produce two materials that are chemically distinct from the 

reclaimed fly ash and should therefore satisfy our proposed processing requirement. 

EPA’s Response: 

Unfortunately, EPA did not receive information during the comment period describing 

the types of processing that discarded CCRs undergo prior to being used as an ingredient in a 
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combustion unit and are, thus, unable to make a categorical determination whether the patented 

processes referenced in the proposed rule would meet the definition of processing being 

promulgated in today’s final rule. Although we did not receive new information regarding how 

CCRs are processed, we continue to believe, as we stated in the proposed rule, that certain 

processes are currently being utilized to recover CCRs from the discard environment that would 

likely meet our definition of “processing.” For example, we are aware of at least one electric 

utility that recovers ash from ponds or landfills and then separates this secondary material into its 

fundamental components: carbon, silicates, and high-density, iron-rich materials. A coarse 

carbon-fuel product is then recovered by density separation using concentrating spirals. A fine 

carbon-fuel product is also recovered with flotation cells.147 We believe that this type of 

processing is likely to meet our definition of processing, as it appears that these processes in fact 

remove contaminants and improve the ingredient characteristics of these recovered CCRs. 

 Comment: 

 As noted above, we solicited comments in the proposed rule regarding the extent to 

which CCRs are recovered from the discard environment and used as ingredients in cement 

kilns. We received a few comments regarding the extent to which CCRs are mined from 

landfills (i.e., recovered from the discard environment). Most of these comments did not specify, 

however, whether these recovered CCRs were subsequently used for their fuel or ingredient 

value. 

 EPA’s Response: 

 Based on the comments, it does not appear that it is a common practice for CCRs to be 

recovered from the discard environment (e.g., landfills) and beneficially used. We respond to 

 

147 See “Materials Characterization Paper on Coal Combustion Residuals-Coal Fly Ash, Bottom Ash, and Boiler 

Slag.” A copy of this document has been placed in the docket for today’s rule. 
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these comments in Section V.B.9 (Comments on Specific Materials Used as Fuel-Coal 

Combustion Residuals). 

Comment: 

Regarding the question of whether advanced emission control technologies are resulting 

or will result in increased levels of contaminants in CCRs, one commenter stated that there was 

no credible way to know or anticipate this information. Another commenter agreed, stating that 

there is no data and no way to predict the result of new or future technology on the character of 

fly ash because of the use of advanced pollution control technology. This commenter also notes 

that there is no current information available that has proven that advanced emission control 

technologies directly result in increased contaminant levels. 

One state commenter, however, stated that it expects the mercury content of coal fly ash 

to increase significantly in upcoming years. Consequently, this state commenter described its 

current efforts to remove a generic, pre-determined beneficial use determination for coal fly ash 

as an ingredient in cement manufacturing. Additionally, another commenter stated that when 

using the CBO process to combust fly ash, essentially 100 percent of the mercury entering the 

CBO unit as feed ash leaves with the product ash. 

EPA’s Response:

We agree with commenters who stated that it is difficult to anticipate what contaminant 

levels in coal fly ash will result from implementation of future technologies. We also believe, 

however, that it is important to be studying and anticipating the possible effects of new air 

pollution control (APC) technologies and configurations on the composition of CCRs to the 

greatest extent possible. As noted in the proposed rulemaking, EPA has begun publishing a 
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series of reports to analyze this issue further.148 Based on these reports, EPA believes that 

changes to APCs at coal-fired power plants (e.g., addition of flue-gas desulfurization (FGD) 

systems, selective catalytic reduction, and activated carbon injection to capture mercury and 

other pollutants) are shifting mercury and other pollutants (e.g., metals) from the flue gas to fly 

ash, FGD gypsum, and other APC residues. The Agency will continue to research the possible 

effects of APCs on contaminant levels in fly ash. We note that under today’s final rule, fly ash 

used as an ingredient would need to pass the contaminant legitimacy criterion for ingredients in 

order to not be considered a solid waste.149 

3. Foundry Sand. 

Foundry sand is an industrial material generated by the metal-casting industry, which 

uses the sand to form a physical mold used in the production of metal products. After multiple 

uses in castings, the sand becomes unsuitable for castings and is either disposed of in landfills or 

beneficially used in other applications, including use as an ingredient in the manufacture of 

Portland cement. The proposed rule classified foundry sand as not being a solid waste when 

used as an ingredient in a combustion unit, so long as it was not discarded in the first instance 

and satisfies the legitimacy criteria for ingredients. Whether foundry sand remains within the 

control of the generator or is transferred to another person is not in and of itself indicative of 

 

148 A series of reports have been and are being developed by U.S. EPA’s Office of Research Development. To date, 

three documents have been finalized, including: (1) “Characterization of Mercury-Enriched Coal Combustion 

Residuals from Electric Utilities Using Enhanced Sorbents for Mercury Control.” EPA-600/R-06/008. Feb. 2006; 

(2) “Characterization of Coal Combustion Residuals from Electric Utilities Using Wet Scrubbers for Multi-Pollutant 

Control.” EPA-600/R-08/077. July 2008; and (3) “Characterization of Coal Combustion Residuals from Electric 

Utilities Using Multi-Pollutant Control Technology – Leaching and Characterization Data.” EPA-600/R-09/151. 

December 2009. Ongoing work to complete this research includes: (1) probabilistic assessment of the leaching 

source term for plausible CCR management scenarios, (2) Leach-XS Lite which is free software providing 

electronic access to data from this research, and (3) test methods for the Leaching Environmental Assessment 

Framework (LEAF). 

149 We also note that CCRs used as fuels must also meet the contaminant legitimacy criterion in order not to be 

considered solid waste. 
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discard, as discussed previously. If foundry sand has been discarded, however, it would be 

considered a solid waste, unless it has been processed to produce a non-waste ingredient. 

 Comment: 

We received a few comments regarding the characterization of foundry sand in the 

proposed rule. One commenter discussed how foundry sand is reused in the metal casting 

process as part of its argument that foundry sand should not be considered a solid waste, citing a 

2001 letter from EPA which indicated that foundry sand reused on-site within the sand loop for 

mold making is part of a continuous industrial process and, therefore, not a solid waste.150 The 

same commenter also discussed how this sand can also be processed on-site in a thermal 

reclamation unit so that the sand can be returned to the mold- and core-making process. 

Commenters also discussed a variety of other beneficial uses for foundry sand. 

 EPA’s Response: 

The foundry sand uses evaluated as part of this rulemaking only include their use as an 

ingredient in combustion, such as cement kilns. We do not consider the reuse of foundry sand in 

the metal casting operations to constitute the use of a non-hazardous secondary material either as 

a fuel or ingredient in a combustion system, but rather as a type of beneficial use that is routinely 

employed by foundries in the production of metal products. As we stated in the referenced 2001 

letter, we continue to believe that foundry sands that are re-used on-site in the primary 

production process on a continuous basis in the sand loop are not solid wastes.151

We note, however, that the 2001 letter cited by one commenter explicitly states that the 

Agency is not addressing the status of any thermal processing of sand in the letter. It appears 

 

150 March 28, 2001 letter from Elizabeth Cotsworth, Director, EPA’s Office of Solid Waste to Ms. Amy J. 

Blankenbiller, American Foundry Society. A copy of this letter can be found in the docket to today’s rule. 151 For more information on the reuse of foundry sands as molds, see “Revisions to the Definition of Solid Waste” 

Final Rule at 73 FR 64705. October 30, 2010. 
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that the purpose of “processing” foundry sand in a thermal reclamation unit is to destroy or 

dispose of the contaminants so that the foundry sand can be re-used. As such, the burning of 

foundry sand in a thermal reclamation unit is burning for discard and, thus, would be considered 

a solid waste if combusted in such a unit, which would be subject to the section 129 CAA 

standards. Regarding comments that discussed other beneficial uses of foundry sand, we again 

note that this rule is limited to situations where the non-hazardous secondary material is used as a 

fuel or ingredient in a combustion unit and, as such, other examples of using foundry sand in 

other applications is beyond the scope of this rulemaking. 

4. Blast Furnace Slag/Steel Slag. 

Blast furnace slag and steel furnace slag (steel slag) are by-products of iron and steel 

manufacturing in both iron and steel mills. Slags are used as ingredients in cement clinker 

manufacturing, bituminous concrete, road building and construction, among other beneficial 

uses. The proposed rule indicated that blast furnace and steel slag used as ingredients in 

combustion units that are not discarded in the first instance would not be considered a solid 

waste provided they satisfy the legitimacy criteria for ingredients. Whether blast furnace and 

steel slag remains within the control of the generator or is transferred to another person is not in 

and of itself indicative of discard, as previously discussed. However, if blast furnace and steel 

slag are in fact discarded in the first instance, then they would have to be sufficiently processed 

into a non-waste ingredient that satisfies the legitimacy criteria in order to be classified as a nonwaste ingredient. However, we solicited comments on the level of processing that these 

materials undergo before determining whether such operations would meet our definition of 

processing. 

 Comment: 
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We received few comments specifically on blast furnace and steel slag. One commenter 

discussed the use of blast furnace slag as a raw material substitute in the glass manufacturing 

process. Another commenter discussed how blast furnace and steel slag are typically returned to 

the iron and steel making processes and are not discarded in the first instance. The same 

commenter also discussed slag piles that were previously discarded and the processing that these 

non-hazardous secondary materials go through. Specifically, such processing includes 

extraction, passing the slag through grizzlies, removal of iron bearing scrap using magnets, and 

then screening to size the aggregate. Some commenters also asserted that because these slags are 

reused as part of a continuous process, the application of the legitimacy criteria are inappropriate. 

 EPA’s Response: 

We agree with the commenters that blast furnace and steel slag that are reused as an 

ingredient, either in the iron and steel making processes or in the manufacturing of glass, are not 

solid wastes provided they have not been discarded in the first instance and meet the legitimacy 

criteria. However, we disagree with the commenters, who argued that because they are reusing 

these slags in a “continuous process,” the application of the legitimacy criteria do not apply. 

EPA has a long-standing policy that the recycling of secondary materials, both hazardous and 

non-hazardous, including as part of a continuous industrial process, must be legitimate. The 

legitimacy provisions in today’s rule are designed to distinguish between real recycling activities 

and “sham” recycling, an activity undertaken by an entity to avoid certain requirements, which in 

this case would be to avoid triggering the section 129 CAA requirements for solid waste 

incinerators. Because of the economic advantages in managing the non-hazardous secondary 

material as a non-waste ingredient as opposed to a solid waste ingredient, there is an incentive 

for some handlers to claim they are recycling, when, in fact, they are conducting waste disposal. 
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Therefore, blast furnace and steel slag used as an ingredient in a combustion unit, including as 

part of a continuous industrial process, must satisfy all of the legitimacy criteria in order to not 

be considered a solid waste. 

 Regarding the description provided by the commenter on the extent of processing 

conducted on slags that have been previously discarded, it appears that this level of processing 

would meet our definition of processing, as the processing includes not only rigorous operations 

to extract the slag from the discard environment, but also the concerted removal of constituents 

through magnetic separation. Assuming the processed slag meets the legitimacy criteria for 

ingredients, the slag resulting from the processing operation would constitute a non-waste 

ingredient and would not be considered a solid waste. 

D. Comments on Legitimacy Criteria for Fuels

Non-hazardous secondary materials used as fuels in combustion units must meet the 

legitimacy criteria specified in §241.3(d)(1) in order to be considered a non-waste fuel. To meet 

the fuel legitimacy criteria, the non-hazardous secondary material must be managed as a valuable 

commodity, have a meaningful heating value and be used as a fuel in a combustion unit that 

recovers energy, and contain contaminants at levels comparable to or lower than those in 

traditional fuels which the combustion unit is designed to burn. Details on each criterion as 

outlined in the proposed rule and the comments received are discussed below. 

1. Managed as a Valuable Commodity. 

 Under the proposed rule, non-hazardous secondary materials used as fuels must be 

managed as valuable commodities, including being stored for a reasonable time frame. Where 

there is an analogous fuel, the secondary material used as a fuel must be managed in a manner 

consistent with the management of the analogous fuel or otherwise be adequately contained so as 
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to prevent releases to the environment. Where there is no analogous fuel, the secondary material 

must be adequately contained so as to prevent releases to the environment. An “analogous fuel” 

is a traditional fuel for which the non-hazardous secondary material substitutes, and which serves 

the same function and has similar physical and chemical properties as the non-hazardous 

secondary material. n addition to requesting comment on this criterion, the Agency solicited 

comment on whether it should define a specific “reasonable” time frame or range of time frames 

for storage as part of this criterion and on the time period or range of time periods that traditional 

fuels are typically held before they are used as a fuel. Comment was also solicited as to whether 

the “contained” standard, which is a general performance standard, provides sufficient direction 

to the regulated community or whether the Agency should include specific technical standards or 

limit the types of units in which such non-hazardous secondary materials may be managed, in 

order for them to be considered to be “managed as a valuable commodity.” 

 Comment: 

Recommendations on a reasonable time frame to determine if a non-hazardous secondary 

material is managed as a valuable commodity brought a range of responses. Many commented 

that a one-rule-fits-all policy for the reasonable time frame of storage of secondary materials is 

impractical and arbitrary, since the definition of what is “reasonable” will vary by secondary 

material, industry, and facility. Instead, they argued that facilities should be allowed to 

determine what constitutes the most reasonable time frame, based on what is most economical. 

The most appropriate time frame will vary depending upon the non-hazardous secondary 

material and the industry and may reflect the rate at which the non-hazardous secondary material 

at issue is generated. If a non-hazardous secondary material is generated continuously, then use 
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and storage is predictable and can be kept consistent. However, some non-hazardous secondary 

materials are stored for long periods and may be removed only once or twice per year. 

 While many commenters rejected the idea of a specific storage time limit, a limited 

number were supportive of such an approach. For example, one commenter recommended that 

no more than 180 days of inventory using the design process rate be stored at any given time and 

no more than 49 percent of the inventory be in storage for more than 2 years. These time frames 

allow the energy/material recovery facility a reasonable amount of time to make arrangements to 

establish, buy, and sell the non-hazardous secondary material. Other commenters recommended 

a time frame of one year, consistent with the hazardous waste requirements for speculative 

accumulation. 

 EPA’s Response: 

 After further evaluation, EPA agrees with the majority of commenters that “reasonable 

time frame” should not be specifically defined as such time frames vary according to the nonhazardous secondary material and industry involved. We believe that “reasonable time frame” is 

an appropriate standard considering the large number of non-hazardous materials that may be 

subject to this rule, and is flexible enough to allow accumulation of these materials to be costeffective. The Agency did not receive information that such flexibility would lead to nonhazardous secondary materials being over-accumulated. 

Comment: 

The Agency solicited comment on this aspect of this criterion, including whether a 

“contained” standard, which is a general performance standard, provides sufficient direction to 

the regulated community. Other approaches that EPA considered was providing a more specific 

definition of “contained” in the rules, or including specific technical standards or limiting the 
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types of units in which such non-hazardous secondary materials may be managed, in order for 

them to be considered to be “managed as a valuable commodity.” 

 Several commenters recommended that the definition of “contained” be clarified and to 

include the concept of maintaining the recyclability of the non-hazardous secondary material. 

Other commenters, on the other hand, stated that the proposed “contained” standard provides 

sufficient direction to the regulated community and that the definition of “contained” in the 

proposed rule adequately describes how and when a non-hazardous secondary material will be 

considered “contained.” They asserted that industry will use this definition as a general 

guideline for the safe handling and storage of non-hazardous secondary materials and that further 

specific definitions or other approaches would not be beneficial since the current guidance 

provides clear and sensible direction. 

 Others commented that the “contained” standard is inadequate to determine whether a 

material is “valuable” or discarded. They argue that the standard does not explain what 

adequately contained means nor does it account for differences in the necessary level of 

containment for different materials. 

 EPA’s Response: 

 The Agency recognizes that the “contained” concept can be somewhat difficult to grasp, 

but also notes that the “contained” standard is to be used only in those situations where there is 

not an analogous fuel product. That is, if there is an analogous fuel product to the non-hazardous 

secondary material, then the non-hazardous secondary material must be stored in a similar 

manner. In EPA’s view, a recycler will value non-hazardous secondary materials that are 

contributing fuel value to its process or product and, therefore, will manage those non-hazardous 

secondary materials in a manner consistent with how it manages a valuable fuel. If, on the other 
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hand, the recycler does not manage the non-hazardous secondary materials as it would a valuable 

fuel, that behavior may indicate that the non-hazardous secondary materials may not be burned 

as fuel, but rather released into the environment and discarded. This criterion's primary focus is 

on storage in a manner consistent with the analogous raw material. However, EPA realizes that 

in some processes, there is not a raw material that can be called “analogous” and, in order to 

allow facilities with those processes to evaluate the legitimacy of their recycling, EPA added the 

requirement that the materials be “contained” if there is no analogous product to achieve the 

same relative standard of secondary materials being managed as valuable commodities. 

Furthermore, EPA has explained what it means to be contained in today’s preamble and includes 

that definition in the regulatory text. Specifically, a non-hazardous secondary material is 

“adequately contained” if it is stored in a manner that adequately prevents releases or other 

hazards to human health and the environment, considering the nature and toxicity of the 

secondary material. Thus, we are finalizing the contained standard, as proposed. 

 Nevertheless, the Agency recognizes that providing greater clarity to this definition may 

be useful to the regulated community and the public. To this end, EPA has agreed to issue a 

proposed rule by June 2011 on the definition of solid waste under the hazardous waste provisions 

of RCRA (see Section VIII.C for additional details). One of the issues that EPA will be 

evaluating as part of that proposal is the “contained” standard, as promulgated in that rule.152 

Comment: 

 

152 In a Federal Register notice where EPA announced a public meeting on the Definition of Solid Waste under the 

hazardous waste provisions of RCRA, we specifically identified the definition of “contained” as one of the 

provisions that EPA was further evaluating. (74 FR 25202, May 27, 2009.) Among other things, the Agency noted 

that it could “address this issue by setting specific performance or storage standards as a condition of the transferbased exclusion. Finally, EPA could address this concern by developing more detailed guidance on what might 

constitute “contained,” for different types of units or management practices.” 
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Several commenters expressed uncertainty about the meaning of “valuable commodity,” 

noting that the definition of valuable commodity should be clarified, or requested that EPA 

specify clear criteria for determining whether a non-hazardous secondary material is managed as 

a valuable commodity. 

 EPA’s Response: 

Given the nature of this legitimacy criterion and the need to apply it to a variety of nonhazardous secondary materials that are managed in various ways, we do not believe it is 

appropriate or practicable for EPA to develop specific technical standards. The Agency is using 

this criterion: materials must be managed as analogous raw materials or, if there are no 

analogous raw materials, the materials must be adequately contained; contained is defined to 

mean “the non-hazardous secondary material is stored in a manner that both adequately prevents 

releases or other hazards to human health and the environment considering the nature and 

toxicity of the non-hazardous secondary material.” We believe that this definition provides 

ample direction and guidance, as a number of commenters argued, while at the same time 

provides the flexibility needed since this criterion will apply to a large number of non-hazardous 

secondary materials and industries. An example of adequate containment is resinated wood 

residuals that are pneumatically transferred through enclosed ducts, stored temporarily in a fuel 

silo, and then utilized in boilers to provide heat to hot presses and dryers (see Section V.B.6). 

Regarding the term “valuable commodity,” EPA’s intent with this criterion is that nonhazardous secondary materials are managed in the same manner as materials that have been 

purchased or obtained at some cost, just as fuels or raw materials are. We expect non-hazardous 

secondary materials that are used as fuels or ingredients to be managed effectively and efficiently 

in order that their full value to the combustion process is realized. We believe that the standard 
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for management of the non-hazardous secondary materials is reasonable for helping assess 

whether disposal in the guise of normal manufacturing is occurring. 

Materials managed as a valuable commodity include whole tires collected under the 

oversight of established tire collection programs (see Section VII.C) These programs promote 

the beneficial use of scrap tires and form established collection infrastructures through 

coordination with tire dealerships, haulers, processors and end users. 

Comments: 

One commenter suggested that the tests to determine if a material is managed as a 

valuable commodity (determining if it is managed consistent with the management of an 

analogous ingredient and used within a reasonable time frame) are irrelevant because solid 

wastes are managed in ways similar to commodities (i.e., solid wastes and solid commodities are 

stored in piles on the ground, liquid wastes and commodities are stored in tanks and barrels). 

Another commenter asked that EPA provide clarity on managing a non-hazardous secondary 

material as a valuable commodity and the kinds of practices a facility must implement to 

demonstrate that it is managing the non-hazardous secondary material as a valuable commodity. 

EPA’s Response: 

We disagree with the commenter that this criterion is irrelevant because we do not 

believe (nor does our experience suggest) that solid wastes and commodities are always managed 

in a similar manner. Commodities, on the one hand, are handled specifically to prevent the loss 

of material because of its value. Solid wastes, on the other hand, when they are not highly 

regarded for a beneficial reuse, are often not managed in a way that minimizes the release of the 

material itself, but more in a way that protects the surrounding environment from the material. 

However, we also know that solid wastes, if not properly managed, have created damages to the 
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environment. For example, the over-accumulation of scrap tires is well known and has resulted 

in massive piles of discarded tires that have contributed to the overall solid waste management 

problem due to the threat of fires, such as the Rhinehart Tire Fire Dump,153 and because they 

provide an ideal breeding ground for mosquitoes and rodents. 

Thus, the final rule will retain the proposed approach that non-hazardous secondary 

materials used as a fuel must be managed in a manner consistent with the management of an 

analogous fuel (where there is an analogous fuel), or otherwise be adequately contained so as to 

prevent releases to the environment. 

2. Meaningful Heating Value and Use as a Fuel. 

Under the proposed rule, the non-hazardous secondary material must have a meaningful 

heating value and be used as a fuel in a combustion unit that recovers energy. In addition to 

requesting comment on this criterion, the Agency also requested comment on whether it should 

promulgate a bright-line test for determining what is considered a meaningful heating value in an 

effort to provide greater certainty to both the regulated community and regulatory officials. For 

example, the Agency could establish 5,000 Btu/lb or some other value as the bright-line test. In 

addition, EPA requested comment on whether we should identify a Btu/lb cutoff below which 

the Agency would declare that the non-hazardous secondary material is being burned for 

destruction as opposed to energy recovery. Under this approach, non-hazardous secondary 

materials between this lower level and 5,000 Btu/lb (assuming there is a difference) could pass 

this criterion provided the facility demonstrates the energy recovery unit can cost-effectively 

recover meaningful energy from the non-hazardous secondary materials used as fuels; below this 

 

153 See 51 FR 21054, June 10, 1986. 
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lower level, all non-hazardous secondary materials that are burned in a combustion unit would be 

considered to be burned for destruction and thus a solid waste if combusted. 

 Comment: 

 Many comments related to the establishment of a Btu threshold claimed that any heating 

value is “meaningful.” Other commenters expressed opposition to the imposition of a bright-line 

test, with one commenter arguing that inflexible Btu/lb cutoffs, as well as "benchmark" values 

could prevent utilities and other industries from using alternative fuels to recover energy. 

Another commenter echoed opposition to a bright-line test since the use of a non-hazardous 

secondary material with any heating value reduces the use of fossil fuels, indicating that any 

value for the bright line test would be arbitrary and would result in costly impacts to current 

production systems and would stifle technological advancements in combustion unit designs. 

 Other commenters stated that a minimum heating value, below which the non-hazardous 

secondary material would not be considered to have a meaningful heating value will restrict the 

marketplace, hamper advances and innovation in energy recovery, and add costs where they are 

not justified from an environmental standpoint. If the EPA insists on a minimum heating value, 

they recommend including a cost effectiveness provision in the rule that would enable facilities 

to demonstrate the value of using a material below this threshold. 

 Commenters from state agencies differed somewhat in their positions regarding the 5,000 

Btu/lb threshold. Two state agencies requested that EPA lower the minimum Btu threshold from 

5,000 Btu/lb to 4,000 Btu/lb, but another State agency supports the 5,000 Btu/lb threshold. Still 

another state commenter recommends that if EPA establishes a lower threshold, below which the 

non-hazardous secondary material would not be considered to have a meaningful heating value, 

that this value be based on innovation in energy recovery technologies from secondary materials 
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with lower heating values. Due to the continuing evolution of energy recovery technologies, this 

commenter argues that EPA should include a "safe harbor" cut-off level in the rule with a 

provision for case-by-case approvals based on the most current proven technology. Another 

commenter recommends that if such a lower threshold is established, that it be based on the high 

moisture content of wood products that prevent these materials from reaching the minimum 

5,000 Btu/lb threshold. 

 EPA’s Response: 

After further evaluation, the Agency agrees with commenters that imposition of a strict 

bright-line test for minimum heating value could hamper advances and innovation in energy 

recovery, and add costs where they are not justified. The Agency did not receive persuasive 

information, however, that a lower than 5,000 Btu/lb threshold, or entirely eliminating the 

threshold, would be an appropriate measure in establishing this legitimacy criterion. 

As discussed in the proposed rule, the concept of a 5,000 Btu/lb benchmark was 

addressed in the “comparable fuels” rule (63 FR 33781) for hazardous secondary materials. EPA 

had previously stated that industrial furnaces (i.e., cement kilns and industrial boilers) burning 

hazardous wastes with an energy value greater than 5,000 Btu/lb may generally be said to be 

burning for energy recovery; however, hazardous wastes with a lower Btu content could 

conceivably be burned for energy recovery due to the devices’ general efficiency of combustion. 

EPA, however, is trying to avoid sham situations where non-hazardous secondary materials with 

low Btu value are burned for destruction in lieu of proper disposal. 

The 5,000 Btu/lb limit is a general guideline, which is being adopted in this final rule, but 

allows some flexibility. To allow such flexibility for facilities with energy recovery units that 

use non-hazardous secondary materials as fuels with an energy content lower than 5,000 Btu/lb, 
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as fired, a person may demonstrate (see Section VII.I Determining That Non-Hazardous 

Secondary Material Meets the Legitimacy Criteria) that a meaningful heating value is derived 

from the non-hazardous secondary material if the energy recovery unit can cost-effectively 

recover meaningful energy from the non-hazardous secondary materials used as fuels. Factors 

that may be important in determining whether an energy recovery unit can cost-effectively 

recover energy from the non-hazardous secondary material include, but are not limited to, 

whether the facility encounters a cost savings due to not having to purchase significant amounts 

of traditional fuels they otherwise would need, whether they are purchasing the non-hazardous 

secondary material to use as a fuel, whether the non-hazardous secondary material they are 

burning can self-sustain combustion, and whether their operation produces energy that is sold for 

a profit (e.g., a utility boiler that is dedicated to burning a specific type of non-hazardous 

secondary material that is below 5,000 Btu/lb could show that their operation produces electricity 

that is sold for a profit). 

3. Have Contaminants at Comparable Levels or Lower Than Traditional Fuels. 

 Under the proposed rule, non-hazardous secondary materials must contain contaminants 

at levels comparable or lower than those in traditional fuels which the combustion unit is 

designed to burn. Such comparison is to be based on a direct comparison of the contaminant 

levels in the non-hazardous secondary material to the traditional fuel itself. Contaminants were 

defined under the proposal as any constituent in non-hazardous secondary materials that will 

result in emissions of the air pollutants identified in CAA section 112(b), and the nine pollutants 

listed under CAA section 129(a)(4) when such secondary materials are burned as a fuel or used 

as an ingredient, including those constituents that could generate products of incomplete 

combustion. 
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The Agency specifically solicited comments on how EPA should interpret the 

“comparable to or lower than” standard. For example, should comparable mean the same as or 

lower, taking into consideration natural variations in sampling events? Also, instead of requiring 

that contaminant levels in non-hazardous secondary materials be comparable to traditional fuels, 

the Agency also requested comment as to whether to adopt a “not significantly higher” 

standard—that is, contaminants in non-hazardous secondary material used as a fuel in 

combustion units could not be significantly higher in concentration than contaminants in 

traditional fuel products. 

 The Agency also solicited comment on whether the comparison should be based upon the 

total level of contaminants, or on the level of contaminants per Btu of heat value, whether the list 

of contaminants should be narrower or broader, or whether the Agency should look at other 

possible lists. For example, since the Agency is determining which non-hazardous secondary 

materials are considered solid waste under RCRA, the Agency could consider the list of 

hazardous constituents promulgated in Appendix VIII of 40 CFR part 261, which is a list of 

hazardous constituents that have been shown in scientific studies to have toxic, carcinogenic, 

mutagenic or teratogenic effects on humans and other life forms. Finally, comment was solicited 

as to whether the comparison should be based on an established “bright line” level of 

contaminants to those contained in traditional fuels. 

 Comment: 

 Several commenters addressed the “comparable” standard and the “not significantly 

higher” standard. Many of these comments stated that “comparable” should be understood to 

mean “similar, higher or lower,” not “equal” or the “same.” Commenters also requested that 

EPA clarify the definition of “comparable” and specifically requested that EPA explain the 
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concept in greater detail. Of the comments that expressed a preference for either the 

“comparable” or “not significantly higher” standard, most preferred the latter, stating that it is 

more consistent with the approach used by EPA for hazardous waste in the 2008 DSW Final 

Rule and would not discourage beneficial use as much as the “comparable” standard. Two other 

commenters argued that instead of using a “not significantly higher” standard, the total 

environmental impact of using a non-hazardous material should be considered. For example, a 

non-hazardous secondary material may be lower in all contaminants, except one that may be 

considered higher than “comparable,” but the overall impact is beneficial in terms of less total 

contaminants and improved emissions. 

 Other commenters offered suggestions on how to interpret “comparable,” but also on 

how to implement the “comparable” standard. For example, “comparable” should refer to the 

traditional fuel that would be used if the non-hazardous secondary material was not being burned 

or allowed to be burned. Another commenter believed that the “comparable” standard should 

only be used as an initial step to determine if the material is a legitimate fuel. For example, 

where a material has high levels of a low-impact contaminant or a contaminant is controlled by 

the emission control device in the incineration unit, there should be a process to see whether the 

material can still be considered a fuel. Similarly, another commenter also recommended using 

the “comparable” standard as an initial determination step, with the “not significantly higher” 

standard being used as a secondary determination step in some situations. These situations 

would primarily be when there is a low-impact contaminant without environmental, health, or 

product quality impacts present in concentrations above those found in traditional raw materials. 

 EPA’s Response: 
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EPA has retained the legitimacy criterion that non-hazardous secondary materials used as 

a fuel must contain contaminants at levels that are comparable to or lower than the 

concentrations found in traditional fuels which the combustion unit is designed to burn. The 

“comparable to or lower than” standard means any contaminants present in non-hazardous 

secondary materials that are within a small acceptable range, or lower than, the contaminant in 

the traditional fuel. We have decided to select this standard since we believe it more closely 

reflects EPA’s intent with respect to this legitimacy criterion than the phrase “not significantly 

higher,” which suggests that contaminants can be present in non-hazardous secondary materials 

at levels that could reflect discard, especially since we are addressing non-hazardous secondary 

materials that are being combusted. 

EPA recognizes that combustion is an inherently destructive process, even when energy 

is recovered. If a non-hazardous secondary material contains contaminants that are not 

comparable to those found in traditional fuels, and those contaminants are related to pollutants 

that are of concern at solid waste combustion units, then it follows that discard is occurring. 

The contaminants in these cases could not be considered a normal part of a legitimate fuel and 

are being discarded, either through destruction in the combustion unit or through releases into the 

air. Units that burn such materials are therefore most appropriately regulated under CAA 129 

standards for solid waste incinerators. 

 In response to those commenters requesting further guidance on how to interpret the 

“comparable to or lower than” standard, the following examples are provided. 

• A non-hazardous secondary material contains 500 parts per million (ppm) of lead, while 

the traditional fuel that would or could be burned in the combustion unit contains 475 

ppm of lead. These levels would be considered comparable (since it falls within a small 
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acceptable range) and thus, would meet this factor. If, on the other hand, the level of lead 

in the non-hazardous secondary material was 1,000 ppm, these levels would not be 

comparable and it may indicate that the non-hazardous secondary material was being 

burned to dispose of the material and that the activity is sham recycling. 

• A traditional fuel contains no detectable amounts of barium, while the non-hazardous 

secondary material contains a minimal amount of barium (e.g., 1 ppm). In this situation, 

the levels would be considered comparable since it falls within a small acceptable range. 

If, however, the barium were at much higher levels in the non-hazardous secondary 

material (such as 50 ppm), the levels would not be comparable and it may indicate 

discard of the barium and sham recycling 

EPA does not agree with those commenters who suggest that in evaluating the constituent 

concentrations in non-hazardous secondary materials, that the total environmental impact should 

be considered rather than comparing each constituent to levels found in traditional fuels. Under 

such an approach, a non-hazardous secondary material may be judged not to present an 

environmental problem when assessing all contaminants together, although significantly higher 

levels for one or more contaminants may be present such that they are destroyed or discarded by 

means of combustion This, we believe, is inconsistent with the concept of discard under the 

statute, since it would allow a solid waste to be subject to the CAA section 112 standards, even 

though the non-hazardous secondary material has been discarded. Therefore, the Agency will 

finalize the proposed approach of evaluating all of the contaminants to ensure that they are 

present in the non-hazardous secondary material at levels that are comparable to (or lower than) 

the concentrations found in traditional fuels that the combustion unit is designed to burn. 

Comments: 
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 Many comments discussed whether contaminants, and their concentrations in the nonhazardous secondary material, should have any bearing on the legitimacy determination for a 

given non-hazardous secondary material. Many of these commenters expressed opposition to 

using contaminants, and their concentrations in the non-hazardous secondary, as a basis for 

legitimacy decisions. Some of these commenters argued that comparing contaminant levels 

would impose an unnecessary burden on emissions sources that are already stringently controlled 

under the CAA regulations. Other comments indicate that it would be more appropriate to 

compare emissions profiles from the combustion units rather than contaminant levels in the nonhazardous secondary materials themselves using the CAA section 129 pollutant list and the 112 

HAP list. Referring to existing stack testing data and risk assessment performed by the cement 

industry, the commenter states that “it is accepted that organics in fuels do not survive intact to 

exit a cement kiln or cause harm to human health and the environment. In addition, stack testing 

comparing different fuels (tires, waste-derived fuel, coal, coke, etc) on a single kiln system under 

normal operating conditions supports the same conclusion.” 

 States offered a range of comments on this issue. One state contends that using the list of 

contaminants in CAA section 129(a)(4) is inadequate because it does not address all heavy 

metals or organic hazardous air pollutants. Another commenter argued that while section 112 of 

the CAA and Appendix VIII of 40 CFR part 261 would be impractical if parameter testing was 

required, the Appendix VIII list of constituents in 40 CFR part 261 would serve as a useful 

starting point for evaluating different issues related to those contaminants. 

 Other commenters suggested that EPA narrow the list of contaminants considered in the 

legitimacy criteria. One commenter recommends that those constituents that contribute to the 

secondary material’s value as a fuel be excluded from the contaminant list. Another commenter 
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states that the list of contaminants should be limited to only the subset of HAPs and pollutants 

listed in CAA section 129 that have the potential of being present in the emissions from burning 

the non-hazardous secondary materials. Broadening the list and requiring the evaluation and 

analysis of more constituents would be unnecessary and a waste of resources. The commenter, 

therefore, recommends that the list of contaminants be limited to only those pollutants found in 

section 112 of the CAA. Furthermore, this commenter argued that organic HAP do not need to 

be included in the legitimacy criteria because the rule is intended to define which non-hazardous 

secondary materials are non-wastes, as opposed to which HAP emission standards should be 

developed. The commenter further notes that the Boiler and Process Heater MACT will ensure 

that the organic HAP are properly controlled. 

 EPA’s Response: 

EPA is defining the term “contaminant,” in part, (see discussion of pathogens below), as 

constituents that will result in emissions of the air pollutants identified in CAA section 112(b) 

and the nine pollutants listed under CAA section 129(a)(4))when such non-hazardous secondary 

materials are burned as a fuel or used as ingredients, including those constituents that could 

generate products of incomplete combustion. 

. EPA believes that these constituents are appropriate for the comparisons required by this 

criterion because these are the contaminants identified in the CAA that are to be considered by 

EPA in evaluating which contaminants to establish emission standards. Thus, we disagree with 

those commenters who believe that the list should be narrowed, including the commenter who 

argued that those contaminants that contribute to the material’s value as a fuel be excluded from 

the list of contaminants, as well as all organic HAP since they will be burned during the 

combustion process. Because EPA is to consider these contaminants as part of the CAA 
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regulations, we believe they should also be considered in determining whether non-hazardous 

secondary materials that contain these contaminants are being discarded, and thus, subject to the 

section 129 CAA standards. 

 We also disagree with the commenter who argues that the list is not broad enough 

because it does not address all heavy metals or organic hazardous pollutants for the same reasons 

described above—that is, we should be focusing, in general, on those contaminants identified in 

the CAA that EPA will be evaluating to determine whether to establish emission standards. .The 

Agency also does not believe that Appendix VIII to 40 CFR Part 261 is an appropriate list for 

determining which contaminants to consider for the purposes of defining non-hazardous solid 

waste, since the purpose of Appendix VIII is to be used by the Agency to make hazardous waste 

listing determinations (see 40 CFR 261.11(a)(3)) and the chemicals in Appendix VIII would not 

apply to non-hazardous wastes. 

 Finally, we disagree with those commenters who argue that we should not be considering 

the contaminants in the non-hazardous secondary materials themselves as part of the legitimacy 

criteria, but, if considered necessary, compare the emissions profiles from the combustion units. . 

We believe that in order for a non-hazardous secondary material to be considered a non-waste 

fuel, it must be similar in composition, whereas comparing the emissions profiles between 

combustion units that burn traditional fuels and non-hazardous secondary materials only tells one 

how well the combustion unit is operating, not what the material is that is being burned. Thus, 

while the Agency recognizes that such data can be useful in determining whether or not burning 

such material presents a risk to human health or the environment, we believe it says nothing in 

terms of whether or not the non-hazardous secondary material is a legitimate non-waste fuel. 

Comment: 
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 Although not specifically commenting on the legitimacy criterion for contaminants or the 

type of contaminants listed in the contaminant definition, the Agency received several comments 

that pathogens were present in both manure and sewage sludge. The Agency received specific 

monitoring data confirming the presence of pathogens in certain varieties of chicken litter (see 

discussion of manure in Section V.B.2). Pathogens were not included in the definition of 

contaminants in the proposed rule. 

 EPA’s Response: 

As noted above, EPA, in general, believes that the list of contaminants to be evaluated in 

determining whether or not a non-hazardous secondary material is a solid waste are those 

identified in CAA section 112(b) and the nine pollutants listed under CAA section 129(a)(4) that 

may result in emissions of air pollutants when such non-hazardous secondary materials are 

burned as a fuel or used as ingredients, including those constituents that could generate products 

of incomplete combustion. However, we believe that pathogens is a special case and should be 

added to the list of contaminants because it is most likely that any pathogens that may be present 

in the non-hazardous secondary material will be destroyed, and thus discarded (such discard 

could be considered “sham recycling” as discussed in IV.D.4) ” . Pathogens are organisms or 

substances capable of causing disease, and can infect humans through several different pathways 

including ingestion, inhalation, and dermal contact.154 

EPA is not aware of any situation where pathogens in the non-hazardous secondary 

material would provide energy recovery or be used as an ingredient—that is, we believe that 

pathogens in such non-hazardous secondary materials would always be destroyed. Thus, 

 

154 See Environmental Regulations and Technology: Control of Pathogens and Vector Attraction in Sewage Sludge 

(Including Domestic Septage) Under 40 CFR Part 503, EPA 2003. EPA/625/R-92/013. Revised July 2003. 
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because non-hazardous secondary materials that contain pathogens could cause disease and 

infect humans and wildlife if not properly burned, we believe it is appropriate to include 

pathogens on the list of contaminants to consider in addressing the legitimacy criteria. 

Comment: 

 Some commenters believed the approach of measuring contaminants per Btu was more 

scientifically sound, while one commenter argued that comparisons of contaminants should focus 

on the loading of contaminants to the process rather than concentrations, which they believe is 

similar to measuring contaminants per Btu in ingredients. For example, the commenter indicates 

that coal fly ash is utilized in place of bauxite in cement manufacturing. Because coal fly ash 

may contain only 20 percent of the alumina found in bauxite, the process requires five times 

more coal fly ash than alumina for a given quantity of cement product. Under this scenario, even 

if coal fly ash contains a mercury concentration comparable to bauxite, the loading of mercury to 

the combustion unit would be five times higher than that if traditional feedstock was used. The 

commenter maintains that the rule should be changed to require a comparison of loading rates 

rather than concentrations. 

 Another commenter argues that any comparison between contaminant levels in the nonhazardous secondary material and contaminant levels in traditional fuels should consider the 

entire characteristics of the material. Some non-hazardous secondary materials may have high 

concentrations of some constituents and low concentrations of others, relative to traditional fuels. 

Thus, decisions regarding legitimacy will not always be clear cut and the overall characteristics 

need to be considered qualitatively. In addition, given the variability of constituent 

concentrations in traditional fuels and non-hazardous secondary materials, solid waste 

determinations which requires a comparison, should allow for such variability in a reasonable 
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manner. The commenter supports the method that looks at constituent concentrations (e.g., 

percent by weight or ppm by weight) as a reasonable approach that limits the impact of 

variability, whereas using lb/MMBtu compounds the impacts of variability. Since either the 

Boiler/Process Heater MACT or CISWI rule will adequately limit emissions from combustion of 

the non-hazardous secondary materials, there is no justification for evaluating contaminant 

comparisons on a heating value basis. 

 EPA’s Response: 

The Agency agrees with commenters that a lb/MMBtu approach can serve to normalize 

contaminant concentration comparisons across a range of material loading scenarios. At this 

time, however, the Agency lacks sufficient lb/MMBtu information for all non-hazardous 

secondary materials under consideration. Accordingly, this approach is not being adopted for 

today’s final rule. As guidance is developed for implementation, a lb/MMBtu approach may be 

further considered. Thus, in today’s final rule, the assessment of whether the nonhazardous 

secondary material has contaminants comparable to traditional fuel products is to be made by 

directly comparing the numerical contaminant levels in the non-hazardous secondary material to 

the contaminant levels in traditional fuels based on the total level of contaminants, and not on 

contaminants per Btu of heat value. We believe this approach is most appropriate because 

contaminant information is readily available to the respondent. 

We disagree with the commenters that comparison between contaminant levels in the 

non-hazardous secondary material and contaminant levels in traditional fuels should consider the 

entire characteristics of the material and that the comparisons must recognize the variability in 

constituent concentrations in the materials. Again, such as approach would suggest that 

contaminants can be present in non-hazardous secondary materials at levels that are not 
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comparable in concentration to those contained in traditional fuel products, resulting in 

contaminants being combusted as a means of discarding them. 

 Comment: 

 Commenters disagreed about whether to implement a bright-line test for contaminants. 

One commenter supports the delineation of contaminant levels that would apply regardless of the 

type of traditional fuel burned, while another commenter maintains that it would not be 

appropriate to compare contaminant concentrations between non-hazardous secondary materials 

and traditional fuels based on a bright line approach. Another commenter states that the need to 

classify non-hazardous secondary materials as waste or non-waste may dictate the need for a 

bright line test rather than emissions testing from combustion units, given that emissions controls 

and limits are established in permits. Other commenters also disagreed with the establishment of 

a bright-line level comparison, with one commenter objecting to the establishment of any other 

contaminant level comparison, arguing that such a comparison would provide no benefit to the 

regulated community and arbitrarily assigns levels of contaminants without accounting for 

differences in materials and/or facilities. 

 EPA’s Response: 

EPA recognizes that the “bright line” approach may provide greater clarity and 

predictability to the regulated community, but that in both cases, the Agency would have to 

establish a line for what is acceptable and the line may either be somewhat arbitrary or it may 

exclude materials that, if carefully considered, should be considered legitimate. Based on the 

comments received on those approaches, we are convinced that they would not be workable. On 

the other hand, case-by-case comparisons by each person evaluating this legitimacy criterion can 

take into account the wide variety of non-hazardous secondary materials, as well as the 
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appropriate traditional fuel to which it is being compared. Because this factor must apply to 

various different recycling activities and industries, we believe the case-by-case approach is most 

appropriate. 

E. Comments on Legitimacy Criteria for Ingredients

In the proposed rule, non-hazardous secondary materials used as an ingredient in 

combustion units must meet the legitimacy criteria specified in 241.3(d)(2) in order to be 

considered a non-waste ingredient. To meet the ingredient legitimacy criteria, the non-hazardous 

secondary material must be handled as a valuable commodity, must provide a useful contribution 

to the production or manufacturing process, must be used to produce a valuable product or 

intermediate, and must result in products that contain contaminants at levels that are comparable 

in concentration to or lower than those found in traditional products that are manufactured 

without non-hazardous secondary materials. 

1. Managed as Valuable Commodities. 

Because the criterion “managing as a valuable commodity” for non-hazardous secondary 

materials used as an ingredient (storage not exceeding reasonable time frames, manage it 

consistent with an analogous ingredient or adequately contain to prevent release) are the same as 

those for non-hazardous secondary materials used as a fuel, EPA indicated that if changes are 

made to the criteria with respect to those non-hazardous secondary materials that are used as 

fuels, we would likewise make the same changes with respect to those non-hazardous secondary 

materials used as ingredients. We did solicit comments, however, on whether using these criteria 

for managing as valuable commodities (similar to the type of criteria for fuels) are appropriate 

for ingredients. 

Comment: 
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As discussed in the section on legitimacy criteria for fuels, one commenter suggested that 

the criterion that a non-hazardous secondary material be managed as a valuable commodity 

(determining if it is managed consistent with the management of an analogous ingredient and 

used within a reasonable time frame) is irrelevant because solid wastes are managed in ways 

similar to commodities (i.e., solid wastes and solid commodities are stored in piles on the 

ground, liquid wastes and commodities are stored in tanks and barrels). Another commenter 

requested that EPA provide clarity on managing a non-hazardous secondary material as a 

valuable commodity and the kinds of practices a facility must implement to demonstrate that it is 

managing the material as a valuable commodity. 

EPA’s Response: 

The final rule will retain the proposed approach that this legitimacy criterion for nonhazardous secondary material used as ingredients (i.e., that they must be managed as valuable 

commodities) will be consistent with that of fuels. As we noted previously, we disagree with the 

commenter that solid wastes and commodities are always managed in a similar manner. That is, 

commodities, on the one hand, are handled specifically to prevent the loss of the material 

because of its value, while solid wastes, on the other hand, when they are not highly regarded for 

a beneficial reuse, are often not managed in a way that minimizes the release of the material 

itself, but more in a way that protects the surrounding environment from the material. However, 

we also know that solid wastes, if not properly managed have created damages to the 

environment. Thus, non-hazardous secondary materials used as an ingredient must be managed 

in a manner consistent with the management of an analogous ingredient (where there is an 

analogous ingredient), or otherwise be adequately contained so as to prevent releases to the 

environment. For example, non-hazardous secondary materials that are used as ingredients in 
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cement kilns must be managed in a manner consistent with the analogous ingredients that these 

secondary materials are replacing. An “analogous ingredient” is defined as a manufacturing 

process ingredient for which the secondary material substitutes and which serves the same 

function and has similar physical and chemical properties as the non-hazardous secondary 

material. Where there is no analogous ingredient, the non-hazardous secondary material must be 

adequately contained so as to prevent releases to the environment. However, the Agency may 

provide further guidance on what we consider to be managed as a valuable commodity. 

2. Useful Contribution. 

EPA received comments on the five ways the proposed rule states that a non-hazardous 

secondary material can add value and usefully contribute to a recycling process (based on criteria 

initially developed for hazardous secondary materials): (i) the non-hazardous secondary material 

contributes valuable ingredients to a product or intermediate; or (ii) replaces a catalyst or carrier 

in the recycling process; or (iii) is the source of a valuable constituent recovered in the recycling 

process; or (iv) is recovered or regenerated by the recycling process; or (v) is used as an effective 

substitute for a commercial product. The proposed rule stated that we believe that only items (i) 

and (v) are specifically relevant to our assessment of whether these non-hazardous secondary 

materials provide a useful contribution in combustion scenarios. We requested comment, 

however, on whether the non-hazardous secondary materials we are assessing as ingredients can 

provide useful contributions in other ways. 

 Comment: 

 A commenter requested that the EPA remain flexible and acknowledge that there may be 

other ways to demonstrate a secondary materials’ useful contribution. 

 EPA’s Response: 
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 The Agency was unable to identify, and commenters did not identify any other way a 

non-hazardous secondary material could contribute to the recycling process, so the language in 

the final rule was not changed. The two ways to determine if the material provides a useful 

contribution are sufficiently flexible and will provide for accurate assessments. Thus, the final 

rule will continue to maintain that non-hazardous secondary materials contribute valuable 

ingredients to a product or intermediate and that non-hazardous secondary materials are used as 

an effective substitute for a commercial product will be used to determine if a material provides a 

useful contribution as an ingredient. 

3. Quantifying an Ingredient’s Contribution to Production/Manufacturing Activity. 

Not all of the constituents or components of the non-hazardous secondary material have 

to make a contribution to the production/manufacturing activity. EPA solicited comments on 

whether the Agency should quantitatively define how much of the non-hazardous secondary 

material must provide a useful contribution, or alternatively, the quantity of constituents or 

components in a non-hazardous secondary material there would need to be before the nonhazardous secondary material would not be considered to provide a useful contribution. 

 Comment: 

 Generally, commenters disagreed with the establishment of a quantitative definition as to 

how much of a material must provide a useful contribution. One state agency is opposed to a 

quantitative definition because the numbers will vary by non-hazardous secondary material. 

Similarly, another state commenter also opposed a nationwide definition or percentage 

stipulating what constitutes a “useful contribution” because of the different possible reuse 

processes that may vary in terms of the amount of material that is deemed useful. One other 

commenter also objected to the establishment of any limits, but specifically commented on the 
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establishment of a quantitative definition. They explain that a given non-hazardous secondary 

material can have several useful components, but the ability to use those components is 

dependent on the available manufacturing process or technology type. This variation would 

make it difficult and inefficient to apply a general quantitative rule of useful contribution. 

 EPA’s Response: 

 We agree with the commenters that quantifying the amount that all non-hazardous 

secondary materials must contribute to a production/manufacturing activity would be a 

challenge, if at all possible, given the breadth and depth of ways that non-hazardous secondary 

materials may be used as ingredients in combustion processes. As the non-hazardous secondary 

materials vary significantly in their character, composition and uses, trying to define useful 

contribution quantitatively would not, in our view, be practical. The complexities of defining 

“useful contribution” so that it can be determined through a bright-line test, and remain 

appropriate across industries, different recycling processes, and a variety of recycled nonhazardous secondary materials are too great for the Agency to design in a simple and 

straightforward manner so as to be used in making such determinations. In addition, legitimacy 

determinations are best made on a case-by-case basis, with the facts of a specific situation in 

hand. Thus, we have not defined a quantitative amount that non-hazardous secondary materials 

must contribute. 

In general, the regulated community should look to typical industry recovery rates in 

similar manufacturing processes to determine if the recycling recovery rates are reasonably 

efficient in terms of the ingredient making a useful contribution to the recycling process or 

product. In addition, it should be noted that EPA would generally look at the quantity required, 

the duration, and the extent of processing, and/or the rate of recovery of the overall process, not 
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the recovery rate of a single step in the process, when analyzing this criterion for legitimacy. For 

example, if one step in the process recovers a small percentage of the constituent, but the overall 

process recovers a much larger percentage, the Agency would consider the overall efficiency of 

the recycling process in determining whether the non-hazardous secondary materials are 

providing a useful contribution. This assumes that there is enough of the target constituent or 

component present in the non-hazardous secondary materials to contribute meaningfully as an 

ingredient to the recycling process. 

 In addition, the Agency is reiterating its longstanding position that not every constituent 

or component in a non-hazardous secondary material would have to contribute to a recycled 

product or intermediate or to the recycling process in order for there to be an overall 

contribution. Thus, we agree with commenters who raised questions about this and have restated 

our position in this preamble to the final rule. . 

4. Contaminants in Ingredients. 

The Agency requested comments on whether we should have a different definition of 

contaminants that applies specifically to ingredients. That is, since contaminant comparisons for 

the contaminant legitimacy criterion apply to a comparison of products rather than to the nonhazardous secondary material, we requested comment on whether a different list of contaminants 

should apply or whether we should generically define contaminants to be constituents that may 

be a concern with respect to the product that is produced. 

 Comment: 

 Commenters suggested that when comparing the products derived from non-hazardous 

secondary materials and traditional raw materials, the Agency be mindful of the fact that the 

concentrations of contaminants can vary geographically. In terms of cement production, a few 
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commenters said that the current stringent product standards effectively keep cement kilns from 

using contaminated ingredients. One state supports the use of the same contaminant list for nonhazardous secondary material fuels and ingredients, but notes that EPA should recognize that 

constituent concentrations for a given virgin fuel or feedstock can vary dependent on the 

geographic region of where it is produced. Another commenter said that since all processes 

differ, the states should be allowed to establish a petition process for ingredients where industry 

can demonstrate that the higher contamination in a given non-hazardous secondary material will 

not result in harm to human health or the environment (i.e., through either risk assessment or 

handling restrictions). Another commenter argued that using the list of contaminants in CAA 

section 129(a)(4) is inadequate because it does not address all heavy metals or organic hazardous 

air pollutants. Still, another commenter suggested that although the CAA section 112 HAP list 

and the list of constituents in Appendix VIII of 40 CFR part 261 would be impractical if 

parameter testing was required, Appendix VIII of 40 CFR part 261 would be a good starting 

point for evaluating different issues related to those contaminants. Finally, one state agency 

recommends the Agency develop a list of currently acceptable non-hazardous secondary 

materials used as ingredients for quick reference and develop guidance to assess materials not on 

the list. 

 EPA’s response: 

 EPA is defining the term “contaminant” to include constituents that may result in 

emissions of air pollutants identified in CAA section 112(b) and the nine pollutants listed under 

CAA section 129(a)(4)) when such non-hazardous secondary materials are burned as a fuel or 

used as an ingredient, including those constituents that could generate products of incomplete 

combustion. These constituents are appropriate for the comparisons required by this criterion 
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because these are the contaminants identified in the CAA that are to be considered by EPA in 

evaluating which contaminants to establish emission standards. That is, the contaminants to be 

considered in the legitimacy criteria should generally be the same that EPA is to consider in 

establishing emission standards. Thus, we disagree with the commenter who argues that this list 

is not broad enough because it does not address all heavy metals or organic hazardous pollutants. 

The Agency also does not believe that Appendix VIII to 40 CFR Part 261 is an 

appropriate list for determining which contaminants to consider for the purposes of defining nonhazardous solid waste, since the purpose of Appendix VIII is to be used by the Agency to make 

hazardous waste listing determinations (see 40 CFR 261.11(a)(3)) and the chemicals in 

Appendix VIII would not apply to non-hazardous wastes. Please see the related response on 

usage of the Appendix VIII list with regard to fuels (Section V.D.3). 

In addition, EPA is adding pathogens to the definition of contaminant in response to 

several comments received concerning the presence of pathogens in both sewage sludge and 

manure. A pathogen155 is an organism or substance capable of causing disease, and can infect 

humans through several different pathways, including ingestion, inhalation, and dermal contact. 

While this contaminant is not included in the CAA on the various lists, the Agency believes that 

pathogens is a special case and should be added to the list of contaminants because it is most 

likely that any pathogens that may be present, when combusted, are destroyed and thus, 

discarded. EPA is not aware of any situation where pathogens in the non-hazardous secondary 

material would provide energy recovery or be used as an ingredient—that is, pathogens in such 

non-hazardous secondary materials would always be destroyed. Because non-hazardous 

 

155 See Environmental Regulations and Technology: Control of Pathogens and Vector Attraction in Sewage Sludge 

(Including Domestic Septage) Under 40 CFR Part 503, EPA 2003. EPA/625/R-92/013. Revised July 2003. 
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secondary materials that contain pathogens could cause disease and infect humans and wildlife if 

not properly burned, it is appropriate to include pathogens on the list of contaminants to consider 

in addressing the legitimacy criteria. 

 With that said, the Agency recognizes and agrees with the commenters that variability in 

constituents exist between non-hazardous secondary materials based on the source and 

geographic region that it may come from. Thus, such considerations can be taken into account in 

determining which contaminants to evaluate. Regarding the comments dealing with state 

program involvement, EPA’s response to these comments is described in Section IX. “State 

Authority.” Finally, with respect to the commenter who requested that EPA develop a list of 

acceptable non-hazardous secondary materials that are used as ingredients for quick reference 

and develop guidance to assess non-hazardous secondary materials on this list, we have made 

some general conclusions throughout the preamble on which non-hazardous secondary materials 

when used as an ingredient in a combustion process would generally meet the legitimacy criteria. 

Persons may also refer to the various Materials Characterization Papers that are in the docket to 

today’s rule. However, each person will need to confirm that such non-hazardous secondary 

material ingredients meet the legitimacy criteria and provide documentation, as required in the 

CAA rules. 

5. Comparing contaminant levels in products. 

 EPA requested comment on whether, instead of requiring that contaminant levels in 

products manufactured from non-hazardous secondary material ingredients be comparable in 

concentration than those found in traditional products, that the Agency adopt a criterion under 

which contaminants in the product could not be significantly higher than found in the traditional 

products that are manufactured without the non-hazardous secondary material. 
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 Comment: 

A number of commenters disagree with the contaminant comparison criteria for nonhazardous secondary material ingredients to the final product. One commenter asserts that EPA 

should not use the term “contaminant” in connection with the legitimacy criteria for ingredients. 

Instead, the Agency should refer to constituents that may actually be a concern with respect to 

the product that is produced. The same commenter also recommends that the “toxics along for 

the ride” criterion only should be considered and not required, and that the Agency should adopt 

a “not significantly higher” standard. Also, while the Agency should retain the focus of the 

“toxics along for the ride” criterion upon products, that criterion should refer to constituents that 

may actually be a concern with respect to the products that are produced and should not use the 

defined term “contaminant.” 

 Other commenters oppose any limits on contaminants in ingredients. It was argued that 

portland cement is manufactured to meet strict chemical and performance specifications under 

such organizations as ASTM and the American Association of State Highway and Transportation 

Officials (AASHTO). These specifications dictate, to a large degree, the ingredients that can be 

used in cement manufacturing. There are a wide range of raw materials and fuels that can be 

used to meet cement manufacturing quality objectives. The levels of contaminants in these 

traditional raw materials and fuels can vary significantly. These variations occur within 

materials taken from the same source (e.g., single quarry) and also between different sources. 

For the purpose of comparing levels of contaminants found in non-hazardous secondary 

materials with levels found in traditional products, the non-hazardous secondary material 

contaminant should be allowed to be compared to multiple sources of the traditional raw 

materials that are available across the market to the facility. Such a comparison should be 
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allowed regardless of whether or not the traditional material is being used by the facility at the 

time of the comparison. Doing so would allow for the variability of constituent levels to be 

properly accounted for when going through the comparison process. Variability needs to be 

considered because multiple sources of a single traditional material are typically available to a 

facility 

 EPA’s Response: 

In today’s action, EPA is finalizing this criterion as a part of the legitimacy requirement 

because it is essential in determining whether a non-hazardous secondary material that is 

combusted is in fact being legitimately used or is essentially being discarded—that is destroyed, 

in the name of legitimate recycling. EPA is also retaining the requirement that the recycling 

process must result in products that contain contaminants at levels that are comparable to (or 

lower than) concentrations found in traditional products that are manufactured without the nonhazardous secondary material. Establishing “comparable to or lower than” contaminant levels 

more closely reflects its intent that non-hazardous secondary materials that are legitimately used 

must have levels of contaminants within a small acceptable range of those found in traditional 

products than the phrase “not significantly higher.” (See Section V.D.3 for further discussion of 

this issue and EPA’s response.) With that said, we agree with those commenters who argue that 

there are a wide range of raw materials and fuels that can be used and that the level of 

contaminants in these secondary materials can also vary. Thus, for purposes of comparing levels 

of contaminants found in non-hazardous secondary materials to traditional products, a person can 

make that comparison with traditional raw materials and fuels that come from multiple sources, 

provided such sources can be used in the combustion unit. Such a comparison, as the 

commenters argue, would account for the natural variability that needs to be considered in 
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making such a comparison. 

With respect to the comment requesting that EPA change the word “contaminant” to 

“constituent” when referring to the legitimacy criteria, EPA is retaining the use of the word 

“contaminant” in this criterion as it has been defined in this rule and accurately describes which 

individual constituents EPA is seeking to control in this criterion. The selection of that term was 

originally discussed in the ANPRM and was chosen since it refers to the constituents in 

secondary materials that may be of a concern when burned as a fuel or used as an ingredient. 

Finally, EPA notes that industry specifications can be very useful in making a legitimacy 

determination and, in particular, in evaluating compliance with this criterion. However, EPA 

cannot rely solely on product specifications to cover all possible situations and is including the 

contaminant comparison between products as a critical part of the legitimacy requirement. 

F. Comments on Non-Waste Determination Petitions

 The proposed rule established a non-waste determination process that would provide 

persons with an administrative process for receiving a formal determination from the EPA 

Regional Administrator that non-hazardous secondary materials that are burned as a fuel in a 

combustion unit and have not been managed within the control of the generator, have not been 

discarded, and is indistinguishable in all relevant aspects from a fuel product is not a solid waste. 

This assumes all the criteria for the non-waste determination at §241.3(c) are met. 

 Industry and state agencies both submitted a number of comments on the non-waste 

determination process included in the proposed rule. While many of these comments supported 

the idea of a non-waste determination process in order to include appropriate fuels, many 

commenters suggested that the process would be difficult to implement since the requirements 

are vague, and too resource intensive. Many commenters did not want the process at all for 
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opposing reasons; some said it was too lenient in that the process could allow inappropriate use 

of non-hazardous secondary materials, while others said it was unnecessary in that CAA section 

112 third-party combustors should be able to use appropriate comparable fuels without the 

inconvenience of a petition process. The specific comments are detailed below. The overview 

of the petition process is described in Section VII.G. The petition requirements in today’s rule 

are found at §241.3(c). 

 Comment: 

A large number of commenters (including many from state agencies) argued that state 

agencies should be provided the authority to make non-waste determinations as part of the 

petition process. Some commenters suggested that States be allowed to grant such petitions 

under their existing beneficial use programs and encouraged EPA to allow the States’ existing 

regulatory structures to remain in place. Many commenters expressed a preference for the 

approach currently used by States to determine the acceptability of used materials for beneficial 

use whereby specific classes of materials considered wastes (in that State) are assessed and, if 

determined acceptable, are considered non-waste or exempt from the State waste licensing, 

permitting and other requirements. State procedures for beneficial use determinations vary, 

some requiring more extensive characterization of materials and uses than others, and some 

requiring a degree of processing and others not. Some beneficial use designations are more 

stringent than others since they are material-specific. 

Many commenters, including state agencies were still concerned that this rule could 

jeopardize or interfere with the State beneficial use designations and procedures and want EPA 

to clearly indicate that today’s rule applies only for purposes of determining CAA 129 

applicability to non-hazardous secondary materials that are burned for energy recovery. They do 
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not want today’s rule to set a precedent or interfere with their ongoing programs to allow and 

encourage the beneficial use of secondary materials which otherwise would be waste. 

 EPA’s Response: 

 CAA section 129 states that the term ‘‘solid waste’’ shall have the meaning ‘‘established 

by the Administrator pursuant to the Solid Waste Disposal Act’’ Id. at 7429(g)(6). Accordingly, 

the Administrator (or Regional Administrator) must establish the meaning and make the 

determinations, and the states’ definition of solid waste would not be applicable for purposes of 

the definition of solid waste under RCRA as applied to establish emissions standards under the 

CAA. No federal approval procedures for state adoption of today's rule are included in this rule 

under RCRA subtitle D. Although EPA does promulgate criteria for solid waste landfills and 

approves state municipal solid waste landfill permitting programs, RCRA does not provide EPA 

with authority to approve state programs beyond municipal solid waste landfill permitting 

programs. 

With that said, EPA would like to utilize the expertise and interest residing in the state 

beneficial use programs to bolster Agency decisions on non-waste determination petitions. The 

Agency may request the assistance of states or may utilize the information and contaminant data 

from state beneficial use determinations if it is applicable to the non-hazardous secondary 

material when used as a fuel or an ingredient in combustion units. These state beneficial use 

programs have been developed to encourage recycling and reuse, provided that the uses maintain 

the specified state’s acceptable level of risk, protect human health and the environment, and are 

managed in accordance with the conditions of the determination. Generally, when a state 

beneficial use determination has been granted (thus no longer a solid waste within that state), it 

may have chemical and physical properties that are comparable to the raw material it is replacing 
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or, when incorporated into a product, its use is beneficial to the final product. Assuming the data 

to support the beneficial use determination remains available, it could help support EPA’s 

investigation of the contaminant concentrations for the purpose of making the legitimacy criteria 

determination. 

 State beneficial use determinations and procedures will continue intact for purposes of 

State laws, regulations, and programs. Thus, we do not expect that this rule will set a precedent 

or interfere with the States’ solid waste programs and the States will continue to employ their 

procedures to assess and regulate the management and use of non-hazardous secondary materials 

for purposes of State laws and regulations. In addition, as we have stated elsewhere in today’s 

preamble, this rule is limited for purposes of determining CAA 129 applicability for nonhazardous secondary materials that are burned for energy recovery or as an ingredient in a 

combustion unit. Thus, EPA will not be making any determination that non-hazardous 

secondary materials are or are not solid wastes for other possible beneficial uses. Such beneficial 

use determinations are generally made by the state for these other beneficial uses and EPA will 

continue to look to the states to make such determinations (e.g., land application, reuse as nonwaste, etc.). 

Comment: 

 Commenters indicated that the petition process does not consider potential scheduling 

issues regarding compliance with the section 112 Boiler MACT or the 129 CISWI Standards. 

Therefore, the non-waste determination petition process should include deadlines for both 

petition submissions and rulings from regulators so that the applicant would know which 

emission standards requirements they would be subject to—that is, the CAA section 112 

standards or the CAA section 129 standards. Some commenters (including many state agencies) 
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also expressed concern that EPA would not have the resources necessary to address such nonwaste determination petitions within a schedule consistent with State deadlines for their air 

permits (e.g., 90 days). In addition, a few commenters questioned the environmental benefits of 

shifting the burden of determination to EPA instead of the generators in question. 

 EPA’s Response: 

 EPA is not imposing deadlines for the petition decisions, either for the submission of 

such petitions or on EPA making decisions on petitions that are submitted, since the Agency 

believes that before a final decision is made, that the necessary information be submitted, and the 

public afforded an opportunity to comment on such draft decisions. Setting a time limit may 

make it difficult to make such informed decisions. Nevertheless, EPA commits to work with the 

State (where the combustor is located) in an effort to not hold up, to the extent practicable, the 

State air permitting process. We recognize that the non-waste determination decision should be 

finalized prior to any related State air permit. EPA retains the responsibility for the petitions 

decisions in the final rule in order to, in part, maintain national consistency, while we recognize 

the state’s interest and expertise in the area. 

 Comment: 

 If EPA maintains authority for non-waste determinations, commenters request that EPA 

Regional offices notify States when requests and determinations are made. In addition, several 

environmental groups requested that the public notification be required for any petitions for nonwaste classification. 

 EPA’s Response: 

 Today’s rule outlines the petition process for the Regional Administrator to follow. As 

part of that process, the draft decision will be published in local media and will be available on 
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EPA’s website, and thus, all draft decisions will be available to the public for comment. In 

addition, although not in the regulations, the Regions will inform the State Agency of a petition 

request in their states, and work with them, to the extent practicable. 

 Comment:

 State Agencies recommended that EPA maintain a state or publicly available database of 

non-waste determination decisions if the Agency maintains decision-making authority under the 

petition process. 

EPA’s Response: 

 EPA agrees that it would be appropriate for EPA to maintain a database that is a 

compilation of decisions made on non-hazardous secondary materials non-waste 

determinations. This would allow decisions made in one EPA Region, including the basis for the 

decision, to be available to other EPA Regions pertaining to the same or similar non-hazardous 

secondary materials and would support national consistency and minimize redundant 

efforts. Thus, the Agency will put together such a database and will make it available not only to 

its Regions, but will also make such a database publicly available. 

 Comment: 

 Some commenters said States (or non-State Agencies) should be able to submit a nonwaste determination on behalf of the petitioner. 

 EPA’s Response: 

 As stated in the proposal and in the final rule, states, or private entities, can submit nonwaste determination petitions to the EPA Regional Administrator on behalf of petitioners. They 

can petition for a single combustor or a class of combustors (e.g., a specific usage of a nonhazardous secondary material in a particular state). 
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 Comment: 

 Many commenters did not want the petition process included in the rule. Some 

commenters said it was too lenient in that the process could allow the inappropriate use of nonhazardous secondary materials. 

 EPA’s Response: 

 We disagree with the commenters since the petition process provides a vehicle to 

accommodate those instances where it is not apparent that the non-hazardous secondary material 

is not discarded and that it complies with the legitimacy criteria and thus, is not a solid waste 

under RCRA. Those requirements would be documented in addition to the other petition 

requirements. This would provide the needed assurance that it is an appropriate non-waste fuel. 

In addition, all draft decisions will be made available to the public (local newspaper 

advertisement or radio broadcast and on EPA’s website) and the Regional Administrator may 

hold public hearings, such that the public will be informed and has the opportunity to comment 

and be involved in the process. 

 Comment: 

 Commenters mentioned that the process will be difficult to implement since the 

requirements in proposed §241.3(c) are too vague. A few commenters mentioned that they 

preferred the clarity in state determinations where they have criteria specific to each secondary 

material they regulate or make specific beneficial use determinations, as opposed to this petition 

process where all non-hazardous secondary materials have to comply with the same guidelines. 

Commenters requested that we create clear guidance on the petition process and on related 

implementation. 

 EPA’s Response: 
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 We disagree with the commenters who argue that the petition process is vague and will 

be difficult to implement. All petitions that are submitted must clearly explain how the nonhazardous secondary material has not been discarded and meets the other relevant criteria, 

including the legitimacy criteria. All draft decisions will also be subject to notice and comment, 

so any particular issues or concerns can be raised for the Agency’s consideration. With that said, 

the Agency expects to develop additional guidance to assist petitioners in the implementation of 

the petition process. 

G. Comments on the Other Approaches for Defining Solid Wastes 

In addition to the proposed approach, EPA also identified and solicited comment on two 

other approaches for defining which non-hazardous secondary materials are solid wastes when 

combusted. One approach, which was called the “alternative approach,” was intended to be 

broader than the proposed approach, but still consistent, in the Agency’s judgment, with RCRA 

and relevant case law. Under the alternative approach, non-hazardous secondary materials that 

are burned in a combustion unit would be considered solid wastes, unless such non-hazardous 

secondary materials would remain within the control of the generator and meet the legitimacy 

criteria; in this limited instance, the non-hazardous secondary materials would not be considered 

solid wastes. Thus, under the alternative approach, fuels and ingredients that are generated from 

the processing of discarded non-hazardous secondary materials would be considered a solid 

waste, as well as non-hazardous secondary materials used as ingredients that are combusted at 

facilities that are not within the control of the generator. In addition, the alternative approach did 

not provide for a non-waste determination petition process, as described elsewhere in this 

preamble. The proposed rule noted that this approach could be adopted in a final rule if 

warranted by information presented during the public comment period and solicited comment on 
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all aspects of the alternative approach. 

The other approach on which we requested comment was to identify all non-hazardous 

secondary materials that are burned in combustion units for energy recovery or as an ingredient 

as solid wastes and thus, all non-hazardous secondary materials would be subject to the section 

129 CAA requirements. The proposal noted that while the Agency believes there are legal 

constraints to taking such a broad approach in defining solid waste under RCRA, we solicited 

comment on this approach and specifically requested that commenters provide the basis for their 

position, in light of the existing case law on the issue of “discard.” 

Comment: 

All commenters addressing the alternative approach were opposed to the Agency 

adopting such an approach in the final rule. Several commenters argued generally against any 

approach that would allow any non-hazardous secondary material to ever be burned as non-waste 

fuels or ingredients, regardless of whether or not the secondary materials remained within the 

control of the generator. These commenters strongly urged the Agency to adopt a final rule that 

considers all non-hazardous secondary materials burned in a combustion unit for energy recovery 

or used as an ingredient to be included within the definition of solid waste and therefore, subject 

to the CAA section 129 requirements. These commenters argue that non-hazardous secondary 

materials that are burned in combustion units fall within the unambiguous meaning of the term 

“discarded material,” and therefore, both EPA’s proposed and alternative approach are unlawful, 

as well as arbitrary and capricious. 

On the other hand, industry commenters generally contended that the alternative 

approach was unacceptable as a matter of law and policy, but for different reasons. These 

commenters, who also disagreed with the proposed approach’s classification that non-hazardous 
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secondary materials used as fuels which did not remain within the control of the generator are 

solid waste unless granted a non-waste determination, strongly opposed the alternative approach 

for many of the same reasons. Of particular concern of the commenters was their disagreement 

with EPA that one may not look to a material’s transfer between entities to determine whether 

the non-hazardous secondary material has been discarded and constitutes a solid waste under 

RCRA, a concept which would apply equally to non-hazardous secondary materials being used 

as ingredients, as well as non-hazardous secondary materials used as fuels. In addition, these 

same commenters also strongly disagreed with the other approach on which the Agency solicited 

comment—that is, the approach that would characterize all non-hazardous secondary materials 

as solid waste when burned in a combustion unit for energy recovery or as an ingredient. These 

commenters argued that this would exceed the Agency’s authority to regulate secondary 

materials that have not been discarded. 

EPA’s Response: 

Although some commenters supported a broader definition of solid waste than described 

in the alternative approach, the Agency did not receive any support for the alternative approach, 

and has therefore decided not to adopt it in this final rule. Regarding comments that advocated 

for all non-hazardous secondary materials burned in a combustion unit for energy recovery or as 

an ingredient to be discarded and, thus, solid waste, EPA has replied to this comment above in 

Section V.A. The Agency presumes that these commenters would like neither our proposed 

approach nor any alternative that allows any non-hazardous secondary material to be burned as 

other than a waste. 

Regarding industry comments which opposed the alternative approach because its 

characterization that all non-hazardous secondary materials that do not remain within the control 
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of the generator are solid waste, we respond to the issue of transferring non-hazardous secondary 

materials off-site in Section V.A. 

EPA continues to believe that today’s final rule is a reasonable interpretation of the 

statutory definition of discard to consider that non-hazardous secondary materials under the 

control of its generator that are legitimately burned as fuels are not solid waste, that certain nonhazardous secondary materials (i.e., scrap tires collected and managed under the oversight of 

established tire programs and resinated wood) that are not discarded and are legitimately used as 

fuels or ingredients are not solid waste, that non-hazardous secondary materials that are 

legitimately burned as ingredients are not solid wastes, and that fuels and ingredients that are 

produced from the processing of discarded non-hazardous secondary materials are not solid 

wastes. 

VI. Summary of Major Differences between the Proposed Rule and Final Rule 

The basic framework outlined in the proposed rule is being adopted in today’s final rule. 

However, as indicated in the discussions in Section VII, the Agency has made several 

significant changes to the proposal regarding: (1) the status of scrap tires when they are 

combusted; (2) the status of resinated wood residuals when they are combusted; (3) the status of 

coal refuse that has been previously discarded, but has been processed in the same way as coal is 

today; ( 4) the definition of traditional fuel and several other terms to clarify their meaning in the 

final rule and (5) which additional constituent(s) should be identified as a “contaminant” for 

purposes of determining whether such contaminants, whether in a fuel or ingredient, are at 

concentrations that are comparable to (or lower than) those in traditional fuels or ingredient 

products. Specifically, 

• Under the proposed rule, scrap tires were considered to be solid waste when combusted, 
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even if they were not discarded in the first instant, unless they were sufficiently processed 

into a non-waste fuel product (i.e., using the ASTM standard for TDF, including 

shredding, sizing, and wire removal156). Today’s rule continues to include this concept of 

processing of scrap tires that have been discarded, particularly for tires in waste tire piles. 

However, after reviewing the comments, as well as reviewing the approach that was 

discussed in the ANPRM for scrap tires, the Agency has concluded that scrap tires that 

are managed under the oversight of an established tire collection program would not be 

considered a solid waste provided the scrap tires were sent from the person that collects 

them to a combustion unit (e.g., cement kilns) for use as a fuel. In this situation, the 

Agency believes that the scrap tires have not been discarded and therefore, should not be 

considered a solid waste. See Section VII.C for a full discussion of the rationale and 

changes to the approach for scrap tires. 

• Under the proposed rule, resinated wood residuals that were burned in a combustion unit 

within the control of the generator and which met the legitimacy criteria was considered a 

non-waste fuel. However, if such resinated wood residuals were transferred off-site to a 

different company, there were considered a solid waste when burned in a combustion 

unit, unless they were “sufficiently processed to produce a non-waste fuel. However, 

after reviewing the comments, the Agency has concluded that resinated wood residuals 

when burned in a combustion unit (whether within the control of the generator or outside 

the control of the generator) would not be a solid waste, provided the resinated wood 

residuals met the legitimacy criteria. In this situation, the Agency believes that the 

resinated wood residuals have not been discarded and therefore, should not be considered 

 

156 See the scrap tire comment responses for a discussion on the appropriate amount of processing and metal 

removal. 
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a solid waste. See Section VII.D for a full discussion of the rational and changes to the 

approach for resinated wood residuals. 

• Under the proposed rule, coal refuse that has been previously abandoned and was 

processed, even if such processing was the same as coal is processed today, was 

considered a solid waste and if combusted, would be subject to the CAA section 129 

emission standards. However, after reviewing the comments and after further evaluation, 

we now believe that coal refuse that is processed the same as coal is today, which serves 

to both increase its energy value, as well as reduce the level of contaminants in coal 

refuse, should not be considered a solid waste. (Of course, prior to such processing, the 

coal refuse that has been abandoned is a solid waste and would be subject to appropriate 

federal, state and local laws and regulations.) This change is based on the fact that coal 

refuse is distinctive from other non-hazardous secondary materials at issue in today’s rule 

in that it is in fact raw material coal (even if it has been previously abandoned) that is 

generated as a result of coal mining operations whose primary product is a fuel. 

• In response to comments received on the proposal, under today’s rule, we have added an 

“alternative fuels” category to the definition of traditional fuels, so the definition now 

includes “alternative traditional fuels” and “historically managed” traditional fuels. EPA 

is recognizing that changes in technology and in the energy market over time have 

resulted in additional materials being economically viable to be used as alternative 

"traditional" fuels. In addition, to provide clarity in the application and the meaning of 

traditional fuel and clean biomass, we have codified these definitions in §241.2. The new 

definition of traditional fuel also clarifies that traditional fuels are not secondary materials 

and are not solid wastes unless discarded. 
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• EPA has decided to include pathogens under the definition of contaminants (as defined in 

40 CFR 523.31), based on comments received and the Agency’s own assessment, 

because such pathogens have been shown to be disease causing micro-organisms that can 

be present in several non-hazardous secondary materials. Thus, the final rule defines the 

term “contaminants” to include the HAP listed under CAA section 112(b), the nine 

pollutants required to be regulated under CAA section 129, and pathogens. 

VII. Detailed Discussion and Rationale for Today’s Final Rule 

 As indicated previously, today’s final rule identifies those non-hazardous secondary 

materials that, when burned in a combustion unit, are solid wastes. In general, EPA defines nonhazardous secondary materials that are used as fuels or ingredients in combustion units as solid 

waste unless:157

• The non-hazardous secondary material is used as a fuel and remains within the control of 

the generator (whether at the site of generation or another site the generator has control 

over) and it meets the legitimacy criteria; 

• The non-hazardous secondary material has not been discarded and meets the legitimacy 

criteria when used as a fuel (by the generator or outside the control of the generator); 

such materials include: 

o Scrap tires removed from vehicles and collected and managed under the 

oversight of established tire programs and legitimately used as fuel; 

o Resinated wood legitimately used as a fuel; 

• The non-hazardous secondary material is used as an ingredient (whether by the generator 

or a third party) and it meets the legitimacy criteria; 

 

157 Traditional fuels are not secondary materials or solid waste, unless discarded. 
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• The discarded non-hazardous secondary material is sufficiently processed to produce 

legitimate fuel or ingredient products and it meets the legitimacy criteria; 

• The non-hazardous secondary material handled outside the control of the generator where 

it is determined through a case-by-case non-waste determination petition process that the 

material has not been discarded and is indistinguishable in all relevant aspects from a fuel 

product. 

The following sections discuss in detail the rationale and regulations being promulgated today in 

40 CFR part 241 for the identification of non-hazardous secondary materials that are solid waste 

when used in combustion units. We use this rationale to support the final rule based on 

information the Agency has received and public comments. To the extent we have decided not 

to alter our supporting reasoning or have rejected comments received on the proposed rule, we 

also discuss these matters in Section V. Reasoning, information and arguments provided in the 

ANPRM and proposed rule that support these decisions are also incorporated into the reasoning 

for the final decisions. 

A. Traditional Fuels158

 As discussed in Section VI, the definition of traditional fuels has been modified in 

today’s final rule. The new definition encompasses two categories of fuels: (1) “historically 

managed” fuels, as identified in the proposed rule, and (2) “alternative” fuels, as described in the 

ANPRM. Through this revised definition, EPA is recognizing that changes in technology and in 

the energy market over time have resulted in additional materials being economically viable to 

be used as alternative "traditional" fuels. Thus, “traditional fuels” is defined in today’s final rule 

as materials that are produced as fuels and are unused products that have not been discarded and 

 

158 While the Agency believes that traditional fuels are not secondary materials, we believe it appropriate to provide 

a general definition and description of what is considered a traditional fuel. 
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therefore, are not solid waste including: (1) fuels that have been historically managed as 

valuable fuel products rather than being managed as waste materials including fossil fuels (e.g., 

coal, oil and natural gas), their derivatives (e.g., petroleum coke, bituminous coke, coal tar oil, 

refinery gas, synthetic fuel, heavy recycle, asphalts, blast furnace gas, recovered gaseous butane, 

and coke oven gas) and cellulosic biomass (virgin wood); and (2) alternative fuels developed 

from virgin materials that can now be used as valuable fuel products rather than waste materials. 

Alternative fuels include used oil which meets the specifications outlined in 40 CFR 279.11; 

currently mined coal refuse that previously had not been usable coal; and clean cellulosic 

biomass. Clean cellulosic biomass includes those residuals that are akin to traditional cellulosic 

biomass such as forest-derived biomass (e.g., green wood, forest thinnings, clean and 

unadulterated bark, sawdust, trim, and tree harvesting residuals from logging and sawmill 

materials), corn stover and other biomass crops used specifically for energy production (e.g., 

energy cane, other fast growing grasses), bagasse and other crop residues (e.g., peanut shells), 

wood collected from forest fire clearance activities, trees and clean wood found in disaster 

debris, clean biomass from land clearing operations, and clean construction and demolition 

wood. Clean biomass is defined as biomass that does not contain contaminants at 

concentrations not normally associated with virgin biomass materials. Such historically 

managed traditional fuels and alternative fuels are not secondary materials or solid wastes unless 

discarded. 

Both clean cellulosic biomass and on-specification used oil were identified in the 

proposed rule definition as historically managed traditional fuels. However, as the viability of 

these materials as fuels reflects relatively recent changes in market conditions and technology, 

they are more appropriately characterized as alternative traditional fuels. 
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The new definition also adds currently generated coal refuse as an alternative traditional 

fuel. As discussed in Section V.B.8., this material is distinctive among the other non-hazardous 

secondary materials. Coal refuse is in fact raw material coal that is generated as a result of coal 

mining operations whose primary product is fuel. We consider currently generated coal refuse to 

be more akin to a raw material that, due to technological developments, can now be processed 

and utilized to produce a marketable fuel. Coal refuse is different from other non-hazardous 

secondary materials, such as scrap tires or resinated wood residuals, in that it is generated in the 

production of a traditional fuel and can be used itself as fuel. 

The revised definition also clarifies that clean wood includes, similar to clean disaster 

debris, clean construction and demolition material 

The definition goes on to clarify that traditional fuels are not secondary materials and are 

not solid wastes unless discarded. In response to comments received on the proposal and to 

provide clarity in the application and the meaning of traditional fuel, both the new definition of 

traditional fuels and the definition of clean biomass are codified in §241.2 

Recommendations from commenters to the proposed rule on specific materials that 

should be considered traditional fuels are discussed in Section V.B. That section also includes 

responses to the Agency’s request for comment regarding possible petition processes to make 

determinations on traditional fuels. 

B. Non-Hazardous Secondary Materials Used as Fuel That Remains Within the Control of 

the Generator 

1. Scope and Applicability. 

 Non-hazardous secondary materials used as a fuel in combustion units that remain within 

the control of the generator and that meet the legitimacy criteria specified in §241.3(d)(1) would 
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not be solid waste. Such non-hazardous secondary materials are referred to as legitimate (nonwaste) fuel products. 

As discussed previously in Section V.A, if the non-hazardous secondary material remains 

within the control of the generator, it is more likely to be material that is saved and not thrown 

away. The Agency has explained that case law would not allow it to determine that secondary 

material is a waste if it is recycled as a fuel within a continuous industrial process. EPA cannot 

evaluate every non-hazardous secondary material, but believes this standard would cover all such 

non-hazardous secondary materials that are recycled as a fuel within a continuous process. EPA, 

however, acknowledges that this may capture certain non-hazardous secondary materials which 

may be a waste, but is unlikely. Thus, EPA believes that it is a reasonable interpretation of the 

statutory definition of discard to consider non-hazardous secondary materials that are managed 

within the control of its generator and legitimately burned as fuels to not be solid waste. 

The Agency also recognizes that there may also be non-hazardous secondary materials 

transferred to another party that are not discarded in the first instance, and thus may not be a 

solid waste. EPA is dealing with those categories of non-hazardous secondary materials on a 

case-by-case basis by specifically identifying such non-hazardous secondary materials in the 

regulations (see discussions in Section VII.C on scrap tires managed under an established tire 

collection program and VII.D for resinated wood used within the wood products industry) or 

through the non-waste determination process (Section VII.G). 

 Non-hazardous secondary materials used as fuels can be demonstrated to remain within 

the control of the generator under two scenarios (See §241.2). As such, the regulation consists of 

two parts in determining whether these non-hazardous secondary materials qualify for being 

“within the control of the generator.” The first part applies to non-hazardous secondary 
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materials generated and used as fuels at the generating facility. For purposes of this criteria, 

“generating facility” means all contiguous property owned, leased, or otherwise controlled by the 

secondary material generator; “secondary material generator” means any person whose act or 

process produces non-hazardous secondary materials at the generating facility. In general, colocated facilities may be defined as the generating facility if the generator has contracted with the 

company to manage the secondary material at that facility. 

 A facility that collects non-hazardous secondary materials from other persons is not the 

secondary material generator of those materials. This is consistent with the approach taken in the 

2008 DSW Final Rule, which specified that a facility that collects hazardous secondary materials 

from other persons (for example, when mercury-containing equipment is collected through a 

special collection program), would not be considered the hazardous secondary material generator 

for purposes of eligibility for the generator-controlled exclusion. See 73 FR at 64715. Thus, 

collection facilities are not considered to be generators of these materials and materials collected 

through such programs are considered to be managing materials off-site.159 

If a generator hires or contracts with a different company to use the non-hazardous 

secondary materials at the generator’s facility as fuel, either temporarily or permanently, these 

materials remain within the control of the generator. However, generators sometimes contract 

with a second company to collect non-hazardous secondary materials at the generating facility 

and such materials are subsequently used as fuels in a combustion unit at another facility. In that 

situation, if the facility that burns the non-hazardous secondary material is not “within the 

control of the generator” as defined below in the second part of the definition, then the non-

 

159 EPA has concluded that scrap tires harvested from vehicle and managed under the oversight of an established tire 

collection program are not considered solid wastes. See Section VII.C for a more detailed discussion regarding 

scrap tires. 
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hazardous secondary material fuel would be considered a solid waste unless a non-waste 

determination has been granted pursuant to the petition process. 

 The second part of the definition applies to non-hazardous secondary materials generated 

and used as fuels at a different facility that is controlled by the generator (or if a person as 

defined in §241.2 controls both the generator and the facility using the fuel in a combustion unit). 

For purposes of this criterion, “control” means the power to direct the policies of the facility, 

whether by ownership of stock, voting rights, or otherwise, except that contractors who operate 

facilities on behalf of a different person as defined in §241.2 shall not be deemed to “control” 

such facilities. Thus, when a contractor operates two facilities, each of which is owned by a 

different company, the non-hazardous secondary materials generated at the first facility and used 

as a fuel at the second facility is not considered “within the control of the generator.” 

 In the proposed rule, the Agency also indicated that the 2008 DSW Final Rule included a 

third part in the definition of “within the control of the generator;” specifically, hazardous 

secondary materials that are generated pursuant to a written contract between a tolling contractor 

and a toll manufacturer and legitimately reclaimed by the tolling contractor. For purposes of that 

exclusion, a tolling contractor is a person who arranges for the production of a product or 

intermediate made from specified raw or virgin materials through a written contract with a toll 

manufacturer. We did not propose to include this arrangement as being “within the control of 

the generator” as we viewed this as a specific type of arrangement used in the production of 

materials, and were unaware of these types of contractual arrangements where both products and 

secondary material fuel are sent to what we are calling tolling contractors. Nevertheless, the 

Agency requested comment on whether to include this option in the final rule. We have decided 

not to include this option in the final rule. See Section V.A. 
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2. Restrictions and Requirements. 

 a. Legitimate Use. 

 Under this rule, non-hazardous secondary materials used as fuels in combustion units that 

remain within the control of the generator must meet the legitimacy criteria in §241.3(d)(1) to be 

considered a non-waste fuel. To satisfy the legitimacy criteria, the non-hazardous secondary 

material (non-waste) fuel must be handled as a valuable commodity, have meaningful heating 

value and be used as a fuel in a combustion unit that recovers energy, and contain contaminants 

at levels comparable to (or lower than) those in traditional fuels which the combustion unit is 

designed to burn as discussed in Section VII.H. 

b. Notification. 

We are not requiring facilities that use non-hazardous secondary material fuels within the 

control of the generator and that meet the legitimacy criteria to notify EPA under this rule. This 

notice would be duplicative of the notification and recordkeeping requirements being 

promulgated for boilers and process heaters at major sources of air toxics. That CAA section 

112 rule requires notifications and recordkeeping, including documentation as to how the nonhazardous secondary material meets the legitimacy criteria, and satisfies the definition of 

processing and/or the requirements for the petition process. (§§40 CFR 63.7530 and 63.7555). 

Specific recordkeeping requirements for area source boilers combusting non-hazardous 

secondary materials are also found at 40 CFR 63.11225(c)(2)(ii) under the CAA section 112 rule 

for area source boilers. 

Additionally, regulations at 40 CFR 60.2157(v) promulgated for commercial and 

industrial solid waste incinerators under CAA section 129 require basic recordkeeping to 

establish whether materials combusted in a commercial or industrial unit meet the standards and 
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procedures for identification of non-hazardous secondary materials that are not solid wastes. 

Owners or operators of commercial or industrial facilities that combust non-hazardous secondary 

materials that are not traditional fuels are directed to the CAA section 112 regulations for boilers, 

and the CAA section 129 regulations for commercial and industrial incinerators, to determine 

whether there are any recordkeeping provisions related to the definition of solid waste that may 

apply to them. The Agency believes that these records and notifications under the CAA 

regulations provide assurance that facilities will apply the legitimacy criteria, and that requiring 

notification under this rule is not necessary. 

C. Materials That Have Not Been Discarded: Scrap Tires Collected Under Established 

Tire Collection Programs 

1. Scope and Applicability. 

 EPA has determined that scrap tires removed from vehicles and collected and managed 

under the oversight of state and other established tire collection programs are not “discarded in 

the first instance.” Such tires (including both whole tires and tires that have been shredded - with 

or without metal removal160) are non-waste when legitimately used as a fuel in combustion units. 

These collection programs (defined in §241.2) ensure that the tires are not discarded en route to 

the combustor for use as a fuel and are handled as a valuable commodity (§241.3(d)(1)(i)). 

 State programs and other established tire collection programs promote the collection of 

scrap tires in coordination with tire dealerships, haulers, processors, and end users, forming an 

established collection infrastructure. These established tire collection programs together with 

 

160 If scrap tires are not discarded in the first place, they do not have to be processed per the standards in today’s 

rule, but can be converted to rough shreds or processed into TDF chips at the discretion of the combustor and still be 

non-waste fuel. If the scrap tires were discarded, they have to be processed (with metal removal, see Section V.B.5) 

per the standards in today’s rule in order to be a non-waste fuel. 
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state bans on landfilling in most states161 effectively result in the beneficial reuse of tires (as fuel 

or used in other scrap tire markets) as the sole162 end use option for scrap tires in those states. 

 While the Agency recognizes that there will be differences between the various 

established tire collection programs, at a minimum, the following components would need to be 

included as part of any established tire collection program: (1) a comprehensive system that 

prevents tires from being abandoned when the scrap tires are harvested from vehicles and 

collected at the various businesses where they are removed; these tires are not considered 

“discarded in the first instance” per this rule; and (2) standards for the scrap tires to be managed 

as a valuable commodity. These programs would ensure storage does not exceed reasonable 

time frames, the scrap tires are managed in a manner consistent with the analogous fuel (coal), 

and a system is in place to prevent scrap tires from being discarded (according to the plain 

language definition) en route to the combustor (and during any processing prior to combustion). 

 An example of this type of program is a tire dealership that has pre-arranged agreements 

where the combustor pays for the delivery of the tires harvested from automobiles and can track 

the delivery and has contractual obligations for a safe delivery. Another example is the Texas 

system where tires are not seen as waste, but have specifications for tracking and safe delivery to 

the end use markets. 

In essence, these programs are ones that neither allow for an opportunity for quality tires 

intended as a fuel to be discarded in the first place nor discarded in transit. Established tire 

collection programs are defined in today’s rule at §241.2. According to the plain English 

meaning of discard, these tires would not have been “disposed of, abandoned, or thrown away” 

 

161 A few states allow tires cut up in smaller pieces to be landfilled, while fewer still allow whole tires in landfills. 162 Note, a commenter has indicated that some states are considering revoking their tire landfill ban if combustors 

are no longer choosing to use tires for fuel based on the outcome of this rule. 
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through the initial process of removing them from cars or collecting them under established tire 

collection programs. 

In reaching this position, the Agency considered several factors: 

a. Some Specific Types of Secondary Materials are More Like Valuable Commodities 

than Solid Wastes. 

As noted above, when non-hazardous secondary material fuels are transferred to another 

party, the Agency generally believes that the secondary material is discarded since the generator 

has relinquished control of the secondary material and the entity receiving such materials may 

not have the same incentives to manage them as a useful product, which results in the materials 

being discarded. 

At the same time, EPA acknowledges that some specific types of secondary materials are 

more like valuable commodities than solid wastes, and the mere act of transferring them to a 

third-party does not automatically involve discard. 

After reviewing the comments on the proposal and all other information in the 

rulemaking record, EPA has determined that, unlike the historic management of scrap tires that 

resulted in many waste tire piles, the annually generated scrap tires that are removed from 

vehicles under established tire collection programs shows that they are not being discarded, as 

evidenced by the dramatic decrease in the number of tires in waste tire dumps. Fewer than one 

million tires remain in tire piles, as compared to an estimate of one billion tires in 1990. In 

addition, scrap tires have nearly the highest percentage of reuse, recycling, or otherwise being 

beneficially used in the markets. That is, of the 300 million scrap tires being generated every 

year, nearly 90% of those tires go to beneficial use markets. The change in market conditions 
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since the historic management of scrap tires in piles have helped ensure that scrap tires collected 

as part of established programs are not discarded. 

Under the scrap tire program, oversight starts at the point the tires are removed from the 

vehicle and continues until they are used as a fuel at combustion units, ensuring that discard does 

not occur. Although we mentioned in the proposed rule that there was a pattern of discard at 

third party-off site reclaimers, based on the information in the record, we understand that it is no 

longer the case for scrap tires, while acknowledging that there was a problem in the past. 

In regard to the proposed rule statement that state environmental agencies often consider 

tires to have entered the “waste stream” and were concerned about conflicting interpretations, we 

recognize that states163 typically call tires a waste until beneficially used. As described above, 

we believe that discard is not occurring (according to the plain language definition since they 

have not been abandoned, disposed of, or thrown away) for tires collected from vehicles under 

established tire collection programs (as defined). Secondly, this rule is specifically for use of 

non-hazardous secondary materials as fuels and ingredients (including scrap tires) in combustion 

units and this rule has different criteria than State Agency definitions for general use of scrap 

tires. These issues are discussed further in Sections IX (State Authority) and in Section V.B.5 

(Response to Comments on Scrap Tires). 

Typically, the state and private programs work together to encourage processing, reuse, 

and/or recycling, that would result in a market demand for scrap tires to be collected; however, 

 

163 There are many variations on how scrap tires are regarded in State Environmental Agencies, of note, Texas 

considers that tires are non-waste, but that the shipments have to be documented. For details, please refer to 

comments by the Texas Commission on Environmental Quality (TCEQ), commenter ID EPA-HQ-RCRA-2008-

0329-1306. 
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the market for fuel use is more independently sustainable in the free market, while other markets 

for scrap tire reuse and recycling often need to function with state subsidies to support them.164 

b. Beneficial Use of Whole Scrap Tires 

 Since most combustion units will continue to use tires that have been processed into TDF 

chips, the biggest change in the final rule (with regard to the use of scrap tires) is that cement 

kilns will be able to use whole tires as non-waste fuels if those tires are removed from vehicles 

under established tire collection programs. In particular, cement kilns operate at much higher 

temperatures and need, not only the fuel from the tires, but also the non-combustible portions in 

order to produce cement clinker, creating a strong market for this type of beneficial use. Whole 

tires removed from vehicles under established tire collection programs still meet the legitimacy 

criteria and using whole tires for their fuel value would lead to an overall decrease in the 

emissions of hazardous air pollutants (HAP) or the section 129 pollutants in the CAA when 

replacing traditional fuel sources (e.g., coal) in cement kilns due to the contaminant levels and 

combustion properties. Many state environmental agencies and cement kilns supplied data and 

support for use of whole tires in cement kilns. 

Since cement kilns’ use of whole tires as a non-waste would be a change from the 

proposal, EPA considered potential environmental justice impacts. The assessment of the 

demographic analysis at the cement kilns using scrap tires showed a decreased chance of 

impacting environmental justice communities based on the demographic analysis at cement kilns 

versus the alternative sites. The demographics at cement kilns showed that they were sited in 

areas that were lower in minority and had less poverty that the alternative CISWI combustors, 

tire processors, or disposal sites. In addition, scrap tires are prevented from being disposed of in 

 

164 The recovery and management of scrap tires that are recovered from tire piles are largely supported or subsidized 

by State Agencies and these whole tires are considered discarded and waste when used as fuel. . 
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states that ban whole tires from landfills165 and that have an established collection infrastructure. 

Not all states have programs that prevent landfilling and tires recovered from tire dumps are not 

always suitable for market use. However, have we have noted previously, scrap tires have 

nearly the highest percentage of reuse, recycling, or are otherwise being beneficially used in the 

markets to ensure that scrap tires collected as part of established programs are not discarded. 

2. Restrictions and Requirements. 

a. Legitimate Use. 

 Under this rule, scrap tires collected pursuant to established tire collection programs must 

meet the legitimacy criteria in §241.3(d)(1) to be considered a non-waste fuel. Specifically: 

• Scrap tires are considered to be handled as a valuable commodity when they are 

collected from vehicles under established scrap tire collection programs. If at any point 

these tires or tires that otherwise qualify to be non-waste (processed or petitioned) are not 

managed as a valuable commodity, they would become a solid waste. See 

§241.3(d)(1)(i). Scrap tires (whole or TDF chips) have exceptionally high heating value; 

they are considered to meet the legitimacy criteria for meaningful heating value 

established in today’s rule at §241.3(d)(1)(ii). In fact, the heating value of scrap tires 

(12,000 Btu/lb to 16,000 Btu/lb) is higher than typical coal values and other solid fuels. 

• EPA’s analysis of the contaminant concentrations in scrap tires shows that it is 

comparable to the traditional fuel it replaces (i.e., coal); therefore, it is considered to meet 

the legitimacy criteria for comparable contaminants established in today’s rule at 

 

165 A few states allow tires cut up in smaller pieces to be landfilled, while fewer states still allow whole tires in 

landfills. 
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§241.3(d)(1)(iii). The comparison to the contaminant concentrations is given in the scrap 

tire response to comments. See Section V.B.5. 

b. Notification. 

We are not requiring facilities that use scrap tires collected under established tire 

collection programs and that meet the legitimacy criteria to notify EPA under this rule. This 

notice would be duplicative of the notification and recordkeeping requirements being 

promulgated for boilers and process heaters at major sources of air toxics. That CAA section 

112 rule requires notifications and recordkeeping, including documentation as to how the nonhazardous secondary material meets the legitimacy criteria, and satisfies the definition of 

processing and/or the requirements for the petition process. (§§40 CFR 63.7530 and 63.7555). 

Specific recordkeeping requirements for area source boilers combusting non-hazardous 

secondary materials are also found at 40 CFR 63.11225(c)(2)(ii) under the CAA section 112 rule 

for area source boilers. 

Additionally, regulations at 40 CFR 60.2157(v) promulgated for commercial and 

industrial solid waste incinerators under CAA section 129 require basic recordkeeping to 

establish whether materials combusted in a commercial or industrial unit meet the standards and 

procedures for identification of non-hazardous secondary materials that are not solid wastes. 

Under the provisions of §60.2157(w), for combustors burning scrap tires, a certification must be 

maintained stating that the scrap tires combusted under §241.3(b)(2)(i) were obtained through an 

established tire collection program. 

Owners or operators of commercial or industrial facilities that combust materials that are 

not traditional fuels are directed to the CAA section 112 regulations for boilers, and the CAA 

section 129 regulations for commercial and industrial incinerators, to determine whether there 
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are any recordkeeping provisions related to the definition of solid waste that may apply to them. 

The Agency believes that these records and notifications under the CAA regulations provide 

assurance that facilities will apply the legitimacy criteria, and that requiring notification under 

this rule is not necessary. 

D. Materials That Have Not Been Discarded: Resinated Wood Residuals 

1. Scope and Applicability. 

Resinated wood (also referred to as resinated wood residuals) is another secondary 

material that, upon examination, is not discarded when used on-site or transferred off-site. EPA 

would consider resinated wood used as a fuel in a combustion unit as not being a solid waste, 

provided these materials satisfy the specified legitimacy criteria for fuels (§241.3(d)(1)). 

 The definition of “resinated wood” has been codified in §241.2 and means wood products 

(containing resin adhesives) derived from primary and secondary wood products manufacturing 

and comprised of such items as board trim, sander dust, and panel trim. Wood products 

manufacturers in many cases have constructed their facilities to utilize resinated wood residuals 

as fuels. Specialized burners specifically to fire sander dust and replace oil and natural gas were 

developed and were integral to the growth of the industry. A small – about 6 percent-- but 

growing percentage is also sold into the fuel market, reinforcing both the residue‘s value as a 

fuel and its desirability as a fuel. This secondary material is routinely transferred between either 

intra- or inter- company facilities and used as either “furnish” (i.e., raw materials) or fuel at the 

receiving facilities. This material when transferred off-site is used and handled in the same 

manner that resinated wood residuals are used when generated on-site, such that it is impossible 

to distinguish between materials that are being used as a raw material and those that are being 

used as a fuel. 
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Consistent with the approach taken for scrap tires, EPA recognizes that some specific 

types of non-hazardous secondary materials, such as resinated wood residuals, are more like 

valuable commodities than solid wastes, and per the findings of the Safe Food case, the act of 

transferring them to a third-party does not automatically involve discard. Thus, EPA has the 

discretion to determine that resinated wood is not a solid waste, even if it is transferred between 

industries or ownership of the material is relinquished. 

2. Restrictions and Requirements. 

a. Legitimate Use. 

 As we have noted above, the combustor of these secondary materials would still need to 

demonstrate that such residuals meet the legitimacy criteria. Thus, they would need to show the 

material is handled as a valuable commodity, has meaningful heating value and is used as a fuel 

in a combustion unit that recovers energy, and contains contaminants at levels comparable to (or 

lower than) those in traditional fuels for which the combustion unit is designed to burn. 

b. Notification. 

We are not requiring facilities that use resinated wood residuals and that meet the 

legitimacy criteria to notify EPA under this rule. This notice would be duplicative of the 

notification and recordkeeping requirements being promulgated for boilers and process heaters at 

major sources of air toxics. That CAA section 112 rule requires notifications and recordkeeping, 

including documentation as to how the non-hazardous secondary material meets the legitimacy 

criteria, and satisfies the definition of processing and/or the requirements for the petition process. 

(§§40 CFR 63.7530 and 63.7555). Specific recordkeeping requirements for area source boilers 

combusting non-hazardous secondary materials are also found at 40 CFR 63.11225(c)(2)(ii) 

under the CAA section 112 rule for area source boilers. 
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Additionally, regulations at 40 CFR 60.2157(v) promulgated for commercial and 

industrial solid waste incinerators under CAA section 129 require basic recordkeeping to 

establish whether materials combusted in a commercial or industrial unit meet the standards and 

procedures for identification of non-hazardous secondary materials that are not solid wastes. 

Owners or operators of commercial or industrial facilities that combust materials that are not 

traditional fuels are directed to the CAA section 112 regulations for boilers, and the CAA section 

129 regulations for commercial and industrial incinerators, to determine whether there are any 

recordkeeping provisions related to the definition of solid waste that may apply to them. The 

Agency believes that these records and notifications under the CAA regulations provide 

assurance that facilities will apply the legitimacy criteria, and that requiring notification under 

this rule is not necessary. 

E. Non-Hazardous Secondary Materials Used as an Ingredient 

1. Scope and Applicability.

 Non-hazardous secondary materials used as ingredients in combustion units would not be 

solid wastes provided they satisfy the legitimacy criteria discussed in §241.3(d)(2). We are not 

differentiating between ingredients that are used within the control of the generator from those 

that are not since we believe that the use of non-hazardous secondary materials as ingredients is 

considered to be more integral or akin to use in a commercial manufacturing process and thus, 

these non-hazardous secondary materials should not be considered discarded provided they 

satisfy the legitimacy criteria. However, non-hazardous secondary materials that are used as 

ingredients, but have been discarded in the first instance (e.g., landfilled) would be considered a 

solid waste unless processed into a new ingredient product. 

 The Agency received comments on the proposed rule that ingredients should not be 
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included in this rule since ingredients are not “combusted,” but rather, are incorporated into the 

product. As explained in the response to comments in Section V.A, this issue is not relevant to 

this regulation, which determines whether non-hazardous secondary materials are a solid waste, 

or not under RCRA. EPA believes it has clear authority to interpret RCRA to decide whether 

non-hazardous secondary materials are solid wastes or not. Whether EPA may cover ingredients 

used in combustors under section 129 of the CAA is a matter for regulations under that statute. 

 The proposal identified a number of non-hazardous secondary materials that are currently 

being used as ingredients in combustion processes that would not be considered solid waste, 

provided they meet the legitimacy criteria for ingredients and were not discarded in the first 

instance (e.g., blast furnace slag; CKD; the coal combustion residual group (fly ash, bottom ash, 

and boiler slag); and foundry sand. For example, coal fly ash can be added to the raw material 

feed in clinker manufacturing to contribute specific required elements, such as silica, alumina, 

and calcium, in the final composition of cement, with such levels of key metals needing to be 

carefully calibrated with other ingredients to ensure that the final cement product has the correct 

mineral and metal content. There is every incentive for the company to ensure that the metals 

content are within specifications to ensure that the clinker product meets specifications. In 

clinker manufacture, coal fly ash partially offsets the need for raw materials, such as silica, iron, 

and alumina sources. This reduction of raw feedstock materials can result in reduced emissions 

of certain pollutants.166 

 Another non-hazardous secondary material used as an ingredient, CKD, can be directly 

reused in a closed-loop process back into the cement kiln for clinker manufacture. In fact, the 

 

166 For more detailed information on the benefits of using coal fly ash and other recovered mineral components in 

manufacturing processes, please see: “Study on Increasing the Usage of Recovered Mineral Components in 

Federally Funded Projects Involving Procurement of Cement or Concrete to Address the Safe, Accountable, 

Flexible, Efficient Transportation Equity Act: A Legacy for Users.” June 23, 2008. (EPA530-R-08-007) 
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cement industry is estimated to recycle more than 75 percent of its CKD each year. Significant 

increases in U.S. clinker capacity are expected over the 2008 to 2012 period resulting in an 

anticipated increase in CKD production and usage. In clinker manufacture, CKD partially 

offsets the need for raw material feed, such as limestone and natural constituents (rock), thus 

avoiding the energy usage and emissions related to their extraction and processing. 

2. Restrictions and Requirements. 

 a. Legitimate Use. 

 Under this rule, non-hazardous secondary materials used as ingredients in combustion 

units cannot be discarded in the first instance and must meet the legitimacy criteria in 

§241.3(d)(2) to be considered a non-waste ingredient. To satisfy the legitimacy criteria, the nonhazardous secondary material (non-waste) ingredient must: be managed as a valuable 

commodity, provide a useful contribution to the production or manufacturing process, used to 

produce a valuable product, and result in products that contain contaminants at concentrations 

comparable to or lower than those found in traditional products manufactured without the nonhazardous secondary material. 

b. Notification. 

We are not requiring facilities that use non-hazardous secondary materials as ingredients 

to notify EPA under this rule. This notice would be duplicative of the notification and 

recordkeeping requirements being promulgated for boilers and process heaters at major sources 

of air toxics. That CAA section 112 rule requires notifications and recordkeeping, including 

documentation as to how the non-hazardous secondary material meets the legitimacy criteria, 

and satisfies the definition of processing and/or the requirements for the petition process. (§§40 

CFR 63.7530 and 63.7555). Specific recordkeeping requirements for area source boilers using 
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non-hazardous secondary materials as ingredients are also found at 40 CFR 63.11225(c)(2)(ii) 

under the CAA section 112 rule for area source boilers. 

Additionally, regulations at 40 CFR 60.2157(v) promulgated for commercial and 

industrial solid waste incinerators under CAA section 129 require basic recordkeeping to 

establish whether materials combusted in a commercial or industrial unit meet the standards and 

procedures for identification of non-hazardous secondary materials that are not solid wastes. 

Owners or operators of commercial or industrial facilities that combust non-hazardous secondary 

materials that are not traditional fuels are directed to the CAA section 112 regulations for boilers, 

and the CAA section 129 regulations for commercial and industrial incinerators, to determine 

whether there are any recordkeeping provisions related to the definition of solid waste that may 

apply to them. The Agency believes that these records and notifications under the CAA 

regulations provide assurance that facilities will apply the legitimacy criteria, and that requiring 

notification under this rule is not necessary. 

F. Discarded Non-Hazardous Secondary Materials That Have Undergone Processing to 

Produce Legitimate Fuel or Ingredient Products 

1. Scope and Applicability. 

 Fuel or ingredient products that result from the processing of discarded non-hazardous 

secondary materials and that meet the legitimacy criteria as discussed below are not solid wastes. 

Because the resulting fuel/ingredient products are, in effect, reclaimed or extracted products from 

a recycling process, EPA considers such materials to be “new” products that have not been 

discarded and therefore are not solid wastes. Until the non-hazardous secondary materials have 

been processed into a non-waste fuel or ingredient product meeting the legitimacy criteria, the 

discarded non-hazardous secondary material are generally assumed to be solid wastes. 
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As discussed in the proposed rule, the basic principle that must be satisfied is that the 

discarded non-hazardous secondary material must undergo a sufficient level of processing that 

produces either a new fuel or ingredient product (the definition of processing is defined in 

§241.2). Specifically, processing includes, but is not limited to, operations that: remove or 

destroy contaminants; significantly improves the fuel characteristics of the material, e.g., sizing 

or drying the material in combination with other operations, chemically improve the as-fired 

energy content, or improve the ingredient characteristics. On the other hand, processing 

operations that are minimal, such as operations that result only in modifying the size of the nonhazardous secondary material, would not constitute processing for purposes of today’s rule. In 

addition, the new product must have properties that provide the end user the assurance that the 

fuel or ingredient product consistently satisfies the legitimacy criteria based on the type of 

combustion unit the non-hazardous secondary material is used in (e.g., as a fuel in a boiler or as 

an ingredient in a cement kiln). 

The principle that products can be produced from a waste is common to industrial 

processes and commercial recycling markets. Newspaper and aluminum cans discarded by 

consumers are then collected, sorted and processed into new recycled paper and aluminum 

products that are not considered solid waste. Collected plastic is generally sent to a reclaimer, 

who will sort, grind, and clean the plastic. The cleaned and sorted plastic is sent to a 

manufacturer who will use it as feedstock. These are clear examples where discarded materials 

are processed into legitimate non-waste products. 

 Recycled fuel products are no different from recycled paper and aluminum cans with 

respect to discard. If non-hazardous secondary materials that are discarded by being abandoned, 

disposed of or thrown away, but are later collected, segregated, and processed into a 
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homogenous fuel product that is marketed and sold as a valuable commodity and is no different 

from traditional fuels used today, then they should no longer be considered solid waste, just as 

recycled paper is not a solid waste. 

 There are other examples beyond consumer recycled materials where discarded 

secondary materials are processed into new products. These examples include specific 

exclusions from the hazardous waste regulations, which provide insight into how secondary 

materials can be processed into valuable products. For instance, discarded spent solvents are 

commonly recycled via distillation into legitimate, newly usable solvents. These regenerated 

solvents are clearly considered to be products, not wastes. See 50 FR 634, January 4, 1985. 

 Another example is scrap tires retrieved from waste tire piles that have been 

shredded/chipped into TDF with the wire removed. In this instance, the scrap tires have been 

sufficiently processed and thus, the TDF would not be considered a solid waste when burned as a 

fuel. On the other hand, scrap tires from waste tire piles that have been shredded/chipped without 

the metal wire removed , would not be considered to have been sufficiently processed, and any 

TDF that is generated in such a fashion would be considered a waste-derived fuel. For a full 

discussion of processing of scrap tires, see Section V.B.5, which discusses the comments 

received on this issue, as well as EPA’s responses. 

Coal refuse generated from legacy piles is another example of a discarded material that 

has been processed into a fuel product, although, as discussed in Section V.B.8, the nature of the 

material results in a somewhat different processing scenario. Specifically, coal refuse that has 

been discarded in waste piles is unique since it was a material generated during the fuel 

production process and then thrown away (discarded). Over time, combustion technology 

changes allowed this raw material to be “re-mined” as raw material coal. The level of processing 
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that occurs for this ”re-mined” coal refuse is no different than the level of processing that occurs 

for raw material coal today. In fact, this same material is generated in current-day coal mining 

operations and processed into a fuel product today. 

In that sense, we do not consider coal refuse to fit within what we would normally 

consider to be a “secondary material” (i.e., material that is not the primary product of a 

manufacturing or commercial process), since the primary product of coal mining operations is in 

fact fuel As a result, raw materials that are generated in the fuel production process that have 

been discarded, but that are then subsequently processed no differently from raw materials 

processed into fuels today, would be considered to undergo an adequate level of processing to 

render it a non-waste. This would not apply to other discarded materials, such as used tires, 

since they are truly secondary materials whose ultimate use as a fuel is in fact “secondary in 

nature.” Off-spec used oil is another example of a secondary material which we believe is 

discarded, but can be processed into a non-waste product (see Section V.B.7). Once the used oil 

is determined to be on-spec, we do not view it to be a solid waste since it is no longer regulated 

under the used oil management standards of 40 CFR part 279 and can be managed as an 

alternative fuel. 

 Synthesis gas (or syngas as it is commonly referred) produced from the gasification of 

solid waste is another material that can also meet the requirements of a fuel product produced 

from processing of discarded non-hazardous secondary materials, provided the syngas has been 

adequately processed to remove contaminants. Gasification is a chemical production process 

that converts carbonaceous material into a synthesis gas that can be used for energy production 

(or as a building block for other chemical manufacturing processes). In general, gasification 

systems are designed to react carbon-containing materials and steam at high temperatures to 
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produce a synthesis gas composed mainly of carbon monoxide and hydrogen. 

 Gasification systems include two basic components. The first is the reactor or gasifier 

and the second is a gas cleanup or polishing system used to remove various contaminants from 

the raw (un-polished) synthesis gas. At a minimum, syngas cleanup generally includes removal 

of sulfur and metals. These two components work together producing a synthesis gas that can be 

used as a fuel in a combustion turbine. 

 Coal fines, biomass, and other materials can be mixed and processed into pellets (or other 

forms) that have the consistency and handling characteristics of coal. For example, the K-Fuel 

process employs heat and pressure to transform coal into a cleaner, more efficient fuel by 

removing water and polluting impurities, thus increasing combustion efficiency. When applied 

to different lower-rank sub-bituminous and lignite coals, the K-Fuel process removes, on 

average, almost 70 percent of the coal's elemental mercury.167 As discussed in Section V.B.2, 

manure processed into biofuels (for example, by anaerobic digesters) would also be considered a 

legitimate non-waste fuel that has been processed from a non-hazardous secondary material 

provided “the biofuel” meets the legitimacy criteria. 

2. Restrictions and Requirements. 

 a. Legitimate Use. 

 Discarded non-hazardous secondary materials that are sufficiently processed to produce 

legitimate fuel or ingredient products must still pass the applicable legitimacy criteria to be 

considered a non-waste fuel or ingredient product. To be considered a legitimate fuel, the fuel 

product must meet the criteria identified in §241.3(d)(1), while to be considered a legitimate 

ingredient, the ingredient product must meet the criteria in §241.3(d)(2). 

 

167 Evergreen Energy Company Website. http://www.evgenergy.com/k_fuel.php 
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b. Notification. 

We are not requiring facilities that use discarded non-hazardous secondary materials that 

are sufficiently processed to produce legitimate fuel or ingredient products to notify EPA under 

this rule. This notice would be duplicative of the notification and recordkeeping requirements 

being promulgated for boilers and process heaters at major sources of air toxics. That CAA 

section 112 rule requires notifications and recordkeeping, including documentation as to how the 

non-hazardous secondary material meets the legitimacy criteria, and satisfies the definition of 

processing and/or the requirements for the petition process. (§§40 CFR 63.7530 and 63.7555). 

Specific recordkeeping requirements for area source boilers using non-hazardous secondary 

materials as ingredients are also found at 40 CFR 63.11225(c)(2)(ii) under the CAA section 112 

rule for area source boilers. 

Additionally, regulations at 40 CFR 60.2157(v) promulgated for commercial and 

industrial solid waste incinerators under CAA section 129 require basic recordkeeping to 

establish whether materials combusted in a commercial or industrial unit meet the standards and 

procedures for identification of non-hazardous secondary materials that are not solid wastes. 

Owners or operators of commercial or industrial facilities that combust materials that are not 

traditional fuels are directed to the CAA section 112 regulations for boilers, and the CAA section 

129 regulations for commercial and industrial incinerators, to determine whether there are any 

recordkeeping provisions related to the definition of solid waste that may apply to them. The 

Agency believes that these records and notifications under the CAA regulations provide 

assurance that facilities will apply the legitimacy criteria, and that requiring notification under 

this rule is not necessary. 

G. Non-Waste Determination Petitions 
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1. Description of the Petition Criteria for the Non-Waste Determination. 

 The final rule establishes a non-waste determination petition process that provides 

persons with an administrative process for receiving a formal determination from the EPA 

Regional Administrator that non-hazardous secondary materials that are burned as a fuel and 

have not been managed within the control of the generator, have not been discarded, and is 

indistinguishable in all relevant aspects from a fuel product is not a solid waste when used as a 

legitimate fuel in a combustion unit. For example, a facility combusting non-hazardous 

secondary materials that is not affiliated or within the control of the generator of the nonhazardous secondary material (and thus is “outside the control of the generator”) can petition 

EPA that such non-hazardous secondary materials they burn as fuel is not a solid waste pursuant 

to the various criteria. 

 This petition process is voluntary. That is, facilities may choose to petition EPA to 

receive a case-specific non-waste determination. However, any petition that is submitted to EPA 

that requests a non-waste determination must demonstrate that the non-hazardous secondary 

material has not been previously discarded and that it satisfies the five criteria outlined in today’s 

rule at §241.3(c). In addition, the petitioner must also demonstrate that the non-hazardous 

secondary material meets the legitimacy criteria in 241.3(d)(1). 

 To demonstrate that the non-hazardous secondary material that is to be burned as a fuel 

has not been discarded in the first instance, the petitioner would need to demonstrate that it was 

not initially abandoned or thrown away by the generator of the non-hazardous secondary 

material. After demonstrating that the non-hazardous secondary material has not been discarded 

in the first instance, the petitioner must then demonstrate that the material is indistinguishable in 

all relevant aspects from a fuel product by showing that it satisfies all of the following five 
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criteria: (1) whether market participants handle the non-hazardous secondary material as a fuel 

rather than a waste; (2) whether the chemical and physical identify of the non-hazardous 

secondary material is comparable to a commercial fuel; (3) whether the capacity of the market 

would use the non-hazardous secondary material in a reasonable time frame; (4) whether the 

constituents in the non-hazardous secondary material are released to the air, water or land from 

the point of generation to the point just prior to combustion of the non-hazardous secondary 

material at levels comparable to what would otherwise be released from traditional fuels; and (5) 

other relevant factors. These five criteria are listed in today’s rule at §241.3(c)(1). 

 Specifically, the first criterion for a non-waste determination is whether market 

participants treat the non-hazardous secondary material as a fuel rather than a solid waste. This 

would include consideration of likely markets for the non-hazardous secondary material (e.g., 

based on the current positive value of the secondary material, stability of demand, and any 

contractual arrangements). This evaluation of market participation is a key element for 

determining whether companies view these non-hazardous secondary materials like fuels rather 

than as negatively-valued wastes. 

 The second criterion for a non-waste determination is the chemical and physical identity 

of the non-hazardous secondary material and whether it is comparable to commercial fuels. This 

“identity principle” is a key factor that the Court of Appeals for the D.C. Circuit cited in Safe 

Food in determining whether a non-hazardous secondary material is indistinguishable from a 

product. It is important to note that the identity of a material can be comparable to a fuel product 

without being identical. However, to qualify for a non-waste determination, any differences 

between the non-hazardous secondary material in question and the commercial fuel contaminants 

should be within a small acceptable range. In addition, the comparison must be of the secondary 
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material itself to the commercial fuels and not of the emissions from the combustion unit. The 

Agency also recognizes, however, that emissions data may be used to augment data from the 

material in cases where such emissions data is useful in making legitimacy determinations and 

demonstrating that constituents in the material are being used in energy recovery and not 

disposed of through sham recycling. 

 The third criterion for making a non-waste determination is the capacity of the market to 

use the non-hazardous secondary material as a fuel in combustion units in a reasonable time 

frame and ensure that it will not be abandoned. For the non-waste determination, a person must 

provide sufficient information about the non-hazardous secondary material and the market 

demand for it to demonstrate that such non-hazardous secondary materials will in fact be used as 

a fuel in combustion units in a reasonable time frame. EPA is not explicitly defining “reasonable 

time frame” because such time frames could vary according to the non-hazardous secondary 

material and the industry involved, and therefore determining this time frame should be made on 

a case-specific basis. 

 The fourth criterion for a non-waste determination is whether the constituents in the nonhazardous secondary material fuels that could be considered contaminants are at concentrations 

comparable to what would otherwise be released from traditional fuels from the point of 

generation of the non-hazardous secondary material, its management and storage prior to 

combustion. The Agency believes that the release to the environment of contaminants contained 

in the non-hazardous secondary material is a possible indicator of risk and discard. The Agency 

recognizes that combustion using traditional fuels also result in a certain level of release and, in 

evaluating this criterion, would not deny a non-waste determination if such release is comparable 

to those traditional fuel releases. However, when relatively high levels of the contaminants are 
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released to the environment from the point of generation to the point just prior to combustion 

then that may be an indication that the non-hazardous secondary material is not being handled as 

a commercial fuel. 

 The fifth and final criterion for a non-waste determination includes any other relevant 

factors that demonstrate that the non-hazardous secondary material is not discarded and thus is 

not a solid waste. This catch-all criterion is intended to allow the petitioner to provide any casespecific information considered important and relevant in making the case that its non-hazardous 

secondary material used as a fuel in a combustion unit is not a solid waste. 

 Any non-hazardous secondary material used as a fuel must also satisfy the legitimacy 

criteria (§241.3(d)(1)) in order to be considered a non-waste fuel. We note that there may be 

some overlap between the legitimacy criteria and the five petition criteria discussed above. 

Thus, the same rationale used to demonstrate that the non-hazardous secondary material contains 

contaminants at levels comparable to (or lower than) traditional fuels in combination with the 

argument that such non-hazardous secondary material contains meaningful heating value can be 

used to satisfy the petition criterion number two above. 

2. Non-Waste Determination Petition Process. 

 In order to obtain a non-waste determination, a facility must apply to the Regional 

Administrator for the EPA Region where the facility combusting the non-hazardous secondary 

material is located per the procedures described in today’s rule at §241.3(c). The application 

must address the relevant criteria discussed above. The Regional Administrator will evaluate the 

application and issue a draft notice tentatively granting or denying the application. Notification 

of this tentative decision will be provided by newspaper advertisement or radio broadcast in the 

locality where the combustion unit is located. The Regional Administrator will accept public 
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comment on the tentative decision for at least 30 days, and may also hold a public hearing upon 

request or at his discretion. The Regional Administrator will issue a final decision after 

consideration of comments and after the hearing (if any). The Regional Administrator may draw 

upon the states expertise as discussed below. 

 After a formal non-waste determination has been granted, if a change occurs that affects 

how the non-hazardous secondary material meets the relevant criteria contained in today’s rule at 

§241.3(c)(1), or affects its meeting the legitimacy criteria in §241.3(d)(1), persons must reapply to the Regional Administrator for another formal determination that the non-hazardous 

secondary material continues to meet the relevant criteria and is not discarded and therefore, not 

a solid waste. The same criteria and procedures described above would be used for any reapplication of the non-hazardous secondary material. 

 As petition decisions are made by the Agency, they will be made available on an Agency 

website so the petition can be referenced when similar requests are submitted. This will support 

national consistency and minimize redundant efforts. 

3. Petition Decisions Utilizing State Environmental Agency Program’s Input.

 When analyzing a non-waste determination petition request, the EPA Regional 

Administrator may request or rely on information generated through a state’s beneficial use 

program that certain non-hazardous secondary materials are or are not solid waste. The state 

beneficial use programs have been developed to encourage a variety of uses for many nonhazardous secondary materials. The process ensures that non-hazardous secondary materials do 

not endanger human health and the environment, and that they are managed in accordance with 

the conditions of the determination. Generally, when a beneficial use determination has been 

granted (thus, no longer considered a solid waste under the states laws or regulations), it would 
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document that the chemical and physical properties are similar to the raw material it is replacing 

or, when incorporated into another product, would be beneficial to the final product. 

 State Agencies may also submit a non-waste determination request on behalf of the 

regulated applicant for EPA to evaluate under the non-waste determination criteria in today’s 

rule at §241.3(c)(1). States may petition for a whole category of non-hazardous secondary 

materials in their state for a particular type of combustor, or for specific individual combustors. 

H. Legitimacy Criteria 

1. Legitimacy Criteria for Fuels. 

Non-hazardous secondary materials used as non-waste fuels in combustion units must 

meet the legitimacy criteria specified in §241.3(d)(1). To meet the legitimacy criteria, the nonhazardous secondary material must be managed as a valuable commodity, have a meaningful 

heating value and be used as a fuel in a combustion unit that recovers energy, and contain 

contaminants at concentrations comparable to (or lower than) those in traditional fuels which the 

combustion unit is designed to burn. 

In applying the legitimacy criteria, we would note that there are two overall questions 

that the Agency needs to answer: (1) whether or not the non-hazardous secondary material is a 

fuel product or ingredient product, or whether the material has been discarded and is therefore a 

solid waste, which includes waste-derived fuels or ingredients; and (2) whether the nonhazardous secondary material is being legitimately and beneficially used or recycled. 

With respect to the legitimacy question, EPA believes it important and crucial to apply a 

set of legitimacy criteria to make sure that the fuel product and ingredient product are being 

legitimately and beneficially used and not simply being discarded via sham recycling. The 

definition of legitimate recycling developed for subtitle C hazardous secondary materials 
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carefully considered the history surrounding the uses of these secondary materials, as well as the 

applicable case law with respect to the meaning of discard. Likewise, those same principles are 

pertinent to how a non-hazardous secondary material is determined not to be a solid waste. 

Therefore, we are codifying general legitimacy criteria that use the same basic framework that 

has been established for the subtitle C hazardous waste regulations, but that are also tailored 

specifically for application to non-hazardous secondary materials that are used as fuels or 

ingredients in combustion units. See 40 CFR 241.3(d) for the proposed regulatory text of the 

legitimacy criteria and, for comparison see 40 CFR 260.43 in final regulations for the DSW 

hazardous waste legitimacy provisions. 

Specific legitimacy criteria for fuels are discussed below: 

a. Manage as a Valuable Commodity. 

Non-hazardous secondary materials used as fuels must be managed as valuable 

commodities, including being stored for a reasonable time frame. See §241.3(d)(1)(i). Where 

there is an analogous fuel, the non-hazardous secondary material must be managed in a manner 

consistent with the management of the analogous fuel or otherwise be adequately contained so as 

to prevent releases to the environment. Where there is no analogous fuel, the non-hazardous 

secondary material must be adequately contained so as to prevent releases to the environment. 

An “analogous fuel” is a traditional fuel for which the non-hazardous secondary material 

substitutes and which serves the same function and has similar physical and chemical properties 

as the non-hazardous secondary material. 

With respect to how long a non-hazardous secondary material can be stored before the 

material is not considered to be “managed as a valuable commodity,” we are requiring that the 

non-hazardous secondary material be stored for a reasonable time frame. While EPA took 
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comment on whether it should provide a specific time-frame (e.g., one-year) as opposed to the 

general standard of “reasonable time frame,” based on comments submitted, the Agency has 

decided not to specifically define “reasonable time frame,” primarily because such time frames 

could and will vary according to the non-hazardous secondary material and industry involved. 

(See Section V .D for a discussion of the comments received and EPA’s response.) 

 This legitimacy factor applies to the non-hazardous secondary materials burned under 

the generator-controlled exclusion, to legitimate fuel products that have been produced from 

discarded non-hazardous secondary materials that have been sufficiently processed to produce a 

non-waste fuel, and to the non-hazardous secondary materials used as fuel that have not been 

discarded when used outside control of the generator (i.e., scrap tires under tire collection 

programs and resinated wood residuals). For the generator-controlled provision and for those 

non-hazardous secondary materials that are used as a fuel that have not been discarded when 

used outside the control of the generator (i.e., scrap tires under tire collection programs and 

resinated wood residuals), the non-hazardous secondary material must be managed as a valuable 

commodity upon generation through its end use as a fuel—that is, from the initial point of 

generation of the non-hazardous secondary material to the time it is actually burned as a fuel. 

For discarded non-hazardous secondary materials that are processed to produce a non-waste fuel, 

the fuel must be managed as a valuable product from the point that it is first produced as a nonwaste fuel through the time that it is actually burned. As noted previously, before the non-waste 

fuel product is produced from discarded non-hazardous secondary materials, the non-hazardous 

secondary material is a solid waste, and must comply with any federal, state, or local 

requirements. 

This criterion requires that the non-hazardous secondary material be managed 
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appropriately before its end use as a fuel. In EPA’s view, a company will value non-hazardous 

secondary materials used as non-waste fuels that provide an important contribution and, 

therefore, will manage those secondary materials in a manner consistent with how it manages 

traditional fuels. If, on the other hand, a company does not manage the non-hazardous secondary 

material as it would a traditional fuel, that behavior may indicate that the non-hazardous 

secondary material is being discarded. 

This factor addresses the management of non-hazardous secondary materials used as 

fuels in two distinct situations. The first situation is when the non-hazardous secondary material 

is analogous to a traditional fuel that otherwise could be burned. In this case, the non-hazardous 

secondary material must be managed prior to use as a fuel in a similar manner to how traditional 

fuels are managed or otherwise must be “contained” so as to prevent releases to the environment. 

For example, for liquid non-hazardous secondary materials that are used as a non-waste fuel that 

are similar to liquid fossil fuels, the Agency would expect that such non-hazardous secondary 

materials would be managed in tanks or similar type devices that are structurally sound to control 

the release of the non-hazardous secondary materials. The Agency would also expect that the 

types of controls that would typically be part of a tank or similar type device for liquid fossil 

fuels would also be part of any tank system that is used to manage the non-hazardous secondary 

material. For example, if liquid fossil fuels are stored in tanks with covers or they provide for 

secondary containment, the Agency would expect that the non-hazardous secondary material 

would also be stored in tanks with covers, with secondary containment so as to prevent releases 

to the environment. The second situation addresses the case where there is no analogous 

traditional fuel that otherwise could be burned. This could be either because the process is 

designed around a particular non-hazardous secondary material fuel, such as resinated wood 
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residuals, or because physical or chemical differences between the non-hazardous secondary 

material and the traditional fuel are too significant for them to be considered “analogous.” 

Non-hazardous secondary materials that have significantly different physical or chemical 

properties when compared to traditional fuels would not be considered analogous even if they 

serve the same function because it may not be appropriate to manage them in the same way. In 

this situation, the non-hazardous secondary material would have to be “contained” so as to 

prevent releases to the environment for this criterion to be met. A non-hazardous secondary 

material is “contained” if it is stored in a manner that both adequately prevents releases or other 

hazards to human health and the environment, considering the nature and toxicity of the nonhazardous secondary material.168 

b. Meaningful Heating Value and Use as a Fuel. 

Non-hazardous secondary materials must have a meaningful heating value and be used as 

a fuel in a combustion unit that recovers energy. See §241.3(d)(1)(ii). That is, since this 

legitimacy criterion is intended to apply only to non-hazardous secondary materials that have a 

specific end use (in this case, use as a fuel in an energy recovery device), we believe it 

appropriate to highlight that point by adding that restriction directly to the legitimacy criterion. 

Thus, non-hazardous secondary materials having a meaningful heating value must also be burned 

in a combustion device specifically to recover energy; otherwise the unit that combusts such 

secondary materials are considered incinerators and thus, are solid wastes.169 We recognize that 

incinerators and similar type units may accept non-hazardous secondary materials with a 

meaningful heating value and use that fuel value to limit the other types of fuels it needs to burn. 

 

168 Examples of materials that are adequately contained would include liquid fuels stored in a tank. 

169 We note that incinerators that burn waste for purposes of destruction that have a waste heat recovery boiler would 

not be considered a combustion unit that satisfies this legitimacy criterion. 
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However, the intent of an incinerator, and similar type units, is to destroy wastes, and thus, nonhazardous secondary materials that are burned in such units are considered discarded, and thus, 

solid waste. 

With respect to the requirement that the non-hazardous secondary material have a 

meaningful heating value, in the context of the RCRA subtitle C hazardous waste regulations, 

EPA addressed this concept—that is, whether a hazardous secondary material has a meaningful 

heating value, in the “comparable fuels” rule (63 FR 33781) by defining it with a benchmark Btu 

content of 5,000 Btu/lb. EPA has also previously stated that industrial furnaces (e.g., cement 

kilns and industrial boilers) burning hazardous wastes with an energy value greater than 5,000 

Btu/lb may generally be considered to be burning for energy recovery; however, we have also 

indicated that hazardous wastes with a lower Btu content could conceivably be burned for energy 

recovery due to the devices’ general efficiency of combustion. “Thus, the 5,000 Btu level is not 

an absolute bright line measure of burning for energy recovery...” (see 62 FR 24251, May 2, 

1997). 

These same concepts are also appropriate in determining whether a non-hazardous 

secondary material has a meaningful heating value since traditional fuels in general have a range 

of heating values from 4,000 to 23,000 Btu/lb. However, we also recognize that new 

technologies may be developed in the future that can cost-effectively produce energy from such 

non-hazardous secondary materials with lower energy content. As a result, for purposes of 

meeting this legitimacy criterion, we would consider non-hazardous secondary materials with an 

energy value greater than 5,000 Btu/lb, as-fired, to have a meaningful heating value. In addition, 

for facilities with energy recovery units that use a non-hazardous secondary material as a fuel 
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with an energy content lower than 5,000 Btu/lb, as fired, a person may demonstrate170 that a 

meaningful heating value is derived from the non-hazardous secondary material if the energy 

recovery unit can cost-effectively recover meaningful energy from the non-hazardous secondary 

material used as a fuel. Factors that are important in determining whether an energy recovery 

unit can cost-effectively recover energy from the non-hazardous secondary material include, but 

are not limited to, whether the facility encounters a cost savings due to not having to purchase 

significant amounts of traditional fuels they otherwise would need, whether they are purchasing 

the non-hazardous secondary material to use as a fuel, whether the non-hazardous secondary 

material they are burning can self-sustain combustion, and whether their operation produces 

energy that is sold for a profit (e.g., a utility boiler that is dedicated to burning a specific type of 

non-hazardous secondary material that is below 5,000 Btu/lb, but can show that their operation 

produces electricity that is sold for a profit). 

While not specifically included in §241.3(d)(1), EPA views this legitimacy criterion to 

encompass the concept of the “useful contribution and valuable product” legitimacy factors used 

to evaluate hazardous secondary materials in the 2008 DSW final rule. In that rule, with respect 

to useful contribution, EPA said that legitimate recycling must involve a hazardous secondary 

material that provides a useful contribution to the recycling process or to a product of the 

recycling process. See §260.43(b)(1). In today’s final rule, this criterion expresses the principle 

that non-hazardous secondary materials should contribute value to the manufacturing process - 

legitimate use is not occurring if the secondary materials being used do not add anything to the 

process. This criterion is intended to prevent the practice of using non-hazardous secondary 

 

170 Such demonstration would be included in the recordkeeping and reporting requirements for boiler units 

combusting materials considered to be non-wastes in accordance 40 CFR 241.3 as specified in 40 CFR 63.7530(a) 

and 63.7555. See Section VII.I in today’s rule for a further discussion of these reporting and recordkeeping 

requirements. 
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materials in a manufacturing operation simply as a means of disposing or discarding them. 

With respect to the legitimacy criterion of producing a valuable product or intermediate, 

the product or intermediate is valuable if it is (i) sold to a third party or (ii) used by the recycler 

or the generator as an effective substitute for a commercial product or as an ingredient or 

intermediate in an industrial process.” See §260.43(b)(2). In today’s final rule, this criterion 

expresses the principle that the non-hazardous secondary material should be a material of value, 

as demonstrated by someone purchasing the material, or using it as an effective substitute for a 

commercial product that it would otherwise have to buy or obtain for its industrial process. We 

believe non-hazardous secondary materials that have meaningful heating value that are used as 

non-waste fuels in combustion units provide a useful contribution and are valuable products 

since they are replacing traditional fuels that otherwise would have to be burned. 

c. Contaminant Levels. 

Today’s rule includes a legitimacy criterion under which non-hazardous secondary 

materials used as non-waste fuels in combustion units must contain contaminants at levels that 

are comparable to (or lower than) those in traditional fuel products which the combustion unit is 

designed to burn (e.g., cellulosic biomass, fossil fuels and their derivatives, as identified 

elsewhere in this preamble). See §241.3(d)(1)(iii). This criterion is important to ensure that a 

non-hazardous secondary material being used as a fuel is not being combusted or otherwise 

released to the environment wholly or in part for the purpose of disposing of or discarding of 

unwanted materials. The combustion of non-hazardous secondary materials with elevated levels 

of contaminants results in the contaminants being discarded either through incineration, or by 

being released to the environment. We also believe that requiring that the non-hazardous 

secondary material have contaminants at concentrations that are comparable to or lower than 
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traditional fuels would ensure that the burning of any non-hazardous secondary material in 

combustion units will not result in increased releases to the environment that could impact the 

health and environment of the local community. Thus, ensuring that the level of contaminants in 

the non-hazardous secondary material is comparable to (or lower than) those in traditional fuels 

which the combustion unit is designed to burn would be at least as protective of human health 

and the environment as burning traditional fuels. 

The Agency took comment on a criterion where such contaminants could not be 

significantly higher in concentration than contaminants in traditional fuels, as this is the standard 

that is in the 2008 DSW Final Rule regarding the reclamation of hazardous secondary materials. 

However, we have decided not to adopt this standard in this rule because we are concerned that 

contaminants that are “not significantly higher” in non-hazardous secondary materials could be 

seen as “discarding” such contaminants, even if the non-hazardous secondary material, when 

combusted, did not present a risk to human health and the environment. (See Section V.D for a 

discussion of the comments received and EPA’s response regarding the level at which 

contaminants should be present in such non-hazardous secondary materials.) 

 The term “contaminants,” as proposed, was defined to mean the HAP listed under 

section 112(b) of the CAA, as well as the nine pollutants required to be regulated under section 

129 of the CAA. We believe that this was reasonable because this legitimacy criterion is 

intended to ensure that such non-hazardous secondary materials are not being combusted as a 

means of disposing of them, so the health and environmental impacts of concern will be those 

resulting from the air emissions of concern identified in the CAA, including the listed HAP, as 

well as the section 129 pollutants. However, the Agency did request comment on whether 

additional contaminants should be added or removed to the definition of “contaminant.” Based 
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on comments received and the Agency’s own assessment, the Agency has decided to also 

include pathogens as a contaminant of concern to the list because such pathogens have been 

shown to be disease causing micro-organisms that can be present in several non-hazardous 

secondary materials evaluated (i.e., sewage sludge, manure). Pathogenic organisms are 

specifically defined in 40 CFR 503.31 as disease-causing organisms including, but not limited to, 

certain bacteria, protozoa, viruses, and viable helminth ova. Thus, the final rule defines the term 

“contaminants” to mean the HAP listed under CAA section 112(b), the nine pollutants required 

to be regulated under CAA section 129, and pathogens. (See Section V.D.3 for a discussion of 

the comments received and EPA’s response regarding the meaning of “contaminants.”) 

 In determining which traditional fuel(s) the owner or operator of the boiler unit would 

make a comparison to with respect to contaminant levels, the Agency will allow any traditional 

fuel(s) that can be or is burned in the particular type of boiler. For example, if the boiler burns 

fuel oil, the level of contaminants to be compared would be the level of contaminants in fuel oil 

or other liquid traditional fuels that is or can be burned in such unit. For gas-fired boilers, the 

level of contaminants in the non-hazardous secondary material fuels would be compared to 

natural gas. The Agency believes that this approach is most appropriate since the non-hazardous 

secondary material would be replacing the use of a particular type(s) of fuel. In addition, as 

discussed in the preamble to the boiler MACT, boilers designed to combust different types of 

fuels (e.g., coal vs. oil) cannot easily be modified to burn another fuel. Therefore we have 

determined that any comparison of the contaminants in a non-hazardous secondary material 

should be to the type(s) of fuel that are (or can be) used in the boiler. 

EPA is not establishing specific numerical maximum contaminant levels that a nonhazardous secondary material would have to meet, but rather the rule allows the owner or 
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operator to make the comparison based on information he has or can acquire regarding the level 

of contaminants found in the traditional fuels he burns or could burn. The assessment of 

whether the non-hazardous secondary material has contaminants comparable to (or lower than) 

traditional fuel products is to be made by directly comparing the numerical contaminant levels in 

the non-hazardous secondary material to the contaminant levels in traditional fuels. 

The legitimacy criterion is tailored specifically to the use of these non-hazardous 

secondary materials as fuels in combustion units. As a result, we believe that contaminant levels 

in non-hazardous secondary materials must be comparable in concentration (or lower than) such 

concentration to be legitimately used as a non-waste fuel product. While the Agency did solicit 

comment on whether or not it should establish a bright line level or establish a set of levels in the 

final rule in defining comparable, the Agency has concluded that establishing such levels would 

be difficult since the level of any contaminant in a particular type of fossil fuel or other 

traditional fuels can vary quite a bit. Thus, the Agency is defining “comparable to or lower than” 

to mean any contaminants present in the non-hazardous secondary materials that are within a 

small acceptable range of the concentrations found in traditional fuels. See Section V.D.3 for a 

discussion of the comments received and EPA’s response regarding establishing specific levels 

in defining a comparable fuel. 

2. Legitimacy Criteria for Ingredients. 

 Non-hazardous secondary materials used as ingredients in combustion units must meet 

the legitimacy criteria specified in 40 CFR 241.3(d)(2). As discussed for the legitimate fuels 

criteria, EPA believes it important and crucial to apply a set of legitimacy criteria to make sure 

that the ingredient products are being legitimately and beneficially used and not simply being 

discarded via sham recycling. A non-hazardous secondary materials used as an ingredient in a 
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combustion unit must be managed as a valuable commodity, provide a useful contribution, be 

used to produce a valuable product or intermediate, and must result in products that contain 

contaminants at levels that are comparable in concentration to (or lower than) those found in 

traditional products that are manufactured without the non-hazardous secondary material. Our 

reasoning for establishing the particular criteria is discussed below. 

 a. Managed as Valuable Commodities. 

Non-hazardous secondary materials used as ingredients must be managed as valuable 

commodities, including being stored for a reasonable time frame. See §241.3(d)(2)(i). Where 

there is an analogous ingredient, the non-hazardous secondary material must be managed in a 

manner consistent with the management of the analogous ingredient or otherwise be adequately 

contained so as to prevent releases to the environment. Where there is no analogous ingredient, 

the non-hazardous secondary material must be adequately contained so as to prevent releases to 

the environment. An “analogous ingredient” is an ingredient for which the non-hazardous 

secondary material substitutes and which serves the same function and has similar physical and 

chemical properties as the non-hazardous secondary material. 

With respect to how long a non-hazardous secondary material can be stored before the 

material is not considered to be “managed as a valuable commodity,” we are requiring that the 

non-hazardous secondary material be stored for a reasonable time frame. While EPA took 

comment on whether it should provide a specific time-frame (e.g., one-year) as opposed to the 

general standard of “reasonable time frame,” based on comments submitted, the Agency has 

decided not to specifically define “reasonable time frame,” primarily because such time frames 

could and will vary according to the non-hazardous secondary material and industry involved. 

(See Section V.E.1 for a discussion of the comments received and EPA’s response.) 
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For discarded non-hazardous secondary materials that are processed to produce a nonwaste ingredient, the ingredient product must be managed as a valuable product from the point 

that it is first produced as a non-waste through its use in the combustion unit. As noted 

previously, before the non-waste product is produced, the non-hazardous secondary material is a 

solid waste, and must comply with any federal, state, or local requirements. 

This criterion requires that the non-hazardous secondary material be managed 

appropriately before its end use as an ingredient. In EPA’s view, a company will value nonhazardous secondary materials used as ingredients that provide an important contribution and, 

therefore, will manage those non-hazardous secondary materials in a manner consistent with how 

it manages traditional ingredients. If, on the other hand, a company does not manage the nonhazardous secondary material as it would traditional ingredients, that behavior may indicate that 

the non-hazardous secondary material is being discarded. 

This factor addresses the management of non-hazardous secondary materials used as 

ingredients in two distinct situations. The first situation is when the non-hazardous secondary 

material is analogous to a traditional ingredient that otherwise could be burned. In this case, the 

non-hazardous secondary material must be managed prior to use as an ingredient in a similar 

manner to how traditional ingredients are managed or otherwise must be “contained” so as to 

prevent releases to the environment. For example, for liquid non-hazardous secondary materials 

that are used as a non-waste ingredient that are similar to traditional ingredients, the Agency 

would expect that such non-hazardous secondary materials would be managed in tanks or similar 

type devices that are structurally sound to control the release of the non-hazardous secondary 

materials. The Agency would also expect that the types of controls that would typically be part 

of a tank or similar type device for traditional ingredients would also be part of any tank system 
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that is used to manage the non-hazardous secondary material. For example, if traditional 

ingredients are stored in tanks with covers or they provide for secondary containment, the 

Agency would expect that the non-hazardous secondary material would also be stored in tanks 

with covers, with secondary containment so as to prevent releases to the environment. The 

second situation addresses the case where there is no analogous traditional ingredient that 

otherwise could be burned. This could be either because the process is designed around a 

particular non-hazardous secondary material ingredient, or because physical or chemical 

differences between the non-hazardous secondary material and the traditional ingredient are too 

significant for them to be considered “analogous.” 

 Non-hazardous secondary materials that have significantly different physical or chemical 

properties when compared to traditional ingredients would not be considered analogous even if 

they serve the same function because it may not be appropriate to manage them in the same way. 

In this situation, the non-hazardous secondary material would have to be “contained” so as to 

prevent releases to the environment for this criterion to be met. A non-hazardous secondary 

material is “contained” if it is stored in a manner that both adequately prevents releases or other 

hazards to human health and the environment, considering the nature and toxicity of the nonhazardous secondary material.171 

 b. Useful Contribution. 

We are requiring that non-hazardous secondary materials used as ingredients in 

combustion units provide a useful contribution to the production/manufacturing process. See 

§241.3(d)(2)(ii). A non-hazardous secondary material used as an ingredient in combustion 

systems provides a useful contribution if it contributes valuable ingredients to the 

 

171 Examples of materials that are adequately contained would include liquids stored in a tank. 
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production/manufacturing process or to the product or intermediate of the 

production/manufacturing process. This criterion is an essential component in the determination 

of legitimacy because legitimate use is not occurring if the non-hazardous secondary material 

doesn’t add anything to the process, such that the non-hazardous secondary material is basically 

being disposed of or discarded. This criterion is intended to prevent the practice of “sham” 

recycling by adding non-hazardous secondary materials to a manufacturing operation simply as a 

means of disposing of them. 

 For purposes of satisfying this criterion, not every constituent or component of the nonhazardous secondary material has to make a contribution to the production/manufacturing 

activity. For example, non-hazardous secondary materials used as ingredients may contain some 

constituents that are needed in the manufacturing process, such as, for example, zinc in nonhazardous secondary materials that are used to produce zinc-containing micronutrient fertilizers, 

while other constituents in the non-hazardous secondary material, such as lead, do not provide a 

useful contribution. Provided the zinc is at levels that provides a useful contribution, we believe 

the non-hazardous secondary material would satisfy this criterion, although we would note that 

the constituents not directly contributing to the manufacturing process could still result in the 

non-hazardous secondary material not meeting the contaminant part of the legitimacy criteria. 

The Agency is not quantitatively defining how much of the non-hazardous secondary material 

needs to provide a useful contribution for this criterion to be met, since we believe that defining 

such a level would be difficult and is likely to be different, depending on the non-hazardous 

secondary material. The Agency recognizes that this could be an issue if persons argue that a 

non-hazardous secondary material is being legitimately used as an ingredient, but in fact, only a 

small amount or percentage of the non-hazardous secondary material is used. Because of the 
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differences in the emissions standards that the non-hazardous secondary material would be 

subject to—between CAA sections 112 and 129, persons may argue that such non-hazardous 

secondary materials are not wastes, when in fact, the operation is really discard, and therefore, 

sham recycling. Thus, as part of the recordkeeping requirements under the CAA, persons need to 

provide the basis or rationale on why the particular non-hazardous secondary material meets the 

legitimacy criteria, including how the secondary material provides a useful contribution. 

 c. Valuable Product. 

We are requiring that non-hazardous secondary materials used as ingredients in 

combustion units must be used to produce a valuable product or intermediate. See 

§241.3(d)(2)(iii). The product or intermediate is valuable if it is (i) sold to a third party or (ii) 

used as an effective substitute for a commercial product or as an ingredient or intermediate in an 

industrial process. 

 This criterion expresses the principle that the product or intermediate of the 

manufacturing/production process should be a material of value, either to a third party who buys 

it from the manufacturer, or to the same manufacturer that subsequently uses it as a substitute for 

another material that it would otherwise have to buy or obtain for its industrial process. This 

criterion is an essential component of the concept of legitimacy because legitimate use cannot be 

occurring if the product or intermediate is not of use to anyone and, therefore, has no real value. 

This criterion is intended to prevent the practice of introducing a non-hazardous secondary 

material through an industrial process to make something just for the purpose of avoiding the 

costs of disposal. Such a practice would be sham recycling. 

 One way that the use of the non-hazardous secondary material as an ingredient in the 

production/manufacturing process can be shown to produce a valuable product would be to have 
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documentation on the sale of the product to a third party. Such documentation could be in the 

form of receipts or contracts and agreements that establish the terms of the sale or transaction. 

This transaction could include money changing hands or, in other circumstances, may involve 

trade or barter. A manufacturer that has not yet arranged for the sale of its product to a third party 

could also establish value by demonstrating that it can replace another product or intermediate 

that is available in the marketplace. 

 Production/manufacturing processes that use non-hazardous secondary materials as 

ingredients may produce outputs that are not sold to another party, but are instead used by the 

same manufacturer. These products or intermediates may be used as a feedstock in a 

manufacturing process, but have no established monetary value in the marketplace. Such 

products or intermediates would be considered to have intrinsic value, though demonstrating 

intrinsic value may be less straightforward than demonstrating value for products that are sold in 

the marketplace. Demonstrations of intrinsic value could involve showing that the product or 

intermediate of the production/manufacturing process replaces another material that would 

otherwise have to be purchased or could involve a showing that the non-hazardous secondary 

material meets specific product specifications or specific industry standards. Another approach 

could be to compare the non-hazardous secondary material’s physical and chemical properties or 

efficacy for certain uses with those of comparable products or intermediates made from raw 

materials. 

 Some production/manufacturing processes that use non-hazardous secondary materials as 

ingredients may consist of multiple steps that may occur at separate facilities. In some cases, 

each processing step will yield a valuable product or intermediate. When each step in the 

process yields a valuable product or intermediate that is salable or usable in that form, the 
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activity would conform to this criterion. 

d. Contaminant Levels. 

We are requiring that non-hazardous secondary materials used as an ingredient must 

result in products that contain contaminants at levels that are comparable in concentration to (or 

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

secondary material. See §241.3(d)(2)(iv). The term “contaminants” refers to constituents in 

non-hazardous secondary materials that will result in emissions of the air pollutants identified as 

HAP listed under CAA section 112(b), the nine pollutants listed under CAA section 129(a)(4)), 

and pathogens (as defined in 40 CFR 503.31) when such non-hazardous secondary materials are 

used as ingredients, including those constituents that could generate products of incomplete 

combustion. As indicated in the discussion of the legitimacy criteria for fuels, the Agency has 

decided to also include pathogens as a contaminant of concern to the list because such pathogens 

have been shown to be disease causing micro-organisms that can be present in several nonhazardous secondary materials (i.e., sewage sludge, manure). 

The assessment of whether the products produced from the use of non-hazardous 

secondary materials that have contaminants that are comparable (or lower )in concentration can 

be made by a comparison of contaminant levels in the ingredients themselves to the traditional 

ingredients they are replacing, or by comparing the contaminant levels in the product itself with 

and without the use of the non-hazardous secondary material. In determining which traditional 

ingredient(s) the owner or operator of the unit would make a comparison to with respect to 

contaminant levels, the Agency believes that any traditional ingredient that can be or is used in 

the particular type of unit is appropriate. For example, for cement kilns, if the ingredient is 

CKD, the level of contaminants to be compared would be the level of contaminants in limestone 
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or other ingredients that can be used in such unit. Alternatively, a product comparison can be 

made. See Section V.E for a further discussion of the comments received regarding the 

legitimacy criteria for ingredients, as well as our responses to those comments. 

I. Determining That Non-Hazardous Secondary Material Meets the Legitimacy Criteria

 Owners and operators of affected facilities combusting non-hazardous secondary 

materials that are not considered solid wastes must ensure that the non-hazardous secondary 

materials meet the legitimacy criteria in §241.3(d) (and continue to meet those criteria) when 

combusted. Non-hazardous secondary materials that no longer meet these legitimacy criteria 

would be considered solid wastes and the units combusting those non-hazardous secondary 

materials would be considered a commercial or industrial solid waste incineration (CISWI) unit 

(see 40 CFR 60.2875). 

 The CAA section 112 rule requires notification and recordkeeping, including 

documentation as to how the non-hazardous secondary material meets the legitimacy criteria, 

and satisfies the definition of processing and/or the requirements for the petition process. (§§40 

CFR 63.7530 and 63.7555). Specific recordkeeping requirements for area source boilers 

combusting non-hazardous secondary materials are found at 40 CFR 63.11225(c)(2)(ii) under the 

CAA section 112 rule for area source boilers. Additionally, regulations at 40 CFR 60.2157(v) 

promulgated for commercial and industrial solid waste incinerators under CAA section 129 

require basic recordkeeping to establish whether materials combusted in a commercial or 

industrial unit meet the standards and procedures for identification of non-hazardous secondary 

materials that are not solid wastes. Owners or operators of commercial or industrial facilities 

that combust materials that are not traditional fuels are directed to the CAA section 112 

regulations for boilers, and the CAA section 129 regulations for commercial and industrial 
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incinerators, to determine whether there are any recordkeeping provisions related to the 

definition of solid waste that may apply to them. The Agency believes that these records and 

notifications under the CAA regulations provide assurance that facilities will apply the 

legitimacy criteria. 

VIII. Effect of Today’s Final Rule on Other Programs 

 The construct of this rule is to determine which non-hazardous secondary materials are 

solid wastes when combusted either as a fuel or ingredient in order to determine CAA section 

129 applicability. Thus, this rules applicability is to the universe of combustion facilities using 

non-hazardous secondary materials as fuels or ingredients. 

A. Clean Air Act 

 The definition of solid waste incineration unit in CAA section 129(g)(6) states that the 

term “solid waste” will have the meaning established by the Administrator of EPA under RCRA. 

Today’s rule would establish under RCRA which non-hazardous secondary materials constitute 

“solid waste” when used as a fuel or an ingredient. This definition of “solid waste” is being used 

by EPA to establish CAA emissions standards for CISWI units (under CAA section 129) and 

boilers and process heaters (under CAA section 112). Any unit combusting “solid waste” is 

subject to the emission standards for “solid waste incineration units” under CAA section 129. 

The waste determinations in this rule do not subject combustion units to CAA section 129 if the 

units are exempt under CAA section 129(g)(1).172 

 

172 CAA 129 (g)(1) 

“(1) ... The term “solid waste incineration unit” does not include 

(A) materials recovery facilities (including primary or secondary smelters) which combust waste for the primary 

purpose of recovering metals, 

(B) qualifying small power production facilities, as defined in section 796 (17)(C) of title 16, or qualifying 

cogeneration facilities, as defined in section 796 (18)(B) of title 16, which burn homogeneous waste (such as units 

which burn tires or used oil, but not including refuse-derived fuel) for the production of electric energy or in the case 

of qualifying cogeneration facilities which burn homogeneous waste for the production of electric energy and steam 
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B. Renewable Energy 

 This rule may impact how some non-hazardous secondary materials could be used to help 

supply renewable energy to the U.S. and through state programs. Congress has passed several 

laws, such as the Energy Independence and Security Act of 2007 (Public Law 110-140), that 

supports the development and use of renewable sources of energy, both for power generation and 

for the production of transportation fuels. Qualified sources would include wind, solar, and 

geothermal power, but could also include power generated by the combustion of biogenic 

materials, which may include some non-hazardous secondary materials burned for energy 

recovery. Biogenic materials are materials that result from the activity of living organisms. A 

number of non-hazardous secondary materials are partially or completely biogenic. For 

example, woody biomass contains recoverable energy and would be considered biogenic in 

origin. Energy from biogenic sources is generally preferable to fossil fuels. 

 In addition to these federal programs that may be impacted, Renewable Portfolio 

Standards (RPS) currently provide states with a mechanism to increase renewable energy 

generation using renewable energy sources (including biofuels) and a cost-effective, marketbased approach. An RPS requires electric utilities and other retail electric providers to supply a 

specified minimum amount of customer load with electricity from eligible renewable energy 

sources. The goal of an RPS is to stimulate market and technology development so that, 

ultimately, renewable energy will be economically competitive with conventional forms of 

electric power. States create RPS programs because of the energy, environmental, and economic 

 

or forms of useful energy (such as heat) which are used for industrial, commercial, heating or cooling purposes, or 

(C) air curtain incinerators provided that such incinerators only burn wood wastes, yard wastes and clean lumber and 

that such air curtain incinerators comply with opacity limitations to be established by the Administrator by rule. ...” 
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benefits of renewable energy and sometimes other clean energy approaches, such as energy 

efficiency and combined heat and power. 

 If these renewable energy sources or biogenic fuels qualify as clean cellulosic biomass, 

they are an alternative fuel (see the full definition in today’s rule at §241.2) and are not subject to 

the section 129 CAA standards, but rather, would continue to be subject to the section 112 CAA 

standards. 

C. Subtitle C Hazardous Waste Program 

 The result of this rule will have no effect on the RCRA subtitle C hazardous waste 

program because it does not address hazardous waste. The RCRA subtitle C hazardous waste 

federal program has a long regulatory history in defining ‘‘solid waste’’ for purposes of the 

hazardous waste regulations. However, the 40 CFR 261.2 definition of solid waste explicitly 

applies only to wastes that also are hazardous for purposes of the subtitle C regulations (see 40 

CFR 261.1(b)(1)). CAA section 129 also specifically excludes subtitle C combustion units from 

coverage under that section. 

 RCRA section 7003 gives EPA the authority to compel actions to abate conditions that 

may present an “imminent and substantial endangerment” involving both solid and hazardous 

wastes. EPA uses this authority on a case-by-case basis. The Agency can determine in a 

specific factual context whether a non-hazardous secondary material which causes an 

endangerment is discarded. RCRA sections 3007 and 3008 establish EPA’s inspection and 

Federal enforcement authority to address violations of the subtitle C hazardous waste 

regulations. Nothing in this rule shall impact EPA’s ability to act pursuant to RCRA sections 

3007, 3008 and 7003. The rule also does not limit or otherwise affect EPA's ability to pursue 
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potentially responsible persons under section 107 of CERCLA for releases or threatened releases 

of hazardous substances. 

 Finally, we would note that on October 30, 2008, EPA issued a final rule excluding 

certain hazardous secondary materials from the definition of solid waste issued under the 

hazardous waste provisions found in RCRA subtitle C (73 FR 64688). EPA is currently reexamining these exclusions, and as part of a settlement agreement with Sierra Club, EPA will 

issue a proposed rule by June 2011. This proposal will address, at minimum, issues raised in an 

administrative petition filed by Sierra Club, including the four issues discussed in a public 

meeting Federal Register notice (74 FR 25200, May 27, 2009). The four issues are (1) the 

definition of “contained,” (2) notification before operating under the exclusion (3) the definition 

of “legitimacy” and (4) the transfer-based exclusion. Many of the issues to be addressed in the 

upcoming subtitle C definition of solid waste proposal are similar to the issues addressed in 

today’s final rule. However, there are significant differences between today’s final rule and the 

scope of the planned June 2011 subtitle C definition of solid waste proposal. The planned 

proposal will only address the regulation of hazardous secondary materials (not non-hazardous 

secondary materials) going to reclamation (not burning for energy recovery) under RCRA 

subtitle C (not subtitle D). In developing the planned subtitle C proposal, EPA will carefully 

consider the difference in scope between the two rulemakings and address it as appropriate. 

IX. State Authority

 Subtitle D of RCRA establishes a framework for state, federal, and local government 

cooperation in controlling the management of non-hazardous solid waste. The federal role in 

this arrangement is to establish the overall regulatory direction, by providing minimum 

nationwide standards for protecting human health and the environment, and to provide technical 
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assistance to states for planning and developing their own solid waste management practices. 

The actual planning and direct implementation of solid waste programs under RCRA subtitle D, 

however, remains largely a state and local function, and states have authority to devise programs 

to deal with state specific conditions and needs. 

 EPA has not promulgated detailed regulations of what is included in the definition of 

solid waste for the RCRA subtitle D (non-hazardous waste) programs. State environmental 

agencies have promulgated their own laws and regulations as to what constitutes a solid waste 

and have interpreted those laws and regulations to determine what types of non-hazardous 

secondary material activities involve the management of a solid waste for the purposes of their 

authorities. Many states have a process or promulgated regulations to determine when these 

materials are wastes, and when they can be used beneficially and safely in products in 

commerce. 

 Through this rulemaking, EPA is articulating a narrow definition of which non-hazardous 

secondary materials are or are not solid waste when used as a fuel for energy recovery or as an 

ingredient in combustion units. We are not imposing solid waste requirements for determining 

other possible secondary material end uses nor does this rulemaking apply to general materials 

management in state programs. 

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

 CAA section 129 states that the term ‘‘solid waste’’ shall have the meaning ‘‘established 

by the Administrator pursuant to the Solid Waste Disposal Act’’ Id. at 7429(g)(6). Accordingly, 

the states’ definition of solid waste would not be applicable in determining whether the CAA 

section 129 standards apply. Specifically, state determinations regarding a material’s beneficial 

use that may exempt a non-hazardous secondary material from the state solid waste standards 
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would not necessarily impact the status of such non-hazardous secondary materials under EPA’s 

solid waste definition as it relates to which combustion units are subject to the CAA section 129 

standards. Likewise, combustion units that use non-hazardous secondary materials as fuels or 

ingredients that are not solid waste under today’s rule would not be subject to the solid waste 

incineration standards under CAA section 129, even though the state standards may define the 

same material as solid wastes for their recycling and waste management programs. 

 If a non-waste determination is sought by petition at a combustion unit, the Agency (EPA 

Regional Administrator or delegate) will make the decision to grant or deny the petition. The 

Agency can, however, utilize the information and contaminant data from state beneficial use 

determinations if it is applicable to the non-hazardous secondary material when used as a fuel or 

as an ingredient. These state beneficial use programs have been developed to encourage 

recycling and reuse, provided that the uses maintain the specified state’s acceptable level of risk, 

protect human health and the environment, and are managed in accordance with the conditions of 

the determination. Generally, when a beneficial use determination has been granted, it would 

have chemical and physical properties that are comparable to the raw material it is replacing or, 

when incorporated into another product, its use would be beneficial to the final product. If the 

data to support the beneficial use determination was available, it could help support the research 

on contaminant concentrations for the legitimacy criteria in order to make the petition decision. 

 A discussion on state program involvement in the petition process and on states 

submitting petitions in lieu of a regulated applicant is described in Section V.F. Implementation 

and enforcement issues related to state programs and the summary of the petition process for the 

final rule are covered in Section VII.I. 

B. State Adoption of the Rulemaking 
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 No federal approval procedures for state adoption of today's rule are included in this rule 

under RCRA subtitle D. Although EPA does promulgate criteria for solid waste landfills and 

approves state municipal solid waste landfill permitting programs, RCRA does not provide EPA 

with authority to approve state programs beyond municipal solid waste landfill permitting 

programs. While states are not required to adopt today’s rule, some states incorporate federal 

regulations by reference or have specific state statutory requirements that their state program can 

be no more stringent than the federal regulations. In those cases, EPA anticipates that, if 

required by state law, the changes in today’s rule will be incorporated (or possibly adopted by 

authorized state air programs) consistent with the state’s laws and administrative procedures. 

C. Clarifications on the Relationship to State Programs 

 State Agencies that responded to the proposal requested further clarification in the final 

rule. Specifically, the Federal rule applies only to the RCRA subtitle D definition of solid waste 

for determining use as fuel or ingredients in combustion units (as regulated by the CAA). 

Today’s rule does not preempt a State’s statutory or regulatory definition of solid waste, and only 

applies for purposes of determining which facilities must comply with the CAA section 129 

standards. 

 Non-hazardous secondary materials may be simultaneously regulated as a non-waste fuel 

or ingredient for use in combustion units under §241.3, but as a solid waste by the State’s solid 

waste programs for management purposes. Also, see the discussion in the beginning of this 

Section (IX. State Authority). Combustors using non-hazardous secondary materials that are 

designated as a non-waste when used as a fuel or ingredient, would not be subject to the CAA 

section 129 standards, even though the state standards may define the non-hazardous secondary 

material as a solid waste. 
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 Finally, owners and operators of affected facilities combusting non-hazardous secondary 

materials considered to be non-wastes based on application of the criteria outlined in §241.3(c) 

must ensure that the non-hazardous secondary materials continue to meet those provisions when 

combusted. Non-hazardous secondary materials that no longer meet those criteria, even though 

they may be in compliance with state recycling and management requirements, would require the 

combustor to re-apply for the non-waste determination (per §241.3(c)(2)(iv)) through the EPA 

Regional Administrator (otherwise they would be considered solid wastes and the units 

combusting those non-hazardous secondary materials would be subject to the commercial or 

industrial solid waste incineration (CISWI) regulations (see 40 CFR 60.2875)).

X. Cost and Benefits of the Final Rule 

The value of any regulatory action is traditionally measured by the net change in social 

welfare that it generates. This final rule alone does not directly invoke any costs173 or benefits. 

This rule is published as part of a four-rule package that includes the Boiler MACT and CISWI 

rules.174 Costs to the regulated community and corresponding benefits to human health and the 

environment are captured under those rules. As such, the Agency has not prepared a separate 

economic assessment in support of this final rule. 

The costs and benefits indirectly associated with this action are the corresponding 

impacts assessed in the regulatory impact analyses prepared in support of the Boiler MACT and 

CISWI rules. These independent regulatory impact analyses measure, among other factors, the 

 

173 Excluding minor administrative burden/cost (e.g., rule familiarization) and costs related to submitting a voluntary 

petition. 

174 National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and 

Institutional Boilers; National Emission Standards for Hazardous Air Pollutants for 

Industrial/Commercial/Institutional Boilers and Process Heaters; and Standards of Performance for New Stationary 

Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration 

(CISWI) Units. 
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estimated net change in social welfare associated with these actions. In the development of these 

analyses, EPA worked to ensure that the methodologies and data applied in these assessments 

captured appropriate RCRA related costs (e.g., secondary material diversions). These 

assessments were designed to adhere to EPA and Office of Management and Budget guidelines 

and procedures. These documents are available in the docket established for this action. 

XI. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory Planning and Review 

 Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), this action is a 

"significant regulatory action.” Pursuant to the terms of Executive Order 12866, the Agency, in 

conjunction with the Office of Management and Budget (OMB), has determined that this rule is 

a significant regulatory action because it contains novel policy issues, as defined under part 

3(f)(4) of the Order. Accordingly, EPA submitted this action to OMB for review under EO 

12866. Any changes made in response to OMB recommendations have been documented in the 

docket for this action. 

B. Paperwork Reduction Act 

The information collection requirements in this rule have been submitted for approval to OMB 

under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The information collection 

requirements are not enforceable until OMB approves them. 

 This rule establishes a voluntary non-waste determination petition process for nonhazardous secondary materials identified as solid wastes. Facilities claiming this solid waste 

exclusion are required to seek approval from the Agency through the submission of a petition 

prior to operating under this exclusion. Sufficient information about the non-hazardous 

secondary material and the market demand for this material will be necessary to demonstrate that 
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the non-hazardous secondary material in fact has not been discarded and is a legitimate nonwaste fuel or ingredient in the combustion process. Specifically, the petition will need to contain 

information to assess the following criteria: (1) whether market participants handle the nonhazardous secondary material as a fuel rather than a waste; (2) whether the chemical and 

physical identify of the non-hazardous secondary material is comparable to a commercial fuel; 

(3) whether the capacity of the market would use the non-hazardous secondary material in a 

reasonable time frame; (4) whether the constituents in the non-hazardous secondary material are 

not discarded to the air, water or land from the point of generation to the point just prior to 

combustion of the non-hazardous secondary material at levels comparable to what would 

otherwise be released from traditional fuels; and (5) other relevant factors. 

 The facility-level burden associated with this voluntary petition option is estimated to 

have an average total burden of each non-waste determination petition of approximately 149 

hours per facility, with a total cost per facility of approximately $10,100. The total number of 

facilities likely to take advantage of this option is undetermined, but we would expect that only a 

limited number of facilities may submit such a petition. Burden is defined at 5 CFR 1320.3(b). 

 An agency may not conduct or sponsor, and a person is not required to respond to, a 

collection of information unless it displays a currently valid OMB control number. The OMB 

control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9. EPA is amending 

the table in 40 CFR part 9 of currently approved OMB control numbers for various regulations to 

list the regulatory citations for the information requirements contained in this final rule. 

C. Regulatory Flexibility Act 

 The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a 

regulatory flexibility analysis of any rule subject to notice and comment rulemaking 
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requirements under the Administrative Procedure Act or any other statute unless the agency 

certifies that the rule will not have a significant economic impact on a substantial number of 

small entities. Small entities include small businesses, small organizations, and small 

governmental jurisdictions. 

 For purposes of assessing the impacts of today's rule on small entities, small entity is 

defined as: (1) a small business, as defined by the Small Business Administration’s (SBA) 

regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a 

city, county, town, school district or special district with a population of less than 50,000; and (3) 

a small organization that is any not-for-profit enterprise which is independently owned and 

operated, and is not dominant in its field. 

 After considering the economic impacts of today’s final rule on small entities, I certify 

that this action will not have a significant economic impact on a substantial number of small 

entities. No small entities are directly regulated by this final rule (see discussion above under 

costs and benefits). Any potential impacts to small entities in these or any other potentially 

affected sectors are addressed in the regulatory flexibility analyses prepared in support of the 

CAA rules that are linked to this action.175 

 Although this final rule will not have a significant economic impact on a substantial 

number of small entities, EPA, nonetheless, has tried to reduce the impact of this rule on small 

entities through the careful and targeted identification of which non-hazardous secondary 

 

175 National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and 

Institutional Boilers; National Emission Standards for Hazardous Air Pollutants for 

Industrial/Commercial/Institutional Boilers and Process Heaters; and Standards of Performance for New Stationary 

Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration 

(CISWI) Units. 
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materials are solid wastes. In addition, we have established a voluntary petition process that 

allows for material-specific non-waste determinations. 

D. Unfunded Mandates Reform Act 

This final rule does not contain a Federal mandate that may result in expenditures of $100 

million or more for State, local, and tribal governments, in the aggregate, or the private sector in 

any one year. Because this action is linked to the CAA rules, this rule alone will not result in 

significant economic impacts on States, local and tribal governments, in the aggregate, or the 

private sector in any one year. Thus, this rule is not subject to the requirements of sections 202 or 

205 of UMRA. 

 This rule is also not subject to the requirements of section 203 of UMRA because it contains no 

regulatory requirements that might significantly or uniquely affect small governments. As 

described above, this action alone does not result in unique effects, or significant economic 

impacts.

E. Executive Order 13132: Federalism 

 This action does not have federalism implications. It will not have substantial direct 

effects on the States, on the relationship between the national government and the States, or on 

the distribution of power and responsibilities among the various levels of government, as 

specified in Executive Order 13132. This final rule, independent of the CAA rules, will not 

result in substantial direct effects on the states. Furthermore, this rule will not preempt state laws 

related to the affected non-hazardous secondary materials. States will remain free to manage 

these non-hazardous secondary materials as appropriate under their solid waste programs. Thus, 

Executive Order 13132 does not apply to this action. 

 In the spirit of Executive Order 13132, and consistent with EPA policy to promote 
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communications between EPA and State and local governments, EPA specifically solicited 

comment on the proposed action from State and local officials. 

F. Executive Order 13175: Consultation and Coordination with Indian Tribal 

Governments 

Subject to the Executive Order 13175 (65 FR 67249, November 9, 2000) EPA may not 

issue a regulation that has tribal implications, that imposes substantial direct compliance costs, 

and that is not required by statute, unless the Federal government provides the funds necessary to 

pay the direct compliance costs incurred by tribal governments, or EPA consults with tribal 

officials early in the process of developing the proposed regulation and develops a tribal 

summary impact statement. 

EPA has concluded that this action may have tribal implications. However, it will neither 

impose substantial direct compliance costs on tribal governments, nor preempt Tribal law. The 

rule may have minor indirect tribal implications to the extent that entities generating or burning 

solid wastes on tribal lands could be affected in response to the corresponding CAA rules.176 

 EPA consulted with tribal officials early in the process of developing this regulation to 

permit them to have meaningful and timely input into its development. 

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

Risks 

 This action is not subject to EO 13045 (62 FR 19885, April 23, 1997) because it 

is not economically significant as defined in EO 12866, and because the Agency does not 

 

176 National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and 

Institutional Boilers; National Emission Standards for Hazardous Air Pollutants for 

Industrial/Commercial/Institutional Boilers and Process Heaters; and Standards of Performance for New Stationary 

Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration 

(CISWI) Units. 
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believe the environmental health or safety risks addressed by this action present a 

disproportionate risk to children. This action’s health and risk assessments are contained 

in support documents prepared for the CAA section 129 CISWI and section 112 boiler 

MACT rules. 

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

or Usage 

 This action is not a “significant energy action” as defined in Executive Order 13211 (66 

FR 28355 (May 22, 2001)), because it is not likely to have a significant adverse effect on the 

supply, distribution, or use of energy. This action, independent of the CAA rules,177 is not 

expected to directly affect energy use or use patterns. The purpose of this rule is to determine 

which non-hazardous secondary materials are solid waste when combusted. On its own, this rule 

will not lead to direct changes in the ability of facilities to use non-hazardous secondary 

materials as a source of energy. The Agency acknowledges that interactions between this rule 

and the section 112 and section 129 CAA emission standards promulgated in conjunction with 

the final rule may affect the use of non-hazardous secondary materials as a source of energy. We 

refer persons to the dockets for those rules for information on these energy impacts. 

I. National Technology Transfer Advancement Act 

 Section 12(d) of the National Technology Transfer and Advancement Act of 1995 

(“NTTAA”), Public Law No. 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary 

 

177 National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and 

Institutional Boilers; National Emission Standards for Hazardous Air Pollutants for 

Industrial/Commercial/Institutional Boilers and Process Heaters; and Standards of Performance for New Stationary 

Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration 

(CISWI) Units. 
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consensus standards in its regulatory activities unless to do so would be inconsistent with 

applicable law or otherwise impractical. Voluntary consensus standards are technical standards 

(e.g., materials specifications, test methods, sampling procedures, and business practices) that are 

developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide 

Congress, through OMB, explanations when the Agency decides not to use available and 

applicable voluntary consensus standards. 

 This action does not involved technical standards. Therefore, EPA did not consider the 

use of any voluntary consensus standards. 

J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority 

Populations and Low-Income Populations 

 Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive 

policy on environmental justice. Its main provision directs federal agencies, to the greatest 

extent practicable and permitted by law, to make environmental justice part of their mission by 

identifying and addressing, as appropriate, disproportionately high and adverse human health or 

environmental effects of their programs, policies, and activities on minority populations and lowincome populations in the United States. 

 EPA has determined that this final rule will not have disproportionately high and adverse 

human health or environmental effects on minority or low-income populations. The four-rule 

package that consists of this rule plus the three CAA rules178 will generally result in an improved 

level of environmental protection. No disproportionately high and adverse human health or 

 

178 National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and 

Institutional Boilers; National Emission Standards for Hazardous Air Pollutants for 

Industrial/Commercial/Institutional Boilers and Process Heaters; and, Standards of Performance for New Stationary 

Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration 

(CISWI) Units 
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environmental effects on any population, including any minority or low-income population is 

expected. 

 Because the four rules are fully interdependent, isolating the environmental justice 

impacts of each of the four rules individually may result in a distorted assessment. For example, 

emissions standards established in the three air rules depend on which non-hazardous secondary 

materials are considered solid wastes. As a result, any changes in the way that combustion units 

manage non hazardous secondary materials will depend upon the costs of implementing the 

various emissions standards. Furthermore, the demographic characteristics of areas experiencing 

changes in environmental effects will determine whether the rules result in adverse and 

disproportionate impacts to low-income and minority populations. 

 We have developed a broad environmental justice assessment, looking at the four rules 

together, that accounts for the combined impacts to minority and low income communities. Any 

environmental justice impacts that may result from these four interdependent rules are likely to 

include one or more of the following: 1) changes in emissions from regulated combustion units, 

2) changes in emissions from the potential diversion of non hazardous secondary materials away 

from combustion units to alternative recycling or landfills, and, 3) other impacts related to 

material diversion (e.g., noise, aesthetics, water pollution, etc.). Based on our assessment of the 

emissions changes and other environmental impacts of the rules, and the demographics of 

populations near affected combustion units and waste management facilities, our main 

conclusions with respect to the environmental justice impacts of the four rules indicate the 

following: 

1. Emissions changes from affected combustion units are unlikely to lead to 

adverse and disproportionate impacts for low-income and minority populations. 
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a. Following implementation of the CISWI, Boiler MACT, and Area 

Source rules, emissions from affected facilities are likely to decline. As 

a result, populations near these facilities, overall, are likely to 

experience positive impacts (e.g., reduced incidence of adverse health 

effects). The demographic data for the Census blocks near the Boiler 

MACT and CISWI facilities179 suggest that the percentages of lowincome and minority populations are generally higher than the national 

average in these areas. 

2. Low-income and minority populations located near non combustion waste 

management facilities (e.g., recyclers, landfills) are higher, proportionally, than 

the national average. 

a. Our analysis of the demographic characteristics of populations living 

within three miles of these facilities suggests that they are located in 

areas with high low-income and minority populations. Therefore, to the 

extent that non hazardous secondary materials diverted to alternative 

recycling or landfills may lead to adverse environmental impacts, lowincome and minority populations could be adversely affected. 

However, we believe that any such increases are negligible relative to 

the reductions achieved due to the Boiler MACT and CISWI controls. 

Furthermore, considering the low quantity of materials potentially 

 

179 The CISWI facility list contains combustors projected to combust waste after the rules are finalized (some were 

not regulated as CISWIs prior to these rules). The demographic assessment does not include area source facilities. 
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diverted,180 the extent of any negative impacts is expected to be 

minimal, and will likely vary significantly by material and facility type. 

 A comprehensive discussion of these findings is presented in the document: “Summary of 

Environmental Justice Impacts for the Non-Hazardous Secondary Material (NHSM) Rule, the 

2010 Commercial and Industrial Solid Waste Incinerator (CISWI) Standards, the 2010 Major 

Source Boiler NESHAP, and the 2010 Area Source Boiler NESHAP.” This document is 

available in the Docket established for today’s action. 

K. Congressional Review Act 

 The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business 

Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take 

effect, the agency promulgating the rule must submit a rule report, which includes a copy of the 

rule, to each House of the Congress and to the Comptroller General of the United States. EPA 

will submit a report containing this rule and other required information to the U.S. Senate, the 

U.S. House of Representatives, and the Comptroller General of the United States prior to 

publication of the rule in the Federal Register. A Major rule cannot take effect until 60 days 

after it is published in the Federal Register. This action is not a “major rule” as defined by 5 

 180 Review of Costs, Benefits, Economic Impacts, Environmental Justice, and Other Impacts 

For the Following Interrelated Proposed Rules: Standards of Performance for New Stationary 

Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid 

Waste Incineration Units; RIN 2060-AO12, National Emission Standards for Hazardous Air 

Pollutants for Area Sources: Industrial, Commercial, and Institutional Boilers; RIN 2060-

AM44, National Emission Standards for Hazardous Air Pollutants for Major Sources: 

Industrial, Commercial and Institutional Boilers and Process Heaters; RIN 2060-AG69, 

Identification of Non-hazardous Secondary Materials That Are Solid Waste RIN 2050-

AG44. April 29, 2010. (See Exhibit 14).

 
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U.S.C. 804(2). This rule will be effective on [INSERT DATE 60 DAYS AFTER 

PUBLICATION IN THE FEDERAL REGISTER.] 

List of Subjects in 40 CFR Part 241 

Environmental protection, air pollution control, waste treatment and disposal 

Dated: 

_____________________________________________ 

Lisa P. Jackson, 

Administrator. 

For the reasons stated in the preamble, title 40, chapter I of the Code of Federal 

Regulations, is amended by adding Part 241 to read as follows:

PART 241—SOLID WASTES USED AS FUELS OR INGREDIENTS IN COMBUSTION 

UNITS 

 

SUBPART A -- General 

Sec. 

241.1 Purpose. 
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241.2 Definitions. 

SUBPART B – Identification of Non-Hazardous Secondary Materials that are Solid Wastes 

When Used as Fuels or Ingredients In Combustion Units 

Sec. 

241.3 Standards and Procedures for Identification of Non-Hazardous Secondary Materials that 

are Solid Wastes When Used as Fuels or Ingredients in Combustion Units.

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

SUBPART A -- General 

§241.1 Purpose. 

This part identifies the requirements and procedures for the identification of solid wastes 

used as fuels or ingredients in combustion units under section 1004 of the Resource Conservation 

and Recovery Act and section 129 of the Clean Air Act. 

§241.2 Definitions. 

 For the purposes of this subpart: 

Clean biomass means biomass that does not contain contaminants at concentrations not normally 

associated with virgin biomass materials. 

Contaminants means any constituent in non-hazardous secondary materials that will result in 

emissions of the air pollutants identified in CAA section 112(b) or the nine pollutants listed 

under CAA section 129(a)(4)), or that contains pathogens when such secondary materials are 

burned as a fuel or used as an ingredient, including those constituents that could generate 
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products of incomplete combustion. 

Contained means the non-hazardous secondary material is stored in a manner that both 

adequately prevents releases or other hazards to human health and the environment considering 

the nature and toxicity of the non-hazardous secondary material. 

Control means the power to direct the policies of the facility, whether by the ownership of stock, 

voting rights, or otherwise, except that contractors who operate facilities on behalf of a different 

person as defined in this section shall not be deemed to “control” such facilities. 

Established tire collection program means a comprehensive collection system that ensures scrap 

tires are not discarded and are handled as valuable commodities in accordance with section 

241.3(b)(2)(i) from the point of removal from the vehicle through arrival at the combustion 

facility. 

Generating facility means all contiguous property owned, leased, or otherwise controlled by the 

non-hazardous secondary material generator. 

Ingredient means a non-hazardous secondary material that is a constituent in a compound, 

process or product. 

Non-hazardous secondary material means a secondary material that, when discarded, would not 

be identified as a hazardous waste under Part 261 of this chapter. 
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Pathogens means the term pathogenic organisms as defined in 40 CFR 503.31. 

Person is defined as an individual, trust, firm, joint stock company, Federal agency, corporation 

(including government corporation), partnership, association, State, municipality, commission, 

political subdivision of a state, or any interstate body. 

Processing means any operations that transform discarded non-hazardous secondary material 

into a non-waste fuel or non-waste ingredient product. Processing includes, but is not limited to, 

operations necessary to: remove or destroy contaminants; significantly improve the fuel 

characteristics of the material, e.g., sizing or drying the material in combination with other 

operations; chemically improve the as-fired energy content; or improve the ingredient 

characteristics. Minimal operations that result only in modifying the size of the material by 

shredding do not constitute processing for purposes of this definition. 

Resinated wood means wood products (containing resin adhesives) derived from primary and 

secondary wood products manufacturing and comprised of such items as board trim, sander dust, 

and panel trim. 

 

Secondary material means any material that is not the primary product of a manufacturing or 

commercial process, and can include post-consumer material, off-specification commercial 

chemical products or manufacturing chemical intermediates, post-industrial material, and scrap. 
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Solid waste means the term solid waste as defined in 40 CFR 258.2. 

Traditional fuels means materials that are produced as fuels and are unused products that have 

not been discarded and therefore, are not solid wastes, including: (1) fuels that have been 

historically managed as valuable fuel products rather than being managed as waste materials, 

including fossil fuels (e.g., coal, oil and natural gas), their derivatives (e.g., petroleum coke, 

bituminous coke, coal tar oil, refinery gas, synthetic fuel, heavy recycle, asphalts, blast furnace 

gas, recovered gaseous butane, and coke oven gas) and cellulosic biomass (virgin wood); and (2) 

alternative fuels developed from virgin materials that can now be used as fuel products, 

including used oil which meets the specifications outlined in 40 CFR 279.11, currently mined 

coal refuse that previously had not been usable as coal, and clean cellulosic biomass. Clean 

cellulosic biomass includes those residuals that are akin to traditional cellulosic biomass such as 

forest-derived biomass (e.g., green wood, forest thinnings, clean and unadulterated bark, 

sawdust, trim, and tree harvesting residuals from logging and sawmill materials), corn stover and 

other biomass crops used specifically for energy production (e.g., energy cane, other fast 

growing grasses), bagasse and other crop residues (e.g., peanut shells), wood collected from 

forest fire clearance activities, trees and clean wood found in disaster debris, clean biomass from 

land clearing operations, and clean construction and demolition wood. Such historically 

managed traditional fuels and alternative fuels are not secondary materials or solid wastes unless 

discarded.

 

Within control of the generator means that the non-hazardous secondary material is generated 

and burned in combustion units at the generating facility; or that such material is generated and 
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burned in combustion units at different facilities, provided the facility combusting the nonhazardous secondary material is controlled by the generator; or both the generating facility and 

the facility combusting the non-hazardous secondary material are under the control of the same 

person as defined in this section. 

SUBPART B - - Identification of Non-Hazardous Secondary Materials that are Solid 

Wastes When Used as Fuels or Ingredients in Combustion Units 

§241.3 Standards and Procedures for Identification of Non-Hazardous Secondary 

Materials that are Solid Wastes When Used as Fuels or Ingredients in Combustion Units. 

 (a) Except as provided in paragraph (b) of this section, non-hazardous secondary 

materials that are combusted are solid wastes, unless a petition is submitted to, and a 

determination granted by, the Regional Administrator pursuant to paragraph (c) of this section. 

The criteria to be addressed in the petition, as well as the process for making the non-waste 

determination, are specified in paragraph (c) of this section. 

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

combusted: 

 (1) Non-hazardous secondary materials used as a fuel in a combustion unit that remains 

within the control of the generator and that meets the legitimacy criteria specified in paragraph 

(d)(1) of this section. 

 (2) The following non-hazardous secondary materials that have not been discarded and 

meets the legitimacy criteria specified in paragraph (d)(1) of this section when used as a fuel (by 
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the generator or outside the control of the generator); such materials include: 

 (i) Scrap tires used as a fuel in a combustion unit that are removed from vehicles and 

collected and managed under the oversight of established tire collection programs. 

 (ii) Resinated wood used as a fuel in a combustion unit. 

 (3) Non-hazardous secondary materials used as an ingredient in a combustion unit and 

that meets the legitimacy criteria specified in paragraph (d)(2) of this section. 

 (4) Fuel or ingredient products that are combusted, and are produced from the processing 

of discarded non-hazardous secondary materials and that meet the legitimacy criteria specified in 

paragraph (d)(1) of this section, with respect to fuels, and paragraph (d)(2) of this section, with 

respect to ingredients. Until the discarded non-hazardous secondary material is processed to 

produce a non-waste fuel or ingredient, the discarded non-hazardous secondary material is 

considered a solid waste and would be subject to all appropriate federal, state, and local 

requirements. 

 (c) The Regional Administrator may grant a non-waste determination that a nonhazardous secondary material used as a fuel is not discarded and therefore not a solid waste when 

combusted. The criteria and process for making such non-waste determinations includes the 

following: 

(1) Submittal of an application to the Regional Administrator for the EPA Region where 

the facility combusting the non-hazardous secondary material is located for a determination that 

the non-hazardous secondary material, even though it has been transferred to a third party, has 

not been discarded and is indistinguishable in all relevant aspects from a product fuel. The 

determination will be based on whether the non-hazardous secondary material has been 

discarded, is a legitimate fuel as specified in paragraph (d)(1) of this section and on the following 
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criteria: 

(i) Whether market participants treat the non-hazardous secondary material as a fuel 

rather than a solid waste; 

(ii) Whether the chemical and physical identity of the non-hazardous secondary material 

is comparable to commercial fuels; 

(iii) Whether the non-hazardous secondary material will be used in a reasonable time 

frame given the state of the market; 

(iv) Whether the constituents in the non-hazardous secondary material are released to the 

air, water or land from the point of generation to the point just prior to combustion of the 

secondary material at levels comparable to what would otherwise be released from traditional 

fuels; and 

(v) Other relevant factors. 

(2) The Regional Administrator will evaluate the application pursuant to the following 

procedures: 

(i) The applicant must submit an application for the non-waste determination addressing 

that the non-hazardous secondary material has not been discarded, the legitimacy criteria in 

paragraph (d)(1) of this section and the relevant criteria in paragraphs (c)(1)(i) through (v) of this 

section. 

(ii) The Regional Administrator will evaluate the application and issue a draft notice 

tentatively granting or denying the application. Notification of this tentative decision will be 

published in a newspaper advertisement or radio broadcast in the locality where the facility 

combusting the non-hazardous secondary material is located, and be made available on EPA’s 

website. 
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(iii) The Regional Administrator will accept public comments on the tentative decision 

for at least 30 days, and may also hold a public hearing upon request or at his discretion. The 

Regional Administrator will issue a final decision after receipt of comments and after the hearing 

(if any). 

(iv) If a change occurs that affects how a non-hazardous secondary material meets the 

relevant criteria contained in this paragraph after a formal non-waste determination has been 

granted, the applicant must re-apply to the Regional Administrator for a formal determination 

that the non-hazardous secondary material continues to meet the relevant criteria and thus not a 

solid waste. 

(d) Legitimacy criteria for non-hazardous secondary materials. 

(1) Legitimacy criteria for non-hazardous secondary materials used as a fuel in 

combustion units include the following: 

(i) The non-hazardous secondary material must be managed as a valuable commodity 

based on the following factors: 

(A) The storage of the non-hazardous secondary material prior to use must not 

exceed reasonable time frames; 

(B) Where there is an analogous fuel, the non-hazardous secondary material must be 

managed in a manner consistent with the analogous fuel or otherwise be adequately contained to 

prevent releases to the environment; 

(C) If there is no analogous fuel, the non-hazardous secondary material must be 

adequately contained so as to prevent releases to the environment; 

(ii) The non-hazardous secondary material must have a meaningful heating value and be 

used as a fuel in a combustion unit that recovers energy. 
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(iii) The non-hazardous secondary material must contain contaminants at levels 

comparable in concentration to or lower than those in traditional fuels which the combustion unit 

is designed to burn. Such comparison is to be based on a direct comparison of the contaminant 

levels in the non-hazardous secondary material to the traditional fuel itself. 

(2) Legitimacy criteria for non-hazardous secondary materials used as an ingredient in 

combustion units include the following: 

(i) The non-hazardous secondary material must be managed as a valuable commodity 

based on the following factors: 

(A) The storage of the non-hazardous secondary material prior to use must not exceed 

reasonable time frames; 

(B) Where there is an analogous ingredient, the non-hazardous secondary material must 

be managed in a manner consistent with the analogous ingredient or otherwise be adequately 

contained to prevent releases to the environment; 

(C) If there is no analogous ingredient, the non-hazardous secondary material must be 

adequately contained to prevent releases to the environment; 

(ii) The non-hazardous secondary material must provide a useful contribution to the 

production or manufacturing process. The non-hazardous secondary material provides a useful 

contribution if it contributes a valuable ingredient to the product or intermediate or is an effective 

substitute for a commercial product. 

(iii) The non-hazardous secondary material must be used to produce a valuable product 

or intermediate. The product or intermediate is valuable if: 

(A) The non-hazardous secondary material is sold to a third party, or 

(B) The non-hazardous secondary material is used as an effective substitute for a 
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commercial product or as an ingredient or intermediate in an industrial process. 

(iv) The non-hazardous secondary material must result in products that contain 

contaminants at levels that are comparable in concentration to or lower than those found in 

traditional products that are manufactured without the non-hazardous secondary material.