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 Manageme nt 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. 128 66, 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*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

1 of 360 ENVIRONMENTAL PR OTECTION AGENCY 40 CFR Part 241 [EPA-HQ-RCRA-2008-0329; FRL-9148-2] RIN 2050-AG44 Identification of Non-Hazardous Seconda ry 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-h azardous secondary materials used as fuels or ingredients in combustion units are solid wastes under the Re source Conservation and R ecovery Act (RCRA). The meaning of “solid waste” as defined unde r RCRA will determine whether a combustion unit is required to meet the emissions standards for solid waste incineration un its issued under section 129 of the Clean Air Act (CAA) or the emissions standards for commercial, industrial, and institutional boilers issued unde r 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 th is 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 availabl e, e.g., confidential business information (CBI) or other information whose disclosure is re stricted by statute. Certain other material, such as copyrighted materi al, will be publicly ava ilable only in hard copy.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

2 of 360 Publicly available docket materials ar e 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 Pub lic Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal ho lidays. 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 Re source Conservation and Recovery, 5303P, Environmental Protection Agency, Ariel Rios Building, 1200 Pe nnsylvania 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*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

3 of 360 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*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

4 of 360 This table is not intended to be exhaustive, but rather provides a guide for readers, including lists of examples of the types of entit ies likely to be impacted by this action. Other types of entities not listed coul d also be affected. To determ ine whether your facility, company, business, organization, etc., is affected by th is action, you should examine the applicability criteria in this rule. If you ha ve any questions regarding the a pplicability of th is 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 procedur es to be used to pr operly identify whether nonhazardous secondary materials burned as fuels or us ed as ingredients in combustion units are or are not solid waste. This final rule is necessary to identify un its for the purpose of developing emission standards under sections 11 2 and 129 of the CAA. In additi on to this final rule, EPA is concurrently finalizing air emission requirement s under section 112 of the CAA for industrial, commercial, and institutional boile rs and process heaters, as we ll as air emission requirements under section 129 of the CAA for commercial an d 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 Seconda ry Materials Are or Are Not Solid Wastes When Used in a Combustion Unit*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

5 of 360 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 oversi ght of established tire collection programs are not solid waste when used in combustion units 3. Resinated wood that is legitimately us ed 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 so lid waste when used in combustion units 5. Discarded non-hazardous secondar y 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 Affec ting the CAA Rules Relevant to RCRA? D. What is the History of the Definition of Solid Waste? 1. Statutory Definition of Solid Waste*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

6 of 360 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 Ma terials Used as Fuel 1. Traditional Fuels
2. Manure 3. Other Biomass 4. Pulp and Paper Sludge 5. Scrap Tires 6. Resinated Wood Residuals 7. Used Oil 8. Coal Refuse 9. Coal Combustion Residuals*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

7 of 360 10. Sewage Sludge 11. Processed Fats C. Comments on Specific Mate rials Used as Ingredients 1. Cement Kiln Dust 2. Coal Combustion Residuals 3. Foundry Sand 4. Blast Furnace Slag/Steel Slag D. Comments on Legitimacy Criteria for Fuels 1. Managed as a Valuable Commodity 2. Meaningful Heating Value and Use as a Fuel 3. Have Contaminants at Comparable Levels or Lower Than Traditional Fuels E. Comments on Legitimacy Criteria for Ingredients 1. Managed as Valuable Commodities 2. Useful Contribution 3. Quantifying an Ingredient’s C ontribution to Production/Manufacturing Activity 4. Contaminants in Ingredients 5. Comparing contaminan t levels in products
F. Comments on Non-Wast e Determination Petitions G. Comments on the Other Approach es for Defining Solid Wastes VI. Summary of Major Differences betw een the Proposed Rule and Final Rule VII. Detailed Discussion and Ra tionale for Today’s Final Rule*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

8 of 360 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 Di scarded: Scrap Tires Collected Under Established Tire Collection Programs 1. Scope and Applicability 2. Restrictions and Requirements D. Materials That Have Not Been Di scarded: 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 Mate rials 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 Cr iteria for the Non-Waste Determination 2. Non-waste Determination Petition Process 3. Petition Decisions Utilizing Stat e Environmental Agency Program’s Input*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

9 of 360 H. Legitimacy Criteria 1. Legitimacy Criteria for Fuels 2. Legitimacy Criteria for Ingredients I. Determining That Non-Hazardous Sec ondary 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: Regul atory 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*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

10 of 360 Safety Risks H. Executive Order 13211: Actions that Significantly Affect Energy Supply, Distribution or Usage I. National Technology Tr ansfer 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 th e 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 esta blish standards for Comm ercial 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) pr ovides that the term ‘solid wast e’ 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 func tions 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 Stat e Highway and Trans portation Officials ANPRM Advanced Notice of Proposed Rulemaking ASME American Society of Mechanical Engineers ASTM American Society fo r Testing and Materials Btu British Thermal Unit*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

11 of 360 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*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

12 of 360 NESHAP National Emission Standard s 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 finaliz ing standards and procedures for the identification of nonhazardous secondary materials that are solid wast es when used as fuels or ingredients in combustion units. We have defined “secondary mate rial” as any material th at is not the primary product of a manufacturing or co mmercial process, and can include post-consumer material, off-*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

13 of 360 specification commercial chemical products or manufacturing chemical intermediates, postindustrial material, and scrap (c odified in §241.2). We have defi ned 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 whic h non-hazardous secondary materials used as fuels or ingredients in combustion units ar e solid wastes under RCRA in an Advanced Notice of Proposed Rulemaking (ANPRM), which was pub lished in the Federal Register on January 2, 2009 (74 FR 41). We then published a propos ed 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; Sec tion VII provides a detaile d explanation of and rationale for the regulations being promulgated today; Section VIII describes the effect of today’s final rule on other program s; Section IX discusses how t oday’s rule affects the states’ authority over solid waste pursu ant to subtitle D of RCRA; S ection X describes the costs and benefits associated with today’ s rule; and Section XI describes this rule’s compliance with the appropriate statutory and execu tive orders reviews. Below is a summary of the principal elemen ts of the regulations being promulgated today. A. Identifying Which Non-Hazardous Seconda ry Materials Are or Are Not Solid Wastes*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

14 of 360 When Used in a Combustion Unit In general, non-hazardous secondary materi als burned in combus tion 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 ar e not solid waste when used in combustion units (discussed further below—codifi ed in §241.3(b)(1)); (2) scrap tires that are legitimately used as a fuel that are removed fr om vehicles and manage d under the oversight of established tire collection pr ograms 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 (d iscussed further below— codified in §241.3(b)(2)(ii)); (4) non-hazardous secondary materials that are legitimately used as ingredients are not solid wast e when used in combustion un its (discussed further below— codified in §241.3(b)(3)); (5) discarded non-haza rdous secondary material s that have undergone processing to produce legitimate fuel or ingredie nt products are not solid waste when used in combustion units (discussed further below—c odified in §241.3(b)(4)); or (6) non-hazardous secondary materials used as a fuel for which a non-waste determination ha s been granted are not solid waste when used in combustion units (dis cussed 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 i ngredient is not being “sham” recycled for the sole purpose of avoidi ng being considered a waste. The legitimacy criteria for non-hazardous seconda ry 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 tr aditional fuels (codified in §241.2) that applies to this subpart.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

15 of 360 Traditional fuels means materials that are produ ced 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 de rivatives (e.g., petroleum coke, bituminous coke, coal tar oil, refinery gas, synt hetic fuel, heavy recycle, asphalts, blast furnace gas, recovered gaseous butane, and coke oven ga s) and cellulosic biomass (virgin wood); and (2) alternative fuels developed from virgin materi als that can now be used as fuel products, including used oil which meets the specifica tions outlined in 40 CFR 279.11, currently mined coal refuse that previously had not been usab le 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 materi als), corn stover and other biomass crops used specifically for en ergy production (e.g., ener gy cane, other fast growing grasses), bagasse and other crop residues (e.g., peanut shells), wood collected from forest fire clearance activities, trees and clean wood found in disast er debris, clean biomass from land clearing operations, and clean constructi on and demolition wood. Such historically managed traditional fuels and alternative fuels deve loped from virgin materials are not secondary materials or solid wastes unless discarded before they are used. 1. Non-hazardous secondary materials that are legi timately used as fuels within the control of the generator are not solid waste when used in combustion units. Except as otherwise provided, under th is 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 generato r and that meet the specified legi timacy criteria (as codified in §241.3(d)(1)) as not being a solid waste. The legitimacy criteria for non-hazardous secondary*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

16 of 360 materials used as fuels in combustion units ar e discussed below in the “Codification of the Legitimacy Criteria” section. N on-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 un its 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 combusti ng the material are under control of the same person (as defined in §241.2). 2. Scrap tires that are legitimately used as a fu el that are removed from vehicles and managed under the oversight of established tire collectio n programs are not solid waste when used in combustion units. Under this provision—40 CFR 241.3(b)(2)(i)—EPA would consid er 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 di fferentiate 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 defi ned 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 sc rap tires are not discar ded 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 faci lity. The legitimacy criteria for non-hazardous*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

17 of 360 secondary materials used as fuels in combustion un its 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)(i i)—EPA would consider resinated wood used as a fuel in a combustion unit as not being a solid waste, provided th ese 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 produc ts (containing resin adhesives) derived from primary and secondary wood products manufacturing and comprised of such items as board trim, sander dust, and pane l 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 le gitimately 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 t hose that are not. Ingredient (as defined in §241.2) means a non-hazardous seconda ry 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 us ed as ingredients in combustion units is included below in the “Codification of the Legitimacy Criteria” section.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

18 of 360 5. Discarded non-hazardous secondary material s 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 su fficiently 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) fo r fuels and (d)(2) for ingredients). Processing (as defined in §241.2) means any oper ations that transform the discarded non-hazardous secondary material into a legitimate fu el or ingredient product, and includes, but is not limited to, operations that re move or destroy contaminants; operations that significantly improve the fuel char acteristics 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 ingred ient 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 pr ocessing, the discarded non-hazardous secondary material would be considered a so lid 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 transfer red 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 proce ss 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 ma terials meet the legitimacy criteria.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

19 of 360 an administrative process for receiving a form al 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 indistinguish able in all relevant aspects from a fuel product, is not a solid waste when us ed 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 discarde d 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 ma terial as a fuel rather than a solid waste; (2) whether the chemical and phys ical identity of the non-hazardous secondary material is comparable to co mmercial 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 prio r 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 determina tion is codified in §241.3(c)(2). In order to obtain a non-waste determina tion, 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 Administrato r per the procedures described in §241.3(c). The application must address the rele vant criteria discussed above. The Regional Administrator will evaluate the application and i ssue a draft notice tentatively gr anting 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*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

20 of 360 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 Admini strator will issue a final decision after receipt of comments a nd after the hearing (if any). B. Codification of th e 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-haza rdous secondary materials used as a fuel in combustion units must meet the legi timacy 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 le vels 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 i ngredient, 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 ingred ient legitimacy criteria, the n on-hazardous secondary material must be managed as a valuable commodity, prov ide a useful contribution to the production or manufacturing process, be used to produce a valuab le product or intermedia te, 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 withou t 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 so lid waste even if they satisfy the legitimacy criteria, unless they were processed into legitim ate non-waste fuel or ingredient products or, in the case of fuels, have received a non-waste determination from EPA. IV. Background*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

21 of 360 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 ex tent 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 cont rol emissions of 187 2
HAP from sources in each s ource category listed by EPA under section 112(c). The statute requires the regulations for major sources 3 to reflect the maximum degree of reduction in emissions of HAP that is achievable taking into consideration the cost of achieving the emission reduction, any non-air quality health and environm ental 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-perfo rming 12 percent of units in the category or subcategory for categories and subcategories with at least 30 sour ces, and by the best-perfo rming 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 c onsidering 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).*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

22 of 360 achieved by the best-performing similar source. CAA section 112(d)(3 ). This level of stringency is commonly referred to as the MACT “floor.” Al so, 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, th e CAA section 129 standards are based on a MACT floor. Also, as with the CAA section 112 standards, beyond-the-fl oor standards may be established where EPA determines it is “achieva ble” taking into account cost s and other factors. Although CAA section 129 “establishes emission re quirements 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 i ssue MACT standards for all solid waste incineration units in a given cat egory regardless of size. Sec ond, CAA section 129 requires that specific numeric emission limitations must be esta blished for the following nine pollutants, plus opacity (as appropriate): cadmi um, carbon monoxide, dioxins/fu rans, hydrogen chloride, lead, mercury, NOx, particulate matter (total and fine), and SO 2 . 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 sour ce of HAP that is not a ma jor 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 so urces individually or in the aggregate) warranting regulation under this section.” Section 112(c)(3). Certain categories of area so urces must be regulated in accordance with section 11 2(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).*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

23 of 360 pollutants as well. Under CAA section 112, the Ag ency 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 in cluded in CAA section 112. See CAA section 129(a)(3), (c) and (d). Rather, CAA section 112’s imp licit authority and CAA sections 113 and 114’s explicit authority is reli ed upon to include provisions as necessary to assure compliance with and enfor cement 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 a nd 129 shall be subject to the standards under CAA section 112(d). B. What Is the History of CISWI, CISW I Definitions, and Boiler Rulemakings? EPA promulgated a final rule setting fo rth performance emissions standards for Commercial and Industrial Solid Wa ste 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 commer cial or industrial establishmen ts...” 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) inci nerators or other units required to have a permit under section 3005 of RCRA; (2) material recovery facilitie s (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 th e Federal Power Act, or qualifying cogeneration facilities, as defi ned in section 3(18)(B) of the Federal Power Act, which burn*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

24 of 360 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 co generation 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 industria l, commercial, heating or cooling purposes, or (4) air curtain incinerato rs, provided that such incinerators only burn wood wastes, yard wastes and clean lumber and that such air curtain incine rators 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 monoxi de, dioxins/furans, hydrogen chloride, lead, mercury, oxides of nitrogen (NO x ), particulate matter (PM), sulfur dioxide (SO 2 ), and opacity. In addition, the rule es tablished 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 th at were raised by the court in Cement Kiln. Because the CISWI rule was not vacated, its require ments 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.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

25 of 360 On September 22, 2005, EPA issued revised defi nitions of “solid waste,” “commercial or industrial solid waste incinera tion 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 wast e” to exclude solid waste that is combusted at a facility in a combustion unit whose design provides for ener gy recovery or which operates with energy recovery. Therefore, a unit combusting solid wa ste 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 una mbiguously requires any unit that combusts “any solid waste material at a ll” – 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 inst itutional major source boilers a nd process heaters (the Boiler MACT Rule), concluding that the universe of sour ces 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. Sp ecifically, on June 4, 2010, the Agency proposed new National Emissions Standards for Area Sour ce Industrial, Commer cial, and Institutional Boilers (75 FR 31896), National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Instituti onal Boilers and Proce ss Heaters (75 FR 32006), and Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Commercial and Industr ial Solid Waste Incineration Units (75 FR 31938). These proposed emissions standards were establishe d based on the criteria proposed in the*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

26 of 360 Identification of Non-Hazardous Secondary Materi als Rule that are Solid Waste proposed rule (75 FR 31844). C. Why Is the Court’s Decision Aff ecting the CAA Rules Relevant to RCRA? In responding to the court's vacatur and remand of the CISWI Definitions Rule and the Boiler MACT Rule, EPA is establishing, under RCRA, which non-hazardous secondary materials 7 are “solid waste.” This is necessary because, under the cour t’s decision, any unit combusting any “solid waste” at all must be re gulated as a “solid waste incineration unit,” regardless of the function of the combustion devi ce. 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 re gulated pursuant to CAA section 112 if it is a source of hazardous air pollutants (HAP ). Alternatively, if such materi al is classified as a “solid waste” under RCRA, then a unit combusting that ma terial 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 secti on 129(g)(1) of the CAA. In addition to this final rule, EPA is conc urrently 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 pr omulgated today pursuant to the relevant CAA rules, please see the respective final actions incl uded in today’s Federal Regist er. 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 pr imary 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 i ndustrial processes. For purpos es of this notice, the term secondary materials include only non-hazar dous 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.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

27 of 360 Institutional Boilers (EPA-HQ-OAR-2006-0790); National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Comm ercial, and Institutiona l Boilers and Process Heaters (EPA-HQ-OAR-2002-0058); and Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sour ces: Commercial and I ndustrial 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 garbag e, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution cont rol facility and other discarded material ... resulting from industrial, commercial, mining, and agricultural operations, and from community activities...” (RCRA section 1004 (27) (em phasis 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 re gulatory definitions largely mirror the statutory definition of solid waste with some clar ifications 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*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

28 of 360 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 (a nd therefore involve the manage ment of a solid waste). Pursuant to CAA section 129, however, the Ag ency must now determine at the national level the requirements and procedures for iden tifying non-hazardous seconda ry 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 de terminations 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 hazar dous waste regulations. However, the 40 CFR 261.2 regulatory definition of solid waste explic itly applies only to wastes that also are hazardous for purposes of the subtitle C regul ations (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 promulga ted a final rule on October 30, 2008, which revised the requirements regulati ng hazardous secondary materials when they are recycled via*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

29 of 360 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 App eals 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 pe tition under RCRA section 7004(a), 42 U.S.C. 6974(a). The administrative peti tion requested that the Agen cy 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 meeting 10 and requested written comments on the petition. As a result of settlement in the litigat ion, Sierra Club has withdrawn its administrative petition but EPA has agreed to i ssue 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 poten tial 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 c onstitutes a solid waste is the foundation of the hazardous waste regulatory program (i.e., second ary 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 Re consider 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. EP A-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/hazar d/dsw/sierr aclubdsw.pdf

.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

30 of 360 before it can be classified as “hazardous waste”) , there have been a number of court opinions discussing the meaning of “solid waste” in li tigation challenges to rules issued under RCRA subtitle C. From these cases, a few key prin ciples 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, “discar d,” controls. See American Mining Congress v. EPA , 824 F.2d 1177 (D.C. Cir. 1987) (“AM C I”). The ordinary plainEnglish meaning of the term discarded means “d isposed of,” “thrown aw ay,” or “abandoned.” The court specifically rejected a more expansiv e meaning for discard that would encompass any materials “no longer useful in thei r 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 pollu tion control equipment slag based on an Agency determination that waste “ceases to be a ‘solid wa ste’ 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 recy cled. 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 ma terial loses its status as a solid waste. See*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

31 of 360 API I, 906 F.2d at 741 n.16; United States v. ILCO Inc. , 996 F.2d 1126, 1131-32 (11 th Cir. 1993)(“ILCO”); Owen Steel v. Browner , 37 F.3d 146, 150 (4 th 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 previ ous 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 wa ste’ (and therefore EPA’ s regulatory authority) be limited to materials that are ‘discarded’ by virtue of being di sposed of, abandoned, or thrown away” (208 F.2d at 1051). It repeat ed that materials that are re used within an ongoing industrial process are neither disposed of nor abandone d (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 proces sing rule) is destined for reuse as part of a continuous industrial process and thus is not ab andoned or thrown away” (208 F.3d at 1056). In this regard, the court criticized all parties in th e case – industry, as well as EPA – because they “presented this aspect of the case in broad abstraction, providing litt le 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*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

32 of 360 guidance for defining solid waste, but in the context of two specific waste streams in the petroleum refining industry. The court overturned EPA’s determina tion 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-bear ing wastewaters, EPA had determined that the first phase of treatment, primary treatment, results in a wa ste being created. 216 F.3d at 55. The court overturned this decision and remanded it to EP A for a better explanation, neither accepting EPA’s view nor the contrary industry view. The c ourt noted that the ultimate determination that had to be made was whether primary treatment is si mply a step in the act of discarding, or is it the last step in a production process before disc ard? 213 F.3d at 57. In particular, the court rejected EPA’s argument that primary treatmen t 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 c onclusion, even if validly reached, compels the further conclusion that the wastewater has been discarded.” 213 F.3d at 58. The court also considered whet her material is discarded in Safe Food and Fertilizer v.
EPA , 350 F.3d 1263 (D.C. Cir. 2003) (“Safe Food”). In that case, among ot her things, the court rejected the argument that, as a matter of plain meaning, recy cled material destined for immediate reuse within an ongoing industrial process is never cons idered "discarded," whereas material that is transferred to another firm or industry for subse quent 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 cons istent 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.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

33 of 360 We also note that the Ninth Circuit has sp ecifically found that non- hazardous secondary materials may, under certain circumstances, be bu rned 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 re turn 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 us e/reuse and recycling. Although today’s final rule does not address the Agency’s hazar dous waste regulations, EPA believes the concept of legitimacy is an important one in determining when a secondary material (whether hazardous or non-hazardou s) 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 wa ste system are not considered solid wastes if they are “legit imately recycled” or legitimately reused as an ingredient or substitute for a commercial product. The prin cipal reasoning behind th is construct is that use/reuse or recycling of such secondary mate rials 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 regul atory system, there is a clear potential for and historical evidence of some handlers claiming they are recy cling, when in fact they are conducting waste treatment and/or disposal in the guise of re cycling. EPA considers such “sham” recycling to be, in fact, discard and th ese secondary materials being sham recycled are*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

34 of 360 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 material s being discarded in th e guise of recycling, EPA has long articulated the need to distinguis h 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 disc ussion that addressed legitimacy as it pertains to burning hazardous secondary materials for energy recovery (considered a form of recycling under RCRA subtitle C) was presented in the January 9, 1988 proposed amendments to the definition of solid waste (53 FR 522). Then on April 26, 1989, the Office of Solid Waste 13 issued a memorandum that consolidated the various preamble and other stat ements concerning legitimate recycling into a list of questions to be considered in evaluati ng 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 regulat ed 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 seconda ry materials being reclaimed and a non-waste determination process for persons to receive a formal determ ination 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 ma terials 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.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

35 of 360 for the exclusion for hazardous secondary materi als 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 pa rt of that final rule, EPA also codified the legitimate recycling provisi on specifically as a requirement for the non-waste determination process (40 CFR 260.34). Pursuant to a settlement agreement with Sier ra 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 regardin g potential revisions to the 2008 DSW Final Rule. In this subsequent proposed rule, EPA has agreed that it will soli cit comment on the issues raised in Sierra Club’s administ rative petition, including the issues that were listed by EPA as topics for discussion during the Agency’s publ ic 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 n ecessity, in a different proceeding from the rule we are promulgating today. EPA cannot pr esuppose the results of the DSW rule, but still needs to issue a final rule dealing with legitimacy criteria in today’s sepa rate rule affecting nonhazardous secondary materials. The same con cept—legitimacy—applies to both rules, but, at this point, EPA cannot reconcile th e differences between the legitimac y 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 promulgate d pursuant to RCRA subtitle C, EPA continues to believe that the principle of “legitimacy” is an important el ement in the recycling of both hazardous and non-*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

36 of 360 hazardous secondary materials. That is, the co ncept of legitimate r ecycling is crucial to determining whether a hazardous or non-hazardous secondary materi al being recycled is truly being recycled or is, in fact, be ing discarded through sham recycling and thus, is a solid waste. E. Summary of the ANPRM In the ANPRM, the Agency considered vari ous guiding principles, including the concept of discard, and if discarded, whether the second ary material has been processed to produce a non-waste fuel or ingred ient product, and the co ncept 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) a nd whether these secondary materials should be considered solid wastes under RCRA when used in combustion devices, such that units burning these secondary materials woul d be subject to regulation unde r CAA section 129, rather than subject to CAA section 112. The ANPRM iden tified 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 secondar y materials used as legitimate “alternative” fuels that have not been prev iously discarded, (3) non-hazardous secondary materials used as legitimate “alternative fuel s” resulting from the pr ocessing of discarded secondary materials, (4) non-hazardous secondary ma terials used as legiti mate ingredients, and (5) hazardous secondary materials that may be excluded from the defini tion 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 ar e not significantly higher in concentration than traditional fuel products. For those secondary materials used as an ingredient, they s hould 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 concentratio n than traditional products. If these criteria are not met, then sham recycling may be indicated and the secondary material may be a solid waste.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

37 of 360 non-hazardous secondary materials are combuste d 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 biom ass (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 c onsidered 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 a nd uncontaminated wood found in hurricane debris if not discarded, if manage d 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 tec hnology 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 Characteri zation 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 pur suant to state tire oversight programs (e.g., used tires from tire dealerships that are sent to used tire*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

38 of 360 processing facilities) are handled as valuable commodities, a nd, therefore, have not been abandoned, disposed of, or thrown away. We no ted that because states typically regulate these programs under their state solid waste auth orities, 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 specifyi ng that scrap tires, for example, managed pursuant to state co llection programs would adversely impact a state’s ability to manage such a program. Other non-traditio nal 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 wastewat er treatment sludge.

• Non-Hazardous Secondary Materials Used as Legitimate “A lternative Fuels” Resulting from the Processing of Discarded Secondary Materials: The Agency also discussed the concept of processing of di scarded non-hazardous secondary materials, such that legitimate fuel products may be ex tracted, processed, or reclaimed from a nonhazardous secondary material that has been disc arded in the first instance and that such products would generally not be considered so lid wastes. The principle behind this idea of processing a solid waste to produce a pr oduct is common to industrial processes. (Note: Until a legitimate product has been extracted, processed, or reclaimed, the nonhazardous secondary material has been disc arded and is a solid waste.) The ANPRM identified a number of non-h azardous 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*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

39 of 360 the same—that is, the product from processing mu st be a legitimate fuel (i.e., a material with a meaningful heating value, with contam inants that are not present at significantly higher concentrations than thos e 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 th at 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-h azardous secondary materials have been discarded, the ANPRM identified such secondary materials as solid wastes, unless they are sufficiently processed into a legitimate product, as woul d be the case for discarded materials that could become pr oducts after being processed.

• Hazardous Secondary Materials That May be Excluded from the Definition of Solid Waste Under RCRA Subtitle C Because th ey are More Like Commodities Than
Wastes: The final category identif ied in the ANPRM are hazardous secondary materials that are recycled and are specifi cally identified in the subtit le 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 th e hazardous waste regulations. The ANPRM indicated that EPA was interest ed in extending this determination so that these materials also are not considered solid wastes under RCR A subtitle D. The Agency indicated that it believed that it had sufficient informati on in the rulemaking records for the various*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

40 of 360 hazardous secondary materials—that is, black liquor and spent sulfuric acid, 15 and comparable fuels 16 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 comme nt 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 w ithout processing should not be considered a solid waste; (2) whether ther e 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 pr esented to EPA by industry representatives 17 ; (3) whether to consider non-hazardous secondary mate rials 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 biof uels—that is, whether

15 A determination was made that black liquor reclaimed in a pulping liquor recovery fu rnace 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 pa rt of the manufacturing process. 16 A determination was made with resp ect 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 produ cts and not solid wastes. 17 Industry representatives suggested th at non-hazardous secondary materials s hould be evaluated, on a case-by-case basis, to identify which criteria have been satisfied and de termine 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 an d 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.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

41 of 360 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 concep ts and provisions disc ussed in the ANPRM, including the concept of discard and the legiti macy criteria. However, the basic framework differed from the ANPRM based partly on the appr oach taken in the Definition of Solid Waste final rule promulgated on October 30, 2008 (s ee 73 FR 64668), based pa rtly on the comments received on the ANPRM, as well as EPA’s interp retation of whether thes e secondary materials were discarded. For example, comments recei ved on the ANPRM from some states suggested that non-hazardous secondary materi al fuels that are transferred to a third party have entered what is traditionally considered to be the “waste stream” (and ha ve been regulated by the states as wastes) and therefore should a ppropriately 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 c onsidered discarded even if the original generator sent them to another entity outside of its control, the proposed rule assumed that non-hazardous secondary mate rials that are used as fuel s and are managed outside the control of the generator are so lid 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 material s are not solid wastes because they have not*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

42 of 360 been discarded and are indisti nguishable in all relevant aspe cts 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 mana ge 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 enviro nmental 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 sec ondary 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, irrespecti ve of whether they have been transferred to a third party. The Agency stated that it was not pr oposing to differentiate ingredients that are used within the control of the gene rator from those that are not si nce we believed the use of nonhazardous secondary materials as ingredients is consid ered to be more integral or akin to use in a commercial manufacturing process and thus, thes e non-hazardous secondary materials would not be considered discarded provided th ey satisfy the legitimacy criteria. The proposed rule also included a pe tition process for receiving non-waste determinations, which was an additional area fo r 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 classifi cation of “clean” biomass and on-specification used oil as traditional fuels. In addition, the proposed rule did not address hazardous secondary*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

43 of 360 materials excluded from the defi nition of solid waste under subtitle C of RCRA, concluding that it does not need to address this exclusion in this rulemaking sin ce these secondary materials have already been excluded from the definition of so lid waste as hazardous secondary materials and therefore, should not be addresse d in the proposed rule, which deal s with the definition of solid waste for non-hazardous secondary materi als used in combustion units. Finally, the proposed rule also revised the c ontaminant 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 ANP RM had stated that non-hazar dous secondary materials used as fuel could not contain contaminants that we re “significantly higher” than traditional fuel products. In the proposed rule, EP A explained its rationale for ma king this change, stating that the requirement that non-hazardous secondary materi als 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 ma terials or their contaminants and thus, will not result in increased releases to the environmen t 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 s econdary materials. Thus, in the proposed rule, the Agency cons idered all non-hazardous secondary materials burned in combustion units as solid wastes exceptfor the following circumstances: (1) nonhazardous secondary materials used as a fuel that remains within the control of the generator (whether at the site of generati on or another site within the gene rator’s control) that meets the legitimacy criteria; (2) non-h azardous secondary materials us ed as an ingredient in a*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

44 of 360 manufacturing process (whether by the generator or a third part y) that meets the legitimacy criteria; (3) legitimate fuel or ingredient products that are pr oduced from the processing of discarded non-hazardous secondary materials 18 ; 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 material s management that employs the concepts of life cycle assessment 19 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 gu ides the beneficial use of various secondary materials, while ensuring that such use is protec tive of human health and the environment. EPA, in conjunction with the states, seeks to further fa cilitate this objective th rough research, analysis, incentives, and communication. The Agency recognizes that s econdary materials are widely used today as fuels and/or ingred ients in industrial pro cesses. We expect these uses will continue and expand in future years as effective materi als management becomes more critical to a

18 As we state throughout the preamble, prior to the productio n of the legitimate fuel or ingredient product, the nonhazardous secondary material is considered a solid waste and would be subj ect to the appropriate federal, state, and local requirements. 19 The terms “life cycle analysis” and “life cycle assessm ent” are commonly used interchangeably. Life cycle assessment is a system-wide analytical technique for asse ssing the environmental (and sometimes economic) effects of a product, process, or activ ity across all life stages. 20 Full cost accounting is an accounting system that incorporates economic, en vironmental, 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 us ed are needlessly buried each year; (2) methods are available to separate usable materials from solid waste; and (3) the recove ry 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.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

45 of 360 sustainable society. The use of secondary materi als from a variety of non-traditional sources, including the use of energy-containi ng secondary materials, is expect ed to play an important role in future resource conservation efforts. The use of secondary materials as alternativ e fuels and/or ingredie nts in manufacturing processes using combustion not only recovers valu able resources, it is known to contribute to emission reductions. For example, both gree nhouse 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 indu strial processes may also result in other benefits, including reduced fuel imports, reduced negati ve 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 re source recovery value in the generation and production of heat, energy, and/or marketable products or in termediates. Secondary materials can provide microeconomic (firm level) and macroeconomic be nefits when legitimately used as effective substitutes for, or supplement to virgin material s. Economic efficiencies can be improved with the use of secondary materials, when substituted for increasingly scarce virgin materials, because the use of such secondary material s often results in an equivalent level of outputs at lower overall resource use, or in turn, great er outputs could be generated us ing the same amount of resource

22 For example, the GHG emissions rate associated with the combustion of scra p tires is approximately 0.081metric tons of carbon dioxide equivalents (MTCO 2 E) per million metric British therma l units (MMBtu) of scrap tires combusted, while the GHG emissions rate for coal is approximately 0.094 MTCO 2 E per MMBtu. Combined with the avoided extraction and processing emissions 0.006 MTCO 2 E/MMBtu for coal, the total avoided GHG is 0.019 MTCO 2 E per MMBtu. Substituting tire-derived fuel for coal would also avoid an estimated 0.246 Lbs/MMBtu of PM associated with extraction and pro cessing of the coal. Please see the Ma terials 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 valu e in the marketplace or to an end user.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

46 of 360 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 sustaina bility and energy self sufficienc y, while protecting human health and the environment. 2. Secondary Materials Use and Benefits. A wide and diverse range of secondary mate rials are currently us ed 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 eigh t 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 gase ous fuels); construction and demolition materials (building related, disaster debris, and land clearin g debris); scrap tires; scrap plastics; spent solvents; coal refuse; waste wate r 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; si lica fume; and secondary glass material. The ANPRM discussed and described these key secondary material s. In addition, we developed Materials Characterization Papers for each of these fuel a nd 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 develope d three additional Materials Characterization Papers for auto shredder residue, purification pr ocess 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.”*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

47 of 360 For today’s final rule, we have updated and revised all of the ex isting Materials Characterization Papers for which we received additional data a nd 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 unl ess: (1) the non-hazardous secondary material is used as a fuel and remains within the control of the generator that meets th e legitimacy crit eria; (2) the nonhazardous secondary material is used as an ingred ient that meets the legitimacy criteria; (3) the discarded non-hazardous secondary material has been sufficien tly processed to produce a nonwaste fuel or ingredient product that meets the legitimacy criteria; or (4) through a case-by-case petition process, EPA has determined that the non-hazardous secondary material has not been discarded and is indistinguish able in all relevant aspect s from a fuel product. The Agency also took comment on two othe r approaches regarding the combustion of non-hazardous secondary materials. Under the firs t approach, identified in the proposal as the “Alternative Approach,” 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, in gredients that are combusted at fa cilities that were not within the control of the generator, legitimate fuels and ingredients that are produced from the processing of discarded non-hazardous seconda ry materials, and non-hazardous secondary materials that may not be considered a solid waste under a non-waste determination process*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

48 of 360 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-wa ste. Traditional fuels also would not be considered a solid waste. The second alternative that EPA took comme nt 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 EP A received, as well as our response to those comments. Specifically, comments regarding the ove rall proposed approach pertaining to the definitions of discard and processing are di scussed in Section V.A; comments on specific materials used as fuels, including traditional fu els are discussed in Section V.B; comments on specific materials used as ingredients are discu ssed 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 sec ondary materials that are discarded are considered to be a solid waste. On the othe r hand, secondary material s that have not been

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 c opy of this letter has been placed in the docket to today’s final rule. The letter highlights stakeholder concerns regarding the differences between CAA sections 112 and 129 and argues against an overly narrow definition of solid waste.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

49 of 360 discarded, such as secondary materials that are managed within the contro l 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 “d iscard” and instances in which the term should or should not apply. As discussed below, environmental groups ar gue, generally, that any secondary material burned for energy recovery is a solid waste. Th ese commenters object to allowing control by the generator to be relevant to rendering material a non-waste, even if burned under the legitimacy criteria, claiming that these materials are wastes. Industry commenters, on the other hand, assert that the secondary materials used in their operations exhibit value as evid enced by their purchase price, their use as inputs and products, their role in ongoing recycling programs, their use as fuels, and/or their use in “routine transactions” or processing opera tions. Based on these characteristics, industry commenters maintain that such secondary materials shoul d not be considered discarded. Industry commenters also assert th at EPA cannot define something as “discarded” when transferred to a third party and express concern that the con cept of discard is ambiguous or incorrectly interpreted by EPA in the proposed rule. In addition, while industry commenters favor allowing the generator to burn secondary materials as non-wastes, they also argue that materials are not wastes so long as they are combusted legitimately even if the material has b een discarded in the first instance. They argue that the proposed rule effectively makes the ac t of moving materials from one party to another the equivalent of "discard," rega rdless of intent. These commen ters claim that EPA’s definition of solid waste is overly restrictive and yields little environmental gain. Certain comments maintain that as long as a non-hazardous secondar y material meets the legitimacy criteria for use*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

50 of 360 as a fuel, and it is combusted as a fuel, it is no t a waste. These comments state that secondary materials cannot be assumed to be part of the solid waste disposal problem merely because the original generator of the materials transfers 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 s econdary materials burne d for energy recovery are not solid wastes. Th e D.C. Circuit holding in AMC I that material “recycled and reused in an ongoing manufacturing or industrial process” is not “discarded” does not apply to secondary materials burned for energy recovery even if legitimately recycled and reused. AMC I only addresses reclamation of secondary materials. Moreover, EPA incorrectly relies on case law to give it discretion to define “discard.” Acco rding to the comment, EPA is wrongly implying that, under case law, the meaning of “discard” is am biguous and that the Agency has discretion to define burning for energy recovery as either discard or not. EPA’s Response : EPA disagrees with this comment. To reply to this commenter, EPA is relying on its explanations in the ANPRM and the proposal, as well as the discussion reiterated in this preamble. See especially discussions of the la w in the proposed rule at 75 FR 31850-52 (section titled, “Case Law on Definition of Solid Wa ste”); 31858-59 (Comment/R esponse section titled “Meaning of Discard”); and 31885-87 (section titled “Alternative Approach”). That is, EPA sees nothing in the comment that would change the legal basis for this rule. However, the Agency believes it needs to clarify the more obvious inaccuracies in the comment. First, EPA freely admits, as stated in the pr oposal, that the secondary materials at issue in*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

51 of 360 AMC I were not burned for energy recovery. See, for example, 75 FR 31887. However, the plain logic of the court’s opini on and the plain meaning of the statute are unmistakable. EPA does not have the discretion to cover as solid wa ste secondary materials re cycled in a continuous industrial process, even if they are used in a combustion unit. Indeed, if EPA were to assert jurisdiction for materials recycled in a continuous process for ener gy 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 th e ANPRM in this proceeding stated that the term “discard” is ambiguous. It is clea r that EPA’s jurisdiction under RCRA applies unambiguously to materials that are discarded an d the definition is unambiguous in that it means thrown away, disposed of or abandoned. It is the application of the definition to particular instances that gives ri se to ambiguity. The ABR court plainly stated that the term may be ambiguous as applied to some situations , but not as applied to others . 208 F.3d at 1056, See also 75 FR 31887. The comment simply begs the question when it claims EPA is relying on an ambiguous meaning to claim discretion. EPA has no discretion in certain cases. For example, the Agency may not regulate secondary materials recycled in a continuou s industrial process. On the other hand, EPA may have to exercise discretion to determine whether particular materials are recycled in a con tinuous process and whether material s 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 s econdary material for energy recovery is not “traditional” recycling. Thus, EPA may not consider bu rning for energy recovery as recycling because the term , “recycling,” is not given its ordi nary meaning. See 75 FR at 31872. EPA’s Response :*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

52 of 360 EPA disagrees with the conclusion of the comm ent, but needs to corr ect the record. EPA received a comment in response to the ANPRM that requested the Agency to apply the legitimacy criteria to situations where the recycling does not include burning for energy recovery. The commenter referred to these other situations as “traditiona l” recycling. EPA’s response noted that this regul ation specifically ap plies to whether non-hazardous secondary materials in a combustion unit are legitimately recycled or not. This is the general policy in this regulation, since states may regul ate non-hazardous secondary mate rials recycled in ways 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 referr ing 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 th e rulemaking record that recyc ling includes legitimate burning for energy recovery and this is very clearly unde rstood by almost all of the commenters. The Agency views the comment’s distinction as a sema ntic matter, not as a practical application of the term “traditional.” This mistake is hereby corrected for purposes of the final rule. “Traditional” recycling may include burning fo r energy recovery of secondary materials.
Comment : 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 combus tion process. The comment cites the preamble to the proposed rule in several places where EPA notes that combustion of secondary materials is “commonly” associated with disposal. See 75 FR at 31859, 31877. The comment states, further, EPA’s sense of what constitutes discard is not the ordinary*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

53 of 360 sense of the term by citing the Agency’s discussion of the benefits of burning secondary materials. 75 FR at 31849. In addition, accordin g to the comment, EPA is unlawfully seeking to exclude from the definition of solid waste by its discussion of the be nefits of burning the following materials: pulp and paper residuals, ag ricultural residues, food scraps, animal manure, construction and demolition waste, disaster debris, land clearing debris, scrap plastics, spent solvents, coal refuse, waste water treatm ent sludge and used oil. 75 FR at 31850. EPA’s Response : Other responses deal with the legal argumen ts made by this particular comment on how the statute and case law deal with the definition of solid waste. However, the Agency believes it necessary to address some of the comment’s specific inaccuracies separately. First, EPA in no way “concedes” that all materials burned for energy recovery are discarded in the ordinary sense of the term. To the extent that the Agency notes certain public perceptions, it plainly states (on the same pages cited in the comment) that these are misconceptions because they do not take into acc ount that a secondary material may often be used to produce a safe fuel produc t that is a valuable commodity or that a secondary material that is burned in a combustion unit does not necessarily have high levels of contaminants. 75 FR 31859. In addition, EPA refers to the same misc onceptions when it discusses whether product fuels may be processed or extracted from ma terials once discarded. EPA notes that fuel processed or extracted from discarded non-hazar dous secondary materials should not necessarily be considered solid waste, just as recycled ne wspapers, recycled aluminum, re-refined oil, to name but a few, are not considered solid waste. Moreover, the misperception that contaminant levels are high in combusted secondary materials affects the perception that there needs to be a*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

54 of 360 very high threshold with respect to the level of processing th at must take place to render a discarded material into a non-waste product. 75 FR 31877. Finally, EPA does not understand the co mment’s citation to 75 FR 31849-50 as containing statements regarding the Agency’s “sens e” of discard or the fact that the Agency is seeking to exclude various materials from the defi nition of solid waste. These pages only discuss the benefits of secondary ma terial combustion without opi ning on whether the combusted materials would or would not be a waste. EPA cannot understand the comment’s motivation in making these statements.
Comment : RCRA’s statutory language shows that C ongress did not intend EPA to exclude secondary materials that are burned for energy rec overy from the definition of solid waste. In particular, section 3004(q) directs EPA to issue regulations both for faci lities that produce fuels from hazardous waste and for facilities that burn “f or purposes of energy recovery” any fuel that is produced from hazardous waste or any fuel th at contains any hazardous waste. Thus, EPA may not declare that hazardous wastes and hazar dous waste derived fuels are not discarded when burned for energy recovery. The comment con cedes that section 3004(q) addresses hazardous waste, but maintains that the pr ovision is strongly indicative of Congress’ intent that burning a material for energy recovery does not transform that mate rial into a non-waste. EPA’s Response : EPA disagrees with this comment. Section 3004 (q) only applies to specific provisions of the statute and in no way can it be considered to present a sweeping bar to the Agency’s ability to interpret the statute. In fact, since Congre ss only addressed these provisions in the hazardous waste subtitle of RCRA, the more logical interpretation is that such provisions would not be*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

55 of 360 applicable to other parts of the statute. Secti on 3004(q) very clearly pr ovides that a material must be a hazardous waste, first, before it s provisions apply. EPA needs to make the determination that material is a hazardous waste before even de aling with the restrictions under 3004(q). Thus, it does not apply to the present ru le where EPA must first determine whether the material is a solid waste and there is no questi on 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 EP A’s rule from the definition of solid waste violate the CAA. EPA interprets this comment to mean that the commenter sees violations of the CAA for any non-hazardous secondary material the Agency has decided is not a solid waste. The comment states the following: “Congress was not concerned ei ther about the ownership of a waste material that was being burned or a bout whether energy was recovered from the combustion process; it simply wanted to ensure that all waste combustion units were subject to the protective control, monitoring, siting, trai ning, and reporting requirements that it found necessary and appropriate for these units.” The comment makes four points to support its contention:
1. The proposed rule is a transparent attemp t to exempt facilities that recover energy from the section 129 standards and would sh rink the population of facilities covered to 175, a number far less than Congress intended.
2. Section 129(g)(1) makes clear that Congress vi ewed refuse-derived fuel as waste and EPA includes “refuse-derived” fuel as a non-waste.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

56 of 360 3. Section 129(h)(5) shows that Congress viewed the universe of “fuel” to consist of “waste” on the one hand and “fossil fuel” on the other. Cong ress’s definition of “municipal waste” expresses the intent that facilities that burn non-fossil fuels and are not covered by the express exclusions in section 129(g)(1) must meet the section 129 incinerator standards.
4. Because EPA would allow energy recovery f acilities controlled by the generator to burn non-hazardous secondary materials unde r section 112, EPA’s regulations would improperly allow hospital-owned medical wa ste incinerators to burn medical and infectious wastes and would not be incinerators subject to the section 129 incinerator standards. EPA’s response : EPA disagrees that these provi sions of the CAA are relevant to this regulation. EPA is not creating exemptions to section 129 for f acilities that recover energy. Rather, EPA is establishing a definition of non-hazardous solid waste, which, as specified by CAA section 129(g)(6), governs the meaning of “solid waste” under section 129. Because Congress specifically directed that “solid waste” have th e meaning established by the Administrator under RCRA, instead of defining the term under RCRA, the CAA definition of “municipal waste” is not relevant to this action. If any or all of the commenter’s contenti ons are correct, secti on 129 would not provide that the term “solid waste” shall have the meaning promulgated by EPA under RCRA. There would simply be no reason for EPA to consider the RCRA definition, since section 129 would take care of the issue. Section 129(g)(6) would be meaningless. The commenter further argue s that EPA should consider the CAA when defining solid*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

57 of 360 waste under RCRA. The CAA does not direct the Agency to cons ider the language of section 129 when establishing a RCRA defin ition. So long as EPA’s rule is consistent with the RCRA definition of “solid waste,” it must stand. That is, as long as the definition of solid waste is consistent with RCRA, and the Agency issues emissions standards for all units that burn commercial and industrial solid waste in the CI SWI rule, the standards under section 129 are valid. Therefore, we believe the commente r’s general argument is without merit. With respect to each of the supporting points:
1. Contrary to the commenter’s assertion, EPA is not “exempting” energy recovery facilities from the section 129 standards. The Agency is simply interpreting the term “solid waste” under RCRA. The number of facilities that are combusting solid waste is not relevant to this inte rpretation. Moreover, there is no indication in the CAA of the number of facilities Congress intended to be covered under section 129 of the Act.
2. The comment is incorrect that section 129, by excluding “refuse-derived fuel” from the exclusion in 129(g)(1)(B) was somehow defining the term as being included in the term, “solid waste,” under RCRA. Again, if that were the case, section 129(g)(6) would be superfluous. Nevertheless, toda y’s rule identifying which non-hazardous secondary materials that are solid wastes when combusted does not include fuel derived from municipal waste refuse under 129(g)(5). Some fuels may be processed from solid waste, but that determination by the Agency stands or falls based on the RCRA statute and case law, not the CAA. EPA is not defining “refuse derived fuel” in this RCRA rule. The validity of EPA’ s interpretation on whether commodity fuels may be processed, or extracted, from a wa ste must stand or fall based on the RCRA definition, not provisions of the CAA.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

58 of 360 3. EPA disagrees with the statement that the CAA considers “the universe of ‘fuel’ to consist of ‘waste’ on the one hand and ‘foss il fuel’ on the other.” Again, the CAA is not defining solid waste. Solid waste is defined under RCRA as material that is “discarded.” There is no distinction anywhere in RCRA that would indicate that anything other than a fossil fu el must be a waste.
4. This rule does not address whether or not medical waste is a solid waste under RCRA. EPA issued regulations under sec tion 129 of the CAA establishing emission standards for hospital and medical waste, and today’s action does not affect those regulations. [74 FR 51367].
Comment : EPA’s distinction between ma terials burned for energy reco very and those burned for destruction has already been rejected as irrelevant in NRDC . 489 F.3d at 1257-1258. EPA’s Response : EPA agrees that the D.C. Circuit has reject ed for purposes of combusting materials under CAA section 129 a distinction between fuels and wastes. However, EPA is not making that distinction in this rule. EPA agrees that units combusting solid waste ar e 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 inte rpret the term “solid waste” under RCRA rulemaking. This issue was si mply not before the Court in NRDC

. It is clear that wastes may ha ve fuel value. EPA, in this rule, is making a distinction between materials that are discarde d and those that are not. One of the considerations is whether material is really being burned fo r destruction and is, therefore, a waste. If it is not being burned for destruction, other factors n eed to be considered to dete rmine whether the non-hazardous*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

59 of 360 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 Agen cy needs to consider whether that material is legitimately burned for energy recovery. One of th e 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 va lue, EPA must consider other factors, including whether the non-hazardous secondary material is managed as a commodity and whether contaminants indicate that incinerati on (destruction) is the real reason for burning. A decision as to whether 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 decide s 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 n on-hazardous secondary material s are burned at a facility controlled by the generator. Even EPA does not believe its argument because it admits that a secondary material could still be a waste even if it is r ecycled on-site or with in the control of the generator and cites the court's holding in API II . Instead of defending its condition as relevant to whether a non-hazardous secondary material is or is not discarded, the Agency merely says that the secondary material must both be within th e control of the genera tor and must pass the legitimacy criteria. By punting to its legitimacy criteria, EPA eff ectively concedes that its “‘on-*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

60 of 360 site’ problem” renders irreleva nt the condition that non-hazardous secondary materials be burned at a facility within cont rol of the generator. EPA’s Response : EPA disagrees with this comment. If th e non-hazardous secondary material remains within the control of the generator, it is more likel y to be a material that is saved and not thrown away or abandoned. The Agency has explained that case law would not allow it to determine that secondary materials are wastes if they are recycled as fuel s within a continuous industrial process. EPA cannot evaluate every non-hazard ous secondary material, but believes this standard would cover all secondary materials that are recycled as a fuel within a continuous process. EPA, however, acknowledges that this may capture non-hazardous secondary materials which may be a waste, but this is unlikely. There may also be non-hazardous secondary materials transferred to another pa rty that may not be a waste and EPA is attempting to deal with those categories of non-hazardous secondary materi als on a case-by-case basis. However, EPA believes that it is a reasonable interpretation of th e statutory definition of di scard 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 legitim acy criteria, but believes they provide a valid basis for showing that a non-hazardous secondary material is more comm odity-like than waste-*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

61 of 360 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 betw een companies for use as a fuel renders the nonhazardous secondary materials discarded. Accord ing to the comments, EPA not only makes the transfer of secondary materials an indication of discard, but tr ansfer becomes the primary and controlling condition for determini ng whether secondary materials wi ll be classified as 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 ge nerator without prior government permission.
Moreover, the commenters claim that EPA cannot make a sweeping and arbitrary assumption in categorizing these transferred mate rials as “discarded” and then place the burden on the regulated community to challenge the assumption through submission of a petition to declare the material a non-waste. According to the commenters, it is incumbent upon EPA to explain why a material is disc arded before the Agency can put the burden on companies to submit non-waste petitions if the companies want to claim the secondary material is not a waste.

The Safe Food case states that firm-to-firm transfer s “are hardly good indicia” of discard. If a fuel can meet all of the legitimacy crit eria (managed as a valuable commodity, have meaningful heating value, not c ontain elevated levels of contam inants), it cannot reasonably be said to be discarded just because it is sold or ot herwise transferred to an entity separate from the generator. Assuming all relevant legitimacy criteria are met, the transfer of secondary materials*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

62 of 360 between companies is simply not relevant for determining whether such materials have been discarded. In fact, depending on the nature of the transaction, this transfer may be a good indicator that a company values the material. EPA cannot support its position by referring to over-accumulation of scrap tires resulting in massive piles of discarded tires. Those ma terials did not meet the legitimacy criteria and should be treated as discarded. Such a referenc e does not rehabilitate EPA’s presumption that mere transfer of a non-hazardous secondary material could cause the mismanagement that resulted in the tire piles. Nor can EPA support its position that state agencies consider ma terials wastes when transferred to third parties for use as fuels. Stat es can make mistakes, as they did regarding used oil, which they classified as a waste, but cha nged direction after EPA pr omulgated its used oil regulations at 40 CFR Part 279.
One comment states, on the basis of case law on abandonment, that to be abandoned there must be a clear and unequivocal intent to abandon on the part of the owner and that the burden is on whoever alleges abandonment to estab lish that intent. Of pa rticular significance is the principle in the common law that abandonmen t does not occur where a direct transfer of ownership to another party occurs. Where a genera tor conveys title to a s econdary material to a third-party, no abandonment occurs, whether there is pa yment for the material or not. Nor, if the material is actually recycled (i .e., used, reused, or reclaimed), w ould such material ordinarily be deemed to be “disposed of” or “thrown away.” Materials legitimately burned for energy recovery or used as ingredient s in combustion units are neither disposed of nor abandoned and do not meet the ‘plain-English m eaning’ of . . . ‘discard.’*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

63 of 360 Merely because one party has relinquished co ntrol of a secondary material does not make it a waste nor does the fact that a receiving part y may not have the same incentives to manage them as a useful product. EPA cannot indict all parties that in fact do manage these secondary materials as a useful product. Indeed, a ge nerator’s use of a secondary material does not guarantee its proper use, yet EPA allows the legiti macy criteria to suffice in situations in which the generator retains control of the non-hazardous secondary mate rial and legitimately recycles it.
Further, EPA seems to contradict itself b ecause it does not presume discard of ingredients transferred to other companies and gives no reason as to why fuels should be treated differently. EPA only states, without giving a reason, that it believes that the use of non-hazardous secondary materials as ingredients is cons idered to be more integral or akin to use in a commercial manufacturing process and thus, these non-h azardous secondary materials should not be considered discarded provided they meet the legitimacy criteria. After all, commercial manufacturing processes re quire both ingredients a nd energy (e.g., fuels). EPA’s Response : EPA disagrees with these comments to the extent they argue that the Agency has arbitrarily determined that secondary material s transferred between companies are wastes. Instead, EPA has evaluated whether certain categor ies of materials are di scarded or not. The Agency has not adopted the extremes of saying th at all burning of secondary material, regardless of ultimate use, is waste treatment or that any secondary material that is recycled for legitimate fuel value is a commodity and not a waste. Wa stes may have value, but are still wastes.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

64 of 360 Between these broad parameters, EPA has examined a number of specific materials, recycled on-site and transfe rred for recycling, and determin ed whether they would be appropriately placed within the waste or non-wast e categories. EPA would consider transferred materials not to be wastes if it could make the a ppropriate findings for those categories. In fact, the Agency does so with respect to scrap tire s harvested from vehicl es and resinated wood residuals. Consideration of over-accumulation of scrap ti res resulting in massive piles of discarded tires is not being cited as suppor t for the proposition th at all transfers of secondary materials result in waste treatment, but only for the proposit ion that the Agency needs to be careful in examining whether secondary materials may be tr ansferred as commodity fuels or as wastes. Further, EPA is not relying on state determina tions regarding whether secondary materials are wastes, specifically tires, but is instead allowing state tire programs that meet certain parameters to affect an EPA determination that tr ansferred scrap tires are not wastes. Any of EPA’s decisions regard ing specific materials, if ch allenged, must stand or fall based on its individual merit. For example, re sinated wood residuals ar e routinely transferred between either intra- or inter- co mpany facilities and used as either “furnish” (i.e., raw materials) or fuel at the receiving facilities . The material being transferred off-site is used and handled in the same manner that resinated wood residuals are when genera ted on-site (such that it is impossible to distinguish between materials that are being used as a raw material and those that are being used as a fuel). Accordingly, these ma terials are not solid wastes whether used within the same company or transferred to another company. See below, at sections V.B.6 for*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

65 of 360 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 base d on the Agency’s analysis of the industry in general or, based on a lack of data or knowle dge, an effective presumption that recycling materials for a fuel is primarily an on-site activ ity only. For example, we generally believe that use of old corrugated cardboard (OCC) rejects (clay, starches, ot her filler and coa ting materials, as well as fiber) are not discarded when used wi thin the control of the generator, since these secondary materials are part of the industrial pr ocess. 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-hazar dous secondary materials may be proc essed or extracted from wastes to produce fuel commodities. Examples include tire-derived fuel proces sed from scrap tires retrieved from waste tire piles, and coal refuse retrieved from legacy piles that have been processed through the use of gri zzlies, screens, and blending to improve the quality, remove metal objects, and reduce the concen trations of various constituents. To the extent that EPA has indicated that particular categories of non-h azardous secondary materials are wastes when transferred off-site to a third party, the Agen cy provides companies with the opportunity to petition EPA for a non-waste determination; we be lieve a petition process is essential because many non-hazardous secondary materials are recycl ed and managed in many different ways, and the Agency may lack the specific details in ce rtain cases to know whether or not such nonhazardous secondary materials are or are not solid wastes.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

66 of 360 Thus, EPA is not making a sweeping arbitr ary assumption in categ orizing transferred secondary materials as discarde d. In addition, EPA is not, in any sense, forbidding economic reuse of such materials by anyone other than th e generator without prior government permission (through the petition process). The effect of this regulation woul d simply be to require the nonhazardous secondary materials designated as wastes to be combusted only in facilities regulated under section 129 of the CAA, while non-waste fu els could be combusted under section 112 of the CAA.

EPA finds irrelevant the citations to case law cited by the commenters on these issues. EPA notes that the follow ing 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 Ec onomica 386 (1937), firm-to-firm transfers are hardly good indicia of a "discard" as th e term is ordinarily understood.

EPA finds no evidence of the relevance of “ver tical 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 i ssue of company-to-company transfers in the context of specific secondary mate rials and to the extent the Agen cy 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 abandonm ent issues between pr ivate 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 whet her the transfer represents a*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

67 of 360 legitimate non-waste activity. To represent a le gitimate 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 co ntaminant 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-haza rdous secondary materials fare under the analysis of whether the seconda ry material is a waste or no t. A waste owner may not be “abandoning” a waste when it sends it to anot her company, but the non-hazardous secondary material is still a solid waste if it has been discarded in the first in stance (tires in junk yard piles) or if the receiver is not burni ng 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 th is approach is that EPA is accounting for the likelihood that secondary materials recycled w ithin a continuous i ndustrial process by being burned for energy recovery or as an ingredient w ould not be a solid waste under the la w. As stated in the preamble to the proposed rule, EPA believes that its form ulation that secondary materials recycled or reused legitimately under the control of the gene rator will cover all, or almost all, secondary materials recycled or reused in a continuous in dustrial 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 contro l, 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.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

68 of 360 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 statut e defines as units that “combust” solid waste. This statutory definition does not say EPA can regulate units that “treat” solid waste (as provided in RCRA subtitle C). Nor does it say that EPA can regulate units that “use” solid waste. For example, the feedstock for clinker that is pla ced into the kiln is not “combuste d” – 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 th e clinker product and are not “combusted.” EPA’s Response : This comment is not relevant to this regul ation, which determines whether a secondary material is a solid waste, or not under RCRA. Clearly, EPA has the auth ority to interpret RCRA to decide whether non-hazardous secondary materi als are solid wastes or not. Whether EPA may cover ingredients used in combustors under sec tion 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 th e material. This logical leap defies common sense, and is not in any manner compelled by the statutor y language or judicial precedent. It is illogical and nonsensical to hold that a material must be considered forever “discarded” if Party B comes upon the material, re moves it from its “discarded” venue, and takes*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

69 of 360 it with him or her for a bona fide use. S uppose a woman walks by a town dump and spies a chest-of-drawers that someone has thrown aw ay (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 ther e full of clothes. To say the chest sitting in that room is now a “discarded” material simp ly defies the plain meaning of the word. According to the comment, the RCRA subtitle C case API I , which deals with hazardous waste under RCRA, in no way impairs EPA’s ability to craft a subtitle D rule that could allow for materials once deemed to have been discarded to cease to be a solid waste when reused. The comment acknowledges that in API I, the court disapproved of the concept that a material that may have once been thrown away could neverthele ss “cease to be a solid wa ste” if it were being beneficially reused, as it would no longer at that point be considered a “discarded material.” The comment goes on to say, however, that the cour t only stated that it believed it would be “unlikely” that EPA could successfully maintain the position that a discarded material could cease to be a solid waste when recycled. The court reasoned that for EPA to reach such a conclusion, the Agency would have to reco ncile this position w ith RCRA’s acknowledged objective to establish a cradle-to-grave regulatory structure for the safe handling of hazardous

wastes. The comment argues that this language of the opinion is a “criti cal” element of the decision and only applies to hazardous wastes. Therefore, it does not apply to non-hazardous waste. The comment goes on to say that EPA ci tes no case law, and they are aware of none, in which a court has ruled that a discarded non-h azardous material must forever be deemed discarded no matter what beneficial use it may subsequently be put to. EPA’s Response :*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

70 of 360 EPA disagrees with this comment. In the firs t place, the Agency is not saying that wastes are “forever” discarded. Wastes may be processed into materials that are not wastes. The important point, here, is that a waste does not automatically lose its waste designation solely because some person has found value in the material. Something has to happen to that waste to make it a non-waste. Judicial interpretations of the statutory de finition of discard very plainly hold that a material that has become a waste – because it is discarded – may not lose its waste status “just because a reclaimer has purchased or finds value” in the waste. ILCO at 1131; OWEN STEEL at 150. Furthermore, in ABR, the court stated, “The point of AMC II, and for that matter API, is that once material qualifies as ‘solid waste,” so mething derived from it retains that designation even if it might be reclaimed and reused at some future time.” ABR at 1056. EPA notes in a response to a comment elsewher e in this preamble th at these cases do not prevent the Agency from considering that wastes may be processed in some way into non-waste products. Nevertheless, the cases unmistakably hold that secondary materials do not lose their waste status simply because they have value. The commenter’s reference to the API I case’s mention of the purposes behind the hazardous waste regulation’s “cradle to grave” regi me is not “critical” to the court’s holding. The court only was opining on a hypothe tical situation should EPA return to the court in a future case. It certainly was not necessary to the holding in the case and must only be considered dicta. EPA believes it has crafted a valid interpretation of the statute ba sed on other relevant case law on the subject. EPA also acknowledges that persons may find va lue in materials that have been thrown away, such as the chest of drawers to which the comment refers. However, this regulation deals*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

71 of 360 with fuels and ingredients that are used in comb ustors, and EPA is not evaluating other materials when beneficially used. In fact, EPA has specifi cally indicated that the Agency is not making a determination that non-hazardous secondary materi als are, or are not, solid wastes for other possible beneficial end uses. Such beneficial use determinations ar e generally made by the states for these other end uses, and EPA will conti nue to look to the states in making such determinations. Thus, EPA does not need to reso lve the hypothetical situ ation as to when the chest of drawers becomes a non-waste. Moreover , EPA does not wish to opine as to the waste designation of any artist’s wo rk that is made from ma terial found in a junk yard.
Comment : In the proposed rule, the Agen cy indicated that the 2008 DSW Final Rule included a third part in the definition of “unde r the control of the generator. ” Specifically, the 2008 DSW Final Rule also applies to hazardous secondary mate rials that are generated pursuant to a written contract between a tolling contra ctor and a toll manufacturer a nd legitimately reclaimed by the tolling contractor. For purposes of that exclus ion, a tolling contractor is a person who arranges for the production of a product or intermediate made from specified ra w or virgin materials through a written contract with a toll manufacturer. The Agency requested comment on whether to include this option in the final rule. Few comments were received on tolling contr actors. One commenter stated that to the extent that such arrangement s facilitate the recycling or use of non-hazardous secondary materials and benefit the environment by reusi ng such materials that might otherwise be disposed of, it should be included. A state co mmented, however, only th at tolling contracts should not be considered under th e control of the generator. EPA’s Response :*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

72 of 360 We did not include tolling arrangements as be ing “within the control of the generator” as we viewed this as a specific type of arrangement used in th e production of secondary materials that are not being used as fuel s, and were unaware of these t ypes of contractual arrangements where both products and secondary material fuel s are sent to what we are calling tolling contractors, nor has any comment informed the Agency of such arrangements for fuels.
Comment : In implementing RCRA, EPA must balance th e statute’s two primary goals of (1) protecting human health and the environment a nd (2) encouraging reus e and recycling. The second goal is particularly critic al in the RCRA subtitle D context. EPA’s proposal, along with the CISWI proposal, draws many lines that woul d impose major impediments on recycle/reuse. Yet EPA never attempts to justify these choi ces dealing with non-haza rdous materials on the grounds of protecting human health and the environment. EPA’s failure to take both of these factors in to account produces results that impede reuse and recycling of non-hazardous 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 pr ovide the legal basis for the Agency’s determination whether secondary materials are so lid wastes – discarded within the ordinary meaning of the term. Broad policy goals stated in the statute do not substit ute for the substantive statutory requirements which the Agency must follow. In the NRDC case, the D.C. Circuit admitted that EPA may have legitimate policy re asons for its decision. However, the Agency must still follow the statutory strictures. Yes, the Agency should encourage recycl ing, but it may not encourage that use by*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

73 of 360 allowing discarded materials to be considered non-wastes. The ove rall congressional policies are limited by the substantive statutor y requirements. Yes, the Agency must protect human health the environment, but its ability to do that is li mited to its ability to re gulate material that is discarded – material that is a solid waste. On ce EPA has decided that a secondary material is a solid waste, the Agency must establish standard s for using it in a combustor subject to the CAA section 129 standards. We do note that as part of the Agency’s legiti macy criteria, we cons ider 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, examin es matters involving risk – particularly risks from the combustion of wastes. Virgin fuel s, themselves, however, present risks when combusted. Secondary materials that are co mbusted as wastes present additional risks , against which the CAA regulates.
Comment: In a similar vein, another industry comment ar gues that the statutory definition of solid waste sets the outer limits of EPA's regulatory authority under RCRA. Howe ver, EPA is neither required nor authorized to go to the limits of th at definition in each of its regulatory programs. Each such program, according to this comment, is aimed at specific dangers that the wastes it addresses may pose, and each such program must take account other statutory purposes, such as encouraging the beneficial reuse of secondary ma terials. EPA, therefor e, should exercise its authority to establish a definition of waste that is tailored to address th e problems at issue, and that does not impermissibly infri nge on other statutory goals. EPA’s Response:*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

74 of 360 EPA disagrees with this comme nt. First, general congressi onal policies th at refer to encouraging recycling have no place in EPA’s dete rmination as to whether a secondary material is a waste or not. For purposes of this ru le, EPA is evaluating which non-hazardous secondary materials are discarded under the st atute. EPA cannot allow seconda ry materials that are wastes to be burned under CAA section 112. In deciding which non-hazardous secondary materi als 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 vari ous circumstances. However, EPA cannot decide to develop a narrower interpretation of what cons titutes a waste simply because it does not want to have secondary materials burned under C AA section129 instead of CAA section 112. EPA may not say material is not di scarded if, in fact, it is. In this case, EPA is under an obligation es tablished 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 regulati ons, as has been noted throughout this proceeding, EPA is not reopening any decisions. Any commenter’s subjective evaluation of whether a particular hazardous waste regulation is more string ent than this regulation has no relevance to whether a secondary material is discarded for purposes of this regulation. EPA has stated that secondary materials ex cluded from the definition of solid waste under the subtitle C regulations will remain non- wastes under this rule. We are not reopening the 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*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

75 of 360 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 un der RCRA subtitle C. 2. Processing Requirements. Under the proposal, fuels or ingredients th at are produced from the processing of discarded non-hazardous seconda ry materials are not a solid waste provided they meet the specified legitimacy criteria. Comments from en vironmental groups rejected in its entirety any processing requirement at all. According to these comments, a discarded material remains a waste and cannot be rehabilitated to become a co mmodity fuel. Any fuel derived from a waste must be combusted under section 129 of the CAA. On the other hand, , industry commenters in general found the proposed definitions of “processing” and “sufficient processing” unclear and the processing requi rements generally too restrictive. Several comments requested that EP A offer further explanation as to why processing is necessary in the first instance. In partic ular, they claimed that the degree of processing required by the proposed rule is inappropriate a nd illogical, arguing that there is no reason to impose an artificial and arbitrary requirement that materials first be "transformed” into something different. Other commenters argued that materials suitable for use as a fuel or ingredient without processing are not solid wastes when combusted, ev en if they have been previously discarded. In other words, if previously discarded, non-hazar dous 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, aff ected parties should not have to process the material, as doing so would be bur densome and unnecessary. Other commenters*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

76 of 360 asserted that minimal processing should be suffi cient 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 c onsidered non-waste product fuels if they have been “sufficiently processed.” In the view of this commenter, the D.C. Circuit has held plainly and repeatedly that the term solid waste unambiguously includes fuels made from processed secondary materials. The comment refers to dicta in the D.C. Circuit opinions of AMC
I

and ABR , in which the court states that EPA may regulate used oil recyclers that collect discarded used oils, distill them, and sell the resu lting material for use as fuel in boilers. In addition, the comment cites cas es in other circuits – ILCO and Owen Steel – to the effect that wastes may be recycled and that their recycling is irrelevant to the determination as to whether they are wastes. In particular , the comment cites the facts in ILCO where the court found used batteries to be discarded within the everyday use of the term and th at their secondary character as recyclable material is irrelevant to that de termination. In addition, the comment cites the Owen Steel facts where steel slag recyc ling activities were considered waste treatment even though the recycled slag was used commercially. According to the comment, a material is discarded and the fact of discard is not changed just because a reclaimer has purchased or finds value in the components of such secondary materials. EPA’s Response : EPA disagrees with the comment, and finds th at the commenter reads too much into these cases. EPA has repeatedly stated in this rulema king that it agrees that wastes may be recycled*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

77 of 360 and that the fact of discard doe s not change solely because the waste may have value. These cases do not, however, stand for the proposition th at any product resulting from the recycling must be a waste. Such a view would make almo st every aluminum can from which we drink our sodas or newspapers on which we read the news “solid wastes.” With respect to AMC I and ABR , the reference to regulating us ed oil processing into fuels that are sold is, first, not necessary to the de cisions. Those cases overturned rules where EPA was overly broad in its regulation. The cases were not deciding which situations constitute proper regulation by EPA. Nevertheless, the D.C. Circuit, by the terms of its dicta, was only referring to regulating the proces sing activity for the used oil. The court was not referring to regulation of the resulting material that was so ld to boilers as a fuel. In fact, the court acknowledges that the fuel is sold to boilers a nd in no way opines on whethe r the resulting fuel is a waste. In this rule, also, EPA is not saying that the processing of discarded material is excluded from regulation as a wast e activity, but only that the resulting fuel is not a waste if it has been sufficiently processed and meets the criteria of fuels that are not wastes – referred to as meeting the legitimacy criteria. As for the other recycling cases, EPA has adm itted that the mere fact of recycling does not change the nature of a secondary ma terial that has been discarded. Again, AMC I and ABR cases are not directly on point for deciding wh ether non-waste products can be extracted from discarded material because the courts were not called upon to decide that issue. In both cases, however, the courts refer to resulting products that were sold commercially. In the ILCO case, the issue was whether reclaimed lead plates from discarded batteries were recycled wastes or raw mate rials used to produce steel ingots. The court found that the lead plates were wastes, but only noted that the l ead ingots made from the wastes were sold*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

78 of 360 commercially and did not opine as to whether the ingots were wastes. EP A argues that the ingots were not wastes, since they were pro cessed into valuable commodities.
In Owen Steel , the court found that slag from stee l production was a waste and the area where the slag was processed was a waste treatment facility. The cured slag was sold for various commercial processes, including ro adbed construction. The court was not asked to opine, nor did it, on whether the roadbed ma terial was a waste. Again, EPA argues that the cured slag could be a product produced from the waste, ev en though the processing ac tivity involved waste

treatment. EPA does admit that the cases are not di rectly on point to su pport the Agency’s determination that discarded materials may be pr ocessed into legitimate pr oduct fuels. The cases do seem to recognize, however, that products made from wastes may be products and not wastes. More importantly, the cases do not refute EPA’ s essential logic that fuel or ingredients processed or extracted from discarded secondary material is analogous to many products that are processed or extracted from wastes, such as aluminum cans or recycled paper made from recycled secondary materials. The cases indica te that the same logi c could apply to fuel processed from used oil or lead ingots made from batte ry lead plates, or roadbed construction material made from steel slag. This applies even though the processing or extraction activities involve waste treatment. EPA believes that, at a minimum, there are circumstances in which the resulting materials are not wastes. EPA’s task in the current rule is to decide when such processing results in a product or a waste. To resolve the issue, EPA has identified conditions on the extent of processing that has been conducted. That is, the processed discar ded material may become a non-waste fuel if certain conditions are met—that is sufficient pro cessing has occurred. If s o, and if the material*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

79 of 360 meets the legitimacy criteria, the fuel or ingr edient product would be considered a non-waste material. b. Comments from Industry Groups
Comment : A number of industry comme nters object to the processi ng requirement for discarded non-hazardous secondary materials to become non- waste fuels or ingredients. These comments contrast with the argument of environmental groups that no processing would transform discarded non-hazardous secondary materials into non-waste fuels or ingredients, a contention to which the Agency responds to ear lier in this preamble. Industry commenters argue that the legitimacy criteria are suffi cient and that there should be no processing requirement for non-hazardous secondary materials that were discarded and could now be used as fuels or ingr edients. The general argument is that the very act of retrieving a previously discarded material for use as a fuel or an ingredient proves that the material is once again wanted by the consumer, regardless of th e type or extent of processing which the secondary material must undergo. According to these comments, the mere act of removing the previously discarded material fr om the environment for use “conclusively” demonstrates that the non-hazardous secondary material has value as a product or intermediate – otherwise, no one would invest the significant co sts associated with the recove ry of these materials. Various activities were specifically menti oned – recovery of coal combustion byproducts from landfills, extraction of coal refuse from mine sites and used whole tires retrieved from tire piles. With respect to these non-hazardous s econdary materials, commenters argue that the excessive threshold level of processing makes no sense and that EPA should allow only a minimal amount of processing to convert a wast e into a product fuel or ingredient.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

80 of 360 In particular, the comments argue that norma l processing of coal refuse (mining rejects) should be sufficient to constitute processing needed to convert previously discarded materials to legitimate fuels/ingredients. The same material mined to be used in today’s combustion technology is processed in that way and there is no difference between the mined materials. 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 a nd dirt, mud, and debris. Whole tires from newer stacks or piles often need no physic al processing whatsoever. In contrast, EPA argues that scrap tires cannot be considered sufficiently “proces sed” unless they are phys ically shredded and undergo metals removal processing. Establishment of a threshold level of processing that must take place before a discarded non-hazardous material is considered a legitimate fu el or ingredient would also have the perverse effect of applying different standa rds to identical materials. For example, there is no difference in the coal refuse or coal combustion byproducts that are recovered from landfills for use in a fluidized bed combustion unit or in the cement manufacturing process. Some comments claim that under EPA’s h azardous waste regulations, only minimal processing, such as baling or sorting, is requ ired for scrap metal to be excluded from the definition of solid waste. The scrap metal, wh ich would otherwise be a hazardous waste, may be sent into high-temperature environments, such as electric arc furnaces at steel mills and aluminum smelters. EPA had stated that this is a good example of where the level of processing necessary to convert a waste materi al to a non-waste material is de pendent on the material itself. The comments claim that this is inconsistent with requiring used tires that have been discarded to

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 pro cessed in the same way as coal is today, the Agency would not consider the processed coal refuse a solid waste.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

81 of 360 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 wa ste under RCRA and case law that holds a discarded material remains a waste regardless of its value. Allo wing certain non-hazardous secondary materials to be combusted as a fuel under the section 112 st andards of the CAA may have beneficial policy objectives. However, EPA may not base it deci sion on the policy, but must evaluate whether a secondary material is a solid waste unde r RCRA. Specifically, the D.C. Circuit in NRDC would not allow EPA to establish a policy basis for de termining whether section 112 or 129 applies. Thus, non-hazardous secondary materials that are wa stes and are used as a fuel/ingredient in a combustion unit must be used in section 129 uni ts, whereas non-hazardous secondary materials that are not wastes and are used as a fuel/ingredient in a combus tion unit may be used in section 112 units. The court stated that “the distinct ion EPA draws may well be reasonable” referring to EPA’s distinguishing between s ection 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 a ny waste material, even if burned for energy recovery, must be burned in section 129 combustion units. The Agency, however, believes that the cas e law would not prohibit the processing or extracting of products from non-hazardous secondar y materials that were once wastes. This latter view is controversial as evidenced by the comments from environmental groups, which claim that no amount of processing can convert a waste into a legitimat e fuel or ingredient*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

82 of 360 product. EPA, however, does not believe it may in terpret the statute or the case law to allow a clearly discarded secondary materi al to become a non-waste solely because it has value. EPA sympathizes with the commenters’ conc ern that the processing requirement could have the effect of applying differe nt standards to identical material s, such as scrap tires. The Agency, however, is constrained by the statute and case law. If the non-hazardous secondary material is not discarded in the first instance and is legitimately recycled—that is, meets the legitimacy criteria, it is not discarded. Once the material has been discarded – thrown into waste piles or on stacks – there is no choice. Somethi ng other than mere recycling must happen to the material before it may lose its waste designati on. The mere fact that secondary materials may have value after being discarded is no t sufficient to rehabilitate it. Accordingly, EPA is not making any cha nges to the processing requirements for discarded scrap tires, although the Agency is prov iding that tires harvested from vehicles do not need to be processed if they were harvested o ff 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 Ti res) 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. EP A has modified its view to provide that the discarded coal refuse that is processed in the sa me way as coal is today would not be considered a waste when combusted. For more informati on on the rationale for this decision, see the*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

83 of 360 Section V.B.8 for a discussion of the comments recei ved on coal refuse and our response to those

comments. Finally, in response to the point that mini mal processing is permitted to exclude scrap metal from the definition of solid waste in EPA’s hazardous waste regulation, the Agency first states that it is not reopening the hazardous waste regulations, in cluding the reasoning in those regulations. Besides, the refe rence to scrap metal in the ha zardous waste regulation was only used in the preamble to note the fact that the extent of processing in general depends on the nature of the material, as we have noted else where in the preamble to today’s rule. Any comparison, other than the very general one that processing depends on the material, is not being considered by EPA. Whatever the reasoning provided in those re gulations, EPA did not cite the scrap metal regulation as support for the processing definition. The Agency also points out that the scrap metal is not combusted. B. Comments on Specific Materials Used as Fuel 1. Traditional Fuels

. 27
The following discussion describes how EPA ha s analyzed what is a traditional fuel in the ANPRM and the proposal. Next, the Agency shows how it considered various comments on the concept of traditional fuels. Section VII.A, based on these anal yses and all information in the rulemaking record, explains the Agency’s deci sion on what constitutes a traditional fuel. EPA does wish to clarify, however, that it is using the term, “traditional,” more in the sense that we have a product that is created for its use as a fuel. Some traditional fuels have been

27 Traditional fuels are not considered secondary materials and therefore, are not considered a solid waste unless they themselves have been discarded. However, becau se the Agency received comm ents regarding “traditional fuels,” including whether certain materials should be cons idered a traditional fuel, the Agency is addressing those comments in this section.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

84 of 360 used for a long time, while others are “traditional” only in the sense that they are created in the “traditional” way that a product is created (or mined), even th ough they may be newly developed fuels. Coal refuse that was form erly 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, synt hetic fuel, heavy recycle, asphalts, blast furnace gas, recovered gaseous butane, and coke oven gas) . Traditional fuels are those that have been burned historically as fuels and have been ma naged as valuable produc ts. They are unused products that have not been disc arded. The ANPRM also stated that unadulterated or clean wood collected from forest fire clearance activ ities and trees and such wood found in disaster debris, likewise, constitute traditional fuels. Th is 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 fuel s today because of changes in technology and in the energy market. In cases where these legitima te 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.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

85 of 360 The ANPRM stated that much of the biomass currently used as alternative fuels are not solid waste since they have not been discarde d in the first instance and are legitimate fuel products. It noted that biomass can include a wide range of alternative fuels, and can be broken down into two different categories--cellulosic biomass and non-cellulosic biomass. Cellulosic biomass was described to include forest-deriv ed biomass (e.g., green wood, forest thinnings, clean and unadulterated bark, sawdust, trim, and tree harvesting residuals from logging and sawmill materials), food scraps, pulp and paper mill wood residuals (e.g., hog fuel, such as clean and unadulterated bark, sawdust, trim screenin gs; 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 pr oducts due to the nature of the plants and animals (i.e., they would not be considered to have additional "contaminants"). Thus, if they are managed as valuable commodities and have meaningful heating value, they would not be considered solid

wastes. The ANPRM distinguished the traditional fuel s from non-traditional alternative fuels to decide whether they are discarded, or whether they are legitimate alternative fuels. These fuels are those in use today that the Agency was eval uating, and continues to evaluate, to determine whether they have been discarded and whether they are legitimate a lternative fuels (e.g., construction and demolition materials, scrap pl astics, non-hazardous non-halogenated solvents and lubricants, and wastewater treatment sludge)(74 FR 56).*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

86 of 360 The ANPRM also described secondary materials EPA considered to be questionable as to whether they are legitimate fuels because they lack adequate heating value (wet biomass), or because they may contain contaminants that are significantly higher in concentration than those in traditional fuel products to the degree that sham recycli ng is indicated. The secondary materials that were described in the ANPRM that could fall into this category include polyvinyl chloride (PVC), halogenated plastics, chroma ted copper arsenate (CCA) lumber, creosote lumber, copper-based treated lumber, lead-based treated lumber, and secondary mill residues, such as board, trim and breakage from the manufacture of reconstituted wood/panel products. The proposed rule continued to recognize that traditional fuels, as noted above, are not solid wastes, but added to that group clean cellu losic biomass and on-specification used oil (75 FR 31856). Specifically, in the proposal, "cl ean" biomass material was defined as a nonhazardous secondary material that has not been a ltered (either chemically or through some type of production process), such that it contains contaminants at con centrations normally associated with virgin biomass materials (t he description of “clean” is bei ng modified slightly for today’s rule, see discussion below). Clean cellulosic bi omass was described to include forest-derived biomass (e.g., green wood, forest thinnings, clean and unadulterated bark, sawdust, trim, and tree harvesting residuals from logging and sawmill mate rials), corn stover and other biomass crops used specifically for energy production (e.g., energy cane, other fast growing grasses), bagasse and other crop residues (e.g., peanut shells), wood collected from fo rest fire clear ance activities, trees and clean wood found in disa ster debris, and clean biomass from land clearing operations (75 FR 31856). Essentially, “clean” biomass was th at biomass material that was simply picked up from its environment and burned for fuel. EP A requested comment on wh ether other types of*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

87 of 360 cellulosic biomass should be designated as clean biomass, and thus a traditional fuel (75 FR 31856). EPA also proposed to add on-specification used o il to the list of “tra ditional” fuels based on the argument that it meets the Agency’s view of fuels that have been managed as valuable fuel products rather than being managed as wast e materials. 75 FR 31864. The Agency stated that under 40 CFR part 279, once used oil is determ ined to be on-spec, it is no longer regulated under the used oil management standards. This means that once the marketer complies with the requirements for analysis and record retention, no tification, and record tr acking shipment to onspecification burners, the oil is no longer subject to other manageme nt standards. Moreover, the on-specification used oil contains contaminants at levels below the maximum concentration limits established in the standards, such that they are either at the same concentration or a lower concentration than virg in refined fuel oil. EPA acknowledged in the proposal that change s in technology and in the energy market over time may result in additional materials being economically viable to be used as alternative "traditional" fuels. It also may not always be clear whether a fuel material is a traditional fuel. We agreed with commenters to the ANPRM that this rulemaking should be flexible to account for increasing use and changes in commodities, technologies, markets, and fuel prices. We, therefore, requested comment on whether other fuels in use t oday should be classified as traditional fuels, as well as whether to provide a petition process that would allow a facility or person to request that EPA determine whether the fuel that they burn qualifies as a traditional fuel.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

88 of 360 As also discussed in Section VII, the defin ition of traditional fuels has been modified in today’s rule. The new definiti on encompasses two categories of fuels: (1) “historically managed” fuels, as identified in the proposed rule, and (2 ) “alternative” fuels, as discussed in the ANPRM. Through this revised definition, EPA is recognizing that changes in technology and in the energy market over time have resulted in add itional materials being economically viable to be used as alternative "traditional" fuels. The 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 di scarded and therefore, are not solid waste including: (1 ) fuels that have been histori cally managed as valuable fuel products rather than being managed as waste ma terials 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 biom ass. Clean cellulosic biomass includes those residuals that are akin to tr aditional cellulosic biomass such as forest-derived biomass (e.g., green wood, forest thinnings, clean and unadulterated bark) sawdus t, 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 shel ls), wood collected from forest fire clearance activities, trees and clean wood found in disaster debris, clean biomass from land clearin g operations, and clean construction and demolition wood. “Clean” cellulo sic biomass is cellulosic biomass that does*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

89 of 360 not contain contaminants at concentrations no t 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 bi omass 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-s pec used oil, scrap tires, resinated wood products, treated wood, pulp and paper mill residues, and recycling process residuals in its definition of trad itional fuels. They claim that these materials have histories of use as valuable fuel products. Another commen ter suggested that secondary materials from new processes to meet Renewable Fuel Standards (R FS) should be defined as traditional fuels. According to the commenter, not defining those materials as traditional fuels could lead to reduced beneficial use, could negatively im pact the economics of these newly developing processes, and could increase the use of conventiona l fossil fuels. This could significantly harm the prospects of reaching RFS goals. EPA Response :
For a discussion of comments and EPA res ponses related to each of the individual materials listed above and their use as traditiona l fuels, see their respec tive subsections within Section V.B. Regarding the RFS program, the Agency disagrees with the commenter that materials from processes to meet the RFS standard should be defined as traditional fuels. Under*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

90 of 360 the RFS program, EPA is responsible for developi ng and implementing regulations to ensure that transportation fuel sold in the U.S. contains a minimum volume of renewable fuel. Today’s rule addresses only the use of non-h azardous secondary materials as a fuel or ingredient in combustion units, and does not impact other end us es 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 material s (“changes in technology ”), would suggest that materials, such as plastics, paper and pape r residues, and tires should qualify under this definition of “traditional fuels.” EPA Response : As indicated in the discussion above, EPA agrees that there is a categ ory of materials that are legitimate alternative fuels that have not b een discarded and may not have been traditionally used as fuels (i.e., a product that is created for its use as a fuel), but that are nonetheless legitimate fuels today because of changes in technology and in the en ergy market. Such alternative fuels would include clean cellulosic biomass, currently mined coal refuse, and onspecification used oil. See the respective subsec tions within Section V.B for a further discussion of each of these materials. As discussed in the proposed rule, the Agency believes materials, such as plastics, paper and paper residues and tires that are not mana ged under a state tire*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

91 of 360 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, technol ogies, 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 c onsidered unused products and are not secondary materials and are not solid wastes unless dis carded. We added “alter native fuels” to the definition of traditional fuel in today’s rule to recognize that changes in technology and in the energy market have resulted in additional materi als being economically viable to be used as alternative "traditional" fuels. The definition is codified in §241.2 in response to comments received on the proposal and to pr ovide clarity in the application and the meaning of traditional fuel.
Comment : Other commenters suggested that, in order to further clarify th e definition of traditional fuel, if a fuel was on record as being used befo re a specific year, e.g., 19 80, that it be categorized*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

92 of 360 as a traditional fuel. Still other commenters sugge sted that additional rule text is needed to clarify that non-hazardou s secondary materials used traditiona lly as fuels are not solid wastes. Finally, to address any ambiguity about which mate rials are traditional fuels, another commenter stated that EPA should include a petition process in the rule that would allow sources to seek a determination on whether a material may be considered a traditional fuel. EPA’s Response : As described in the ANPRM and proposed rule, traditional fuels, such as fossil fuels have been burned historically as fu els and have been managed as valuable products. They are considered unused products and are not secondary materials unless discarded. We do not agree that a specific year should be identified to define historically managed traditional fuels. First, it is not clear what year should be selected and why and what the basi s for picking a particular year would be. In addition, as we noted in the propos al, the wide variability of historic use and management of this category of fuels does not lend itself to identification of a specific year. As discussed above, EPA does wish to clarify that it is using the te rm, “traditional,” more in the sense that we have a product that is created for its use as a fuel. Some traditional fuels have been used for a long time, while others are “traditional” only in the sense that they are created in the “traditional” way that a product is created (or mined), even th ough they may be newly developed fuels. The Agency received only a few comment s that supported a petition process for traditional fuels. In light of the time and resour ce intensive nature of such a process for the petitioner, the Agency believes that the revised codified definition in today’s rule together with the preamble discussion should provide the basic guidance needed for the regulated facility to*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

93 of 360 determine whether the material qu alifies as a traditional fuel. Therefore, today’s rule does not include a petition process for an Agency determina tion that a material is, or is not, a traditional fuel. However, any person can petition EPA under 40 CFR 260.20 for any modifications to its regulations. Thus, if a person believes that additional materials s hould be included as a traditional fuel or alternative fuel, they may pe tition 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 justificati on 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 th at cannot be chipped and used in making pulp, paper, and wood products. EPA’s Response : We believe that the materials described by the commenter as “hogged fuel” are currently covered by the terms “clean and unadulterated bark ” and “tree harvesting residuals from logging and sawmill materials” within the definition of traditional fuel. However, we are aware that there are varying definitions of "hogged fuel" an d point the readers to the sections describing traditional fuel and secondary materials to determ ine if their hogged fuel would be considered a 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 ta ke a position one way or the other, but rather requested comment, information and da ta on the legitimacy criteria, which are designed to determine whether a secondary material when combusted is a waste.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

94 of 360 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 manur e is processed into bi ofuels (for example, by anaerobic digesters), such biof uels would be considered a legi timate non-waste fuel that has been processed from a non-hazardous secondary material provided “the biofuel” meets the legitimacy criteria—that is, provided it is manage d as a valuable commodity, has a meaningful heating value and contains contaminants at levels that are comparable to traditional fuels. The proposal again acknowledged, however, that we ha d limited data on biofuels that are produced from animal manures, and requested that commen ters 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 legitim acy criteria. See 75 FR at 31863.
Comment : The Agency received comments both supportin g and opposing the designation of manure as a waste. Specifically, two comme nters asserted that poultry litter that is burned as a fuel poses health hazards (e.g., from arsenic that is added to poultry feed), but provided no data to support this position. Another comment submitted in re sponse to the ANPRM stated that, due to the nature of manure, there is the possibility of widespread environmental harm due to the release of pathogens from animal manure, and that concentr ated animal feeding operation (CAFO) wastes are known to contain heavy metals, halogens, di oxins, and other hazardous compounds. They assert chicken litter has elevated arsenic le vels and that swine wa ste has high amounts of ammonia, nitrogen, and phosphorous. Still another commenter suggested that poultry waste that is burned in power plants emit more pollutants per million Btus when compared to coal fired*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

95 of 360 power plants. Another commenter referenced a 2008 report that describe d the risks associated with CAFOs. 28 This report stated that CAFOs are site d in rural communities that bear the brunt of the harm caused by CAFOs, including the fr equent presence of foul odors and water contaminated by nitrogen and pathogens, and th at the massive use of antibiotics in CAFOs, especially for non-therapeutic purposes, such as growth pr omotion, contributes to the development of anti-biotic resistant pathogens th at are more difficult to treat. Finally, one Midwest state commented that when manure suppl y 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 generate d in the United Kingdom. 29 Another commenter described how their company co llects 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. Specificall y, this commenter descri bes operations where the poultry litter is managed as a valu able product by the poultry litter ge nerators and transporters, as well as by the power plants. The commenter desc ribes poultry litter genera tors as collecting the litter on a continual basis and stor ing it in enclosed poultry barns. The poultry litter is then transported in completely covered trucks to th e power plant where it is unloaded in a fully enclosed fuel hall and is tested for fuel quality to ensure contractual ob ligations are being met by the growers. After sampling, the trucks dump the litter into a conc rete reception pit within the fuel hall. The commenter also asserts that poultry litter satisfies th e contaminant legitimacy criterion, but only provided data on sulfur and chlorine levels, no ting 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, ch lorine, and nitrogen levels of 0.35%, 0.16%, and 3.3%, respectively, and a net heating value of 4,900 Btu/lb.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

96 of 360 averaged 0.7 percent (on a dry ba sis). They also provided data on the heating values of poultry litter that ranged from 3-4,000 Btu/l b, explaining that this materi al is a self-sustaining fuel (requiring no supplemental fuel). 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 defin ition of solid waste. Regarding our request for comment on the extent to which manures are currently processed into biofuels, as well as data to support whether biofue ls meet the legitimacy criteria, one state referenced a June 2009 Report to Congress 30 that reviewed the current commercial use of manure to energy systems, and found that few exis t, and that it is unlik ely in the near term future for more to be developed due to tec hnological and economic ba rriers. Another state commented that they were aware of one gasifica tion system that has been built on a pilot scale that uses chicken and poultry litter as a feedstock. A Trib e requested that EPA finalize legitimacy criteria that does not discourage th e development of biogas technology since it is a clean carbon-neutral fuel needed to help addre ss climate change. This Tribe explained that its renewable energy plans focus, in part, on produc tion of biogas from animal, cheese, and other organic material, and requested th at EPA either exempt biogas from the contaminant legitimacy criterion or require that , overall, contaminants in gaseous fuel s not be “significantly higher” in concentration than contaminants found in tradi tional 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 th at requires all contaminants in bi ogas 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.u sda.gov/publications/ap/ap037/ap037.pdf.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

97 of 360 the concentrations found in na tural gas would discourage the de velopment 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 t hus is solid waste when burned as a fuel. Specifically, as discussed late r 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 th e levels of certain othe r 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 University 31 study that indicate some types of manur e have higher levels of nitrogen and chlorine when compared to traditional fuels that otherwise would be burned in the energy recovery device. 32 This same study reported pathogen levels for many types of manure that are not comparable to the leve ls 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, in cluding management practices that occur in open

31 Animal and Poultry Manure Production & Characteri zation. North Carolina Stat e University Cooperative Extension Service. Raleigh, NC. http://www.bae.ncsu.edu/programs/extensi on/manure/awm/program/barker/a&pmp&c/ 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 bact eria, streptococcus bacteria, and total coliform bact eria of 3.3x10 4 , 1.9x10 8 , 1.2x10 9 , 1.5x10 9 , and 2.8x10 8 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 pr esent in traditional fuels, EPA believes pathogens are not present in traditional rules at the levels that have been reported for manure.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

98 of 360 lots to facilitate dr ying 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 tim e. Thus, the manure when used as a fuel may not be used within a reasonable time frame, wh ich 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. Depa rtment of Agriculture noted that for manure to be considered to have fuel value, that it typica lly should have a moisture content of less than 25 percent. It is our understanding that most manure that is excret ed—that is, as generated, would have a moisture content of great er than 25 percent. We note th at, to satisfy the legitimacy criteria, today’s final rule requires that faci lities 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 ha ve meaningful heating value by describing whether the energy recovery unit can cost-effectively recover mean ingful energy from the manure (see Section V.D.2). While one commenter provided data to s how 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 le ss than 5,000 Btu/lb, as-fired, we be lieve that this data can’t be used to suggest that all or mo st manure that has a heating va lue of less than 5,000 Btu/lb, asfired, could meet this demonstration. We acknowledge, however, the possibility th at 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, th ese stockpiles are generally covered to prevent moisture addition and maintain the material properties.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

99 of 360 manure as a valuable fuel commodity and that th is manure could also satisfy EPA’s contaminant and heating value legitimacy criteria. Such mate rial would not be consid ered a solid waste as long as it was never previously discarded. In su ch situations th e 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 pe tition 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-w aste gaseous fuel (e.g., via anaerobic digestion or gasification processes). This gaseous fuel woul d 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 equivale nt to, or lower than, levels found in natural gas. While we believe it is beneficial to promote the use of clean burning fuels, such as biofuels, we also believe th at non-waste fuels produced from secondary materials should have comparable or lower levels of contaminants rela tive to traditional fuels used today, since gaseous fuels that are produced from secondary materials ha ve 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 th an, those levels found in traditional fuels.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

100 of 360 However, as discussed in Section V.D.3, we are not defining comparable to mean “equivalent to or lower than.” Rather, EPA is generally defi ning “comparable to or lower than” to mean contaminants can be present in non-hazardous s econdary materials within a small acceptable range, or at lower levels, relativ e to the contaminants found in the traditional fuels. Thus, biofuels that are produced from non-hazardous sec ondary materials can have contaminants that are somewhat higher than the traditional fuel th at 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 otherw ise be applied to the land covered under a nutrient management plan 36 is in no way discarded. EPA’s Response : As discussed previously, we conclude that ma nure 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 th e preamble to today’s rule, EPA is not making any determination whether non-hazar dous secondary materials are or are not solid wastes for other possible beneficial end uses. Such beneficial use determinations ar e generally made by the states for these other beneficial uses, and EPA will c ontinue to look to the states to make such determinations.
Comment : 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 a ssistance to producers participating in voluntary programs. The purpose of the 590 standard is to meet the nutrient needs of the crop to be grown, while minimizing the loss of nutrients to surface and ground water.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

101 of 360 (for energy production/recovery ra ther than as a soil amendment) and should not be considered in any way as a means of “discard,” since the inherent value of manure as a fertilizer is essentially preserved in the 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 fertil izer is not relevant to the quest ion of whether manure is discarded when it is burned as a fuel, which is what EP A is to base its decisi on on. Based on the data available to the Agency, we believe that manure th at is burned as a fuel, as generated, is being discarded. For example, contaminants (e.g., pa thogens 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., di scarded) or emitted (if not properly controlled) to the environment during the combustion process. As a result, EPA concl udes that manure is in fact discarded from the point it is first genera ted to when it is burned.
Comment : Given the biological basis of agricultural pr oducts and by-products and the unique nature of the transfer of agricultural commodities among entities, the commenter requests that EPA presumptively grant a non-waste determination for manure that is used as a combustion fuel outside the control of the genera tor that would otherwise meet the legitimacy criteria. The commenter states that crops grown from a cropping operation may be sold/provided to an animal production operation as a feed input, with th e manure from the animal production operation being sold/provided to a commun ity based or regional energy pr oduction system as one of many fuel sources from that area, with the resultant ash from the ener gy production system sent back to the cropping operation as a fertilizer source. Th e commenter then explains that the cropping and*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

102 of 360 animal production operator may be the same entity, a nd asserts that the tran sfer among entities in this instance is to facilitate energy recovery, not disposal. EPA’s Response : 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 sa tisfy 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 ou tside the control of the ge nerator. 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-wast e determination for materials ma naged 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 loca l regulations and requirements for air and water quality should be considered to meet the “adequate cont ainment” requirements. EPA’s Response : EPA does not agree with the commenter th at the statement “manure management systems that are designed and operated in accordan ce with applicable Federal, Tribal, State, and/or local regulations and requi rements 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 ma naged as a valuable commodity pursuant to EPA’s*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

103 of 360 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 manur e 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 va lue legitimacy criterion since it typically has energy contents ranging from 6,0 00 to 8,000 Btu/lb on a dry basis. EPA’s Response : The data provided by the commenter 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 heat ing value” legitimacy cr iterion. To satisfy the meaningful heating value criter ion, the non-hazardous secondary material must have at least 5,000 Btu/lb, as fired (accounting for moisture), sin ce the as-fired energy c ontent 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. A lternatively, if the non-hazardous sec ondary material has a meaningful heating value of less than 5,000 Btu/lb, “as fired,” the source must demonstr ate that a meaningful heating value is derived from the manure. As pr eviously discussed, the data available to EPA on an “as fired” basis would suggest that much of the manure would have he ating value levels of less than 5,000 Btu/lb. While one commenter pr ovided data showing pou ltry litter would meet the meaningful heating value criterion even t hough 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.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

104 of 360 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 fert ilizer 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 (discar ded) 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. C ontaminants in manure that may be used as a fuel must be present at comparable or lower le vels relative to traditional fuels for the manure to satisfy the contaminant legitimacy criterion. As previously discusse d, EPA concludes that manure does not satisfy this contaminant criteri on for pathogens, and may not satisfy this criterion for other pollutants as well (e.g., nitroge n, chlorine, and manganese). Thus, manure that is burned as a fuel, as genera ted, is more appropriately re gulated 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 a ddresses 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*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

105 of 360 more detail in Sections V.B.4 and V.B.6, respectiv ely, 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 fu el. Specifically, the proposed rule identified lead-painted wood and wood treat ed with pentachlorophenol, copper-based and borate-based compound treatments as solid wastes due to elevat ed contaminant levels relative to traditional fuels. Moreover, the proposed ru le explained that, to the extent that any treated wood materials are identified as a hazardous wa ste, it would not be eligible to be burned in a non-hazardous waste combustion unit. We also specifically requ ested 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 show ed that the mobility of contam inants indicates that p-cresol leaches at 75 percent of the hazardous waste to xicity characteristic l eaching procedure (TCLP) levels in new ties, but that this is reduced to less than 10 percent in ties that are over 10 years old. Another commenter provided the average results from 605 TCLP tests and 605 totals analyses for metals on creosote-treated wood. These re sults were below TCLP limits for all of the contaminants it contains (i.e., cresol, m,p-cresol, o- cresol leached an average of 1.23 mg/L, 0.90 mg/L, 0.35 mg/L, respectively), although two compounds, 2,4-dinitrotoluene and

38 75 FR 31863*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

106 of 360 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 othe r compounds found on either the CAA section 112 HAP list, including biphenyl and dibenzofuran. Th e 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, a nd 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 demonstrat ed that the co-firing of creosote- and pentachlorophenol-treated wood (10/ 90 treated wood/coal mix) resu lts in a reduction of 79 - 107 ppm of oxides of sulfur (SOx), 78 - 100 ppm of oxides of nitrogen (NOx), and 0.4 - 0.5 ppm of total hydrocarbon (expressed as prop ane) emissions compared to those from samples of Upper Freeport coal. The same study, however, found that there was an increase of 17 – 84 ppm in HCl emissions when co-firing with treated wood, although the study noted these levels of HCl

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.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

107 of 360 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 trea ted wood (50/50 mixture of creosote- and pentachlorophenol-treated wood) than when co mbusting untreated wood. Data were also provided that indicated that pentachlorophenol and total ch lorophenols were destroyed by combustion at greater than 99.9% removal efficiency. 43 EPA’s Response: We do not agree with comment ers that creosote-treated wood should be considered a traditional fuel (either an historically managed tradi tional fuel or an alternative fuel as defined in §241.2) solely based on the fact that it is ma nufactured using coal tar and wood, which are considered traditional fuels. Creosote was not derived for the purposes of creating a fuel, or the wood treated with creosote to produce a fuel, bu t the creosote was produced and used as a wood preservative. It is not made from virgin materi als, but is a secondary material. Creosote is derived from coal tar through a distillation process and, theref ore, creosote has different chemical concentrations than coal tar. While we recognize that creosote-treated wood has been utilized as a fuel for over ten years, few market s are available for creosote-treated wood due to concerns about the contaminants. This suggest s the need to use burni ng as a waste treatment activity. The TCLP data generally indicates that th e material, on average, is not a hazardous waste. This does not mean, however, that the material is not a non-hazardous solid waste.

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-Scal e Air Toxics R&D Assessment of Creo sote-Treated and PCP-Treated Wood Co-firing for Pulverized Coal Utility Boiler Applicati ons.” U.S. Department of Energy’s National Energy Technology Laboratory. http://www.netl.doe.gov/technologies /coalpower/cctc/cctdp/bibliography/misc/pdfs/haps/2002-710.pdf 43 Smith, S.T., 1996. “Stack Testing Report, Koppers Indust ries, Inc., Grenada Plant, Ti e Plant, MS,” Submitted to the Mississippi Department of Environmental Quality, May 6.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

108 of 360 Leaching data is not relevant to determine whet her or not the treated wood is being discarded. We do note that the average values and standard deviations provided fo r 2,4-dinitrotoluene and hexachlorobenzene suggest that a few samples actually failed the TCLP test and would be classified as a hazardous waste. Creosote-treated wood that is classified as a hazardous waste must be managed as a hazardous waste, which is outside the scope of this rulemaking. Even though most creosote-treated wood is nonhazardous , the presence of hexachlorobenze, a CAA 112 HAP, as well as the other HAPs, in creosote-t reated lumber suggests that creosote-treated wood include contaminants at leve ls that are not comparable to those found in wood or coal, the fuel that creosote-treated wood would replace. 44 Although not a criterion for legitimacy, the emissions studies showing that burning creoso te and pentachlorophenol wood results in the increased emissions of HCl (a CAA 112 HAP) i ndicates 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 criter ion for contaminants and, therefore, should be considered a waste when burned as a fuel. In regards to wood treated with pentachlor ophenol, no additional contaminant data was provided that would reverse our position 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*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

109 of 360 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 wo od treated with borate-based compounds or copper napthenate did not contain any contaminan ts, but only contaminant data was supplied for wood treated with borate-based compounds. That st udy indicated that the mo st prevalent borate treatment, disodium octaborate tetrahydrate, c ontained 1.5 ppm of As, <1 ppm of Cd, <2.5 ppm of Cr, <5 ppm of Co, < 0.02 ppm of Hg, <2.5 ppm of Ni, and 0.67 ppm of Se. 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 fr om the one commenter, which shows that the levels of contaminants in th is material are comparable to those found in unadulterated wood for the seven contaminants fo r which data was presented, we believe that such treated-wood meet the legitimacy criteri on on the level of contamin ants and comparability to traditional fuels. Therefor e, borate-treated wood could be classified as a non-waste fuel, provided they met the other two legitimacy criteri a and provided that the contaminant levels for any other HAPs that may be present in this materi al 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*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

110 of 360 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 longe r meet the legitimacy criteria and would be considered a solid waste when burned as a fuel. With regard to wood treated with copper na pthenate, no additional contaminant data was provided that would reverse our position in th e proposed rule, which considered wood treated with copper napthenate a solid wa ste because of concerns of elev ated levels of contaminants. 47 We acknowledge today, as we did in the propos ed rule, that we do not have sufficient information on the contaminant levels in wood treated with copper napthenate. 48 Thus, if a person can demonstrate that copper napthenate tr eated-wood would meet the legitimacy criteria and, if discarded, demonstrate that they have su fficiently processed the material, that person can handle its copper napthenate tr eated-wood as a non-waste fuel.
Comments : Commenters argued that, a lthough C&D-derived wood is di scarded by construction and demolition sites, it is sufficiently processed into a non-waste fuel. It is re ceived at a mixed C&D processing facility as part of loads from construction and demolition sites. Potential contaminants are removed as much as possible be fore it enters the plan t. Clean C&D wood is then separated out from the rest of the inco ming stream one of two ways; either through mechanical means or through humans sorting alo ng a specially built picking line. Painted and treated wood is identified either visually or utilizing x-ray fluorescence (XRF) analyzers. After separation, the wood is ground to a specific size a nd density per the specification of the plant using the biomass product. The creation of natu ral wood products follows a similar processing

47 75 FR 31863 48 75 FR 31863*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

111 of 360 path, except that C&D wood is more carefully pr epared because of the chemical analysis the C&D product undergoes. Commenters also stated that C&D-deri ved wood meets the legitimacy criterion for having a meaningful heating value. They stated that C&D-derived wood has a heating value of between 7,000 – 8,200 Btu/lb, and thus, should be c onsidered a non-waste fuel. Data from one plant that combusts C&D-derived wood found that it had a heating value that ranges from 6,700 – 9,000 Btu/lb, with an average value of 8,200 Btu/lb. One company provided chemical constituent da ta on C&D-derived wood that is utilized at their plant in order to de monstrate that the material meets the legitimacy criterion for contaminants. The results of this analysis found that the chemical const ituents were comparable to or lower to those found in coal (of unknown sour ce or type). See Table 1 below for the results of this study. Table 1. Comparison of contaminant concentra tions in samples of coal and C&D-derived wood. 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 le gitimacy criterion for contaminants compares concentrations per mass of the material (not per the heatin g value of the material), all concentrations reported inpounds per billion Btu (lb/billion Btu) were converted into parts per million (ppm) with the assumption that C&Dderived wood has a heating value of 8,200 Btu/lb (as fired) and that sub-bituminous and bituminous coal (the most common types of coal to be utilized in combustion units) have a heating value of 8,500 – 14,000 Btu/lb (per Preliminary Characterization Study Prepared In Support of the Proposed Rulemaking –Identification of Nonhazardous Secondary Materials That Are Solid Waste: Traditional Fuels and Key Derivatives , EPA-HQRCRA-2008-0329-0461.21).*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

112 of 360 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 co ncluded that the use of appropriately processed C&D wood is similar in its emission pr ofile to that of virg in wood, although some older studies indicated an increa se in metals emissions (likely due to the inclusion of treated wood). 50 Another commenter submitted a life-cycle assessment that described how the recovery of C&D wood as a fuel decreased greenhouse ga s emissions. This study found that combusting all C&D wood generated in New Hampshire per year (280,000 tons) will off-set energy from the northeast power grid and, therefore, result in 70,000 – 130,000 tons less of carbon emissions, 600 tons/year less of particulate matter, 430 tons/yr less of NO x , 2,300 tons/yr less of SO x , 890 tons/yr less of CO, and 10 pounds/y r less of lead. Even when compared simply to the combustion of virgin wood, it was found that 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 NO x , 485 tons/yr less of SO x , and 69 tons/yr less of CO. 51 EPA’s Response : The proposed rule included clean co nstruction 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. Techni cal Bulletin (TB) 906, ‘‘Alternative Fuels Used in the Forest Products Industry: Their Composition and Impact on Emissions.’’ September 2005. Larsen, F.S., W.H. McClennen, X. Deng, G.D. Silcox-Person, and K. Allison, 1992. “Hydrocarbon and Formaldehyde Emissions from the Combustion of Pulverized Wood Waste.” Combustion Science and Technology, 85 (1-6) p. 259 – 269. 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 Manage ment,” University of New Hampshire, Durham, NH, December 5.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

113 of 360 The final rule retains this conclusi on, although clarifies the definition of traditional fuels to include alternative fuels. Clean cellulosic biom ass is an alternative fu el as they are clean cellulosic materials that are indistinguishabl e in composition from wood that is commonly burned in combustion units (See the explanation in Section V. A). We note that the final definition of traditional fuels clarifies that this category includes clean demolition wood as well. However, discarded C&D-derived wood that is not clean would not be considered a traditional fuel, but a solid waste under toda y’s rule. C&D-derived wood, however, can be classified as a non-waste fuel if it has been sufficiently pro cessed and meets the legitimacy criteria. C&D-derived wood is typically sorted to remove contaminants (e.g., lead-painted wood, treated wood, non-wood materials) , and size reduced prior to bur ning, producing material that likely meets the processing and legitimacy criteri a 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 pres ented 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, w ould also include the comparison of As and Cr concentrations. We would also note th at 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 virg in wood and that it would decreas e greenhouse gas emissions, as we have noted previously, this is not the criterion or test for de termining legitimacy. To be

52 EPA-HQ-RCRA-2008-0329-0461.21*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

114 of 360 considered a legitimate non-waste fuel, the non-h azardous secondary material itself must have contaminant levels that are comparable to (or lo wer than) those in traditional fuels. We would also note that because we had no information fr om 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 st ream 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-de rived 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. Additiona lly, they also argued that wh ile most non-wood contaminants are removed, there might still remain some small or de minimis amounts of other materials (e.g., paper, insulation, etc.). EPA’s Response : C&D-derived wood can contain de minimis amounts of contaminants and other materials provided it meets the legitimacy criterion for contaminant levels.
Comment : Comments argued that OCC re jects, also known in the industry as “recycling process residuals,” are never discarded, and therefore, should be considered a traditional fuel because they do not leave the plant, but are usually burn ed on-site as a fuel. In some cases, however,

53 68 FR 17366*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

115 of 360 they do leave the plant to be burned in municipal or commercial energy facilities or employed as a fuel pellet ingredient. In addition, while some commenters argued th at they did not belie ve OCC rejects are ever discarded, they provided information on how OCC rejects are sufficiently processed to remove contaminants if they are determined to be discarded. For example, strings, wires, rags, and heavy objects are removed using manual and centrifugal force, while plastic and nonrecyclable paper fibers are removed through screens. Commenters also stated that OCC rejects m eet the legitimacy criterion for contaminants as they have lower contaminants than traditional fuels. One comment provided data from 10 samples of OCC rejects from one company and 16 samples of coal (of unknown type or origin) to substantiate that claim (see Table 2). Table 2. Comparison of contaminant concentrations in samples of coal and OCC rejects. 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 le gitimacy criterion for contaminants compares concentrations per mass of the material (not per the heatin g value of the material), all concentrations reported in pounds per billion Btu (lb/billion Btu) were converted into parts per million (ppm) with the assumption that OCC rejects have a heating value of 3,700 Btu/lb (as fired) and that sub-bituminous and bituminous coal (the most common types of coal to be utilized in combustion units) have a heating value of 8,500 – 14,000 Btu/lb (per Preliminary Characterization Study Prepared In Support of the Proposed Rulemaking –Identification of Nonhazardous Secondary Materials That Are Solid Waste: Traditional Fuels and Key Derivatives , EPA-HQRCRA-2008-0329-0461.21).*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

116 of 360 (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 re jects pass the legitimacy criterion for having a meaningful heating value. For example, a commenter submitted data that indicated that, on a dry basis, OCC rejects have a heating value of 9,100 Btu/lb, while, as fired, they have a heating value of 3,700 Btu/lb. 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 pl ants that burned 4.4 – 30% OCC rejects with 70% - 95.6% wood and comp ared it to emissions from the same three plants when they only burned wood. Emissions we re tested for total pa rticulate matter (TPM),
SO 2 , NO x , CO, and HCl. The results found that burn ing OCC rejects did not result in increased emissions of TPM, SO 2 , NO x , or CO, but occasionally resulted in a small increase in HCl emissions. 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 materi al, 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.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

117 of 360 and paper products, is not made from virgin mate rials. Additionally, r ecycling 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 ar e 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 pul p 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-e ffectively recover energy from a non-hazardous secondary material. The information submitted al so 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 sh ipped 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 s ubmits 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.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

118 of 360 In the proposal, EPA determined that pulp and paper sludge 58 is not a waste when used as a fuel within the control of the generator. This was based on limited contaminant data and information that these sludges are generally used on-site by generators to fuel their boilers and are treated like valuable commodities. Comments on the ANPRM had stated that these residuals are primarily composed of biomass and that emissions from burning these non-hazardous secondary materials are essentially the same as emissions from burning other biomass fuels, such as bark or wood. Emissions data contained in one report indicated th at when sludges were burned at levels below about 10 to 15 percent of total heat input, that such burning would not result in elevated levels of cr iteria or criteria-related polluta nts, forty-eight organic compounds, and metals. However, given the limited data, EPA re quested additional comment on contaminant levels and the appropriateness of considering thes e sludges to be non-wastes . EPA also noted, as 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 tr aditional fuel because it has been utilized as a fuel since the early 1960’s. In 2004, 22% of the pulp and paper sludge was used as a fuel. EPA’s Response: We do not agree that pulp and paper sludges sh ould be considered a traditional fuel. While some portion of the pulp and paper industr y uses these sludges as a fuel, it is not the industry norm or used as a fuel by a majority of the industry. For example, in 2002, 52% of pulp

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*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

119 of 360 and paper sludges was landfilled or stored in lagoons. 60 Thus, these materials have not been historically managed as fuels. Pulp and pa per sludges also would not be considered an alternative fuel, since they are not derived from virgin materials. Pulp and paper mills burn these secondary materials for energy recovery, but also for waste minimization purposes. 61 Therefore, the Agency does not consider pulp and pape r 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 dete rmine if pulp and paper sludges that do not leave the site and have not been discarded (1) can be used as a fuel and (2) must pass the legitimacy criteria. EPA’s Response : The final rule retains the proposed approac h, which considered pulp and paper sludges that remain within the control of the 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 materi als 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/r rr/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 A lternative: Principles and Practice of Residuals Use

. University of Washington College of Forest Resources Publication, Seattle, WA, p. 193-207.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

120 of 360 plant, utilizes pulp and paper sludg es generated less than a mile away and stated that the material is loaded into trucks for the short haul to the steam boilers, dumped into the wood handling system, conveyed to covered storage where it is c ontained and burned in th e boiler all within the span of several hours. They suggest that this is a legitimate use of pulp and paper sludges offsite and is, therefore, not a waste. EPA’s Response : We agree that the use of secondary material s off-site (which we assume the commenter means not within the control of the generator) is not always indicativ e of waste activity and would generally agree that the case of the power plant provides an example of when secondary materials may be legitimately used as non-wast e fuels by a different co mpany. 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 pape r sludges used off-site as a fuel. (See Section V.A.1 for a more detailed discussion of this i ssue 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 addres s those instances where transfer of the nonhazardous secondary material to a different co mpany meets the relevant criteria—that the secondary material has not been discarded in the first instance and is indistinguishable in all relevant aspects from a fuel product.
Comment : Commenters stated that pulp and paper sludge s are adequately proce ssed such that when discarded (i.e., sent off-site to another pulp and paper mill or to a power plant), it is a non-waste fuel. Processing is primarily performed by dewa tering. In fact, 84% of all pulp and paper*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

121 of 360 sludges are dewatered using belt f ilter presses or screw presses. 62 One state commenter stated that some mills further process pulp and paper sl udges into dried pellet products for use as a fuel. EPA’s Response : We do not agree that dewatering alon e meets our definition of processing. 63 While dewatering does improve the fuel ch aracteristics of the material, this action is not sufficient to make the material sufficiently processed into a no n-waste fuel as it is generally part of normal waste management activities (e.g., prior to landfilli ng, or prior to burning the sludge for disposal in an incinerator). Thus, when sent off-site , pulp and paper sludges ar e considered discarded and, therefore, a solid waste. In the case of pe lletizing the material for use as a fuel, we do not have sufficient information to make a determ ination on whether this would be considered sufficient processing. If the pellet izing process is used to manufact ure the sludge into a form that improves its fuel value, we would agree that th is 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 activ ities 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 characteriza tions 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*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

122 of 360 <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 pul p and paper sludges generally since eight other samples (three from the same mill and five from five other mills) had non-detect levels of MEK at a detection le vel of <0.013 ppm. Chlorine levels among an unknown number of pulp and paper sludge samples were noted by one commenter to have an arithmetic mean of 465 ppm, a median of 318 ppm, a maximum level among mill means of 2,399 ppm, and a maxi mum among individual analyses of 4,800 ppm (all on a dry weight basis). Th is is compared to a USGS data base on U.S. coals to have an arithmetic mean of 614 ppm and a maximum am ong individual analyses of 8,800 ppm (both on an as-is basis, which has <10% moisture). Ho wever, 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 chlo rine concentrations of between 1,050 – 4,800 ppm (dry basis). Commenters also argued that com bustion of high chlorine content in some pulp and paper sludge is not a waste treat ment activity. Sources that pro duce secondary materials that have heat value can increase their energy effici ency 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 c hosen for extracting their energy value. In terms of meeting the legitimacy criter ia 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 Bt u/lb, on a dry basis; no information was

65 Document EPA-HQ-RCRA-2008-0329-1395; National Counc il for Air and Stream Improvement, Inc. Technical Bulletin (TB) 906, ‘‘Alternative Fuels Used in the Forest Products Industry: Their Composition and Impact on Emissions.’’ September 2005.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

123 of 360 submitted on the “as fired” heating value of pul p and paper sludges. Commenters also argued that pulp and paper sludges m eet 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 processe d 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 u tilizes pulp and paper sl udge generated less than a mile away stated that the material is loaded in to 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 appr oach—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 specifi cally requested data on the issue in order to make a determination of whether pulp and paper sludge s meets the third crit erion of comparable contaminant levels to traditional fuels. The information we received indicates that these nonhazardous secondary materials meet the contamin ant legitimacy criterion. While commenters compared contaminant levels in pulp and paper sludges to those in coal and found lower levels, we also found it appropriate to compare the cont aminant concentrations to untreated wood since wood is also burned in pulp and paper mills. Sinc e levels of chlorine in untreated wood are as high as 11,890 ppm, even the high end of the rang e of chlorine in pulp and paper sludges is comparable to that in untreated wood. When comparing to the information that we have*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

124 of 360 compiled on coal, we find that chlorine levels in coal are reported to be as high as 7,400 ppm, and that average chlorine values for bitumi nous and subituminous coal are 1,200 ppm and 140 ppm, respectively. Thus, the average chlorine le vels reported in most pulp and paper sludge are also likely to be comparable with averag e 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 comparab le 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 con centration of chlorine, we do not think that it is representative of pulp and paper sludges generally. The levels of metals were also lower in pulp and paper sludges than untreated wood and coal. For example, untreated wood has levels of As, Cr, Hg, and Pb as high as 6.8 ppm, 130 ppm, 2 ppm, and 340 ppm, respectiv ely, while coal has levels of As, Cr, Hg, and Pb as high as 80 ppm, 121.3 ppm, 2 ppm, and 80 ppm, respectively. 65 These levels are all greater than those submitted in the comments for pulp and paper sludge s. We did receive data on some elevated levels of MEK in five samples from one mill, but we do not believe that this data changes are view that these sludges generally meet the contaminant legi timacy 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 co ntaminant legitimacy criterion. While pulp and paper sludges can have a hea ting value below 5,000 Btu/lb, even on a dry basis, pulp and paper mills do try to improve the heating value through dewatering. Thus, we

66 See the Material Characterization Pape rs for Pulp and Paper Sludges and for Traditional Fuels that are located in the docket for today’s ru le (EPA-HQ-RCRA -2008-0329). 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.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

125 of 360 believe that pulp and paper sludge s generally meet the meaningf ul heating value legitimacy criterion. Also, since pulp and paper sludges ar e handled promptly (i.e., not stored for long periods of time and are contained in storage units along with traditional fuels (such as wood and bark) with minimal loss (similar to a valuable commodity), we ag ree that pulp and paper sludges are managed as a valuable commodity.
Comment : Emission tests from two states were said to have shown no significant change in emissions associated with the combustion of pulp and paper mill sludge, although the specific emission test results were not provided in these comments. One other commenter stated that any emissions from those materials will be accounted fo r in the source's emission limits in its permit. One other commenter submitted a study by the National Council for Air and Stream Improvement (2006), which summarizes many di fferent studies on the emissions from the combustion of pulp and paper sludges. Some studi es show that keeping the amount of pulp and paper sludges to no more than 10 – 15% of the total heat input will result in no increased emission impacts. However, two studies stated th at dioxin and furan emissions could result from the burning of pulp and paper sludges and that th e levels of these compounds in the emissions are directly relevant to the amount of chlorine in the sludges. T hus, chlorine levels should not be greater than those in found in wood. 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 legi timate 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.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

126 of 360 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 th at are lower than those found in coal and wood, as noted above. Nevertheless, we also recognize th at high chlorine levels are an indicator that the combustion of such materials may result in increased emissions of dioxins and furans, su ch 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 manageme nt. Thus, chlorine levels in pulp and paper sludges should particularly be monitored and eval uated 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 us ed tires, including those collected from tire dealerships and automotive shops and overseen by a state tire collection oversight program, are initially abandoned and thus meet the plain meaning of discard. As a result, whole used tires that are not processed into a legitim ate fuel or ingredient (e.g., sh redded/chipped with steel belts removed) were considered a solid waste. EPA acknowledged that whole tir es can be legitimately burned as a fuel, but because they have been disc arded, were considered solid wastes and subject to the incinerator requirements in section 129 of the CAA, unless processed into a non-waste fuel product, in which case it would continue to be subject to th e section 112 requirements of the
CAA. However, EPA requested comment in the proposed rule on the di scard 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 ti res, as well as fuel contamin ant data on whole tires or tire-*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

127 of 360 derived fuel (TDF) chips as compared to coal, the replacement fuel. In order to clarify the cont ext of the proposed rule commen ts, the Agency describes the background below in “a. Background; Scrap Tire Approach in ANPRM and Proposal.” The comments and EPA’s responses are listed in “b. Scrap Tire Comments.” a. Background; Scrap Tire Approach in ANPRM and Proposal. ANPRM Scrap Tire Approach

. 69 As part of its discussion regarding non-hazardous secondary materials used as legitimate “altern ative” fuels that have not been previously discarded, the ANPRM noted that scrap tires used as tire-derived fuel, which include whole tires 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 contai n 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 fo r a complete discussion on contaminants in TDF [EPA-HQ-RCRA-2008-0329]). We not ed that in many cases, scrap tires that are collected pursuant to state tire oversight programs (e.g., scrap tires from tir e dealerships that are sent to used tire processing facilities) are handled as valuable commodities, a nd, therefore, have not been abandoned, disposed of, or thrown away (not discarded). We also noted that because State Agencies typically regulate thes e programs under their state solid waste authorities, it was not the Agency’s intent to undercut the states’ aut hority in this area. We , therefore, requested comment on whether scrap tires co llected pursuant to st ate tire oversight programs have been discarded, and whether an EPA designation specif ying that scrap tires, for example, managed pursuant to state tire collection programs are not solid wastes, w ould adversely impact a state’s

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.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

128 of 360 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 th at non-hazardous secondary materi al fuels that are transferred to a third party have entered what is traditionally considered to be the “waste stream” (and have been regulated by the states as wastes) and theref ore should appropriately be considered wastes. Scrap tires, regardless of whether they were co llected and managed pursuant to state programs or recovered from legacy waste piles, would be an example of such materials. As a result, the Agency re-examined its position of how the concept of discard applies to scrap tires. Whereas the ANPRM had indicated that th ere may be some number of sec ondary materials that would not be considered discarded even if the original gene rator sent them to another entity outside of its control, the proposed rule took the position that non-hazardous secondary materials that are used as fuels and are managed outside the control of the ge nerator are solid wastes unless they were processed into non-waste fuel products or a case-by-case non-wa ste determination petition was granted by EPA. Proposal Kept ANPRM Scrap Tire Approach as an Option . In the ANPRM, we considered scrap tires (except from tire dumps) that were collected unde r state tire collection programs as non-waste as described above. We r econsidered that position in the proposed rule as follows: “...tires collected under these recycling programs are discarded and are solid wastes. EPA proposes this formulation for tires, but is asking for further comment on the ANPRM formulation that secondary material collected and sent for legitimate use as fuels are not discarded and are not solid wa stes.... EPA may issue a final ru le containing either set of

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.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

129 of 360 provisions depending on information received in the comment period and other information available to the Agency.” The Scrap Tire Approach in the Final Rule . Based on the proposed rule comments and all other relevant information in the rulemaking record, EPA has modified its approach for scrap tires in this final rule. Under today’s rule, scra p tires are considered a non-waste when used as a fuel under the following scenarios: (1) Scrap tires that are re moved from vehicles and co llected and managed under the oversight of established tire collection programs (as define d at §241.2) are non-waste fuels 71
when burned as a fuel in a combustion un it. See details at §241.3(b)(2)(i). (2) Scrap tires that undergo a sufficien t level of processing (as defined at §241.2 and detailed in the scrap tire respons e to comments) are considered a non- waste, when used as fuel in a combustion unit, independent of whether they ha ve 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 no t "discarded in the first place.” Since these tires were “not discarded in the first place,” boilers and cement kilns can use them as non- waste fuel as whole tires, sh redded, or fully processed TDF at their discretion (provided they meet the legitimacy criteria). Regardless, most types of combustors require TDF chips, cement kilns ar e the notable exception.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

130 of 360 Many of the commenters that compared th e approach for whole scrap tires in the ANPRM (described previously in this secti on) with the proposed approach, preferred the ANPRM approach and believed it was an accurate assessment of how scrap tires are managed. Many of those commenters argued that whole scrap tires that are handled in this situation have not been discarded when removed from cars for use as a fuel if there is a process or network that ensures their safe handling prio r to use as a fuel. In addi tion, many commenters listed the attributes that make it a good fuel, in particular they noted that the heat value for TDF is higher than typical solid fuels including coal. Commenters disagreed with the assumption th at we made in the proposed rule that offsite/third party use of scrap tire s equated to discard. Commente rs stated that merely sending material to another person does not make the ac tivity “discard” per se. In addition, commenters said that the owner of the car does not abandon, dispose of, nor th row 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 autom obile 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 distinct ions 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 regulat ion, EPA was careful to identify circumstances where discard would occur base d on a record of damages aris ing from cases of hazardous material recycling. EPA then shaped its transfe r-based exclusion from the definition of solid*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

131 of 360 waste to regulate only transfers where discar d is taking place. S ee 73 FR at 64677-78. In contrast, with respect to non-hazardous seconda ry 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 st ark 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 out side 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 disc arded and are not solid wastes so long as they are legitimately recycle d.” 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 second ary materials. First, the dangers of sham recycling are far less. Second, the fact that indu strial boilers are simila r and are regulated in similar manner from industry to industry makes distinctions between indu stries uniquely hard to justify. EPA offers no persuasive evidence to over come these considerations. As noted earlier, EPA says only that it “believes” that such materi als have been discarded and that third parties “may not” have the same incentive to manage th ese materials properly as the generator. EPA offers a few off point examples but makes no effort to investigat e 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 seconda ry 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 supp lier will comply with the specification demanded*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

132 of 360 by the customer or they will lose the business. As a matter of company policy, most generators of secondary material fuels take reasonable preca utions to evaluate where their materials are going as part of risk management.” Commenters also disagreed with our assu mptions that led to the Agency’s discard position in the proposal with regard to third party use of scrap tires as follows. Point 1 - They disagreed that third party handlers would l ack an incentive to manage them as a useful material 72 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 scra p tires have the same market incentives for misuse as does hazardous waste, wh ich EPA referenced in the proposal 73 , because, in part, hazardous waste are likely to have a relatively ne gative monetary value. They said that those EPA arguments based on hazardous waste are not rele vant to scrap tire markets and usage and is inappropriate to use the rationale based on hazard ous waste cases. Scrap tires do not have the environmental and economics risks as sociated 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 pr oposal as well as other refere nces to hazardous waste: “This lack of incentive to manage as a useful product has been well documented in the context of hazardous secondary material recycling as evidenced by the results of the environmental problems study performed in support of the DSW [hazardous waste] final rule. (This scenario does not apply to tran sfers taking place under the transfer based exclusion for hazardous secondary materials that ar e generated and then transferred to another company for the purpose of reclamation.) However, this finding also holds true for non-hazardous secondary materials that are used as fuel.” See EPA’s statement in th e proposal at 75 FR 31844, page 31875.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

133 of 360 Point 3 - Furthermore, commenters disagreed th at there was currently a pattern of discard at third party scrap tire reclaimers 74 than can be processed and ge nerating stockpiles as possible evidence of the lack of incentive to perform actual recycling). Point 4 - Commenters did acknowledge that ther e 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 proposal 75 ) is less of an issue now. In justifying this statem ent, 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 billio n in 1990. It is clear the total number of tires discarded in tire dumps is being reduced a nnually, not increasing due to the improper management which the proposal postulated regardi ng 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 lowe st disposal rate. Point 5 -Commenters, mainly from industry, also disagreed with our statement in the proposal 76 that secondary material fuels that are transferred to a thir d party have entered what is traditionally considered to be the "waste st ream" and therefore s hould appropriately be

74 The comments are in regard to th is statement in the proposal: “ As discussed in the DSW fi nal rule, this pattern of discard at off-site, third party reclaimers appears to be a result of inherent di fferences between commercial recycling and normal manufacturing. As opposed to manufacturing, where the cost of raw materials or intermediates (or inputs) is greater than zero and revenue is generated pr imarily from the sale of the output, secondary materials recycling, including when used as a fuel, can involve generating revenue primarily from receipt of the secondary materials. Recyclers of secondary materials in this situation may t hus 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*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

134 of 360 considered solid wastes. Some co mmenters (including some states), however, agreed that states tend to initially regard tires as wast e until they are beneficially used. EPA’s Response : The ANPRM noted that scrap tires that are co llected pursuant to tire programs (e.g., scrap tires from tire dealerships that are sent to used tire processing facili ties) are collected and handled as valuable commodities, and, therefore, have not been abandoned, disposed of, or thrown away. The ANPRM had indicated th at there are instances where non-hazardous secondary materials would not be considered discar ded even if the original genera tor sent them to another entity outside of its control. The proposed rule took an approach that assumed nonhazardous secondary materials that are used as fu els and are managed outside the control of the generator are solid wastes, unless they were pro cessed 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 interpretati on and requested further comment on the ANPRM formulation that scrap tires collect ed 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 informa tion received in the comment period and other information available to the Agency.” After careful consideration of the comments a nd all the material in the rulemaking record, including documents cited in the ANPRM and th e preamble to the proposed rule, the Agency agrees that a system where scra p tires are removed from vehicles 77 and are collected and managed under the oversight of established tire collection progr ams are not “discarded in the

77 For purposes of today’s rule, the term “vehicle” is mean t to include any is a mechani cal means of conveyance that employs the use of tires.

.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

135 of 360 first instance.” Such tires (including both whole ti res and tires that have b een shredded - with or without metal removal 78 ) are non-waste when used as a fuel in appropriate combustion units. These programs ensure that the tires are not discar ded en route to the combustor for use as fuel and are handled as a valuable commodity as require d 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 heati ng value, required per §241.3(d)(1)(ii) in that scrap tires have a higher heating value (12,000 Btu/lb to 16,000 Btu/lb) as compared to coal (the replacement fuel). Scrap tires also meet the requirement speci fied 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 pr ograms promote the collection of scrap tires and coordinate with tire dealerships, haulers, processors, and end users. The existing tire collection programs form an established collection infrastructure. Th ese established tire collection programs together with state bans on landfilling in most states 79 effectively result in the be neficial reuse of tires (as fuel or used in other scra p tire markets) as the sole 80 end use option for scrap tir es in those states. While the Agency recognizes that there will be differences between the various established tire collectio n programs, at a minimum, the following components would need to be included as part of any establ ished tire collection program: (1) a comprehensive system that prevents tires from being abandoned when the scrap tires are harves ted from vehicles and collected at the various businesses where they are removed; these tires are not considered

78 If scrap tires are not discarded in the first place, they do not have to be pro cessed per the standards in today’s rule, but they can be converted to rough shreds or processed in to TDF chips at the discretion of the combustor and still be a non-waste fuel. If the scrap tires were discarded, they have to be processed (with metal removal) per the standards in today’s rule in order to be a non-waste fuel. 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 cons idering revoking their tire landfill ban if combustors are no longer choosing to use tires for fuel based on the outcome of this rule.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

136 of 360 “discarded in the first instance” per this rule; an d (2) standards for the scrap tires to be managed as a valuable commodity. These programs s hould ensure storage does not exceed reasonable time frames, the scrap tires are managed in a ma nner consistent with the analogous fuel (coal), and a system is in place to prevent scrap tire s from being discarded (according to the plain language definition) en route to the combustor (a nd during any processing prior to combustion). An example of this type of program is a ti re dealership that has prearranged agreements where the combustor pays for the delivery of the tires harvested from vehicles and can track the delivery and has contractual obligations for a safe delivery. Another example is the Texas system where tires are not seen as waste, but ha ve specifications for track ing and safe delivery to the end use markets. These programs neither allow for an opportunity for quality tires intended as a fuel to be discarded in the first place nor discarded in tr ansit. Established tire collection programs are defined in today’s rule at §241.2. These tires ha ve not been “disposed of, abandoned, or thrown away” through the initial pro cess of removing them from cars or collecting them under established tire co llection programs. It is the combustor’s responsibility to conf irm that the whole tires are not discarded and were handled appropriately under the establis hed tire collection progr am. Notification and recordkeeping requirements with regard to th e use of non-hazardous secondary materials under CAA 112 and 129 rules, including whole tire s managed under established tire collection programs, are outlined in Section VII.I. This approach for scrap tires is supported by comments from auto maintenance shops, tire retailers, and others in the automotive business. These commenters discussed the management of tires collected from tire and auto-related shops under establis hed tire collection programs.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

137 of 360 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 su stainable in the free market. 81 In the event the combustor is disposing via combustion (i.e., not utilizing the ener gy from combustion), it is a waste. With the approach described in today’s rule , EPA is recognizing that some specific types of secondary materials are more like valuable commodities than solid wastes, and the act of transferring them to a third party does not auto matically involve discard. As commenters noted, the mere relinquishing of ownership doe s not make something a waste. We also recognize that the basis for the fina l position on scrap tires is different from the proposal and is more in line with our original position in the ANPRM. The overall rationale for the position in the final rule regarding scrap tire s 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 c ontaminants that are found in tire-derived fuel TDF chips (or whole tires) are comparable (o r less than) those found in the traditional fuels that it would be replacing. In the proposed rule, we requested data on the TDF contaminants that are HAPs, as listed in secti on 112(b) of the CAA and th e nine pollutants, as listed in section 129(a)(4) of the CAA. Some commenters provided independent test results that correlated to those contaminants and the result s showed a trend that the contaminants were generally comparable to or lower than coal, th e replacement fuel, (although individual tests and comparisons vary). In addition to independe nt data, some commenters referenced EPA’s

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 us ed as a fuel. This is not the case for the tires we are calling non-waste that are annually gene rated and are collected off the vehicles and sent for use as fuel.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

138 of 360 Material Characterization Papers (used to s upport 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 followi ng TDF concentrations for CAA section 112(b) HAP (some are also CAA 129 pollutants): 83, 84

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

• calcium—3,780 ppm (although listed as “ca lcium cyanamide” in the HAP list);

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

• chromium—less than 5 up to 97 ppm 85 ;

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

• manganese—less than 100 ppm 86 ; and

• mercury—non-detect up to levels in low-mercury coals (also in the CAA 129 pollutant list). These contaminant levels, the commenters argue, ar e at or below documented levels in coals. Although barium and zinc are not CAA 129 pollu tants or HAP, commenters mentioned that barium was non-detectable and one commenter mentioned that da ta available from the USGS

82 ASTM (American Society for Testing and Materials) or ASTM International, is a gl obally recognized leader in the development and delivery of international voluntary consensus standards. 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 us ually co-fired with coal, the results can include contaminants that originated from the coal. 84 Refer to the Materials Characterization Papers fo r traditional fuels in the docket for today’s rule. 85 If this is present from the steel wire, it is not exp ected to be released during typical boiler combustion. 86 If this is present from the steel wire, it is not exp ected to be released during typical boiler combustion.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

139 of 360 database showed coal can have mu ch higher concentrations of zinc 87 than TDF. It was also reported that the steel wire in tires is 98.5% iron (which is not a HAP). As noted previously, many commenters argue that the sm all amount of steel wire in t ypical TDF is not considered a contaminant that could result in emissions. Rather , it presents a handling concern when used as boiler fuel; specifically, the TDF n eeds to have the exposed wire re moved so that it is “flowable” like coal. One commenter went on to say th at they can recycle metals from TDF postcombustion. A large number of commenters stat ed that the metal from tires is a necessary ingredient in the formation of clinker in cemen t kilns and becomes part of the clinker product, and is in no way considered a “contaminant” in cement kilns 88

. Many of the commenters also reiterated that the constituents in TDF fuel product do not lead to emission problems as evidence by compar able or lower emissions for the following CAA 129 pollutants according to their tests: carbon monoxide (some higher some lower, but comparable), dioxins/dibenzofurans (some commen ters stated no significa nt difference, while others claimed emission reducti ons), hydrogen chloride (specifi cally mentioned reduction in cement kilns), oxides of nitrogen (usually combus tors witness the greatest reductions in this pollutant when using TDF 89 ), and sulfur dioxide (usually reduced when using TDF). Many commenters thought that we should also take in to consideration the reduction in greenhouse gases and the emissions improvements. 90 On the other hand, a numb er 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 us ing 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 deta iled summary of the contaminant data for TDF, including data provided by commenters.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

140 of 360 (including those pollutants listed in section 129 of the CAA). A commenter cited that emissions increases were expected for a paper mill that was testing a substitution of TDF for wood. Although we requested data on fuel contaminants, some contaminant data was reported as emission results. Results of a rather large study were reporte d by a commenter: “In 2008, PCA member companies completed a study on th e impact of TDF firing on cement kiln air emissions. The study’s data set included emission tests from thirty-one of the cement plants presently firing TDF. Dioxin-fu ran emission test results indicat ed that kilns firing TDF had emissions approximately one-third of those kiln s firing conventional fuels – this difference was statistically significant. Emissi ons of particulate matter (PM) from TDF-firing kilns were 35% less than the levels reported for kilns firing conventional fuels (not statistically significant due to the low PM emissions reported for essentially all cement plants). Nitrogen oxides, most metals, and sulfur dioxide emissions from TDF-firing kiln s also exhibited lower levels than those from conventional fuel kilns. The emission values for carbon monoxide and total hydrocarbons were slightly higher in TDF versus non-TDF firing kiln s. However, none of the differences in the emission data sets between TDF versus non-TDF fi ring kilns for sulfur dioxide, nitrogen oxides, total hydrocarbons, carb on monoxide, and metals were statistica lly significant. Separate studies conducted by governmental agencies and engineeri ng consulting firms have also indicated that TDF firing either reduces or does not significantly affect emissions of various contaminants from cement kilns.” EPA’s Response : The Agency assessed the contaminants in TDF using the data submitted and the proposed rule data (referenced above) and compared it to the concentrations in coal, the traditional fuel*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

141 of 360 that scrap tires would be replacing. 91 While the level of contaminants in TDF or tires vary slightly 92 between test results for the scrap tires a nd for the type of fuel that was used for comparison purposes (i.e., coal, the replacement fuel), this data supports the commenters’ position that the level of contaminants in TDF (o r whole tires) are comparable to (if not less than) those found in the traditional fuel that it would be replacing. 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 Ti res in the docket for today's ru le for a complete discussion on contaminants in TDF (EPA-HQ-RCRA-2008-0329). The Agency has determined that the concentrat ion 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 releas ed 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., rec overed from a tire dump), they would need to be processed into TDF chips with some re moval of the metal wire (per the processing specifications described in a response to commen ts 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 th at the steel wire in the whole tires used in cement kilns is regarded differently since it is needed to beco me 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 sligh tly higher in some tests and lower in others. Overall we find that TDF and coal have a co mparable 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.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

142 of 360 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 cr iteria, we do recognize the value of the greenhouse gas, as well as other criteria pollutant improvement s using scrap tires as stated in the proposal and also raised by commenters. Specifically, the use of secondary ma terials as alternative fuels and/or ingredients in manufacturing processes using combustion not only recovers valu able resources, it is known to contribute to emission reductions. For exampl e, GHG has been reduced as a co-benefit of the use of secondary materials—the GHG rate associ ated with the combustion of scrap tires is approximately 0.09 MTCO 2 E 94 per million Btu of scrap tires combusted, while the GHG emissions rate for coal is approximately 0.094 MTCO 2 E per million Btu. Combined with the avoided extraction and pr ocessing emissions 0.006 MTCO 2 E/million Btu for coal, the total avoided greenhouse gas is 0.019 MTCO 2 E per million Btu. Also, substituting TDF for coal would avoid an estimated 0.246 Lbs/million Btu of particulate matter associated with extraction and processing of the coal. Relative to criteria pollutants, historical EPA and test program da ta demonstrate that, while emission rates vary over different TDF levels at different faciliti es, criteria pollutant emissions from combusting TDF have been found a majority of the time to be reduced or not very much different than those from other conv entional fossil fuels, provided combustion occurs in a well-designed, well-operated and well-maintain ed 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 exis ting solid-fuel-fired boilers (on a heat input basis) with a

94 M etric tons of carbon dioxide equivalent (MTCO 2 E)M*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

143 of 360 specially designed combustor and add-on controls. 95 Typically boilers use a mix of TDF and coal; they have comparable emi ssions with or without TDF with the same air po llution 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 docke t 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 material s, such as use as a fuel in industrial processes may also result in other be nefits, including reduced fuel imports, reduced mining impacts, and reduced negative environm ental 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 pr oposed rule, they estimated substantially increased costs to remove the tires they handle from their shops. This would also have the effect of causing the tires to be seen as “waste-like” since their monetary value would be reduced. EPA’s Response : As a result of the changes made to the fina l rule concerning scrap ti res that are collected as part of an established tire collection program , we anticipate that ther e will be no or minimal

95 See, for example, Reisman JI (1997) Air Emissions from Scrap Ti re Combustion, Appendix: Em issions Data from Controlled Tire Burning. Technical Report prepared for USEPA. Office of Research and Developmen t, Washington, DC EPA 1997 at http://www.epa.gov/ttn/catc/dir1/tire_eng.pdf*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

144 of 360 changes, to the current system that prevents sc rap tires from being discarded. Thus, we do not believe that the costs for the tire retailers wi ll 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, typi cally preferred EPA to consider scrap tires a waste at least until it arrives at the combusti on unit (or otherw ise reasonably processed into a product according to some State Agency commenters). Many of these states noted the beneficial aspects of using whole scrap tires as a fuel a nd were concerned with the negative impacts and possible interference to the su ccess of their beneficial use programs (typically for noncombustion determinations) and requ ested clarification on the scope and impact of this rule for all non-hazardous secondary materials, including scra p tires. For instance, they asked if the rule would affect or interfere with state solid waste regulations, laws , and beneficial use programs. They also requested that EPA cl arify the implications to a state program if the scrap tires are considered non-waste when used as fuel for fe deral purposes, but are considered waste according to the state recycling and waste management programs (until beneficially used or made into a non-waste product). EPA’s Response : As discussed, the Agency has decided to identify scrap tires that are removed from vehicles and collected as part of an establishe d tire collection program as a non-waste fuel when combusted. Thus, we believe that the concerns or impacts on the effective collection and use as a tire-derived fuel product should no longer be a concern. However, this approach would not address the request from state agencies that we identify scrap tires as a waste until combusted.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

145 of 360 As discussed previously, existing RCRA case law on hazardous wastes would not allow EPA to declare that a discarded material c eases to be a waste solely by the fact that it is beneficially used. Wastes may be used beneficially. A ccordingly, once a non-hazardous secondary material (such as scrap tires retrieved from waste tire piles) is identified as a waste, its arrival at a facility for combustion would not change its status. EPA has also expr essed the belief that case law would not prevent wastes from being processe d into materials that are no longer wastes. However, that would require changing the materi al sufficiently so that a new fuel product is created. In response to the states que stion concerning conflicting and c oncurrent interpretations of state and federal waste status (when used as fu el), EPA would like to clarify that non-hazardous secondary materials may be simulta neously regulated as a non-waste fuel or ingredient for use in combustion units under the federal program, but as a solid waste by the state’s solid waste programs. That is, non-hazardous secondary ma terials that are designated as a non-waste by today’s rule, while not subject to the section 129 CAA standards, could be subject to the state standards that identify the same non-hazardous seconda ry material as a solid waste. The federal rule does not affect the state waste determination (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 a bout state agency concerns with regulating nonhazardous secondary materials, not just scrap tires, refer to Secti on IX.A, “Applicability of State Solid Waste Definitions and Benefi cial Use Determinations.” Finally, we would note, and as stated elsewhere in this pream ble, this rule only addresses those non-hazardous secondary materials that ar e burned in combustion units as a fuel or ingredient. Thus, we are not making any determination that non-hazardous secondary materials*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

146 of 360 are or are not solid wastes for ot her possible beneficial uses. Such beneficial use determinations are generally made by the states for these other be neficial uses, and EPA will continue to look to the states in making such determinations.
Comment : One commenter stated that “[b]urning in incine rators, kilns, boilers, et c. is not the highest best use of scrap tires,” and that with proper processing, they can be used in many value-added recycling processes. Many other commenter s were opposed to the combustion of any nonhazardous secondary materials as a fuel, includ ing scrap tires in CAA section 112 regulated units, and support the recycling or reuse of scrap tires for other uses instead of combustion. EPA’s Response : The issue that EPA is addre ssing in this rule is whethe r the burning of non-hazardous secondary materials, including scrap tires (wheth er whole or as TDF) is considered waste management. This is critical sin ce the status of scrap tires—that is, whether they are a waste or not, determines which CAA emission standards th e non-hazardous secondary material would be subject to. With that said, EPA supports the br oad use of scrap tires in many different markets (e.g., recycled rubber products, use in asphalt, and in civil engineering projects). The Agency also believes that the use of scrap tires as a fuel is a valuab le use and should remain a component in the overall suite of recycling/management options provided the combustion units are subject to appropriate standards. In some cases, othe r recycling markets may not be available if TDF was not used a fuel. For example, in the standa rd process of shredding ti res for tire-derived fuel (TDF), finer pieces are created as a by-product ap propriate for recycled rubber products. In most cases, it would be too expensive to process the scrap tires solely for the recycling of this rubber (according to sources in the scrap tire program ). Comments on the ANPRM and the proposal led*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

147 of 360 us to believe that the non-combustion markets fo r scrap tires could not handle the surplus and will reverse the trend in cleaning up tire dumps and will lead to many tires disposed in scrap tire piles. Specifically, in 2007, 89.3% percent of the scra p tires generated in the U.S. by weight were collected and consumed in end-use markets. The total volume of scrap tires consumed in these end use markets reached approximately 4,105.8 thousand tons of tires out of an estimated 4,595.7 thousand tons of tires generated in the U.S. By comparison, in 1990, only eleven percent of tires were consumed on a per tire basis. 96 Of the scrap tires that are collected annually and used in beneficial use end market s, about half are used for their fuel value, while the remainder are used in value-added recycling processes as the commenter preferre d. We recognize that regionally, there are sometimes scrap tire shorta ges 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 ti res. The EPA supported scrap tire program is described on our website ( http://www.epa.gov/osw/conser ve/materials/tires/index.htm ).
Comment : EPA describes coal and petr oleum coke as traditional fuel . Based on the extensive use developed over the last 20-30 year s in the industry, many of the al ternative fuels, such as TDF can also be considered traditi onal. A number of commenters ci ted that scrap tires have been used as a fuel for a long time (since the late 70’s) which should qualify as “historical use” and should be regarded as a traditional fuel. The cement kiln’s industry goals have emphasized use of alternate fuels and raw materials based on the industry increasing its re liance on this type of

96 These tire figures are compiled by RMA and are develope d jointly with state scrap tire programs and listed in “U.S. Scrap Tire Markets 2007.” The report can be found at http://www.rma.org/scrap_tires/

.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

148 of 360 material since the 1980s. The use of TDF is a long-standing and customary practice now characteristic of cement manufacturing fuel optio ns. In fact, commenter s have argued that the number of major industrial boilers and cement pl ants utilizing TDF as a supplemental fuel has risen dramatically over the last 19 years and decr eased the dependence on vi rgin fuel sources. Other commenters mentioned that the compone nts of tires are derived from hydrocarbons (like fossil fuels, such as coal, oil, and natural gas) and natura l “biogenic” sources (the rubber), and therefore, they should be considered a tr aditional fuel. Still other commenters mentioned that TDF should be considered a traditional fuel since it should qualify for the same reasons as on-spec used oil. Finally other commenters argu ed that scrap tires should be considered a traditional fuel based on the comparable contaminant content and superior Btu value (at 12,000 Btu/lb to 16,000 Btu/lb), as compared to coal. EPA’s Response : We do not agree with the commenters that sc rap tires should be cons idered a historically managed traditional fuel or alternative fuel. In fact, until this rulemaking, we are not aware that anyone has considered or identifie d scrap tires as a traditional fu el. While we recognize that scrap tires may have been used as a fuel since the 1970’s, we would also note that tires are not produced for their fuel value, even though the components of tires are derived from hydrocarbons and natural biogenic so urce. Further, scrap tires are not derived from virgin material fuels (e.g., as is the case of coal refuse derived from virgin coal).
Comment : Some commenters regarded the combusti on of non-hazardous secondary materials, including scrap tires, as wast e disposal and therefore the co mbustion unit that burns these secondary materials should be regulated as an incinerator. Another commenter was concerned*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

149 of 360 with a combustor accepting fees to accept non-ha zardous secondary materials and argued that waste-burning boilers can receive a pass-through portion of tipping fees and can also collect fees “to dispose of” the material through combustion at “clean energy” projects. The commenter went on to say that the fuel at these facilities is in no way sold in the marketplace the way that traditional fuels are sold for profit. In fact, the economic model is reversed, so that the combustion facility is paid to ta ke the secondary material. EPA’s Response : The question of whether or not a non-hazardous secondary material, including scrap tires is or is not a solid waste, depends on whethe r it has been discarded, and whether it could legitimately be considered a fuel-like material, by meeting the legitimacy criteria. As we have discussed elsewhere in this preamble, we believe that scrap tires when collected as part of an established tire collect ion program and sent to a combusti on unit for use as a fuel, or when sufficiently processed to produce a tire-derived fu el, have not been discarded and are not solid 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 plai n meaning of discard) via com bustion, they are a waste. For example, if a combustion unit’s main purpose is to provide heat to dry a product, but they consistently have a surplus of tires received with a tipping f ee and operate the unit without a product being dried, they ar e in effect destroying the scrap tire s. In this case, they would be considered solid wastes, and the combustion unit would be subject to the CAA 129 standards. With respect to the situation where a facility accepts scrap tires for a tipping fee (as opposed to*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

150 of 360 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 considere d, in light of the other circumst ances, 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 dis posal versus a being used as a valuable replacement fuel.
Comment : A commenter described the associated envir onmental justice impacts that would occur at sites that would receive scrap tires if the proposed rule went into effect , as compared to the current environmental justice impacts associat ed with cement kiln sites. The commenter provided an analysis that they said showed a decreased chan ce of impacting environmental justice communities based on the demographic anal ysis at cement kilns versus the alternative sites. The commenter claimed that the pro cessing described in the proposed rule would effectively prohibit them from using scrap tires as a fuel and will result in more scrap tires being disposed of or unnecessarily processed at sites that are more likely to be in environmental justice communities, as EPA’s environmental justice analysis indicates. The commenters’ analyses indicat ed that cement kilns tend to be located in areas with fewer minorities than the national average, as well as fewer minorities as compared to the larger set of sites that use non-hazardous secondary mate rials that may become CISWI facilities, tire processors, and RCRA subtitle D facilities (as EPA assessed in the “Review of Environmental Justice Impacts” 97 ). The commenter stated that “EPA’s data shows vividl y that there are no

97 EPA’s “Review of Environmental Justi ce Impacts” that the commenter referen ced, can be found in the docket for today’s rule (EPA-HQ-RCRA- 2008-0329-0519). Cement kilns and ot her combustors that use non-hazardous*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

151 of 360 Environmental Justice issues at any of the cement plants in its CISWI database.” The commenter also argued that land disposal (or processing) sites alrea dy have environmental justice issues and that the proposed rule would make it worse by having more scrap tires diverted to waste tire piles or processors. Another co mmenter indicated that states are considering removing landfill bans on whole tires if this rule goes into effect, and argued that the proposed rule would cause an increase in the number of tires going to landfills or stockpiles and would have a disparate impact on adjacent communities a nd mentioned the risks of fires and mosquito born vectors at tire piles. EPA’s Response : In the evaluation regarding the use of whole scrap tires (predominantly used as a fuel in cement kilns) and whether or not th ey should be considered solid wastes if collected as part of an established tire collect ion program, we considered the envi ronmental justice demographics and impacts that would result at cement kilns. Base d on our review of the de mographics at cement kilns, on average, they are located in areas wi th fewer minorities and less poverty than RCRA subtitle D disposal sites, pro cessing sites, and facilit ies assessed to become CISWI CAA section 129 incinerators. Whole scrap tires can be used as a non-wa ste fuel in cement k ilns under today’s rule when they were harvested off of vehicles and ma naged under the oversight of an established tire collection program prior to being delivered to the combustion unit. Based on our most recent demographic data, we agree with the commenter th at sending whole tires to cement kilns as a non-waste fuel is not expected to have a negati ve impact on environmental justice communities. In fact, it appears that it would have benefits since RCRA su btitle D disposal sites, processing 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).*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

152 of 360 sites, and facilities assessed to become CISWI CAA 129 incinerato rs (the sites that would be accepting scrap tires if not burned as a fuel in ce ment kilns) are more likely to be located in environmental justice communities. Thus, while this was not the primary basis on which this decision was made, the Agency believes it import ant that its decision w ould lessen the impacts on environmental justice communities.
Comment : EPA never explains why it belie ves that, in the cont ext of a secondary material that does not need processing or perhaps needs only minima l processing to serve as a wholly bona fide fuel, that scrap tires cannot be considered su fficiently “processed” unl ess they are physically shredded and undergo metals removal processing. We note that whole tires that have long been buried or stacked in aging piles may need minima l processing for use in cement kilns, such as removal of excess water and dirt, mud, and debris. Whole tires from newer stacks or piles often need no physical processing whatever. EPA never e xplains why it thinks this much processing is necessary for tires to escape th e “discard” rubric and serve as bona fide fuels in portland cement kilns. The result of this fau lty logic is that beneficial reuse of significant amounts of nonhazardous secondary materials will be greatly di scouraged, and there will be no health or environmental benefits (only detriments). We believe it is obvious that EPA’s proposal represents a “classic case of ar bitrary and capricious rulemaking.” The portland cement industry simply cannot afford to jeopardize its product by using alternate fuels that affect cement quality. EPA ju stifiably had a concern (r eflected in the earlier RCRA subtitle C rulemaking and policy documents it cites) that unscrupulous parties seeking to avoid the expensive subtitle C cradle-to-grave re gime had incentives to claim that the hazardous waste they were burning was a bona fide fuel. At that stage in RCRA subtitle C development*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

153 of 360 (mid 1980s), burning of hazardous materials for bona fide energy recovery purposes was exempt. This concern simply does not apply to the situ ation in which non-hazardous secondary materials are being burned in fully regulated industrial furnaces such as portland cement kilns. Ironically, EPA has long rec ognized that products from portland cement kilns burning hazardous waste fuel are not adversely affect ed in any manner. In 1995, after reviewing exhaustive data presented in a petition file d under the Toxic Substances Control Act (TSCA), EPA rejected the petitioners’ request that products produced from cement kilns that burn hazardous waste fuel carry warning labels be cause EPA found there was no difference 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 So lid Waste and Emerge ncy Response (OSWER) stated in a letter to the Center for Maximum Potential Building Systems that “there is no difference in the cement from kilns burning haza rdous waste compared to cement produced by kilns not burning hazardous waste.” Moreover, NSF International has reviewed data from several portland cement kilns burning hazardous waste fuel to assess whether the product from such kilns could be safely used in concrete water pipes and wate r storage tanks. These studies have uniformly concluded that there is no statistical difference in contaminants between clinker or pr oducts made from kilns burning hazardous waste fuel as compared to kilns using only fossil fuels. The commenters representing cement kilns also no ted that a cement kiln is not a boiler or an incinerator. One of the commenters we nt on to say that “in enacting CAA section 129, Congress was focused exclusively on “incinerators. ” Incinerators burn waste materials solely for the purposes of destruction. They do not us e “ingredients,” and they make no product. Moreover, in all the rulemaking a nd litigation that prompted this proposed rule – culminating in*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

154 of 360 the NRDC case ... EPA, the parties, and the Court we re focused exclusively on incinerators and boilers. Like incinerators, boilers do not use “i ngredients.” Unlike in cinerators, boilers may burn waste materials for energy recovery purposes . But the only product they make is steam, and the steam that they make never come s in contact with the fuel they burn. A portland cement kiln is significantly differe nt from an incinerator or a boiler in key respects. First, it is one type of “industrial furnace” which, unlike boilers and incinerators, make a marketable product. All materials that are pla ced in the kiln – including fuels – come into mutual contact in the manufacturing process. The product the kilns prod uce must meet strict quality standards. EPA’s RCRA regulations ha ve long recognized these key distinctions among industrial furnaces, boilers, and incinerators . The commenter referred to 40 CFR 260.10. Despite the fact that ther e was absolutely no issue with portland cement kilns producing ingredients in the deve lopment of CAA section 129 or the ru lemaking and litigation leading to this rulemaking, the commenter stated that port land cement kilns have been included in this proposal in a manner that could have very a dverse impacts on a kilns’ ability to use nonhazardous materials beneficially; the commenter went on to argue that a significant flaw in the proposal is its failure to r ecognize key the differences betw een 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 EP A is undertaking in the rulemaking. Tires from tire dumps are clearly wastes because they have been dispos ed for a long time. The tires were clearly abandoned if they were left in a tire dump. EPA understands the commenter’s remarks that cement kilns are not “boilers” no r were designed to be “incin erators,” but kilns are clearly*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

155 of 360 “combustors” under the CAA and the Agency need s to decide whether CAA section 112 or 129 standards would apply. With respect to the comments regarding “pro cessing,” EPA’s inten tion is to provide a standard for turning clearly disc arded material into a non-waste. EPA acknowledges that there is no direct case on point in which a court has opined on how a material may lose its status as a

waste 98 . The comment assumes all fuel is not a waste. As EPA has repeatedly stated in this preamble, a waste may be used beneficially a nd may, indeed, be a bona fide fuel. This is consistent with the D.C. Circuit’s opinion in NRDC v. EPA. A combustor that burns solid waste, even for energy recovery, must be regu lated under CAA 129. If the kiln is regulated under CAA 129, no processing is needed for a waste scra p tire to be burned as a bona fide fuel. Given the statutory provisions and case law, EPA is constrai ned to argue that discarded materials are solid wastes and would need to be burned under CAA section 129 standards. EPA notes that environmental groups w ould argue that all un its combusting tires must be subject to emissions standards issued under section 129 even if the tires have b een processed into a separate tire-derived fuel, and the comments include policy argumen ts to support this contention. The point of the comment is that requiring units to meet emissions st andards issued under 129 would discourage burning of tires as an e nvironmentally beneficial replacement for nonrenewable fuels, yet environmental groups would ar gue that tires should ne vertheless 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 de termine 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 syst ems in place where materials lose the waste status if beneficially used according to the state’s standards.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

156 of 360 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 commen ters had different in terpretations of our proposed wire removal requirements and on the term “relatively wire free” (since some incorrectly believed that the proposed standard was up to 99% or absolutely no wire). Furthermore, many of these same commenters ar gued that the proposed processing requirements for units that use TDF chips were unrealistic a nd would dramatically in crease processing costs, while a few commenters cited that many processors could not even achieve the specified level of wire removal. These changes would significantly deter facilities from using TDF that they regarded as a product. In f act, a number of commenters, including some state agencies, questioned the value of requiring unnecessarily costly processing of whole sc rap tires that are to be used as a fuel in units, such as cement kilns, since the wire in the scrap tires can be beneficial due to the properties of the ir on 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 remove d since it can also cause handling issues in the units, not emissions. A few commenters claimed that TDF processed to two-inch pieces was seen as the higher end TDF product and that this should be our standa rd. In particular, one commenter that markets*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

157 of 360 TDF as a product, “request that the EPA use the widely accepted nominal two-inch minus, 90%+ wire free standard that has been standard in th e industry for years” sin ce this would accurately define a product. The commenter said that “TDF meeting this 90%+ wire free standard typically has a wire content of between 2% and 8% by wei ght.” In addition, some state agencies have been known to specify two-inch TDF as a product rather than a waste, while rough shreds used for fuel in some combustors (bigger than two inch es) are seen as a waste material (not a product) by those states. The size restriction is more prev alent in specification fo r TDF than specifying a percentage of metal. Other commenters argued that a product is created when tires are processed at any level that makes it “TDF” and mentioned that the ASTM describes a process th at creates a “product” called TDF. Another commenter mentioned that a necessary component in the processing of shredded tires is to remove the protruding wire fro m the shreds and to sort the rubber pieces from the wire remnants called “free wire .” The commenter said that this part of processing is typically necessary in order for it to be sold as a TDF product to boilers. The commenter went on to say that the completion of this last step can be test ed by spreading out the TD F chips in a single layer and passing a very strong magnet over them to see if any free wire remains. That commenter reasoned that TDF chips that pass the magnet test and had the free wire removed should qualify as a non-waste TDF product. EPA’s Response : In the situation where tires are discarded in the first place or otherwise do not meet the legitimacy criteria, processing is needed before it is considered a non-waste fuel (i.e., tires that are not collected from vehicles as part of an established tire collection program per §241.3(b)(2)(i). We disagree with those commenters who addre ssed the level of processing*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

158 of 360 needed before TDF is considered a non-waste as these commenters are answering a different question: how much processing is necessary befo re whole scrap tires can be burned properly in any particular combustion unit? However, the question that EPA needs to an swer is how much processing is sufficient before whole scrap tires are cons idered a non-waste fuel where the scrap tires are not collected as part of a scrap tire collection program? Ex amples of sufficient processing for other nonhazardous secondary materials include the follo wing: processing of used oil to produce onspecification used oil and the construction a nd demolition (C&D) wood processed into fuel by sorting to remove contaminants (e.g., lead-p ainted wood, treated wood, non-wood materials), and sizing it. In all these instances, the non-haza rdous secondary material is being sufficiently changed, either chemically or physica lly to produce a non-waste product. Thus, while insufficiently processed discarded tires can be burned in boilers as a fuel, such TDF would still be considered a wast e-derived product because the Agency does not believe that simply shredding or quartering whole tires, or removing some dirt, is adequate to produce a non-waste product for use as fuel accor ding to today’s rule (refer to the processing definition in §241.2 Definitions). While the extent of processing that may be required may vary for different types of non-hazardous secondary ma terials, 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 recove red and recycled (not disposed in emissions). However, whether or not the metal from the wire (post-combustion) can be recycled does not go*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

159 of 360 to the question of whether or not the non-hazardous secondary ma terial has been “sufficiently processed” to produce a non-waste product. With respect to the technical question of how much wire must be removed before the amount of processing is considered sufficient, th e specific unit types that use TDF chips require different levels of metal removal for handling concerns as noted by commenters. The ASTM Standard D 6700 “Standard Practice for use of Scrap Tire-derived Fuel” 99 describes the process for “dewired” and has a helpful guideline on th e appropriate amount of wire removal for different unit types under the t opic titled “Handling Considerati ons Conveying, Grate and Ash.” However, the ASTM standard is concerned with proper dewiring and not whether the resultant material is a waste or non-waste fuel. In the proposed rule, EPA referred to the leve l of processing in varied terms (“relatively wire free,” “processed to the Standard Practi ce for Use of Scrap Tire-Derived Fuel ASTM Standard D 6700-01,” “wire removed,” “steel belts removed,” and “sufficien tly processed”). In general, we believe that to be considered suffi ciently processed, there has to be metal removed and, it should be at the level of wire removal that is specific to the co mbustion unit as mentioned above. Thus, we would agree with the commen ter 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 standar d, to the extent that other unit types require different levels of metal removal. With respect to the commenter that suggested the removal of free wire as an indicator of sufficient processing, we would agree that th e removal of free wire (as described by the

99 ASTM Standard D6700-01, 2006, “Standard Practice for Us e of Scrap Tire-Derived Fuel," ASTM International, West Conshohocken, PA, 2003, DOI: 10.1520/C0033-03, www.astm.org

. This standard can be obtained through the following website http://www.astm.org/Standards/D6700.htm.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

160 of 360 commenter) is a necessary component of processi ng scrap tires into a non-waste product for the purposes of this rule, but that alone, may not be su fficient to meet our defi nition of processing. It could qualify if, according to product specificati ons appropriate for the particular combustion unit, it is processed into TDF chips and enough wi re is removed from the TDF and the loose free wire is removed (to the degree prac tical) appropriate to the unit. However, we would also note, as is th e case for all types of solid fuel, proper characterization of the size and composition of TDF are important factors that combustion unit operators assess to determine if the TDF is a suitable fuel for their specific combustion unit design. 100 For example, ASTM Standard D 6700, descri bes standard practices for using TDF as fuels, and also specifies sampling and analysis methods and procedures that apply to TDF that cover composition and fuel character ization analyses. The standards also address the size of the tire pieces and metal content in order to optimize com bustion. The ASTM Standard D 6700 “Standard Practice for use of Scrap Tire-derived Fuel” also describes the process for “dewired” TDF and has a helpful guideline on the appropriate amount of wire removal for different unit types under the topic titled “Handling Cons iderations Conveying, Grate and Ash.” In summary, EPA considers that previously di scarded tires that have been made into TDF (shredded/chipped, sized, sorted, and with a sign ificant portion of the metal belts or wire removed, at a level appropriate for the unit), me et 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 collec tion 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 Sectio n V.D, the heating value of scrap tires (12,000 Btu/lb to 16,000 Btu/lb) is the highest of all non-hazardous secondary mate rials, except used oil (1 7,800 Btu/lb), and higher than typical coal values. Contaminants of potential concern have been measured for both materials: the constituents are comparable.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

161 of 360 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 im prove 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 co al in the combustion unit. 6 . Resinated Wood Residuals

. The proposed rule described resinated w ood products as those generated during the manufacture of particleboard, medium density fibe rboard, and hardboard a nd includes materials, such as board trim, sander dust, and panel trim. The proposal indicated that such resinated wood products were considered a non-waste fuel when burned in a combustion unit as a fuel because this secondary material generally meets the leg itimacy 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 gath er additional information on which to base our decision, we requested comment and data on the c ontaminant levels contained in these secondary materials, as well as the appropriatene ss of calling them a non-waste.
Comment :

101 Since scrap tires that are harvested from vehicles (as pa rt of a tire collection progra m) 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).*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

162 of 360 The American Mining Congress v. EPA case states that secondary materials beneficially used within the generating industry, not within the generating plant, is part of a continuous industrial process and thus, not a solid waste. Therefore, transfer of materials within the generating industry would have to be considered a non-waste fuel. Some commenters contend, how ever, that any secondary material burned for energy recovery is a solid waste, regardless of whether it remains within the control of the generator. These commenters object to allowing control by the generator to be re levant to rendering material a non-waste, even if burned under the le gitimacy 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 ge nerator 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 do es not even state whether any particular material is discarded. For example, while there is a refe rence 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 di scard 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 wh en discard has occurred” but only dealt with the extreme cases of materials that were either wastes or non-wa stes. 216 F.3d at 57. As the various definition of solid waste cas es hold, the ultimate issue for deciding when*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

163 of 360 most materials are discarded is whether EPA’s determination complies with the arbitrary and capricious standard of the Administrative Pr ocedure Act (APA). Sweeping formulations involving whether a process is within an “industry” is not helpful, nor is it consistent with the case law. EPA, and the courts, 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 ba sed on the circumstances under which the material is handled and combuste d. Merely keeping material on-site will not render it a non-waste, nor will mere tran sfer make the material a waste.
Comment : Trim, sawdust, shavings, sander dust and othe r residual materials from producing panels and other engineered wood products containing resins have been widely used as fuels by wood product plants since the industry be gan in the 1950s and should, therefore, be classified as a traditional fuel. In fact, the wood product plants have been designed so as to specifically utilize these residuals that the process 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 ju stification 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*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

164 of 360 fuels (as discussed below). We recognize, howev er, that much of the resinated wood residuals are used as a product fuel, and th at the plants have been design ed to catch and then burn these residuals to supply energy and h eat to other parts of the plan t. EPA recognizes that some specific types of non-hazardous secondary materials, such as resinated wood residuals, are 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 resina ted wood residuals used as a fu el in a combustion unit as not being a solid waste, provided these materials satisf y the specified legitimacy criteria for fuels.

Comment : Commenters argued that resinate d wood residuals are often used off-site in a manner that does not constitute discard and the secondary materials should not be classified as solid waste when transferred between facilities or companies. As much as 6% of resinated wood residuals are sold into the fuel market and are routinely tr ansferred between either intra- or inter- company facilities and used as either “furni sh” (i.e., raw materials) or fuel at the receiving facilities. Intercompany transfers are typically managed throug h buy-sell contracts that likely do not specify how the materials will be used because the receiv ing facility likely mixes the purchased material with self-generated materials. Those combined ma terials are either used as furnish or fuel in accordance with the needs of the facility at the time . Because these resinated materials are bought and sold and used in a manner – either as fu rnish or fuel – similar to how self-generated resinated materials are used. This transacti on 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 :*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

165 of 360 We agree that transferring materials between companies or facilities does not necessarily mean that the material has been discarded. As resinated wood residuals tr ansferred off-site are utilized in the same manner as self-generated resi nated wood residuals (i.e., contained in the same bins as furnish materials used in the produc t, transferred via conveyo rs 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 wast e when transferred off-site for use as fuel, provided the materi al meets the legitimacy criteria and has not been otherwise deemed to be discarded. We have codifi ed 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, resina ted wood residuals are generally chipped or hogged to reduce its size before burning. This should be sufficient to meet the processing requirement. EPA’s Response : We generally agree with the commenters that resinated wood residuals do not need to be processed, but if processed, such as by chippi ng or hogging, this level of processing would not affect the status of this material.
Comment : Resinated wood residuals have contaminants that are comparable to traditional fuels. The list of resins and adhesives include constituent ch emicals that are on the hazardous air pollutant list. Notably, phenol, formaldehyde, methylene di-isocyanate and epichlorohydrine are HAPs. However, these individual components react comple tely within the resin cu ring process, leaving, in the worst case, only trace amounts of the HAP. With the exception of formaldehyde,*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

166 of 360 undetectable or extremely low levels of these HAP s remain behind after the resin/adhesive cure. As noted in the comments referenced in th e proposal, miniscule amounts of formaldehyde remain in some resinated wood residuals, less than 0.02%, a number that is expected to fall as the California Air Resource Boar d (CARB) Composite Wood Air borne Toxic Control Measure (ATCM) is implemented nationwide, per the new Public Law No: 111-199 (which establishes consistent standards for wood products across th e country). Further, since formaldehyde is found in natural wood, it should not be consid ered a contaminant in resinated wood. EPA’s Response : The proposed rule acknowledged a general l ack of data regarding the levels of formaldehyde in these non-hazardous secondary ma terials and specifically requested data on this issue. While we received only limited contam inant information during the comment period, the data we do have suggests that the levels of form aldehyde in these resinate d wood residuals is at non-detect levels. The existing data we have is that resinated wood residuals contain “free” formaldehyde at levels less than 0.02 percent (or 200 ppm). In addition, new rules as mandated by the CARB Composite Wood ATCM, per ne w Public Law No. 111-199, will reduce the formaldehyde levels even further to levels that are comparable to unadulterated wood. We also have limited data on the formaldehyde levels in tr aditional fuels. Specifically, we have limited data that natural wood has betw een 0.6 and 8.5 ppm of formaldehyde, 103 but we have no data on formaldehyde levels in other traditional fuels, su ch as coal, oil, and natural gas. We do know, however, that organic materials produce formalde hyde. For example, studies have shown that

103 Weigl, M., R. Wimmer, E. Sykacek, and M. Steinw ender, 2009. “Wood-borne fo rmaldehyde varying with species, wood grade, and cambial age,” Forest Products Journal 59(1/2) 88-92 Meyer, B. and C. Boehme, 1997. “Formaldehyde Emission from Solid Wood,” Forest Products Journal 47(5) 45-48. Killiam, B. “Background Formaldehyde Emissions for Solid Wood,” Temple-Inland Forest Products Corporation, Diboll, TX.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

167 of 360 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 demons trate that such residua ls meet the legitimacy criteria. Thus, they would need to show that the levels of form aldehyde, as well as other possible contaminants, in the resinated wood residuals are at levels comparable to those found in traditional fuels, which in this case would be natural wood. We would note that we would not consider levels of formaldehyde of 200 ppm or slightly less to be comparable since the levels in unadulterated wood are at le ast two orders of magnitude 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 spec ifically utilize these residuals th at 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.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

168 of 360 not be able to operate as de signed without this material. EPA’s Response : The heating value range presented (8,500 – 9,000 Btu/lb) indicates that resinated wood residuals meet the meaningful heating value criter ion as it is greater than the heating value of unadulterated wood. We also agree with the commenters that resinated wood residuals meet the legitimacy criterion for being managed as a va luable commodity since these residuals are managed as a primary fuel for wood products manufacturers. We acknowledge that wood products manufacturing plants were specifically designed to burn these resinated wood residuals to power the facility. In addi tion, wood product manufacturers have designed their plants to use their residuals (including placing the material in silos and transf erring the material via conveyor belts and ducts) that supply the process both as a raw material a nd as a fuel, indicating that the resinated wood residuals are mana ged as a valuable commodity.
Comment : Commenters referred to studi es that show that the co mbustion of resinated wood residuals does not produce adverse air emi ssions. EPA’s “Wood Products in the Waste Stream—Characterization and Combustion Emi ssions” (1996) describes studies that were conducted to determine if various types of wood produce more non- criteria air pollutants than typical wood sources. Air emissions and fuel mate rials were sampled at six different processors and boilers. Fuel materials that were used at the boilers were a mixture of wood produced at construction and demolition sites at the time: unadulterated lumber, tr eated wood (including CCA-treated wood), resinated w ood residuals, and painted wood (i ncluding lead-based paint). The study concludes that organic compounds th at are emitted include aldehydes, benzene, phenol, and polynuclear aromatic hydrocarbons (PAH). These compounds are formed as*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

169 of 360 products of incomplete combustion and did not a ppear to be a function of wood composition or source. Instead, they appear to be an indica tor of combustion inefficiency. “Good” combustion conditions appear to minimize organic emissi ons. Metals usually found in wood combustor particulate include As, Cr, Cu, P b, Zn, Al, Ti, Fe, and Mg. Meta ls were found to be higher in samples taken, although this could be a result of the inclusion of treat ed wood in the samples combusted. Metals control efficiency appears to be roughly equivalent to total particulate control efficiency. Chlorinated organic compou nds, such as dioxins, fu rans, polychlorinated biphenyls, chlorinated phenols, and chlor-b enzenes were measured at extremely low concentrations or were reported to be less than minimum detection limits. One commenter argued that, since resins contain only carbon, hydrogen, oxygen, and nitrogen, the wood and its adhe sives will convert to carbon dioxi de, water, and nitrogen oxides (which would be produced even if nitrogen is not present in the fuel, since nitrogen represents approximately 80% of air) under normal conditio ns that normally occur in industrial wood combustion units. Thus, the products of combustion from wood are the same from the adhesives. Adhesives are expected to be more combustible than wood, due to their simpler structure and lower molecular weights. Conditions which assure the complete combustion of wood are adequate to assure the complete combustion of these adhesives. Although it is possible that different types of compounds c ould be produced from the adhesives than from wood and that more of certain types of compounds might be produ ced from one fuel or another, there does not appear to be any scientific basis for a presump tion that emissions from incompletely combusted adhesives are more harmful than emissions from incompletely combusted wood. In fact, the results of toxicity st udies commissioned by National Forest Products Association in response to New York State law which requires manufacturers to provide data on the t oxicity of smoke from*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

170 of 360 their products indicate that smoke from glued wood products is no more toxic than wood smoke. There are a few halogen-containing synthetic pol ymers, such as polytetrafluorethylene, which can produce more hazardous fumes, but they are not normally used in wood products. The commenter also submitted data on HCl a nd NOx emissions from burning sander dust that was not yet published. Emi ssions from five combustion syst ems that burned a combination of sander dust and hog fuel were sampled. On e test was run only using hog fuel (which consisted primarily of bark). Results are presen ted in Table 3. The commenter argued that these results prove that HCl and NO x emissions from the combustion of resinated wood residuals are comparable to the combustion of hog fuel alone. In fact, the three samples that contained the lowest percentages of sander dust (0%, 15%, and 25%) produced the greatest percentages of chloride in the fuel emitted as HCl and nitrogen in the fuel that was subsequently emitted as
NO x . Table 3. Emissions data from six combustors th at burned hog fuel or a combination of hog fuel and sander dust.

Sample Number 1 2 3 4 5 6 Fuel mixture, %Hog fuel/Sander dust 100/0 75/25 85/15 60/40 60/40 60/40 Hog Fuel content (%, dry basis) Chloride 0.02 0.01 0.01 0.02 0.02 0.02 Nitrogen 0.58 0.56 0.56 0.51 0.58 0.56 Sulfur 0.02 0.04 0.04 0.04 0.05 0.03 Sander dust content (%, dry basis) Chloride - 0.18 0.18 0.16 0.15 0.15 Nitrogen - 3.7 3.7 3.2 3.4 3.8 Sulfur - 0.05 0.05 0.06 0.04 0.03 Total Fuel Content (lb/hr) Chloride 1.7 3.3 2.1 6.0 6.4 5.6 Nitrogen 49 84 60 136 151 143 Emissions (lb/hr) HCl 0.17 0.19 0.08 0.09 0.11 0.16 NO x 26 53 31 45 48 53 Emissions (lb/MMBtu) HCl 0.0024 0.0038 0.0017 0.0012 0.0015 0.0023 NO x 0.38 1.08 0.69 0.62 0.64 0.75 % 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 NO x 16.1% 19.3% 15.7% 10.1% 9.7% 11.2%*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

171 of 360 EPA’s Response : We recognize that the studies have shown th at there are decreased HAP emissions from burning resinated wood residuals. As we have st ated previously, the cr iterion or test in determining the legitimacy criterion is based on the level of contaminants in the secondary material itself, and not by comparing the differen ces in emissions. However, increased levels of formaldehyde in the emissions from wood product manufacturing plants would confirm that the burning these materials is i ndicative of waste activity. In response to some of the specific comment s made, we would note that none of the studies or data provided information on formalde hyde emissions, the HAP that we identified that we were most concerned with in the proposal. 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 th e resinated wood residuals. Thus, we do not know how much resinated wood ma terials were in the samples that were tested and how it correlates to the emissions data. We also acknowledge that resins are made from H, N, C, and O. However, our concern rests with the amount of formaldehyde (which is a HAP and also is made of H, C, and O) that is generated in the stack. While formaldehyde ma y be generated as a product of incomplete combustion, it may also be emitted from the stack if it is present in the fuel material and is not combusted at all. In other words, if some of the formaldehyde escapes combustion while in the fuel chamber and is emitted in the stack, more formaldehyde is likely to escape. A unit combusting 10 tons of formaldehyde is likely to result in more formaldehyde emissions than a

105 75 FR 31862*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

172 of 360 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 al leviates our concern regarding formaldehyde emissions. However, given that Public Law No. 111-199 will decrease formaldehyde to levels that are comparable to unadulterated wood, th e combustion resinated wood residuals should not increase the am ount of formaldehyde that is emitted.
7 . Used Oil. In the ANPRM, EPA had stated that off-sp ecification (or “off-spec”) used oil that is collected from repair shops is generally t hought to be originally discarded, but that onspecification (or “on-spec”) used oil was consider ed to be a product fuel, not a waste, because it meets the fuel specification requirements of 40 CFR 279.11. 106 However, between the ANPRM and the proposal, EPA modified its view of on-spec used oil and iden tified it as a traditional fuel because the Agency had decided that the on-spec us ed oil is similar in composition to virgin fuel oil and has been historically managed as a va luable fuel product rather than as a waste. 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 consider ing on-spec used oil to be a legitimate product fuel and not a solid waste. The proposal also referred to the provisions of 40 CFR Part 279 that allows off-specification used oil to be processed into on-spec ification used oil. 108 Used oil may be rendered on-specificati on, therefore, either by being genera ted that way or by being processed under existing EPA regulations. Th ese circumstances are not changed by EPA’s issuing today’s rule.

106 See 74 FR at 58. 107 See 75 FR 31855, 31861, 31864 108 75 FR 31865, 31877*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

173 of 360 On the other hand, we still consider off-spec us ed 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 co mmercial 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, in cluding 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 t hose for waste activities, as oppos ed 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 o il, both on- and off-spec, falls within the “ordinary everyday sense” of discarded materials whether they are burned or not and that all used oil should be classified as a solid waste. Indeed, EPA does not identify any situation in which these secondary materials are not wastes , except when they are burned for energy recovery. Thus, EPA is essentially claiming th at non-hazardous secondary materials, including used oil, which would otherwise indisputably be wastes become non-wastes solely because they can be burned with energy recovery. Neither RCRA nor any of the case law interpreting RCRA lends the slightest s upport to that notion.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

174 of 360 EPA’s Response :We disagree that off-spec used oil should be considered a traditional fuel, or even a nonwaste fuel, since as we have discussed elsewh ere in the preamble, such used oil contains contaminants at levels that are not comparable to (or lower than) in traditi onal virgin refined fuel oil. In fact, off-spec used oil may contain cont aminants at levels that are significantly higher than those in traditional virgin refined fuel oil. On the other hand, used oil that has been determined to be on-spec contains contaminan ts at levels below the maximum concentration limits established in the standards, levels that EPA considers to be comparable to (or less than) those in traditional virgin refined fuel oil. 109 In accordance with 40 CFR part 279, once used oil is determined to be on-spec, it is no longe r regulated under the used oil management standards. 110 We also disagree that we are defining the use of used oil as fuel oi l as the only situation where used oil is not a solid waste. RCRA is silent on the issue of whether or not used oil is or is not a solid waste. This rulemaking effort is the first to determine in which situations used oil would be considered a solid waste. Additiona lly, 40 CFR 279 puts very few restrictions on the use of on-spec used oil, which indi cates that the Agency has historic ally viewed this material as a commodity and not a waste. We are also simply not opining on other situati ons 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-s pec and the marketer complies with th e requirements for analysis and record retention, notification, and record tracking shipment to on-specification burners, it is no longer subject to other management standards. We note that today’s rule does not change any of the regulati ons in place that regulate onspec used oil.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

175 of 360 Industry commenters argue that off-specification used oil should not be considered a solid waste for a number of reasons relating to th e statute and EPA regulat ions, as well as policy preferences. (EPA responds to each of the comments separate ly, below. The comments also refer to on-specification used o il in much of the argument. Ho wever, we have dealt with onspecification used oil above. The comment s and responses below only deal with offspecification used oil issues.)
Comment: Section 3014 of RCRA did not classify used oil as a wast e and instead established a separate regulatory program for used oil. This section provide s EPA with authority to regulate used oil that is recycled, indepe ndent of any determination whether or not used oil is a waste. Moreover, RCRA section 1004(37) defines used oil to include “recycled oil” that is “burned.” Consistent with this provision, the used oil re gulations in 40 CFR part 279 state "EPA presumes that used oil is to be recycled unless a used oil ha ndler disposes of used oil, or sends used oil for disposal." 40 CFR 279.10(a). Th e commenters claim that these provisions mean that “disposal” is separate from “burning” because “disposal” must be separate from “recycling.” Thus, “recycling” is separate from “solid waste” becau se the two terms are mutually exclusive. In addition, the 40 CFR part 279 regulations alre ady define what is legitimate used oil recycling under section 3014 of RCRA, which includes recyc ling of off-specification used oil with appropriate environmental safeguards. EP A cannot now reverse this determination without a reasoned analysis. Another provision of EPA’s hazardous waste regulations, 40 CFR section 261.33, supports this position with respect to whether off- specification used oil is a solid waste. Under this provision, commercial chemi cal products and intermediates and off-specification variants*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

176 of 360 listed as hazardous wastes in 40 CFR 261.33, as well as some other materials not relevant here, are solid wastes when burned for energy re covery unless the commercial chemicals are themselves fuels. Commercial chemicals that are themselves fuels are not wastes when burned for energy recovery. According to the commen ts, even off-specification variants of the commercial chemical products may be burned as fuel s and not be considered solid waste. See 40 CFR §§ 261.33(a) and (b); 40 CFR 261.2(c)(2)(B)(ii). The argument is that off-specification used oil should also be treated as a non-waste when burned for energy recovery. That is, used oil, even if off-specification, should be consid ered a product and not a waste under the rationale that used oil is a commercial chemical product. Further, EPA should not treat off-specification potentially hazardous wastes different from off-specification non-hazardous wastes. EPA’s response : EPA disagrees that this analysis of the stat ute and regulations show s that off-specification used oil is not a solid waste. The Agency ag rees that section 3014 of RCRA does not classify used oil as either a waste or a commodity. However, section 1004(37), also, does not define “recycled oil” as either a wa ste or a commodity. As EPA ha s explained elsewhere in this preamble, the recycling of secondary materials, per se, does not mean that such materials are either wastes or not. Wastes may have value an d may be recycled, but th ey are still wastes. Wastes may be recycled by bei ng “burned,” as provided under 1004( 37), or may be recycled in any number of other ways. The mere fact that the secondary material is recycled is not dispositive for determining whether it is a wast e. Thus, under the statute, contrary to the commenter’s view, “recycling” and “solid waste” are not mutually exclusive. This means that EPA must decide whether the secondary material is a waste based on the definition of solid waste in RCRA 1004(27) by deciding whether materi al is “discarded” in the plain meaning of*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

177 of 360 the word. Similarly, Part 279 does not provi de that the terms, “recyclin g” and “solid waste,” are mutually exclusive. Secti on 279.10(a) does distinguish between materials that are clearly “disposed of” by, for example, being thrown into a landfill, but makes no determination as to whether recycled secondary material is “discarded” in any other sense. Both ILCO and Owen Steel , for example, provide examples of recycling of wastes. As EPA continues to emphasize, despite protestations to the contrary by many co mmenters 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 no t depends on the factors EPA has identified in this rule and is not affected by circul ar interpretations of defi nitions in the statute or the regulations. EPA has determined that off-specification us ed oil is a solid waste when burned for energy recovery because it has greater contaminan t levels than fuel oils and its markets are limited due to this contamination. 40 CFR part 279, moreover, treats off-sp ec used oil more like a waste since it restricts its burning to particular facilities and forbid s it in others. In particular, 40 CFR part 279 restricts the burning of off-sp ecification used oil to industrial furnaces, industrial boilers, utility boilers, certain used oil-fired space heaters, and hazardous waste incinerators and specifically ex cludes 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 pa rt 279 does not restrict where on-specification used oil can be burned. Th e definitions cited by the commenters in the statute and regulations do not a ffect these determinations.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

178 of 360 Section 261.33, also, does not affect EPA’s interpre tation of the waste status of used oil. That provision deals with hazardous wastes and EPA has repeatedly stated that it is not reopening its RCRA subtitle C regulations for co mment. In any event, however, section 261.33 provides that chemicals manufactur ed as a fuel may be burned for energy recovery. It does not apply to secondary materials that may later be used as fuels when their origin al use was different. Furthermore, EPA is not making any changes to 40 CFR part 279 by virtue of this rule. The Agency is not reversing itself on a ny part of 40 CFR part 279. Part 279 makes no determination regarding the nature of the CAA re gulations for any facilities that burn used oil and EPA is not amending 40 CFR part 279 to state wh ether any used oil is a waste or not. Based on the current provisions of 40 CFR part 279, EPA believes it is entire ly reasonable for the Agency to find that on-specificati on 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 o ff-specification used oil as a waste, it will no longer be covered by the Part 279 Used Oil Management St andards. As EPA noted when it promulgated the Part 279 Used Oil Management Standards, s ection 3014 only authorizes the regulation of oil that is destined for recycling, not oil that is “discarded.” EPA’s Response : EPA disagrees with this comment. As noted above, EPA is not changing the used oil regulations and off-spec used oil burned as a wa ste would still be subject to 40 CFR part 279. The commenter is conflating the cl ear disposal of used oil – thro wing it in a landfill, for example*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

179 of 360 – with the concept of “d iscard.” “Discard” is not used in 40 CFR part 279 and “disposal” is not a congruent term to “discard.” That is, the re gulations at 40 CFR part 279 do not discuss or address whether used oil has been discarded; rather the requirements ensure that used oil that is recycled is done so in a manner that prot ects human health and the environment. Also, as noted repeatedly in this rulemaking r ecord, wastes may be recycled as a fuel, but they would still be wastes and would be discarded. The determination in this rule that off-spec used oil is a waste only means that the facilities that burn it ar e burning it as a waste and they will be subject to CAA authorities as appropria te. 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-sp ecification used oil as a product, it will be in violation of the Congressional mandate to promulgate regulations that “do not discoura ge the recovery or recycling of used oil, consistent with the prot ection of human health and the environment.” 42 U.S.C. 6935(a). EPA’s Response : EPA disagrees with the implication of this comment. The Agency is constrained by the provisions of RCRA that define solid waste as ma terial that is discarde d. Even though EPA may want to issue a regulation that encourages r ecycling by promulgating less stringent regulations, the Agency must still follow the statute.
Comment : Commenters argued that contaminant concen trations found in off-spec used oil is comparable to traditional fuels. Table 4 su mmarizes data presented in the comments on the contaminant levels in off-spec used oil as comp ared to fuel oil and coal. In U.S. Study 1, 55*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

180 of 360 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 i ndustrial oil that contains non-hazardous chlorinated paraffin and the other was from a military opera tion. In the U.S. Study 2, researchers looked at a database of used oil samples maintained by a national comme rcial laboratory. The da tabase contained over 3,500 used oil samples from the U.S. and othe r countries on which over 17,000 analyses were performed from 2008 to present. Between 24 and 53 samples in this dataset exceed the specification for one of the contaminants – specif ically for total halogens and chromium. The researchers speculated that the high levels of halogens were due to non-hazardous chlorinated paraffin which is used (added to the oil by lubric ant manufacturers) in industrial oils designed to encounter high pressure. The rese archers did not speculate on the reasons for the high levels of chromium. 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 am ounts. The commenters did not speculate on the reasons for the high levels of arsenic. Table 4. Contaminant Concentrations in O ff-spec Used Oil and Traditional Fuels

Material U.S. Study

1 111 U.S. Study 2 112 Canadian Study 113 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*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

181 of 360 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 appr opriate comparison for used oil si nce some combustion units that burn used oil can alternatively only burn fuel oil and not coal (such as space heaters). Thus, used oil should be compared to fuel oil. The specifications promulgated under 40 CFR 279.11 were developed by looking at contaminants in fuel oi l and the risks posed by 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 concen tration of 4,000 ppm maximum). Also, off-spec used oil contains as much as 21 ppm of Cr, on averag e, (with the on-spec c oncentration of 10 ppm maximum). Thus, off-spec used oil does not meet the legitimacy criterion for contaminants. When EPA created the specifica tion levels set in 40 CFR 279.11, it identified those levels as being comparable to fuel oils. EPA maintain s that these levels are appropriate standards to*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

182 of 360 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 insi gnificantly higher than those found in traditional fuels hardly imply a purpose of disposal, assumi ng the secondary material being combusted is otherwise a valuable fuel. Only when a material contains contaminants at significantly elevated levels does it begin to become reasonable to pres ume that there may be an intention to discard. EPA’s Response : We agree that contaminant levels are an indicator of waste activity and we have investigated the case of off-spec used oil to full y assess if its use in a combustion unit is truly a waste activity. Off-spec used oil has few outlets due to its contamination levels. This is clearly indicative that its use in combusti on is indicative of a waste activit y. In addition, it is clear from the data in Table 4 that off-spec used oil does no t contain comparable leve ls of contaminants to fuel oils.
Comment : In the context of determining whether a haza rdous secondary material is a solid waste, EPA recognizes that legitimate r ecycling can occur even if the material has higher levels of toxics than virgin materials. To show this, th e comment cites a discussion by the Agency in an earlier rule in which foundry sands are reused for mold making in a facility’s sand loop. The*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

183 of 360 comment argues that it is relevant that the sands used to make the molds may have significantly higher concentrations of hazardous constituents th an virgin sand. However, because the sand is part of an industrial process where there is 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 legitim acy of the recycling process. EPA’s Response : EPA disagrees with this comment. In the first place, the Agency is not reopening its hazardous waste regulation. EPA’s identification of the legitimacy criteria is based on the record for today’s action, and does not address hazardou s waste. In any event, the discussion of foundry sand contamination, even though it would be a hazardous waste w ithout application of the legitimacy criteria for that rule, presents what appears to be a vastly different recycling situation. In this rule, co mbustion will result in releases to the air. This is why the rule calls for restrictions on burning. The foundry sand example is a closed loop system and is not implicated by contamination problems that releases lead to th e atmosphere. We would also note that in a March 28, 2001 letter from Elizabeth Cotsworth, th en Director of the Of fice 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 th e thermal processing of sand, which would be a combustion unit, and would be more equivalent to a scenario that is addressed in today’s final rule.
Comment :

114 A copy of this letter can be found in the docket to today’s rule.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

184 of 360 Commenters argued that processi ng of off-spec used oil is cont rary to the goals of energy efficiency and wise resource utilization. They argued that the rule should continue to allow/follow the rules set forth in 40 CFR 279.11 as it pertains to used oi l as a viable and not discarded fuel. That is, if off-sp ec used oil is blended with virgin oil or on-spec used oil to meet the 40 CFR part 279 used oil specs, the resulti ng oil should be considered a legitimate fuel product. Other commenters argued, however, is that when these materials are distilled into fuel, they are still wastes, regardless if they have been blended or processe d to obtain an on-spec material. Wastes are always wastes and th eir status cannot be changed through simple processing. EPA’s Response : We do not agree with commenters that this is contrary to th e goals of the EPA, namely the protection of human health and the envir onment. 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 allo w, the processing of off-spec oil to create onspec oil as per 40 CFR 279.50, which states that pr ocessing “includes, but is not limited to: blending used oil with virgin petroleum produc ts, blending used oils to meet the fuel specification, filtration, simple distillation, chemi cal or physical separation and re-refining.” There is nothing in today’s rule that would change this requirement. We also disagree with commenter s that processing of off-sp ec used oil into on-spec used oil still renders it a waste. EPA’s regulations at 40 CFR 279.11 st ate that, once oil is determined to be on-specification in accordan ce with the regulations in Part 279, the used oil regulations do not apply to the material. On-sp ecification used oil is for all intents and purposes the same as oil*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

185 of 360 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 bur n them under CAA section 112, along with other on-spec used oil. Comments base this determination on the elimination of leaded gasoline. Commenters also supplie d studies to support this assertion. 115 EPA’s Response : The regulations promulgated today do not address provisions for space heaters. EPA intends to conduct further inves tigations of used oil for use in space heating equipment. However, the data provided in the comments indicat es 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 traditi onal fuel). This does not allow us to make a broad classification that, because only a small portion of used oil is o ff-spec, used oil can be generally classified as on-spec. On the other hand, the data in the st udies submitted by commenters indicate that used oil obtained from small, private automobiles serviced by DIYers and auto repair shops will be on-spec, which would not be a solid waste.
Comment : Many commenters stated that th ere are numerous auto repair shops that use used oil to fuel their space heaters, which do not (or woul d not likely) meet the air pollution controls required by the CAA section 129 standards. The co mmenters argue that such auto repair shops

115 See documents EPA-HQ-RCRA-2008-0329-0799; EP A-HQ-RCRA-2008-032 9-1273.1; EPA-HQ-RCRA-2008- 0329-1686*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

186 of 360 will no longer be able to use off-spec used oil in their space heaters if off-spec used oil is determined to be a solid waste. Moreover, commenters assert that auto repair shops will likely not want to take on the additional burden of testing the us ed oil to determine if it is on-s pec in order to use some portion of the material in their space he aters without having to comply w ith 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 indi viduals who remove their own used oil (do-ityourselfers, or DIYers) as they have no incentive to take the DI Yers oil, which may lead to DIYers illegally disposin g 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 wast e. 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 dete rmined to be on-spec by “performing analyses or obtaining copies of analyses or other informa tion 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 re siduals section for fuels (Sec tion V.B.9); for a discussion regarding the use of these non-hazardous secondary materi als as ingredients, see the coal combustion residuals section for ingredients (Section V.C).*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

187 of 360 Coal refuse refers to any by-product of coal mining or co al cleaning operations. Coal refuse is generally defined by a minimum ash c ontent combined with a maximum heating value, measured on a dry basis. Coal refuse consists primarily of non-combustible rock with attached coal that could not be effectively separated in th e era in which it was mined. Due to advances in coal preparation technology over th e past century, the processing of coal has evolved such that materials that are now generated in the coal mi ning process, which would have been considered coal mining rejects in the past and discarded in waste piles, ar e now handled and processed as coal. In the early twentieth centu ry, coal preparation involved simp le size segregation into lump coal for domestic use and intermediate-sized coal for industrial use. Coal fines were considered unfit for use and were disposed of as mine 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 se paration and froth flotation. 117 Thus, the proposed rule differentiated between co al refuse that is cu rrently generated and coal refuse that was generated in the past and placed into “legacy” piles. The proposed rule considered coal refuse that is currently generated and used as a fuel as not being abandoned or disposed of and, therefore, is not considered a so lid waste. On the other hand, the proposed rule stated that coal refuse placed in legacy pile s has clearly been discarded, thus meeting the definition of a solid waste material. With regard to coal refuse from legacy piles, the proposed rule described the processing of this non-hazard ous secondary material as involving separation through the use of screens or grizzlies, blen ding, crushing, or drying. Although we understand that virgin coal is similarly processed, the propo sal stated that the Agency believes that such

117 See National Research Council of the National Academ ies (NRC), “Coal Research and Development,” 2007, accessed on May 14, 2008 at: http://www.nap.edu/catalog.php?record_id=11977 . See generally “Materials Characterization Paper on Coal Refuse,” a copy of which is included in the docket for today’s rulemaking.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

188 of 360 operations would constitute “minimal processing” and would not meet the processing definition, as proposed. Thus, under the proposed rule, coal refuse abandoned in legacy piles would be considered solid waste, as would the coal refuse that has been processed and used as a fuel in what was considered to be a mini mal set of sizing activities. The proposal also noted one commenter who contended that coal refuse contained elevated levels of mercury, chromium, and lead when compared to other coals. Because the proposal already determined coal refuse in lega cy piles to be a solid waste (discarded and insufficiently processed), we did not believe it was necessary to determine whether coal refuse from legacy piles would satisfy the contaminant legitimacy cr iterion. However, the proposed rule noted that although coal refu se can contain metals concentra tions that are higher than found in virgin coal, data also show that emissions levels from some facili ties burning coal refuse (namely those equipped with circ ulating fluidized beds (CFBs)) are lower than most existing pulverized coal utility boilers. For the proposed rule’s characteri zation of coal refuse, see 75 FR 31865-6. Accordingly, the Agency seems to have f aced a dilemma in deciding how to treat the “legacy” piles. This dilemma was reflected in the comments, described below, which shows an inherent illogic in treating coal refuse generated from mining opera tions today and used as fuel differently from coal refuse mined from the “leg acy” piles, which seem to be no different.
Comment : Responding to EPA’s request for comment rega rding whether other fuels in use today should also be classified as trad itional fuels, several commenters argued that coal refuse should be considered a traditional fuel, regardless of when generated, as it has been used as a fuel for approximately 30 years. Citing the preamble to the proposed rule, commenters stated that EPA*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

189 of 360 recognized that “changes in technology and in the energy market over time may result in additional secondary materials bei ng economically viable to be used as ‘traditional’ fuels,” and that the advancement of technology, specifically the advent of circulating fluidized beds (CFBs), has allowed coal refuse to be used as fuels for decades. 118 Thus, these commenters reason, it is most appropriate to consider coal re fuse to be a traditional fuel. EPA’s Response : We begin by recognizing that we have several difficulties in dealing with coal refuse. We are faced with a statute that places limits on the Agency’s ability to cover “discarded” material. Case law indicates that a material ma y not lose its waste status merely because it has value. As technology advances, material that has been a waste may be no different from material that may today be used as a product. EPA, in fact, has no jurisdiction to consider as wastes currently mined coal that was formerly “refuse. ” 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 constrai ned by the statute. Coal refuse is unique, however, from othe r non-hazardous secondary materials addressed in this rulemaking, as it is generated in the proces s of producing fuels (i.e., the mining of coal for use as fuel) and its subsequent use and value as a secondary material is also as a fuel. Since the primary product of a coal mining opera tion is itself fuel, we consider coal refuse to be more akin to a raw material that is subse quently processed and utilized to produce a fuel. In other words, coal refuse is different from ot her non-hazardous secondary materi als, such as used tires or resinated wood residuals, in that it is generated in the pr oduction of fuel and can be used itself as a fuel (and in fact has never been used for anything else).

118 Referenced citation can be found at 75 FR 31856.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

190 of 360 The two materials that are used in major qua ntities today as valuable fuels, but have formerly been discarded are coal refuse and tires. A major difference between these two materials that EPA finds relevant is that the coal refuse in the legacy piles has never been used for anything else and is mined as fuel in the fi rst place. Tires, on the other hand, are originally produced for a use that is fundamentally different from its current use as a fuel. Cement kiln users do not ask tire manufacturers to produce tires for burning in the kilns. Coal, however, was never used for any other activity. It was mined years ago to produ ce a fuel, but may now be used itself as fuel. Therefore, coal refuse is fundame ntally different from tires, as well as the other non-hazardous secondary materials that are discu ssed in the preamble to this final rule. Responding to commenters that also noted that coal refuse has been used as a fuel for thirty years due to advances in technology, we find this informa tion useful, but not determinative in our analysis of whether or not coal refuse m eets our definition of a traditional fuel. However, the fact that coal refuse has been used and mana ged as a fuel for thirty years when coupled with the fact that coal refuse is uni que from other non-hazardous seconda ry materials in that it is a byproduct of the fuel production proce sses 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.” Ho wever, coal refuse that has been abandoned long ago in legacy coal refuse piles would not be cons idered a traditional fuel that is not subject to coverage and assessment in this rule, since it is cl early a material that has been discarded in the first instance. We note that other non-hazardous secondary materials have also been used as fuels for similar lengths of time or even longer, but would not be considered tradit ional fuels. We again emphasize that our decision to classify coal refuse as an alterative fuel is based both on the fact*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

191 of 360 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 ma terial 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 generate d is a traditional fuel. For clar ity, 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 cl ear that coal refuse abandoned in legacy piles has been discarded and managed as a waste. Our rationale for this di stinction between coal refuse that is currently generated and coal refuse that was placed in le gacy piles is further di scussed 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 fu el 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 consid ered a “fuel,” regardless of when the coal refuse is generated and urged EP A to eliminate the “false distinction” based on*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

192 of 360 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 defi nition in the regulation has nothing to do with when the coal refuse was ge nerated and should always be considered a fuel. EPA’s Response : We disagree with the comments contending that coal refuse placed in legacy piles should be characterized and regulated the same as coal refu se that is generated currently, as this fails to acknowledge that such coal refuse has been di scarded. As has been discussed, the statutory definition of solid waste turns on whether or not a material has been discarded in the first instance. Courts have consistently held that th e term “discard,” is to have the ordinary, plainEnglish meaning (i.e., “disposed of,” “thrown away,” or “abandoned”). As co al refuse placed in legacy piles have clearly been abandoned, we can not ignore the fact that these materials have been discarded in the first instance and, therefor e, do not agree with the contention that this construct represents a “false distinction.” The re sulting distinction may lead to results that some may find illogical, but we are faced with the defini tion of “discard” and the fact that the mere fact that discarded material may have value does not allow the material to lose its waste status. Although we recognize that all coal refuse is (and was) generated during the fuel production process and are more akin to raw materi als, coal refuse that has been abandoned in

119 “Coal means all solid fuels classified as anthracite, bituminous, subbituminous, or lignite by the American Society of Testing and Materials in ASTM D388 (incorpo rated by reference, see Sec. 60.17), coal refuse, and petroleum coke...” See 40 CFR§ 60.41b.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

193 of 360 legacy piles have not been historically used and managed as a fuel and therefore cannot be considered a traditional fuel. Because the tec hnology did not exist that could effectively make use of the fuel value of these materials at the time of their generation, they were managed as wastes and abandoned in legacy piles. While we believe that currently generated coal refuse should now be considered alternative fuels for th e reasons stated above, we cannot ignore that coal refuse that have been placed in legacy pi les have clearly been di scarded and, thus, unless these materials are “sufficiently processed” and satisfy all legitimacy criteria for fuels, these secondary materials would be considered solid wast es when burned as fuels in combustion units. Regarding the comments that argue th at EPA has previously defined coal to include coal refuse, we note that this information was helpful, but disagree the cited regulatory definitions control in this rulemaking. The cite d definitions, which are included in the standards of performance for new stationary source regulat ions, were developed pursuant to the CAA and do not address the issue of discard. Today’ s rulemaking is being promulgated under RCRA, which, as mentioned above, hinges on the whether or not the non-hazardous secondary material at issue has been discarded. EPA also reemphasi zes that the distinction is not between “fuel” and “waste,” but between fuel that is a co mmodity (not a waste because it has not been discarded) and waste fuel that has va lue, but is still a waste. In the same CFR sections cited by commenter s which define coal as including coal refuse, we note that coal refuse is defined as meaning “waste-products of coal mining, cleaning, and coal preparation operations (e.g., culm, gob, et c.) containing coal, matrix material, clay, and other organic and inorganic material” 120 and “any byproduct of coal mining or coal mining operations with an ash content greater than 50 pe rcent, by weight, and a heating value less than

120 See 40 CFR 60.41*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

194 of 360 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 distin ction 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 refu se to be within the definition of coal because it may now be used as coal, while at the same time, it may also be appr opriate to consider coal refuse to be a “wasteproduct” or “byproduct” of coal mi ning operations. EPA’s evaluati on that coal refuse that is currently generated and used as a fuel has neve r been discarded and should be considered an alternative fuel, while discarded co al refuse should be considered a solid waste, is consistent with these regulatory definitions.
Comment : Most commenters addressing the issue of proces sing coal refuse stated that coal refuse from legacy piles is processed th e same way as is virgin coal; that is, the processing of these materials includes the use of grizzlies, screens, and blending to improve the quality, remove metal objects, reduce the ash content, reduce the su lfur content, and reduce concentrations of various constituents. These comments maintained that this level of processing should satisfy EPA’s definition of “processing” because the proce ssing that occurs is designed specifically to improve the fuel quality and remove contaminants in the process (for example, metals that are removed with ash that is screened out). One commenter stated that it is illogical and problematic for EPA to propose a minimal level of processing that requires a dditional activities than are used to prepare virgin materials for use. This commenter provides the example of a company that recove rs coal refuse from previously discarded piles, screen the refuse to remove large pieces of slate and rock, conducts a

121 See 40 CFR 60.41b*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

195 of 360 chemical analysis to identify Bt u, ash, and sulfur characteristics, hauls the coal refuse to its preparation plant where it is cleane d just like mined coal, and then sold as is or blended with mined coal to meet contractual orders. Th is commenter argues that EPA did not provide adequate justification in the pr oposed rule for why this process would be insufficient to turn a once discarded non-hazardous secondary ma terial into a non-waste fuel product. Additionally, commenters noted that in the case of facilities burning coal refuse, regardless of whether it is generated currently or was placed in legacy piles, the engineering design of a CFB is based on the quality of the coal re fuse available to be burned in the boiler. In other words, considerations for use of the coal re fuse as a fuel precede facility construction and directly impact boiler design and ap plication. Therefore, coal refu se from legacy piles that is processed in this manner (i.e., in the same manner as currently ge nerated coal refuse) should not be considered a solid waste. EPA’s Response : As finalized in §241.2, the term “processing” is defined as meaning “any operations that transform discarded non-hazardous secondary ma terial into a non-wast e fuel or non-waste ingredient product. Processing includes, but is not limited to, operations necessary to: remove or destroy contaminants; significantly improve the fuel characteristics of the material, e.g., sizing or drying the material in combination with other ope rations; chemically improve the as-fired energy content; or improve the ingred ient characteristics. Minimal operations that result only in modifying the size of the material by shredding, do not constitute processing for purposes of this definition.” We believe that this definition encompasses an appropria te level of processing necessary to render a discarded mate rial into a non-waste product.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

196 of 360 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 co al 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 w ould be illogical to require a di fferent 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 th at 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 contamin ant data for coal refuse. However, some commenters acknowledged that coal refuse can have higher levels of some metals, but agreed with EPA that coal refuse is typically used as a fuel in newer boilers equipped with CFBs, which have emissions levels lower than most existing coal utility boilers. 122 One commenter stated that notwithstanding the higher metals co ntent of coal refuse, CFBs typically capture between 90-99 percent of mercury and other me tals. While most commenters noted that emissions levels associated with burning coal refuse are similar to those found when burning

122 CFBs ability to achieve lower emissions levels is due to several factors: (1) CFB bo ilers are often newer than many existing pulverized coal utility boilers and may be eq uipped with better particulate matter (PM) controls; (2) CFBs utilize lower operating temperatures, which result in lower metal and NOX emissions; and (3) CFB boilers often add limestone to their feed to control SO2 emissions, which results in greater fixation to the ash.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

197 of 360 virgin coal, one commenter did provide a comp arison in concentrati on levels of various contaminants between coal refuse and regional co al samples. A selection of the specific data provided by the commenter is re plicated in Table 5 below: Table 5. Comparison of Trace Metal Contents (ppm ) of Regional Coal Samples and Coal Refuse from Legacy Piles, as provided in comments on the NHSM Proposed Rule. Sample Description Sample ID Sb As Be Cd Cr Co Pb Mn Hg Ni P Se Coal samples from USGS database – Cambria, Indiana, and Somerset Counties, PA 123 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 c onsistently higher in the coal refuse samples than the regional virgin co al, which also indicates that the difference in concentration may be much closer than previously indicated in the preamble to the proposal. 124 Therefore, provided that coal refu se from legacy piles are suffic iently processed, this commenter asserts that coal refuse would pass the contamin ant legitimacy criterion and should therefore not be classified as a solid waste.

123 Coal sample data found in the U.S. Geological Su rvey—National Coal Resources Data System. For more information, see http://energy.er.usgs.gov/coalqual.htm ). 124 Data provided by the commenter indicated that the av erage chromium levels of coal refuse was 83.1 ppm, whereas the range of chromium levels for the regional virgin coal samples was between 2-65 ppm. The proposed rule noted that chromium levels of coal refuse can be up to four times higher than virgin coal.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

198 of 360 EPA Response : Regarding the contaminant levels in coal refu se in legacy piles, we agree with those commenters who acknowledged that coal refuse can have higher concentrati ons of some metals than is found in virgin coal. As noted in the proposed rule, at l east one commenter on the ANPRM contended that coal refuse could have up to four times more mercury and chromium, and three times more lead than virgin coal. 125 We note that this commenter did not provide primary sources for this data, a point which was raised by at least one co mmenter. We generally recognize, however, that available data show that coal refuse placed in legacy piles often has higher metals concentrations than non-refuse coal concentrations, but we would presume that the levels of contaminants are the same as in curren tly mined coal that would have been placed into these piles in the past. We also recognize th at contaminant levels will vary significantly depending upon the region and type of coal at issue. 126 As discussed above, we now believe that coal refuse that is currently generated should be considered an alternative fuel. On the other ha nd, coal refuse that is recovered and processed from the discard environment would need to pass th e legitimacy criteria in order to be considered a non-waste fuel. As coal refuse is recovere d 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 a ny potential contaminants at levels that are comparable to or lower than coal refuse that is currently generated. We would further note that the contam inant data provided by the one commenter demonstrates that there are also examples of co al refuse taken from legacy piles satisfying the contaminant legitimacy criterion when directly co mpared to contaminant levels in coal. Given

125 See 75 FR 31865. 126 See our Materials Characterization Paper on Coal Refu se, located in the docket for today’s final rule.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

199 of 360 the regional variations in coal compositions, the analysis is on point given the fact that the commenter compared similar regional coal refuse and virgin coal samples. Therefore, we agree with the commenter that there are instances when coal refuse would also satisfy the contaminant legitimacy criterion when compared to virgin coal as well. Finally, we would note that al though emissions comparisons ar e not a direct indicator of whether these materials satisfy the contaminan t legitimacy criterion, the emissions from CFBs that use coal refuse as fuel typically have lower levels of emissions than typical pulverized coal burners.
Comment: Several commenters contended that the manage ment of coal refuse at mining sites is already regulated under the Surface Mining Cont rol and Reclamation Act of 1997 (SMCRA) and that defining coal refuse as a solid waste w ould be inconsistent SMCRA . Specifically, some commenters point out that alt hough 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 materi als and products associ ated 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 cite d 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 remova l of coal refuse piles at mining sites. It does not address the issue of “discard,” which is critical to the defin ition of solid waste under*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

200 of 360 RCRA, and as such, which emission standards coal re fuse 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 form s that are categorized by the process in which they are generated. The pr oposed rule differentiated between CCRs (which include such secondary material s as fly ash, bottom ash, and boile r slag), that are currently generated from those CCRs that have been previ ously disposed of (such as, mined landfill ash) and are used as fuels in combustion units. U nder the proposed rule, currently generated CCRs that have not been discarded in the first instance and satisfy the legitimacy criteria would not be considered a solid waste when used as a fuel in combustion units pr ovided the CCRs were burned in units within the contro l of the generator. For exam ple, the proposal described a situation where curre ntly generated, high- carbon fly and bottom ash that is taken directly from existing boilers is burned within the control of the generator at pow er generating stations. On the other hand, CCRs recovered from landfills or othe r disposal units woul d clearly have been discarded in the first instance and would therefor e have to be sufficiently processed into a nonwaste fuel product and meet the legitimacy criteria in order not to be co nsidered a solid waste when used as a fuel.

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 co al-fired power plants (the “Coal Combustion Residuals Proposed Rule”). The proposed rule was published in the Federal Register on June 21, 2010. See 75 FR 35127. Today’s final rule does not affect that rulemaking effort , as our rule considers the us e of coal combustion residuals in combustion units as fuels or ingredients, while the coal combustion residual proposed rule is concerned with the safe disposal and management of these residuals in la ndfills and surface impoundments. For more information on the coal combustion residual proposed rule, s ee Docket ID No. EPA- HQ-RCRA-2009-0640. 128 For a discussion of CCRs used as ingredients, see Section V.C.2 of this final rule.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

201 of 360 The proposed rule also noted comments re ceived on the ANPRM describing patented processes that separate the carbon from the fly ash in order to produce a new fuel product. Although this level of processing appeared likely to meet the proposed definition of processing, the proposed rule solicited comment on how CC Rs are processed. The proposed rule also requested comment regarding the extent to which CCRs are recovered from the discard environment (e.g., landfills) and used as fuels. For the proposed rule’s discussion of CCRs used as fuels, see 75 FR 31865-6.
Comment : Most commenters argued that CCRs, when used in combustion units, should be classified as ingredients rather than as fu els. The commenters often conte nded that classifying all CCRs as ingredients would simplify waste determinati ons for these secondary materials by clearly establishing the appropriate legitimacy criteria that apply (i.e., facilities would not need to determine whether the fuel or i ngredient legitimacy criteria a pply based on the primary purpose of the secondary materials). Some commenters acknowledged, however, that CCRs can be combusted (e.g., by electric utilit ies) for energy recovery of carbon content or combustion in carbon burn-out (CBO) units for proce ssing marketable fly ash products. One commenter described CBO units, which they explained burn “unwanted carbon” from fly ash to produce a low-carbon fly ash that is more suitable for use as an ingredient in Portland cement, as being typica lly integrated with power plants. The CBO unit combusts fly ash from the power plant in a fluidized bed, extrac ts the residual energy content of the fly ash to fuel the CBO, and returns useful heat to the powe r plant. The commenter stated that the major equipment that comprises the CBO unit includes a fluidized bed combustor and heat exchanger to recover heat from the fly ash combustion. Th is same commenter described the heat generated*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

202 of 360 from the combustion of the carbon in the fly ash as “valuable” and is ty pically recovered from the CBO and used to heat the host plant’s c ondensate stream, which re duces the amount of extraction steam required. In reasoning that th is high-carbon fly ash s hould be considered an ingredient, however, the commenter notes that energy generated from burning the secondary material is of secondary importance to the pr oduction of the valuable low-carbon fly ash to be sold to cement kilns. EPA’s Response : We do not agree with commenters that all CCRs , when used in combustion units, should categorically be defined as i ngredients. As some commenters acknowledged, some CCRs are indeed used for their fuel value as opposed to th eir ingredient value, es pecially when re-burned, as in the case of their use in combustion units by electric ut ilities. Therefore, we cannot categorically classify CCRs as i ngredients when it is clear that, in some cases, these secondary materials are being burned for their fuel value an d/or to produce a new secondary material (i.e., low-carbon fly ash). In cases where the primary purpose of using CCRs is for their fuel value and not for the ingredient value (e.g., by electric utilities in utility boilers), the secondary materials must meet the requirements for fuels, including the legitimacy criteria, in order to 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 cont rol of the generator a nd meet the legitimacy criteria for fuels or be sufficien tly processed into a new fuel produc t in order not to be considered a solid waste. We note, however, that s ources may petition the Agency for a non-waste determination for secondary materials managed ou tside the control of th e generator, including CCRs. See Section VII.G. Regarding CBO units that burn high-carbon fly ash, creating both energy, as well as a*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

203 of 360 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 ingr edient, but is used to produce an ingredient. It is less clear, however, whether this activity repres ents a legitimate use of these secondary materials as fuels or should be considered a type of waste management. The commenter states th at burning of this fly ash in CBO units provides “valuabl e heat” and indicates that the en ergy 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 comment er also noted that the fuel value is “secondary” to its value as an ingredient and the CBO process as removing “unwanted carbon” from the fly ash, which may s uggest that the fly ash is being burned as a waste activity (i.e., the destruction of the unwan ted carbon in order to generate a marketable product). Unfortunately, from the comments received, we are not able to make a categorical determination whether or not the burning of fly ash in these units would constitute “discard,” as it is unclear whether the carbon is be ing destroyed or whether it is act ually used for its fuel value. In other words, the CBO unit is either "des troying" the carbon, which would make these materials a solid waste, or the carbon is being r ecovered and used as a fu el, in which case these materials would not be considered a solid waste provided they meet the le gitimacy criteria. While the CBO units are burning the ash to cr eate a marketable product, in so doing they 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 th an marginal energy value and can even be a source of additional power to an adjoining pow er plant. While we do not have sufficient information to make a categorical determination re garding the use of fly ash as a fuel in these*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

204 of 360 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 bur ned legitimately for its fuel value. As discussed in Section VII.H, we believe th at 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 dete rmine 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 consid er such a use to be legitimate. We emphasize, however, that mere destruction of the unwanted carbon would clearly represent discard and would by de finition fail the meaningful hea ting 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 definiti on of a legitimate energy recovery device. For a discussion of legitimate energy recovery devices, see the Re sponse to Comments on Sewage Sludge (Section V.B.10). If these units do not legitimately rec over energy, they would not meet the meaningful heating value criterion. See also Section VII.B, which discusse s the types of notification and recordkeeping requirements, including documenta tion as to how the non-hazardous secondary material meets the legitimacy criteria, that a faci lity using these secondary materials as fuels that remain within the control of the generator are subject to. Finally, we note that the resulting lo w-carbon fly ash would be considered a new secondary material, which would be considered an ingredient if it is late r used in the production of cement.
Comment: One commenter, a utility, stated that the proposed rule’s setting of minimum energy*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

205 of 360 content values for a secondary material to be used as a fuel and not be considered a solid waste (i.e., the meaningful heating value legitimacy crite rion) is inappropriate for the re-burning of fly ash when producing concrete quality fly ash, as the coal ash used for re-burn is selected based on its mineral content, combined with the mineralogy of the coal currently being used as a fuel. The fuel value of the fly ash is only one technica l consideration when in troducing coal ash in combustion systems for creating concrete quality fly ash and requiring a minimum heating value may restrict the use of high quality fly ash fo r use in concrete and other applications. EPA’s Response : We appreciate that the fuel value is only one of several considerations made when selecting fly ash for re-burn; however, in order fo r fly ash that is re-burned to not be a solid waste under today’s final rule, it w ould need to either remain with in the control of the generator and meet the legitimacy criteria for fuels, includi ng the meaningful heating value criterion, or, if discarded, be processed into a ne w, legitimate fuel product. So me commenters stated that the energy content of fly ash when burned is return ed as useful heat. Based on the comments received, however, it is unclear whether the fly ash in that inst ance would meet the meaningful heating value criterion, as these comments do not include enough inform ation about how much energy is being recovered from the use of these secondary materials as fuels. In order to not be considered a solid waste, the facility must de termine whether the fly ash meets the legitimacy criteria, including whether the fly ash has meaningf ul heating value and is used as a fuel in a combustion unit that recovers energy. We also note that we are not establishing a br ight line test for satisfying the meaningful heating value test. Rather, for purposes of meeting the legitimacy criteria for fuels, we would consider non-hazardous secondary materials with an energy va lue greater than 5,000 Btu/lb, as-*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

206 of 360 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 ener gy recovery unit can co st-effectively recove r meaningful energy from the non-hazardous secondary materials used as fuels. See Section VII.H.1 for a discussion of how non-hazardous secondary materials can satisfy the meaningful heating value criterion for fuels.
Comment : 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 la ndfills because it is being benefi cially used. One of these commenters described how one of its power plants re-burns coal ash that it receives from two other power plants that it also ow ns. This same commenter also not ed that it re-burns coal ash in one of its power plants that it has retrieved from an off-site landfill. EPA’s Response : As discussed in Section V.A.1, EPA is not making a sweeping arbitrary assumption in categorizing transferred secondary materials as discarded. Instead, EPA has evaluated whether certain categories of materials are discarded or no t. The Agency has not adopted the extremes of saying that all burning of secondary material, rega rdless of ultimate use, is waste treatment or that any secondary material that is recycled fo r legitimate fuel value is a commodity and not a waste. Wastes may have value, but are still wastes.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

207 of 360 Between these broad parameters, EPA has examined a number of specific materials, recycled on-site and transfe rred for recycling, and determin ed whether they would be appropriately placed within the waste or non-wast e categories. EPA would consider transferred non-hazardous secondary materials not to be wastes if it could make the appropriate findings for those categories. In fact, the Ag ency does so with respect to scra p tires harvested from vehicles and resinated wood residuals. Commenters discussing scrap tires and re sinated wood residual s, however, provided specific information regarding how these sec ondary materials were managed when they no longer remained within the contro l of the generator and the frequency with which these materials were collected and transferred off-site. For example, resinated wood residuals are routinely transferred between either intra- or inter- company facilities and used as either “furnish” (i.e., raw materials) or fuel at the receiving facilities. The material being transferred off-site is used and handled in the same manner that resinated wood residuals are used when generated on-site (such that it is impossible to di stinguish between materials that ar e being used as a raw material and those that are being used as a fuel). On the other hand, commenters discussing the us e of CCRs as fuels outside the control of the generator did so only in general terms. Co mmenters provided legal arguments that case law holds that transfer of such materials between co mpanies were irrelevant for determining whether a recycled material was properly viewed as a soli d waste. See Section V.A.1 for our response to these legal arguments on the issue of “transfer” as it relates to th e concept of discard. However, these commenters did not specify how the prop osed rule’s presumption that non-hazardous secondary materials that are used as fuels and are managed outside the control of the generator*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

208 of 360 are solid wastes was inappropriate for CCRs. In general, the D.C. Circu it has not accepted such presentations in “broad abstraction.” See ABR at 1056. Because commenters did not provide suffici ent information detailing how CCRs are managed when transferred outside the control of the generator, we are unable to determine whether such movement of CCRs outside the contro l of the generator is or is not indicative of discard. As such, we believe that such a determ ination 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 spec ific details in certain cases to know whether such non-hazardous secondary materials are or ar e 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 pow er plants it also owns, we belie ve that such a situation would fall within the definition of “with in the control of the generator,” as codified in §241.2. For the purposes of today’s final rule, “within the contro l of the generator” means that the non-hazardous secondary material is generated and burned in co mbustion units at the gene rating facility; or that such material is generated and burned in combus tion units at different facilities, provided the facility combusting the non- hazardous secondary material is cont rolled by the generator; or both the generating facility and th e facility combusting the non-hazardous secondary material are under the control of the same person. We have al so codified the definition of “control” as meaning the power to direct the policies of th e facility, whether by the ownership of stock, voting rights, or otherwise, except that contractors who operate facili ties on behalf of a different*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

209 of 360 person as defined in this section shall not be de emed to “control” such facilities. See §241.2. As the commenter states that it owns the other tw o plants, such intra-co mpany movement would ensure that the materials would remain within the cont rol of the generator and, therefore, such CCRs would not be considered a solid waste wh en 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 th e extent to which CCRs are mined from landfills (i.e., recovered from the discard envi ronment). One commenter asserted that it was unaware of any recovery of CCR from dis posal sites, while one another commenter acknowledged that while it could utilize recovere d landfill fly ash, it was not currently doing so. Still another commenter stated it removes CCRs fro m landfills and that such removal for either energy recovery or beneficial re use was facilitated by a regulato ry innovation program sponsored by the state and endorsed by EPA. Consequentl y, this commenter commonly re-burns coal ash that is recovered from landfills. This commenter notes that it has developed and uses patented processes to use this fly ash, but does not provide specific details regarding how these secondary materials are processed. EPA’s Response : It does not appear that it is a widespread practice for CCRs to be recovered from the discard environment (e.g., landfills) and beneficia lly used. However, from comments received both on the ANPRM and the proposed rule, it appears that at least some CCRs are being*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

210 of 360 recovered from the discard environment or coul d be recovered from th e discard environment— for example by the one commenter citing its pa rticipation in a state regulatory innovation program. Although we recognize the benefits as sociated with recovering CCRs from landfills, these non-hazardous secondary materials have clear ly been discarded in the first instance and would have to be sufficiently processed into a ne w fuel product (or ingredie nt product) to not be considered a solid waste when used in combus tion units. As we’ve stated elsewhere in the preamble, today’s final rule is limited to CCRs used as fuels or ingredients in combustion units. In other words, today’s rulemaking should not imp act other potential bene ficial uses of CCRs, such as using these secondary materials as a base material to replace stone or gravel under roads, parking lots and buildings.
Comment : EPA received comments on the ANPRM stating th at there are at least four patented processes for removing unwanted carbon from fly a nd bottom ash that allow the processed ash to produce both technically compliant ash for use in concrete and a separate carbon stream that can be re-introduced into the boiler for its fuel value. One electric utility, commenting on the proposed rule, also mentioned patented proce sses for using CCRs recovered from landfills. However, neither of these commenters provide d specific details regarding how the CCRs are actually processed. EPA’s Response : Unfortunately, EPA did not receive suffici ent information during the comment period describing the types of processes that CCRs undergo to be able to make a categorical determination whether the patented processes re ferenced in the proposed rule would meet the definition of processing being prom ulgated in today’s final rule. Although we did receive some*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

211 of 360 information regarding how CCRs are processed, we continue to believe, as we stated in the proposed rule, that certain opera tions are currently being utilized to recover CCRs from the discard environment that would likely meet our de finition of “processing.” For example, we are aware of at least one electric ut ility that recovers ash from ponds or landfills and then separates this secondary material into its fundamental components: carbon, silicates, and high-density, iron-rich materials. A coarse carbon-fuel produc t is then recovered by density separation using concentrating spirals. A fine carbon-fuel pr oduct is also recovered with flotation cells. 129 We believe that this type of proces sing operation is likely to meet our definition of processing, as it appears that these operations in fact remove cont aminants and improve the fuel characteristics of recovered CCRs. Consequently, CCRs recovered from the discard environment and then used as a fuel in a combustion unit would be a solid wast e, 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 re gulatory solid waste excl usion for sewage sludge when burned in incinerators in order to preser ve the current framework for regulating sewage sludge managed under section 405 of the Clean Water Act (CWA) and to avoid redundancy. When making the determination that sewage sludge is a solid waste when burned as a fuel in a

129 See “Materials Characterization Paper on Coal Com bustion Residuals-Coal Fly Ash, Bottom Ash, and Boiler Slag.” A copy of this document has been placed in the docket for today’s rule. 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 mate rial is a solid waste must occur prior to its placement in the combustion unit. To consider the burning of such materials as “processing” would be circular.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

212 of 360 combustion unit, the proposed ru le stated that the Domestic Sewage Exclusion (DSE) under RCRA (see 261.4(a)) does not apply to the sludge ge nerated from the treatment process and thus, sewage sludge is a solid waste if discarded. The proposed rule also noted that burning sewage sludge without energy recovery (i .e., burned for destruction) would constitute discard. Responding to commenters describing POTWs that re cover heat in the form of usable heat via waste heat boilers, the proposed rule stated that the Agency does not consider waste heat boilers to be legitimate energy recovery devices, bu t rather these combusti on units are burning the sewage sludge primarily for disposal purposes. Finally, the proposed rule stated that sewage sludge would likely not satisfy the contaminant legitimacy criterion, as data indicates that sewage sludge often contains meta ls at levels that are significan tly higher in concentration when compared to traditional fuels. For the proposed rule’s discussion of sewage sludge, see 75 FR
31866-7.
Comment : Several commenters argued that EPA has th e discretion to exclude or exempt sewage sludge from this rulemaking and should exercise th at discretion in order to preserve the current framework for regulating the burning of se wage sludge pursuant to 40 CFR 503 (Part 503), which codifies regulations developed under the authority of section 405 of the CWA. These commenters also note that EPA has a non-discretiona ry duty to consider all environmental laws to prevent duplication when promulgating regulations under s ection 1006(b) of RCRA and that deeming sewage sludge a solid waste to be re gulated under section 129 of the CAA violates EPA’s non-discretionary duty to harmonize environm ental laws because emissions from sewage sludge incinerators (SSIs) are already comprehensively regula ted under other statutes. EPA’s Response:*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

213 of 360 We agree with the commenters that sec tion 1006(b) requires EPA to integrate RCRA requirements with the requirement s of the CWA and the CAA, as well as other laws. Section 1006(b) also states that such integration shall be effected only to the extent that it can be done in a manner consistent with the goals and policies ex pressed in RCRA and in the other acts referred to in section 1006(b). Thus, while we recognize that emissions from SSIs have been regulated under other statutes, the purpose of today’s final rule is not to re gulate emissions from SSIs, but rather to determine whether sewage sludge is or is not a solid waste to allow the Agency to decide whether the material must be combus ted under emissions standards developed under section 112 or 129 of the CAA. Sewage sl udge is one of many non-hazardous secondary materials that are discussed and analyzed in this final rule. We also note that section 405( d)(5) of the CWA st ates that nothing in section 405 is intended to waive more stringent requirements established by the CWA or by any other law. This provision clearly states th at section 405 of the CWA does not preempt other regulation. Therefore, we believe today’s fi nal rule is consistent with th e goals and policies of RCRA, the CWA, and the CAA and thus, satisfies the requirements of section 1006(b).
Comment : 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 incine ration is strictly regulated unde r the CWA and that the current regulatory structure under both the CWA and secti on 112 of the CAA is effective and should not

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.”*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

214 of 360 be altered. EPA Response: Today’s final action is defining solid wa ste 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 positi on that the DSE applies to sewage sludge generated by POTWs and, therefore, stated that se wage sludge is exempted from the definition of solid waste under RCRA. Citing the preamble to the 1980 RCRA subtitle C regulations, at least one commenter stated that the Agency indicate d that once the to-be-developed regulation under section 405 of the CWA is promulgated, sewage sludge would be exempt from coverage under other sets of regulations. 132 The same commenter also cites the 1990 Petroleum Refinery Primary and Secondary Oil/Water/S olids Separation Sludge Listings Rule (1990 Listings Rule), which states “It should be noted that if wastewaters generate d at petroleum refineries are discharged to a POTW and such wastewater s are mixed with domestic sewage from nonindustrial sources, the sludge s generated in the POTW ar e covered under the domestic sewage exclusion and are not included in today’s listings.” 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 gene rated from the treatment process. EPA has long viewed sewage sludge generated from PO TWs as a solid waste, beginning with the 1980 Identification and Listing of Hazardous Waste rulema king. In that final rule, EPA stated that the DSE is “only applicable to non-dom estic wastes that mix with sani tary waste in a sewer system

132 See 45 FR 33102 (May 19, 1980). 133 See 55 FR 46364 (November 2, 1990) (Footnote 14).*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

215 of 360 leading to a POTW.” 134 In that same rule, EPA further sa id it decided not to exclude sewage sludge from regulation under RCRA, since the statutory expressions regarding the definitions of “solid waste” and “sludge” was clear. 135 We agree that the 1980 Identification a nd Listing of Hazardous Waste rulemaking referenced by the commenter states that on ce the regulations are pr omulgated under section 405(d) of the CWA, sewage sludge will be exem pted from coverage from “other sets of regulations.” The preamble continues, however, to state: “In particular sewage sludge that qualifies as a hazardous waste will be exempted from this Part [261] and Parts 262 through 265” once this program is promulgated under CWA section 405. However, this exclusion is specifically limited to RCRA subtitle C (i.e., hazardous waste), 136 and does not apply to the subtitle D program under RCRA. Regarding the citation from the 1990 Listings Rule , we believe this f ootnote is in error and is inconsistent with our historic interpretatio n of the scope of the DSE, as discussed both in the proposed rule and today’s final rule. We con tinue to believe that th e DSE does not apply to the sludge generated from the treatment process.
Comment : Several commenters stated that sewage sl udge 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 defin ition of “solid waste” specifically includes “sludge from a waste treatment plant.” In defining “sludge,” Section 1004(26A) includes wastes from a “ municipal wastewater treatment plan.” Because of these very clear statutory expressi ons, EPA must regulate sewage sludge under RCRA...” 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, an d thus, sewage sludge that exhibits any of the characteristics of hazardous waste must be manage d as a hazardous waste. S ee 45 FR 33102, May 19, 1980 where it states, “The Agency’s strategy for the development of a comprehensive sewage sludge management regulation will eventually result in the establishment of a separate re gulation. Once such a regulation is in place, sewage sludge will be exempted from coverage under other sets of regulations. . . .Pending promulgation of this comprehensive sewage sludge regulation, sewage sludg e will not be specifically excluded from Subtitle C.”*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

216 of 360 EPA should re-evaluate its description of this criterion. Commenters argued that EPA’s determination that waste heat boi lers do not qualify as combusti on units that recover energy is arbitrary and does not recognize th e significant value of waste heat boilers and their role in energy generation. One commenter, a regional sewe r district that estimated roughly 93 percent of its sewage sludge was “incinerat ed,” stated that four of its boilers had produced a total of 2.5 billion pounds of high pressure steam over a tw enty-five year span by converting the heat generated from burning sewage sludge in multiple hearth incinerators to high pressure steam. EPA Response : We continue to believe that most sewage sludge is burned not for energy recovery, but for destruction. Sewage sludge burned in an in cinerator 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 fo r providing energy in the form of steam for secondary processes, the presence of a waste heat boi ler 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 he at boilers as legitimate energy recovery devices because they receive their energy input fr om the combustion of off-gases via a separate combustion chamber. Under the RCRA program, a legitimate energy recovery device is one that meets the definition of a bo iler or an industrial furnace. 137 Among other criteria, a boiler’s combustion chamber and primary energy recovery sect ion(s) must be of in tegral 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, EP A Region IV, entitled, “Guidance on Determining When a Hazardous Waste Is a Legitimate Fuel That May Be Burned for Energy Recovery in Boiler or Industrial Furnace.” A copy of this memorandum is included in the docket for today’s rule. For definitions of “boiler” and “industrial furnace” under RCRA, se e 40 CFR 260.10.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

217 of 360 falls under the process heater or fluidized bed combustion exemption. Thus, a combustion chamber that is connected by a duct to a waste heat boiler (or recupera tor/heat exchanger) does not qualify as a legitimate energy recovery device. Unlike boilers, which are specifically designe d to recover the maximum amount of heat from a material’s combustion, waste heat recove ry units are designed to cool the exhaust gas stream, and/or to recover, indirectly, the usef ul heat remaining in the exhaust gas from a combustion unit that has some other primary purpose (such as an institutional waste incinerator). Thus, we continue to believe that sewage sl udge 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 contam inants (particularly metals) in sewage sludge, with a few commenters providing more recent c ontaminant data for sewage sludge than was available in the proposed rule and stated that this new data demonstrates that currently generated sewage sludge would meet the contaminant legitimacy criterion. 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 Nati onal 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 Bi osolids Partnership’s 2005 “National Manual of Good Practices for Biosolids,” and coal data taken from a 1 998 U.S. EPA report entitled, “Development of Comparable Fuels Specifications.” May 1998.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

218 of 360 Element 40 City Study (1982) National Sewage Sludge Survey (1988) Targeted National Sewage Sludge Survey (TNSSS) Coal Mg/dry kg Arsenic 9.9 6.7 6.9 10 Cadmium 69 6.9 2.6 0.5 Chromium 429 119 80 20 Lead 369 134.4 76 40 Mercury 2.8 5.2 1.2 0.1 Nickel 135.1 42.7 48 20 Selenium 7.3 5.2 7 1

Other commenters, however, agreeing that se wage sludge should be considered a solid waste, noted that sewage sludge tended to have higher contaminant levels than traditional fuels and should be regulated as solid waste when used as a fuel. Although not a part of the proposed definition of “contaminants,” some commenters noted the presence of pathogens in sewage sludge. EPA’s Response : The Agency appreciates the more recent a nd site-specific data provided by several commenters. We agree that in most cases, th e specific data provided by commenters indicates that contaminant levels for most contaminants is not as high as previous ly reported in the earlier studies. However, we note that the TNSSS data provided by commenters still indicates higher levels, and those that EPA would not consider to be “comparable” for most of the contaminants found in sewage sludge when compared to coal. Further, as discussed in Section VII.H.1, ba sed on comments received, we have modified our definition of “contaminant” to include path ogens, 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 in cineration of sewage sludge result s in the destruction of these*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

219 of 360 pathogens (as well as other emerging cont aminants, pharmaceuticals, and other trace constituents). Thus, under today’s final rule, we do not believe that sewa ge 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 rule making would have no regulatory effects or impacts for sewage sludge that is not incinerated (e.g., land app lication). On the other hand, one commenter requested that the Agency designa te sewage sludge as a solid wa ste regardless of the manner that it is managed for disposal (land application, su rface disposal, co-disposal in a municipal solid waste landfill, or incineration). EPA’s Response: We disagree with the one commenter who reque sted that this rulemaking define sewage sludge as a solid waste regardless of its end use (i .e., land application, surface disposal, etc.). In this final rule, EPA is articulating a frame work for determining whether a non-hazardous secondary material is or is not a solid waste when burned as a fuel or ingredient in a combustion unit; we are not making solid waste determinations that cover other possible end uses (e.g., land application of sewage sludge). It is the Agency’s view that th ese regulations should not dictate to state programs how to characterize and/or regulate this material (as well as any other nonhazardous secondary material), particularly sinc e EPA does not have authority to regulate the beneficial use of secondary materials under subt itle 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.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

220 of 360 11 . Processed Fats. Processed fats, including both animal fats a nd vegetable oils, can be turned into biofuels for use in industrial boilers. The proposal did not discuss the use of this non-hazardous secondary material or discuss its status as a fuel or waste under this rule. We did receive comments pertaining to its status, however.
Comment : Commenters have argued that processed fa ts are a traditional fuel as they are not discarded and are legitimate fuel products. Specif ically, they argue that th e use of processed fats as fuel has been used in industrial boilers for more than a decade, as evidenced by approval of the use of such fats as fuels in air permits fo r industrial boilers. The commenters also note that processed fats are a primary pr oduct of the rendering process and not secondary materials or byproducts, are derived from inedible animal produc ts, which are the primary products of value and sale of the meat industry and not a secondary ma terial or by-products, and are therefore not a solid waste since it or its primary feedstoc k have never been a wa ste or discarded. Processed fats also are managed as valuab le commodities and have meaningful heating value. They are managed similar to traditional oils, utilizing the same tanks, hoses, nozzles, and tanker trucks, and have a heat ing value of around 17,000 Btu/lb. 139 Processed fats, the commenters argue, also have a comparable comp osition to traditional fuel products. In fact, processed fats contain considerably less c ontaminants (e.g., <0.010% sulfur by weight, 0.022% ash by weight) and burn cleaner than many traditi onal fuels and derivatives (e.g., coal, oil, coal tar oil, asphalts, etc). The limited contaminant data that was submitted showed that processed

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,” Univ ersity of Georgia, Athens, GA.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

221 of 360 fats had less than 1 ppm of vanadium. Commente rs also stated that processed fats have fewer contaminants than No. 6 residual oil (2% sulfur co ntent), which will result in lower emissions of sulfur dioxide, nitrogen oxides, particulate matter, and carbon monoxide. Furthermore, they stated that processed fats also have lower emi ssions of sulfur dioxide, particulate matter and carbon monoxide, as compared to No. 2 distillate oil (0.5% sulfur content). However, no data was submitted to validate these statements. The commenters also note that the federal government has encouraged the development and use of materials, such as processed fats as a clean, renewable fuel that reduces dependency on petroleum oils. Since 2006, the us e of processed fats as fuel has been encouraged through the Alternative Fuel Mixture Credit (26 U.S.C. § 6426(e)). Although the proposed rule is intended to facilitate the use of certain materials that would otherwise be trea ted as waste by allowing them to be designated as non-hazardous secondary materials and burned as fuels, the net effect, with respect to processed fats, is the opposite. Rather than facilit ate the use of processed fats as fuel, the rule will effectively end the development of this market. This is because the end result under the rule as it currently is proposed is a requirement that each potential customer must petition and obtain EPA approval fo r each facility in which they wish to burn processed fats. The burden and delay of submitting to such a process will have a chilling effect on the development of new customers and markets for proce ssed fats as fuel. As a practical matter, this outcome is contrary to longstanding federal pol icy encouraging the de velopment and use of clean, renewable fuels in place of petroleum and other fossil fuels. EPA’s Response : We disagree that process fats are a traditi onal fuel. Process fats are secondary materials as they are produced from inedible parts of anim als that were primarily butchered for meat, not*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

222 of 360 for use as a fuel. We recognize, however, that these non-hazardous secondary materials contain lower concentrations of contam inants than traditional fuels 140 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 some times 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 developmen t of new customers and markets for processed fats, is not the case. Thus, the final rule esta blishes 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-hazard ous secondary materials that the Agency believes are currently being used as legitimate non-waste ingredients in combustion processes. The proposed rule then identified the four material groups for which we received the majority of the comments on the ANPRM. The four mate rial groups are CKD, CCRs, foundry sand, and blast furnace slag/steel slag. The proposed ru le did not assume that ingredients used in combustion units that are not mana ged within the contro l of the generator are discarded materials

140 See the Preliminary Characterization Study Prepared In Support of the Proposed Rulemaking –Identification of Nonhazardous Secondary Mate rials That Are Solid Waste: Traditional Fuels and Key Derivatives, EPA-HQ-RCRA2008-0329-0461.21 141 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., 160 o – 165 o 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.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

223 of 360 (as is the case for most non-hazardous secondary material fuels), sinc e we believe that nonhazardous secondary materials used as ingredient s in manufacturing processes are more akin to commodities managed within continuous commerce a nd are used as an integral part of the manufacturing process. That is, non-hazardous sec ondary materials that are directly used (or in the case of previously used mate rials, reused), function as eff ective substitutes (i.e., as raw materials) in normal manufacturi ng operations or as products in normal commercial applications, and thus, EPA has interpreted the definition of solid waste as ex cluding non-hazardous secondary materials recycled in ways that mo st closely resemble normal production processes, provided they meet the le gitimacy criteria. Besides the comments on specific non-hazardous secondary mate rials used as ingredients described below, we again note the overarchi ng comment that was rais ed by some commenters that the Agency has no authority under section 12 9 of the CAA to regulate the use of secondary materials as ingredients, as EP A’s section 129 authority is limite d to “solid waste incineration units,” which the statute defines as units that “c ombust” solid waste. As discussed in Section V.A of today’s final rule, we belie ve that this comment is not re levant to this regulation, which determines whether non-hazardous secondary materi al is a solid waste, or not under RCRA. We believe that EPA has clear au thority to interpret RCRA to decide whether non-hazardous secondary materials are so lid wastes or not. 1. Cement Kiln Dust . CKD is a fine-grained, solid, highly alkali ne material removed from the cement kiln exhaust gas by scrubbers. Much of the material comprising CKD is incompletely reacted raw material, including a raw mix at va rious stages of burning, and part icles of clinker. Generation of CKD is directly connected to the production of cement clinker. The proposed rule indicated*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

224 of 360 that CKD used in a cement kiln would not be considered a solid waste when used as an ingredient in a combustion unit, so long as it was not discarded in the first instance and satisfies the legitimacy criteria for ingredients. Whether CKD remains within the control of the generator or is transferred to another person is not in and of itself indicative of dis card, as discussed above. If CKD has been discarded, however, its use as an ingredient in cement kilns would be considered combustion of a solid waste, unless it has been processed to produce a non-waste ingredient.
Comment : 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 previ ously placed in storage piles or even permitted solid waste management units (SWMUs), the te chnology did not exist prev iously to reuse the material. However, newer kiln systems can now use the CKD that has previously been disposed of, and thus, these non-hazardous secondary materi als (which are ingredients in the manufacture of cement) should not be subject to the CAA section 129 standards. EPA’s Response : The commenter acknowledges that even though th e CKD has remained on-site, the intent or purpose of placing CKD in storage piles or SW MUs was to dispose of them (i.e., discard). Additionally, CKD that has been pl aced in storage piles in this manner would likely not meet the legitimacy criterion of “managed as a valuable commodity.” Thus, it would appear in this instance that CKD that has been placed in stor age piles for the purpose of disposal, even if onsite, has been discarded and would be considered a solid waste if burned in a combustion unit,*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

225 of 360 unless the discarded CKD is processed into a no n-waste ingredient product. CKD that has not been discarded in the first instance, however, an d 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 pr ocesses in power plants and industrial boilers, and are produced in vari ous forms (i.e., fly ash, bottom ash, and boiler slag) that are categorized by the process in which they are ge nerated. The proposed ru le indicated that CCRs used as ingredients in combusti on units would not be considered solid wastes, provided they were not discarded in the first instan ce and satisfy the legitimacy criteria. 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 ou r characterization that the primary use of CCRs in cement kilns is genera lly for their ingredient value, as opposed to their fuel value. The proposal also indicated th at when CCRs are used for th eir ingredient value, the transferring of these materials to another person would not in and of itself be indicative of discard. However, to the extent that CCRs have been discarded in the fi rst instance, they would have to be processed into a non-waste ingredie nt product and satisfy the legitimacy criteria in order not to be considered a solid waste. We also noted that comments were submitted on the

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 co al-fired power plants (the “Coal Combustion Residuals Proposed Rule”). The proposed rule was published in the Federal Register on June 21, 2010. See 75 FR 35127. Today’s final rule does not affect that rulemaking effort , as our rule considers the us e of coal combustion residuals in combustion units as fuels or ingredients, while the coal combustion residual proposed rule is concerned with the safe disposal and management of these residuals in la ndfills and surface impoundments. For more information on the coal combustion residual proposed rule, see Docket ID No. EP A-HQ-RCRA-2009-0640. 143 For a discussion of CCRs used as fuels in combustion units, see Section V.B.9 of this final rule.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

226 of 360 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 satis fy our processing requirement, we requested commenters provide additional information expl aining how this processing is conducted, and whether this type of fly ash is used as an i ngredient in the clinker production process. The proposed rule also requested comment on the ex tent to which CCRs are recovered from the discard environment (e.g., landfills) and used as ingredients in cement kilns, as well as more information on the extent to which these CCRs are processed. In addressing the commenter who submitted comments on the ANPRM and argued that CCRs are solid wastes due to their high concentration of contaminants, the proposal noted that the chemical properties of CCRs are influenced to a great extent by the co al burned, the type of combustion unit, and the air pollution controls applied. 144 Acknowledging that fly ash may contain various levels of metals, such as vanadi um, zinc, copper, chromium, nickel, lead, arsenic, and mercury, 145 the proposed rule noted th at in a 2008 Report to Congr ess addressing the use of these secondary materials as ingredients in cement and concrete a pplications, the overall conclusion reached with respect to the perceived safety health ri sk barriers was a positive one, in that the risk analyses did not identify signifi cant risks to human health and the environment associated with these uses. 146

144 For more information on the different types, or ranks, of coal, please refer to the Ma terials Characterization Paper on Traditional Fuels and Key Derivatives, which is located in the docket of today’s final rule. 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*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

227 of 360 The proposed rule also noted that the Agency is studying the possibl e effects of new air emission control technologies and configurations on the composition of CCRs and requested comment on whether advanced emission contro l technologies, such as carbon control technologies for mercury and NOx, are resulti ng or will result in increased levels of contaminants in coal ash to the extent that coal ash would not satisfy our legitimacy criteria.
Comment: Almost all commenters agreed that the primary purpose when using CCRs in cement kilns was to utilize these secondary materials as ingredients. Most comme nters further asserted that all CCRs, when used in combustion units, shoul d always be classified as ingredients rather than as fuels. (See Section V.B.9 for a further discussion on this comment and the Agency’s response.) These commenters claimed that any ener gy value that is recovere d is secondary to its value as an ingredient, and ar gued that classifying CCRs always as ingredients would simplify the waste determinations for thes e non-hazardous secondary materi als by clearly establishing the appropriate legitimacy criteria th at apply (i.e., facilitie s would not need to determine whether the fuel or ingredient legitimacy criteria apply based on the pr imary purpose of the secondary materials). Some commenters were also c oncerned that if cement k ilns burned high-carbon content fly ash (which has more pronounced fuel content), th e provisions of this rule applying to fuels would be triggered, even though thes e secondary materials have near ly identical characteristics, is managed in an identical manner, and is com busted in the same unit as the material used

et al), this study concluded that “Findings from [several cited] analyses did not identify significant risks to human health and the environment associated with the benefici al uses of concern. In addition, [EPA] identified no documents providing evidence of damage to human health and the environment from these beneficial uses. Our overall conclusions from these efforts, therefore, are that encapsulated applications, including cement and concrete uses, appear to present minimal risk.” Id . at 4-11.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

228 of 360 primarily as an ingredient (i .e., low-carbon content fly ash). EPA’s Response : EPA agrees with the commenters that the primary purpose when using CCRs in cement kilns is to utilize it as an ingr edient. However, we disagree w ith those commenters that argued that all CCRs, when used in combustion units, should be categorically defined as ingredients. As some commenters acknowledged (and as we also discussed in S ection V.B.9 above), some CCRs are indeed used for their fuel value as opposed to their ingredient value, especially when reburned, as in the case of their use in combustion un its by electric utilities. Therefore, we cannot categorically classify CCRs as ingredients when it is clear th at, in some cases, these nonhazardous secondary materials are being burned fo r their fuel value and/or to produce a new secondary material (i.e., low-car bon fly ash). In cases where th e primary purpose of using CCRs is for their fuel value and not for their ingredie nt value (e.g., by electric utilities), the secondary materials must meet the requirements for fuels, including the legitimacy crit eria, in order not to be considered a solid waste. With respect to the issue of high-carbon fly ash burned in cemen t kilns, it is not clear the extent to which cement kilns burn high-carbon fly ash or rather if commenters were providing a hypothetical situation in order to highlight potential issues th at could arise for secondary materials that could have value as both a fuel and ingredient. It is also unclear whether lowcarbon fly ash is required as a subs titute ingredient in Portland cemen t or if cement kilns can also use high-carbon fly ash for its ingredient value. To the extent that these kilns are burning these secondary materials for their fuel value as oppos ed to their value as an ingredient, these secondary materials would be subject to the re quirements for non-hazardous secondary materials used as fuels promulgated in today’s final rule.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

229 of 360 We note other commenters who describe processes for removing unwanted carbon from fly ash in order to produce concrete quality fl y ash (lower carbon content), which could suggest that cement kilns that burn high-carbon fly ash may be using these secondary materials for their fuel value, as well as their ingredient value. These commenters, however, discussed instances where fly ash was used as a fuel only in regard s to its use in utility boilers and CBO units— where there is clearly not an ingred ient value, as is the case with burning fly ash in cement kilns.
Comment : EPA received comments on the ANPRM stating th at there are at least four patented processes for removing unwanted carbon from fly a nd bottom ash that allow the processed ash to produce both technically compliant ash for use in concrete and a separate carbon stream that can be re-introduced into the boiler for its fuel value. One electric utility, commenting on the proposed rule, also mentioned patented proce sses for using CCRs recovered from landfills. However, neither of these commenters provided specific details regarding how CCRs that are recovered from the discard environment are actually “processed.” One other commenter discussed a two-stage process to maintain low carbon content, but was not aware whether the material was used for concrete or clinker pr oduction. Another commenter argued that the same processes used for currently generated fly ash to separate high-carbon ash from mineral ash could be applied to reclaimed fly ash and pr oduce similar secondary ingredients. This commenter argued that the processes produce two mate rials that are chemically distinct from the reclaimed fly ash and should therefore sa tisfy our proposed processing requirement. EPA’s Response : Unfortunately, EPA did not receive informa tion during the comment period describing the types of processing that discarded CCRs undergo prior to being used as an ingredient in a*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

230 of 360 combustion unit and are, thus, unable to make a categorical determination whether the patented processes referenced in the proposed rule w ould meet the definition of processing being promulgated in today’s final rule. Although we did not receive new information regarding how CCRs are processed, we continue to believe, as we stated in the proposed rule, that certain processes are currently being ut ilized to recover CCRs from the discard environment that would likely meet our definition of “processing.” For ex ample, 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 hi gh-density, iron-rich materials. A coarse carbon-fuel product is then recove red by density separation using c oncentrating spirals. A fine carbon-fuel product is also rec overed with flotation cells. 147 We believe that this type of processing is likely to meet our definition of proc essing, 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 rega rding the extent to which CCRs are recovered from the discard envi ronment and used as ingredients in cement kilns. We received a few comments regardi ng the extent to which CCRs are mined from landfills (i.e., recovered from the discard enviro nment). Most of these comments did not specify, however, whether these recovered CCRs were subse quently used for their fuel or ingredient value. EPA’s Response : Based on the comments, it does not appear that it is a co mmon practice for CCRs to be recovered from the discard environment (e.g., land fills) and beneficially used. We respond to

147 See “Materials Characterization Paper on Coal Com bustion Residuals-Coal Fly Ash, Bottom Ash, and Boiler Slag.” A copy of this document has been placed in the docket for today’s rule.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

231 of 360 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 techno logies are resulting or will result in increased levels of contaminan ts in CCRs, one commenter stated that there was no credible way to know or anticip ate this information. Another commenter agreed, stating that there is no data and no way to predict the result of new or future technology on the character of fly ash because of the use of advanced pollution control technology. This commenter also notes that there is no current information available that has proven that advanced emission control technologies directly result in in creased contaminant levels. One state commenter, however, stated that it ex pects the mercury content of coal fly ash to increase significantly in upcom ing years. Consequently, this state commenter described its current efforts to remove a generic, pre-determin ed beneficial use determ ination for coal fly ash as an ingredient in cement manufacturing. A dditionally, another commenter stated that when using the CBO process to combust fly ash, esse ntially 100 percent of th e mercury entering the CBO unit as feed ash leav es with the product ash. EPA’s Response: We agree with commenters who stated that it is difficult to anticipate what contaminant levels in coal fly ash will result from implemen tation of future technologies. We also believe, however, that it is important to be studying a nd anticipating the possibl e effects of new air pollution control (APC) technologies and confi gurations on the composition of CCRs to the greatest extent possible. As noted in th e proposed rulemaking, EPA has begun publishing a*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

232 of 360 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 re duction, and activated carbon inj ection to capture mercury and other pollutants) are shifting mercury and other po llutants (e.g., metals) from the flue gas to fly ash, FGD gypsum, and other APC residues. The Ag ency will continue to research the possible effects of APCs on contaminant levels in fly ash. We note that under toda y’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 ge nerated by the metal-casting industry, which uses the sand to form a physical mold used in the production of metal products. After multiple uses in castings, the sand becomes unsuitable for cas tings and is either dis posed of in landfills or beneficially used in other appl ications, including use as an in gredient in the manufacture of Portland cement. The proposed rule classified foundry sand as not being a solid waste when used as an ingredient in a combustion unit, so long as it was not discarde d in the first instance and satisfies the legitimacy criteria for ingred ients. Whether foundry sand remains within the control of the generator or is tr ansferred to another person is not in and of itself indicative of

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 – Leachi ng and Characterization Data.” EPA-600/R-09/151. December 2009. Ongoing work to comple te this research includes: (1) pr obabilistic assessmen t of the leaching source term for plausible CCR management scenarios, (2) Leach-XS Lite which is free software providing electronic access to data from this re search, and (3) test methods for th e Leaching Environmental Assessment Framework (LEAF). 149 We also note that CCRs used as fuels must also meet the contaminant legitimacy criterion in order not to be considered solid waste.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

233 of 360 discard, as discussed previousl y. If foundry sand has been di scarded, however, it would be considered a solid waste, unless it has been processed to produce a non-waste ingredient.
Comment : We received a few comments regarding th e characterization of foundry sand in the proposed rule. One commenter discussed how f oundry sand is reused in the metal casting process as part of its argument that foundry sand should not be considered a solid waste, citing a 2001 letter from EPA which indicated that foundr y sand reused on-site within the sand loop for mold making is part of a continuous industria l process and, therefore, not a solid waste. 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 return ed to the mold- and core-making process. Commenters also discussed a variety of other benefi cial uses for foundry sand. EPA’s Response : The foundry sand uses evaluated as part of th is rulemaking only include their use as an ingredient in combustion, such as cement kilns. We do not consid er the reuse of foundry sand in the metal casting operations to constitute the use of a non-hazardous secondary material either as a fuel or ingredient in a combustion system, but rath er as a type of benefici al use that is routinely employed by foundries in the production of metal pr oducts. As we stated in the referenced 2001 letter, we continue to believe that foundry sa nds 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 therma l 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 th is 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.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

234 of 360 that the purpose of “processing” foundry sand in a thermal reclamation unit is to destroy or dispose of the contaminants so that the foundr y sand can be re-used. As such, the burning of foundry sand in a thermal reclamat ion unit is burning for discard and, thus, would be considered a solid waste if combusted in such a unit, which would be subject to the section 129 CAA standards. Regarding comments that discussed other beneficial uses of foundry sand, we again note that this rule is limited to situations wher e the non-hazardous secondary material is used as a fuel or ingredient in a combustion unit and, as such, other examples of using foundry sand in other applications is beyond the scope of this ru lemaking. 4. Blast Furnace Slag/Steel Slag . Blast furnace slag and steel furnace slag (ste el slag) are by-products of iron and steel manufacturing in both iron and steel mills. Slags are used as ingredients in cement clinker manufacturing, bituminous concre te, road building and construction, among other beneficial uses. The proposed rule indicated that blast furnace and steel slag used as ingredients in combustion units that are not discarded in the first instance would not be considered a solid waste provided they satisfy the legitimacy criteria for ingredients. Whether blast furnace and steel slag remains within the control of the generato r or is transferred to a nother person is not in and of itself indicative of discar d, as previously discussed. Howe ver, if blast furnace and steel slag are in fact discarded in the first instance, then they would have to be sufficiently processed into a non-waste ingredient that satisfies the legitimacy criteri a in order to be classified as a nonwaste ingredient. However, we solicited co mments on the level of processing that these materials undergo before determining whether such operations would m eet our definition of processing.
Comment :*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

235 of 360 We received few comments specifically on bl ast furnace and steel slag. One commenter discussed the use of blast furnace slag as a ra w material substitute in the glass manufacturing process. Another commenter discussed how blast furnace and steel slag are typically returned to the iron and steel making processes and are not discarded in the first instance. The same commenter also discussed slag piles that were pr eviously discarded and the processing that these non-hazardous secondary materials go through. Specifically, such processing includes extraction, passing the slag through grizzlies, rem oval of iron bearing scrap using magnets, and then screening to size the aggreg ate. Some commenters also asse rted that because these slags are reused as part of a continuous process, the applicati on of the legitimacy criteria are inappropriate. EPA’s Response : We agree with the commenters that blast furn ace and steel slag that are reused as an ingredient, either in the iron a nd steel making processes or in th e manufacturing of glass, are not solid wastes provided they have not been discarde d in the first instance and meet the legitimacy criteria. However, we disagree with the comm enters, who argued that because they are reusing these slags in a “continuous process,” the application of the legitimacy criteria do not apply. EPA has a long-standing policy that the recyclin g of secondary materials, both hazardous and non-hazardous, including as part of a continuous industr ial process, must be legitimate. The legitimacy provisions in today’s ru le are designed to distinguish be tween real recy cling activities and “sham” recycling, an activity undertaken by an entity to avoi d certain requirements, which in this case would be to avoid triggering th e section 129 CAA requirements for solid waste incinerators. Because of the economic adva ntages in managing the non-hazardous secondary material as a non-waste ingredient as opposed to a solid waste ingredient, there is an incentive for some handlers to claim they are recycling, whe n, in fact, they are conducting waste disposal.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

236 of 360 Therefore, blast furnace and steel slag used as an ingredient in a combustion unit, including as part of a continuous industrial pr ocess, must satisfy all of the le gitimacy criteria in order to not be considered a solid waste. Regarding the description provided by th e commenter on the extent of processing conducted on slags that have been previously di scarded, it appears that this level of processing would meet our definition of pr ocessing, as the processing includes not only rigorous operations to extract the slag from the discard environment, but also the concerted removal of constituents through magnetic separation. Assuming the proce ssed slag meets the legitimacy criteria for ingredients, the slag resulting from the pro cessing operation would constitute a non-waste ingredient and would not be considered a solid waste. D. Comments on Legitimacy Criteria for Fuels Non-hazardous secondary materials used as fuels in combustion units must meet the legitimacy criteria specified in §241. 3(d)(1) in order to be consider ed a non-waste fuel. To meet the fuel legitimacy criteria, the non-hazardous secondary material must be managed as a valuable commodity, have a meaningful heating value and be used as a fuel in a combustion unit that recovers energy, and contain contaminants at le vels comparable to or lower than those in traditional fuels which the combustion unit is de signed to burn. Details on each criterion as outlined in the proposed rule and the comments received are discussed below. 1. Managed as a Valuable Commodity. Under the proposed rule, non-hazardous sec ondary materials used as fuels must be managed as valuable commodities, including being stored for a reasonable time frame. Where there is an analogous fuel, the secondary material used as a fuel must be managed in a manner consistent with the management of the analogous fu el or otherwise be adequately contained so as*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

237 of 360 to prevent releases to the envi ronment. Where there is no anal ogous fuel, the secondary material must be adequately contained so as to prevent releases to the e nvironment. An “analogous fuel” is a traditional fuel for which the non-hazardous secondary material substit utes, and which serves the same function and has similar physical and chemical properties as the non-hazardous secondary material. n addition to requesti ng comment on this criteri on, the Agency solicited comment on whether it should defi ne a specific “reasonable” time fr ame or range of time frames for storage as part of this criterion and on the ti me 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 pe rformance 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-haza rdous 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 r easonable time frame of storag e of secondary materials is impractical and arbitrary, since th e definition of what is “reas onable” 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 va ry depending upon the non-hazardous secondary material and the industry and may reflect the rate at which the non-hazard ous secondary material at issue is generated. If a non- hazardous secondary material is generated continuously, then use*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

238 of 360 and storage is predictable and can be kept consistent. However, some non-hazardous secondary materials are stored for long periods and ma y be removed only once or twice per year. While many commenters rejected the idea of a specific storage time limit, a limited number were supportive of such an approach. For example, one commenter recommended that no more than 180 days of inventory using the desi gn process rate be stored at any given time and no more than 49 percent of the inventory be in st orage for more than 2 years. These time frames allow the energy/material recovery facility a reasonable amount of time to make arrangements to establish, buy, and sell the non-h azardous secondary material. Other commenters recommended a time frame of one year, consistent with th e hazardous waste requirements for speculative accumulation. EPA’s Response : After further evaluation, EPA agrees with th e majority of commenters that “reasonable time frame” should not be specifically defined as such time frames vary according to the nonhazardous secondary material and industry involved. We believe that “reasonable time frame” is an appropriate standard consid ering the large number of non-h azardous 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 informa tion 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 incl uding specific technical standards or limiting the*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

239 of 360 types of units in which such non-hazardous seco ndary materials may be managed, in order for them to be considered to be “m anaged as a valuable commodity.” Several commenters recommended that the de finition of “contained” be clarified and to include the concept of maintain ing 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 no n-hazardous secondary mate rials and that further specific definitions or other approaches would not be beneficial sin ce the current guidance provides clear and sensible direction. Others commented that the “contained” standard is inadequate to determine whether a material is “valuable” or dis carded. They argue that the st andard does not explain what adequately contained means nor does it account for differences in th e necessary level of containment for different materials. EPA’s Response : The Agency recognizes that the “contained” concept can be somewhat difficult to grasp, but also notes that the “contained” standard is to be used only in those situations where there is not an analogous fuel product. That is, if ther e is an analogous fuel pr oduct to the non-hazardous secondary material, then the non-hazardous seconda ry material must be stored in a similar manner. In EPA’s view, a recycler will valu e non-hazardous secondary materials that are contributing fuel value to its process or produc t and, therefore, will manage those non-hazardous secondary materials in a manner consistent with how it manages a valuable fuel. If, on the other*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

240 of 360 hand, the recycler does not manage the non-hazardous secondary materials as it would a valuable fuel, that behavior may indicate that the non-h azardous 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 analo gous raw material. However, EPA realizes that in some processes, there is not a raw material that can be ca lled “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 material s 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 regulato ry text. Specifically, a non-haza rdous 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 finalizi ng the contained standard, as proposed. Nevertheless, the Agency recognizes that pr oviding greater clarity to this definition may be useful to the regulated community and the pu blic. To this end, EPA has agreed to issue a proposed rule by June 2011 on the definition of solid waste under the hazardous waste provisions of RCRA (see Section VIII.C for additional deta ils). One of the issues that EPA will be evaluating as part of that propos al is the “contained” standard, as promulgated in that rule. 152
Comment :

152 In a Federal Register notice where EPA announced a publ ic meeting on the Definition of Solid Waste under the hazardous waste provisions of RCRA, we specifically identified the defini tion of “contained” as one of the provisions that EPA was further evaluating. (74 FR 25202, May 27, 2009.) Among other things, the Agency noted that it could “address this issue by setting specific performa nce or storage standards as a condition of the transferbased exclusion. Finally, EPA could address this concer n by developing more detailed guidance on what might constitute “contained,” for different types of units or management practices.”*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

241 of 360 Several commenters expressed uncertainty a bout the meaning of “valuable commodity,” noting that the definition of valuable commod ity should be clarified, or requested that EPA specify clear criteria for determining whether a non-hazardous secondary ma terial is managed as a valuable commodity. EPA’s Response : Given the nature of this legitimacy criterion and the need to apply it to a variety of nonhazardous secondary materials that are manage d 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 ad equately contained; contained is defined to mean “the non-hazardous secondary material is st ored in a manner that both adequately prevents releases or other hazards to human health a nd the environment consid ering the nature and toxicity of the non-hazardous secondary material .” 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 criter ion will apply to a large number of non-hazardous secondary materials and industries. An exampl e of adequate containment is resinated wood residuals that are pneumatically transferred thro ugh enclosed ducts, stored temporarily in a fuel silo, and then utilized in boilers to provide heat to hot presse s and dryers (see Section V.B.6). Regarding the term “valuable commodity,” EPA’ s intent with this criterion is that nonhazardous secondary materials are managed in th e same manner as materials that have been purchased or obtained at some cost, just as fuel s or raw materials are. We expect non-hazardous secondary materials that are used as fuels or ingredients to be ma naged effectively and efficiently in order that their full value to the combustion pro cess is realized. We believe that the standard*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

242 of 360 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 V II.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 mana ged consistent with the management of an analogous ingredient and used within a reasonab le time frame) are irrelevant because solid wastes are managed in ways similar to commodi ties (i.e., solid wastes and solid commodities are stored in piles on the ground, liqui d wastes and commodities are stor ed in tanks and barrels). Another commenter asked that EPA provide clarity on managing a non-hazardous secondary material as a valuable commodity and the kinds of practices a facility must implement to demonstrate that it is managing the non-hazardou s secondary material as a valuable commodity. EPA’s Response : We disagree with the commenter that this criterion is irreleva nt because we do not believe (nor does our experience suggest) that solid wastes and commodities are always managed in a similar manner. Commodities, on the one ha nd, are handled specifica lly to prevent the loss of material because of its value. Solid wast es, on the other hand, when they are not highly regarded for a beneficial reuse, are often not ma naged in a way that mini mizes the release of the material itself, but more in a way that protect s the surrounding environmen t from the material. However, we also know that solid wastes, if not properly managed, have created damages to the*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

243 of 360 environment. For example, the over-accumulation of scrap tires is well known and has resulted in massive piles of discarded ti res that have contributed to th e overall solid waste management problem due to the threat of fires, su ch as the Rhinehart Tire Fire Dump, 153 and because they provide an ideal breeding ground fo r mosquitoes and rodents. Thus, the final rule will retain the pro posed approach that non-hazardous secondary materials used as a fuel must be managed in a manner consistent with the management of an analogous fuel (where there is an analogous fuel), or otherwise be adequately contained so as to prevent releases to the environment. 2. Meaningful Heating Valu e and Use as a Fuel. Under the proposed rule, the non-hazardous secondary material must have a meaningful heating value and be used as a fuel in a combus tion unit that recovers en ergy. In addition to requesting comment on this criterion, the Agency also requested comment on whether it should promulgate a bright-line test for determining what is considered a meaningf ul heating value in an effort to provide greater certainty to both the re gulated community and regul atory officials. For example, the Agency could establish 5,000 Btu/lb or some other value as the bright-line test. In addition, EPA requested comment on whether we should identify a Btu/lb cutoff below which the Agency would declare that the non-hazar dous secondary material is being burned for destruction as opposed to energy recovery. Under this approach, non-hazardous secondary materials between this lower le vel and 5,000 Btu/lb (assuming ther e is a difference) could pass this criterion provided the fac ility demonstrates the energy re covery unit can cost-effectively recover meaningful energy from the non-hazardous s econdary materials used as fuels; below this

153 See 51 FR 21054, June 10, 1986.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

244 of 360 lower level, all non-hazardous secondary materials that are burned in a combustion unit would be considered to be burned for destruction a nd thus a solid waste if combusted.
Comment : Many comments related to the establishment of a Btu threshold claimed that any heating value is “meaningful.” Other commenters expr essed opposition to the imposition of a bright-line test, with one commenter arguing that inflexible Btu/lb cutoffs, as well as "benchmark" values could prevent utilities and othe r industries from using altern ative fuels to recover energy. Another commenter echoed oppositi on to a bright-line test sin ce the use of a non-hazardous secondary material with any heat ing value reduces the use of fo ssil fuels, indicating that any value for the bright line test w ould be arbitrary and would result in costly impacts to current production systems and would stifle technologic al advancements in combustion unit designs. Other commenters stated that a minimum heating value, below which the non-hazardous secondary material would not be considered to ha ve a meaningful heating value will restrict the marketplace, hamper advances and innovation in energy recovery, and add costs where they are not justified from an environmental standpoint. If the EPA insists on a minimum heating value, they recommend including a cost effectiveness provi sion in the rule that w ould enable facilities to demonstrate the value of using a material below this threshold. Commenters from state agencies differed somewhat in their positions regarding the 5,000 Btu/lb threshold. Two state agen cies requested that EPA lower the minimum Btu threshold from 5,000 Btu/lb to 4,000 Btu/lb, but an other State agency supports th e 5,000 Btu/lb threshold. Still another state commenter recomme nds that if EPA establishes a lower threshold, below which the non-hazardous secondary material w ould not be considered to have a meaningful heating value, that this value be based on innovation in energy recovery technologies fr om secondary materials*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

245 of 360 with lower heating values. Due to the continuing evolution of energy reco very technologies, this commenter argues that EPA should include a "safe harbor" cut-o ff level in the rule with a provision for case-by-case approvals based on th e most current proven technology. Another commenter recommends that if such a lower thre shold is established, that it be based on the high moisture content of wood products that preven t these materials from reaching the minimum 5,000 Btu/lb threshold. EPA’s Response : After further evaluation, the Agency agrees with commenters that imposition of a strict bright-line test for minimum heating value co uld hamper advances and innovation in energy recovery, and add costs where they are not just ified. 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 legiti macy criterion. As discussed in the proposed rule, th e concept of a 5,000 Btu/lb benchmark was addressed in the “comparable fuels” rule (63 FR 33781) for hazardous secondary materials. EPA had previously stated that industrial furnaces (i.e., cement kilns and industrial boilers) burning hazardous wastes with an energy value greater th an 5,000 Btu/lb may generally be said to be burning for energy recovery; how ever, hazardous wastes with a lower Btu content could conceivably be burned for energy re covery due to the devices’ gene ral efficiency of combustion. EPA, however, is trying to avoid sham situati ons where non-hazardous secondary materials with low Btu value are burned for destru ction in lieu of proper disposal. The 5,000 Btu/lb limit is a general guideline, whic h is being adopted in this final rule, but allows some flexibility. To allow such flexibi lity for facilities with energy recovery units that use non-hazardous secondary materials as fuels w ith an energy content lower than 5,000 Btu/lb,*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

246 of 360 as fired, a person may demonstr ate (see Section VII.I Determining That Non-Hazardous Secondary Material Meets the Legi timacy Criteria) that a meani ngful heating value is derived from the non-hazardous secondary material if the energy recovery uni t can cost-effectively recover meaningful energy from the non-hazardous secondary materials used as fuels. Factors that may be important in determining whethe r an energy recovery uni t can cost-effectively recover energy from the non-hazardous secondary material include, but are not limited to, whether the facility enco unters a cost savings due to not ha ving to purchase significant amounts of traditional fuels they otherwise would nee d, whether they are purch asing the non-hazardous secondary material to use as a fuel, whether the non-hazardous seconda ry material they are burning can self-sustain combustion, and whether th eir operation produces ener gy that is sold for a profit (e.g., a utility boiler th at is dedicated to burning a specific type of non-hazardous secondary material that is below 5,000 Btu/lb coul d show that their opera tion produces electricity that is sold for a profit). 3. Have Contaminants at Comparable Levels or Lower Than Traditional Fuels. Under the proposed rule, non-hazardous seconda ry materials must contain contaminants at levels comparable or lower than those in traditional fuels which the combustion unit is designed to burn. Such comparison is to be ba sed on a direct comparison of the contaminant levels in the non-hazardous secondary material to the traditional fu el itself. Contaminants were defined under the proposal as any constituent in non-hazardous secondary materials that will result in emissions of the air pollutants identifi ed in CAA section 112(b), and the nine pollutants listed under CAA section 129(a)(4) when such seconda ry materials are burned as a fuel or used as an ingredient, including those constituents that could generate products of incomplete combustion.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

247 of 360 The Agency specifically solicited comme nts on how EPA should interpret the “comparable to or lower than” standard. For ex ample, should comparable mean the same as or lower, taking into consideration natural variations in sampling even ts? Also, instead of requiring that contaminant levels in non-hazardous secondary materials be comparable to traditional fuels, the Agency also requested comment as to wh ether to adopt a “not significantly higher” standard—that is, contaminants in non-hazardou s secondary material used as a fuel in combustion units could not be significantly high er in concentration than contaminants in traditional fuel products. The Agency also solicited comment on wh ether the comparison should be based upon the total level of contaminants, or on the level of contaminants per Btu of heat value, whether the list of contaminants should be narrower or broader, or whether the Agency should look at other possible lists. For example, since the Agency is determini ng which non-hazardous secondary materials are considered solid waste under RCRA, the Agency could consider the list of hazardous constituents promulgated in Appendix VIII of 40 CFR part 261, which is a list of hazardous constituents that have been shown in sc ientific studies to have toxic, carcinogenic, mutagenic or teratogenic effects on humans and other life forms. Finally, comment was solicited as to whether the comparison should be base d on an established “b right line” level of contaminants to those contai ned in traditional fuels.
Comment : Several commenters addressed the “compara ble” standard and the “not significantly higher” standard. Many of these comments stat ed that “comparable” should be understood to mean “similar, higher or lower,” not “equal” or the “same.” Commenters also requested that EPA clarify the definition of “comparable” and specifically requested that EPA explain the*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

248 of 360 concept in greater detail. Of the comments that expressed a preference for either the “comparable” or “not significantly higher” standar d, most preferred the latter, stating that it is more consistent with the approach used by EPA for hazardous wast e in the 2008 DSW Final Rule and would not discourage beneficial use as much as the “comparable” standard. Two other commenters argued that instead of using a “not significantly higher” standard, the total environmental impact of using a non-hazardous mate rial should be considered. For example, a non-hazardous secondary material may be lower in all contaminants, except one that may be considered higher than “comparable,” but the overal l impact is beneficial in terms of less total contaminants and improved emissions. Other commenters offered suggestions on how to interpret “comparable,” but also on how to implement the “comparable” standard. For example, “comparable” should refer to the traditional fuel that would be used if the non-h azardous secondary material was not being burned or allowed to be burned. Another commenter believed that the “comparable” standard should only be used as an initial step to determine if the material is a legitimate fuel. For example, where a material has high levels of a low-impact contaminant or a contam inant is controlled by the emission control device in th e incineration unit, there should be a process to see whether the material can still be considered a fuel. Sim ilarly, another commenter also recommended using the “comparable” standard as an initial determin ation step, with the “not significantly higher” standard being used as a secondary determinatio n step in some situations. These situations would primarily be when there is a low-impact contaminant without environmental, health, or product quality impacts present in concentrations above those found in traditional raw materials. EPA’s Response :*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

249 of 360 EPA has retained the legitimacy criterion that non-hazardous secondary materials used as a fuel must contain contaminants at levels that are comparable to or lower than the concentrations found in traditional fuels which the combustion unit is designed to burn. The “comparable to or lower than” standard mean s any contaminants present in non-hazardous secondary materials that are within a small acceptable range, or lower than, the contaminant 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 legi timacy criterion than the phrase “not significantly higher,” which suggests that contaminants can be present in non-hazar dous secondary materials at levels that could reflect discard, especially since we ar e addressing non-hazardous secondary materials that are being combusted. EPA recognizes that combustion is an inherently destructiv e process, even when energy is recovered. If a non-hazardous secondary ma terial contains contaminants that are not comparable to those found in traditional fuels, and those contaminants are related to pollutants that are of concern at solid wast e combustion units, then it follows that discard is occurring. The contaminants in these cases could not be cons idered a normal part of a legitimate fuel and are being discarded, either through destruction in the combustion un it or through releases into the air. Units that burn such materials are ther efore most appropriatel y regulated under CAA 129 standards for solid waste incinerators. In response to those commenters requesti ng further guidance on how to interpret the “comparable to or lower than” standard, the following examples are provided.

• A non-hazardous secondary material contains 500 parts per million (ppm) of lead, while the traditional fuel that would or could be burned in the combustion unit contains 475 ppm of lead. These levels would be consider ed comparable (since it falls within a small*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

250 of 360 acceptable range) and thus, would meet this fact or. If, on the other ha nd, the level of lead in the non-hazardous secondary material was 1,000 ppm, these levels would not be comparable and it may indicate that the non- hazardous secondary material was being burned to dispose of the material and th at the activity is sham recycling.

• A traditional fuel contains no detectable amounts of barium, while the non-hazardous secondary material contains a minimal amount of barium (e.g., 1 ppm). In this situation, the levels would be considered comparable si nce it falls within a small acceptable range. If, however, the barium were at much highe r levels in the non- hazardous secondary material (such as 50 ppm), the levels woul d not be comparable and it may indicate discard of the barium and sham recycling EPA does not agree with those commenters who suggest that in eval uating the constituent concentrations in non-hazardous secondary materials, that the total enviro nmental impact should be considered rather than comparing each constitue nt to levels found in traditional fuels. Under such an approach, a non-hazardous secondary material may be judged not to present an environmental problem when assessing all contam inants together, althou gh significantly higher levels for one or more contaminants may be pres ent such that they are destroyed or discarded by means of combustion This, we believe, is inc onsistent with the concep t 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 contaminan ts to ensure that they are present in the non-hazardous second ary material at levels that ar e comparable to (or lower than) the concentrations found in tr aditional fuels that the combus tion unit is designed to burn.
Comments :*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

251 of 360 Many comments discussed whether contaminan ts, and their concentrations in the nonhazardous secondary material, should have any bearing on the legitimacy determination for a given non-hazardous secondary material. Many of these commenters expressed opposition to using contaminants, and their concentrations in the non-hazardous secondary, as a basis for legitimacy decisions. Some of these commenter s argued that comparing contaminant levels would impose an unnecessary burden on emissions s ources that are already stringently controlled under the CAA regulations. Other comments indi cate that it would be more appropriate to compare emissions profiles from the combustion un its rather than contaminant levels in the nonhazardous secondary materials themselves using the CAA section 129 pollutant list and the 112 HAP list. Referring to existing stack testing data and 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, et c) on a single kiln system under normal operating conditions suppor ts the same conclusion.” States offered a range of comments on this issu e. One state contends that using the list of contaminants in CAA section 129(a)(4) is in adequate because it does not address all heavy metals or organic hazardous air pollutants. A nother commenter argued that while section 112 of the CAA and Appendix VIII of 40 CFR part 261 woul d be impractical if parameter testing was required, the Appendix VIII list of constituents in 40 CFR part 261 would serve as a useful starting point for eval uating different issues relate d to those contaminants. Other commenters suggested that EPA narrow th e list of contaminants considered in the legitimacy criteria. One commenter recommends th at those constituents that contribute to the secondary material’s value as a fuel be exclude d from the contaminant list. Another commenter*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

252 of 360 states that the list of contamin ants should be limited to only th e subset of HAPs and pollutants listed in CAA section 129 that have the potential of being present in th e emissions from burning the non-hazardous secondary materials. Broade ning the list and requiring the evaluation and analysis of more constituents would be unneces sary and a waste of resources. The commenter, therefore, recommends that the lis t of contaminants be limited to only those pollutants found in section 112 of the CAA. Furthermore, this co mmenter argued that organic HAP do not need to be included in the legitimacy criteria because the rule is inte nded to define which non-hazardous secondary materials are non-wastes, as opposed to which HAP emission standards should be developed. The commenter furthe r notes that the Boiler and Process Heater MACT will ensure that the organic HAP ar e properly controlled. EPA’s Response : EPA is defining the term “contaminant,” in pa rt, (see discussion of pathogens below), as constituents that will result in emissions of th e air pollutants identifie d in CAA section 112(b) and the nine pollutants listed under CAA secti on 129(a)(4))when such no n-hazardous secondary materials are burned as a fuel or used as ingr edients, including those constituents that could generate products of in complete combustion. . EPA believes that these c onstituents are appropriate for the comparisons required by this criterion because these are the contaminants iden tified in the CAA that are to be considered by EPA in evaluating which contaminants to establis h emission standards. Thus, we disagree with those commenters who believe that the list s hould be narrowed, including the commenter who argued that those contaminants that contribute to the material’s va lue as a fuel be excluded from the list of contaminants, as well as all orga nic HAP since they will be burned during the combustion process. Because EPA is to consider these contaminants as part of the CAA*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

253 of 360 regulations, we believe they s hould also be considered in determining whether non-hazardous secondary materials that contain these contaminan ts are being discarded, and thus, subject to the section 129 CAA standards. We also disagree with the commenter w ho 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 Appe ndix VIII is to be used by the Agency to make hazardous waste listing determinations (see 40 CFR 261.11(a)(3)) a nd the chemicals in Appendix VIII would not apply to non-hazardous wastes. Finally, we disagree with t hose commenters who argue that we should not be considering the contaminants in the non-hazardous secondary ma terials themselves as part of the legitimacy criteria, but, if considered nece ssary, compare the emissions profiles from the combustion units. . We believe that in order for a non-hazardous sec ondary material to be considered a non-waste fuel, it must be similar in composition, wher eas comparing the emissions profiles between combustion units that burn tradit ional fuels and non-hazardous sec ondary 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 :*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

254 of 360 Although not specifically commenting on the le gitimacy criterion for contaminants or the type of contaminants listed in the contaminant de finition, 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 pathogen s in certain varieties of chicken litter (see discussion of manure in Section V.B.2). Pathoge ns 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 seco ndary material is a solid waste are those identified in CAA section 112(b) and the nine po llutants listed under CA A 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 ingr edients, including those constituen ts 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 discus sed in IV.D.4) ” . Pathogens are organisms or substances capable of causing disease, and can infect humans through several different pathways including ingestion, inhala tion, and dermal contact. 154 EPA is not aware of any situation where pathogens in the non- hazardous secondary material would provide energy reco very or be used as an ingredient—that is, we believe that pathogens in such non-hazardous secondary mate rials 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.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

255 of 360 because non-hazardous secondary materials that contain pathogens could cause disease and infect humans and wildlife if not properly bur ned, we believe it is appropriate to include pathogens on the list of contaminants to cons ider in addressing th e legitimacy criteria.
Comment : Some commenters believed the approach of measuring contaminants per Btu was more scientifically sound, while one commenter argued th at comparisons of contaminants should focus on the loading of contaminants to the process rath er than concentrations, which they believe is similar to measuring contaminants per Btu in ingr edients. For example, the commenter indicates that coal fly ash is utilized in place of bauxite in cement manu facturing. Because coal fly ash may contain only 20 percent of the alumina foun d in bauxite, the process requires five times more coal fly ash than alumina for a given quantit y of cement product. Under this scenario, even if coal fly ash contains a mercury concentration comparable to bauxite, the loading of mercury to the combustion unit would be five times higher than that if traditional feedstock was used. The commenter maintains that the rule should be ch anged to require a comp arison of loading rates rather than concentrations.Another commenter argues that any comparison between contaminant levels in the nonhazardous secondary material and contaminant le vels in traditional fuels should consider the entire characteristics of the material. Some non-hazardous secondary materials may have high concentrations of some constituents and low concentr ations of others, relative to traditional fuels. Thus, decisions regarding legitimacy will not 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 ma terials, solid waste determinations which requires a comparison, should allow for such variability in a reasonable*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

256 of 360 manner. The commenter supports the method th at looks at constituent concentrations (e.g., percent by weight or ppm by weight) as a reas onable approach that limits the impact of variability, whereas using lb/MMBtu compounds th e impacts of variability. Since either the Boiler/Process Heater MACT or CISWI rule will adequately limit emissions from combustion of 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 ra nge of material loading scenarios. At this time, however, the Agency lacks sufficient lb/MMBtu information for all non-hazardous secondary materials under consideration. Accordi ngly, this approach is not being adopted for today’s final rule. As guidance is developed for implementation, a lb/MMBtu approach may be further considered. Thus, in today’s final 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-h azardous secondary material to the contaminant levels in traditional fuels base d on the total level of contaminants, and not on contaminants per Btu of heat value. We belie ve 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 th e materials. Again, such as approach would suggest that contaminants can be present in non-hazardous s econdary materials at levels that are not*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

257 of 360 comparable in concentration to those contai ned in traditional fuel products, resulting in contaminants being combusted as a means of discarding them.
Comment : Commenters disagreed about whether to impl ement a bright-line test for contaminants. One commenter supports the delineation of contamin ant levels that would apply regardless of the type of traditional fuel burned, while anothe r commenter maintains th at it would not be appropriate to compare contaminant concentrat ions between non-hazardous secondary materials and traditional fuels based on a bright line approac h. Another commenter states that the need to classify non-hazardous secondary materials as wa ste or non-waste may dictate the need for a bright line test rather than emissions testing fr om combustion units, given that emissions controls and limits are established in permits. Other commen ters also disagreed with the establishment of a bright-line level comparison, with one commente r objecting to the establishment of any other contaminant level comparison, arguing that such a comparison would provide no benefit to the regulated community and arbitr arily assigns levels of cont aminants without accounting for differences in materials and/or facilities. EPA’s Response : EPA recognizes that the “bri ght line” approach may pr ovide greater clarity and predictability to the regulated community, but that in both case s, the Agency would have to establish a line for what is acceptable and the line may either be somewhat arbitrary or it may exclude materials that, if carefully considere d, should be considered legitimate. Based on the comments received on those approaches, we are convi nced that they would not be workable. On the other hand, case-by-case comp arisons by each person evaluating this legitimacy criterion can take into account the wide variety of non-haza rdous secondary materials, as well as the*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

258 of 360 appropriate traditional fuel to wh ich it is being compared. Because this factor must apply to various different recycling activit ies and industries, we believe th e case-by-case approach is most appropriate.
E
. Comments on Legitimacy Criteria for Ingredients In the proposed rule, non-haza rdous secondary materials us ed as an ingredient in combustion units must meet the legitimacy criteria specified in 241.3(d)(2) in order to be considered a non-waste ingredient. To meet the ingredient legitimacy criteria, the non-hazardous secondary material must be handled as a valuab le commodity, must provide a useful contribution to the production or manufacturing process, mu st be used to produce a valuable product or intermediate, and must result in products that contain contaminants at levels that are comparable in concentration to or lower than those found in traditional products that are manufactured without non-hazardous sec ondary materials. 1. Managed as Valuable Commodities. Because the criterion “managing as a valu able commodity” for non-hazardous secondary materials used as an ingredie nt (storage not exceeding reas onable time frames, manage it consistent with an analogous ingr edient or adequately contain to prevent release) are the same as those for non-hazardous secondary materials used as a fuel, EPA indicated that if changes are made to the criteria with resp ect to those non-hazardous secondary materials that are used as fuels, we would likewise make the same change s with respect to those non-hazardous secondary materials used as ingredients. We did solicit comments, however, on whether using these criteria for managing as valuable commodities (similar to th e type of criteria for fuels) are appropriate for ingredients.
Comment :*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

259 of 360 As discussed in the section on legitimacy crite ria for fuels, one commenter suggested that the criterion that a non-hazardous secondary mate rial be managed as a valuable commodity (determining if it is managed consistent with th e management of an analogous ingredient and used within a reasonable time fr ame) is irrelevant because soli d wastes are managed in ways similar to commodities (i.e., solid wastes and solid commodities are stored in piles on the ground, liquid wastes and commodities are stored in tanks and barrels). Another commenter requested that EPA provide clarity on mana ging a non-hazardous secondary material as a valuable commodity and the kinds of practices a facility must impl ement to demonstrate that it is managing the material as a valuable commodity. EPA’s Response : The final rule will retain the proposed appr oach that this legitimacy criterion for nonhazardous secondary material used as ingredients (i.e., that they must be managed as valuable commodities) will be consistent with that of fuels. As we noted previously, we disagree with the commenter that solid wastes and commodities are al ways managed in a similar manner. That is, commodities, on the one hand, are ha ndled specifically to preven t the loss of the material because of its value, 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 re lease of the material itself, but more in a way that protects the surr ounding environment from th e material. However, we also know that solid wastes, if not pr operly managed have created damages to the environment. Thus, non-hazardous secondary materi als 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 otherwis e be adequately contained so as to prevent releases to the environment. For example, non-hazardous secondar y materials that are used as ingredients in*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

260 of 360 cement kilns must be managed in a manner consis tent with the analogous ingredients that these secondary materials are replacing. An “analogou s ingredient” is defined as a manufacturing process ingredient for which the secondary mate rial substitutes and which serves the same function and has similar physical and chemical properties as the non-hazardous secondary material. Where there is no anal ogous 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 pr oposed rule states that a non-hazardous secondary material can add value and usefully cont ribute to a recycling pr ocess (based on criteria initially developed for hazardous secondary materi als): (i) the non-hazardous secondary material contributes valuable ingredients to a product or intermediate; or (ii) replaces a catalyst or carrier in the recycling process; or (iii ) is the source of a valuable cons tituent recovered in the recycling process; or (iv) is recovered or regenerated by the recycling process; or (v) is used as an effective substitute for a commercial product. The proposed rule stated that we believe that only items (i) and (v) are specifically relevant to our assessment of whether these non-hazardous secondary materials provide a useful contribution in co mbustion scenarios. We requested comment, however, on whether the non-hazardous secondary ma terials we are 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 :*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

261 of 360 The Agency was unable to identify, and commenters did not identify any other way a non-hazardous secondary material could contribute to the recycling proce ss, so the language in the final rule was not changed. The two ways to determine if the material provides a useful contribution are sufficiently flexible and will prov ide for accurate assessments. Thus, the final rule will continue to maintain that non-hazardous secondary materials contri bute valuable ingredients to a product or intermediate and that non-hazardous secondary materials are used as an effective substitute for a commercial product w ill be used to determine if a material provides a useful contribution as an ingredient. 3. Quantifying an Ingredient’s Contributio n to Production/Manufacturing Activity. Not all of the constituents or components of the non-hazardous secondary material have to make a contribution to th e production/manufacturing activit y. EPA solicited comments on whether the Agency should quantitatively defi ne how much of the non-hazardous secondary material must provide a useful contribution, or alternatively, the quantity of constituents or components in a non-hazardous secondary materi al there would need to be before the nonhazardous secondary material would not be co nsidered to provide a useful contribution.
Comment : Generally, commenters disagreed with the esta blishment of a quantitat ive definition as to how much of a material must pr ovide a useful contribution. On e state agency is opposed to a quantitative definition because the numbers will vary by non-hazardous secondary material. Similarly, another state comment er also opposed a nationwide definition or percentage stipulating what constitutes a “useful contribu tion” because of the different possible reuse processes that may vary in terms of the amount of material that is deem ed useful. One other commenter also objected to the establishment of any limits, but specifically commented on the*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

262 of 360 establishment of a quantitative definition. They explain that a given non-hazardous secondary material can have several usef ul components, but the ability to use those components is dependent on the available manufacturing proces s or technology type. This variation would make it difficult and inefficient to apply a ge neral quantitative rule of useful contribution. EPA’s Response : We agree with the commenters that qu antifying the amount that all non-hazardous secondary materials must contribute to a production/manufacturing activity would be a challenge, if at all possible, given the breadth and depth of ways that non-hazardous secondary materials may be used as ingredients in combus tion processes. As the non-hazardous secondary materials vary significantly in their character, composition and uses, trying to define useful contribution quantitatively would not, in our view , be practical. The complexities of defining “useful contribution” so that it can be determ ined through a bright-line test, and remain appropriate across industries, di fferent recycling processes, and a variety of recycled nonhazardous secondary materials are too great fo r the Agency to design in a simple and straightforward manner so as to be used in maki ng such determinations. In addition, legitimacy determinations are best made on a case-by-case ba sis, with the facts of a specific situation in hand. Thus, we have not defined a quantitative amount that non-hazar dous secondary materials must contribute. In general, the regulated community should look to typical industr y recovery rates in similar manufacturing processes to determine if the recycling recovery rates are reasonably efficient in terms of the ingredient making a us eful contribution to the recycling process or product. In addition, it should be noted that EP A would generally look at the quantity required, the duration, and the exte nt of processing, and/or the rate of recovery of the ove rall process, not*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

263 of 360 the recovery rate of a single step in the process, when analyzing this crite rion for legitimacy. For example, if one step in the process recovers a sm all percentage of the constituent, but the overall process recovers a much larger percentage, the Agency would consider the overall efficiency of the recycling process in dete rmining whether the non-hazard ous secondary materials are providing a useful contribution. This assumes that there is enough of the target constituent or component present in the non-haza rdous secondary materials to c ontribute meaningfully as an ingredient to the recycling process. In addition, the Agency is reiterating its l ongstanding position that not every constituent or component in a non-hazardous secondary materi al would have to contribute to a recycled product or intermediate or to the recycling process in order for there to be an overall contribution. Thus, we agree with commenters who raised questions about th is and have restated our position in this preamble to the final rule. . 4. Contaminants in Ingredients. The Agency requested comments on whether we should have a different definition of contaminants that applies specifically to ingredie nts. That is, since contaminant comparisons for the contaminant legitimacy crite rion apply to a comparison of products rather than to the nonhazardous secondary material, we requested comment on whether a di fferent list of contaminants should apply or whether we should generically defi ne contaminants to be constituents that may be a concern with respect to the product that is produced.
Comment : Commenters suggested that when compari ng the products derived from non-hazardous secondary materials and traditiona l raw materials, the Agency be mindful of the fact that the concentrations of contaminants can vary geogr aphically. In terms of cement production, a few*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

264 of 360 commenters said that the current stringent produc t standards effectively keep cement kilns from using contaminated ingredients. One state suppor ts the use of the same contaminant list for nonhazardous secondary material fuels and ingredient s, but notes that EPA should recognize that constituent concentrations for a given virgin fuel or feedstock can vary dependent on the geographic region of where it is produced. A nother commenter said that since all processes differ, the states should be a llowed to establish a petition pro cess for ingredients where industry can demonstrate that the higher contamination in a given non-hazardous secondary material will not result in harm to human heal th or the environment (i.e., th rough either risk assessment or handling restrictions). Another commenter argued that using the list of contaminants in CAA section 129(a)(4) is inadequate because it does not address all heavy metals or organic hazardous air pollutants. Still, another commenter sugge sted that although the CAA section 112 HAP list and the list of constituents in Appendix VIII of 40 CFR part 261 would be impractical if parameter testing was required, Appendix VIII of 40 CFR part 261 would be a good starting point for evaluating differe nt issues related to those contam inants. Finally, one state agency recommends the Agency develop a list of currently acceptable non-hazardous secondary materials used as ingredients for quick referen ce and develop guidance to assess materials not on the list. EPA’s response : EPA is defining the term “contaminant” to include constituents that may result in emissions of air pollutants identified in CAA section 112(b) and the nine pollutants listed under CAA section 129(a)(4)) when such non-hazardous secondary materi als are burned as a fuel or used as an ingredient, including those constituents that could ge nerate products of incomplete combustion. These constituents are appropriate fo r the comparisons required by this criterion*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

265 of 360 because these are the contaminants identified in the CAA that are to be considered by EPA in evaluating which contaminants to establish emission standards. That is, the contaminants to be considered in the legitimacy criteria should genera lly be the same that EPA is to consider in establishing emission standards. Thus, we disagr ee with the commenter who argues that this list is not broad enough because it does no t address all heavy metals or or ganic 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 V III 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 pathogen 155 is an organism or substance capable of causing disease, and can infect humans through several different pathways, including ingestion, i nhalation, and dermal contact. While this contaminant is not included in the C AA 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 presen t, 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 reco very or be used as an ingredient—that is, pathogens in such non-hazardous secondary materials would alwa ys 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.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

266 of 360 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 ag rees with the commenter s that variability in constituents exist between non-hazardous s econdary materials based on the source and geographic region that it may come from. Thus, su ch considerations can be taken into account in determining which contaminants to evaluate. Regarding the comments dealing with state program involvement, EPA’s response to these co mments is described in Section IX. “State Authority.” Finally, with respect to the comm enter who requested that EPA develop a list of acceptable non-hazardous secondary materials that are used as ingredients for quick reference and develop guidance to assess non-hazardous seconda ry materials on this list, we have made some general conclusions throughout the preamb le on which non-hazardous secondary materials when used as an ingredient in a combustion proc ess would generally meet the legitimacy criteria. Persons may also refer to the various Materials Ch aracterization Papers that are in the docket to today’s rule. However, each person will need to confirm that such non-hazardous secondary material ingredients meet the legitimacy criteri a and provide documentation, as required in the CAA rules. 5. Comparing contaminant levels in products. EPA requested comment on whether, instead of requiring that contaminant levels in products manufactured from non-hazardous secondary material ingredients be comparable in concentration than those found in traditional pr oducts, that the Agency adopt a criterion under which contaminants in the product could not be significantly higher than found in the traditional products that are manufactured withou t the non-hazardous secondary material.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

267 of 360 Comment : A number of commenters disagree with th e contaminant comparison criteria for nonhazardous secondary material ingredients to the final product. One commenter asserts that EPA should not use the term “contaminant” in connecti on with the legitimacy criteria for ingredients. Instead, the Agency should refer to constituents that may actually be a co ncern with respect to the product that is produced. The same comment er also recommends that the “toxics along for the ride” criterion only should be considered and not required, a nd that the Agency should adopt a “not significantly higher” sta ndard. Also, while the Agency should retain the focus of the “toxics along for the ride” crite rion upon products, that criterion shoul d refer to constituents that may actually be a concern with respect to the products that ar e produced and should not use the defined term “contaminant.” Other commenters oppose any limits on contaminan ts in ingredients. It was argued that portland cement is manufactured to meet stri ct chemical and performance specifications under such organizations as ASTM and the American Association of State Highway and Transportation Officials (AASHTO). Thes e specifications dictate, to a large degree, the ingredients that can be used in cement manufacturing. There are a wide range of raw materials and fuels that can be used to meet cement manufacturing quality objecti ves. The levels of contaminants in these traditional raw materials and fuels can vary significantly. These variations occur within materials taken from the same source (e.g., single quarry) and also between different sources. For the purpose of comparing levels of contaminants f ound in non-hazardous secondary materials with levels found in traditional products, the non-hazardous secondary material contaminant should be allowed to be compared to multiple sources of the traditional raw materials that are available across the market to the facility. Such a comparison should be*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

268 of 360 allowed regardless of whether or not the traditio nal material is being us ed by the facility at the time of the comparison. Doing so would allow for the variability of constituent levels to be properly accounted for when going through the comp arison process. Variability needs to be considered because multiple sources of a single tr aditional material are typically available to a facility EPA’s Response : In today’s action, EPA is finalizing this crite rion as a part of the legitimacy requirement because it is essential in determining whether a non-hazardous secondary material that is combusted is in fact being legitimately used or is essentially being dis carded—that is destroyed, in the name of legitimate recycling. EPA is al so retaining the requireme nt that the recycling process must result in products th at contain contaminants at leve ls that are comparable to (or lower than) concentrations found in traditional products that are manufactured without the nonhazardous secondary material. Establishing “compar able to or lower than” contaminant levels more closely reflects its intent that non-hazardou s secondary materials that are legitimately used must have levels of contaminants within a sm all acceptable range of those found in traditional products than the phrase “not sign ificantly higher.” (See Section V.D.3 for further discussion of this issue and EPA’s response.) With that said, we agree with those commenters who argue that there are a wide range of raw materials and fuels that can be used and that the level of contaminants in these secondary materials can also vary. Thus, for purposes of comparing levels of contaminants found in non-hazardous secondary materials to traditional products, a person can make that comparison with traditional raw materi als and fuels that come from multiple sources, provided such sources can be used in the combustion unit. Such a comparison, as the commenters argue, would account for the natural variabil ity that needs to be considered in*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

269 of 360 making such a comparison. With respect to the comment requesting that EPA change the word “contaminant” to “constituent” when referring to the legitimacy cr iteria, EPA is retaining the use of the word “contaminant” in this criterion as it has been defi ned in this rule and ac curately describes which individual constituents EPA is seeking to control in this criterion. The sel ection of that term was originally discussed in the ANPRM and was c hosen since it refers to the constituents in secondary materials that may be of a concern when burned as a fuel or used as an ingredient. Finally, EPA notes that industry specifications can be very useful in making a legitimacy determination and, in particular, in evaluating compliance with this cr iterion. However, EPA cannot rely solely on product spec ifications to cover all possible situations and is including the contaminant comparison between products as a cr itical part of the legitimacy requirement.
F
. Comments on Non-Waste Determination Petitions The proposed rule established a non-waste determination process that would provide persons with an administrative process for r eceiving a formal determination from the EPA Regional Administrator that non-h azardous secondary materials that are burned as a fuel in a combustion unit and have not been managed within the control of the gene rator, have not been discarded, and is indistinguishable in all relevant aspects from a fu el product is not a solid waste. This assumes all the criteria for the non-wast e determination at §241.3(c) are met. Industry and state agencies both submitte d a number of comments on the non-waste determination process included in the proposed rule. While many of these comments supported the idea of a non-waste determination process in order to include appropriate fuels, many commenters suggested that the pr ocess would be difficult to implement since the requirements are vague, and too resource intensive. Many comm enters did not want the process at all for*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

270 of 360 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 proce ss. The specific comments are de tailed below. The overview of the petition process is describe d in Section VII.G. The petiti on requirements in today’s rule are found at §241.3(c).
Comment : A large number of commenters (including ma ny from state agencies) argued that state agencies should be provided the authority to make non-waste determinations as part of the petition process. Some commenters suggested th at States be allowed to grant such petitions under their existing beneficial use programs and encouraged EPA to allow the States’ existing regulatory structures to remain in place. Ma ny commenters expressed a preference for the approach currently used by States to determine th e acceptability of used materials for beneficial use whereby specific classes of materials consider ed wastes (in that Stat e) are assessed and, if determined acceptable, are considered non-wast e 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 a nd others not. Some benefici al use designations are more stringent than others since th ey are material-specific. Many commenters, including state agencies we re still concerned that this rule could jeopardize or interfere with the State beneficial use designations and procedures and want EPA to clearly indicate that toda y’s rule applies only for purpos es of determining CAA 129 applicability to non-hazardous secondary materials that are burned for energy recovery. They do*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

271 of 360 not want today’s rule to set a precedent or in terfere with their ongoing programs to allow and encourage the beneficial use of secondary ma terials which otherwise would be waste. EPA’s Response : CAA section 129 states that th e term ‘‘solid waste’’ shall ha ve the meaning ‘‘established by the Administrator pursuant to the Solid Waste Disposal Act’’ Id . at 7429(g)(6). Accordingly, the Administrator (or Regional Administrator) must establish the meaning and make the determinations, and the states’ definition of solid waste would not be applicable for purposes of the definition of solid waste under RCRA as applie d to establish emissions standards under the CAA. No federal approval proce dures for state adoption of today's rule are included in this rule under RCRA subtitle D. Although EPA does promulga te criteria for solid waste landfills and approves state municipal solid waste landfill pe rmitting programs, RCRA does not provide EPA with authority to approve state programs beyond municipal solid wa ste landfill permitting
programs. With that said, EPA would like to utilize the expertise and interest residing in the state beneficial use programs to bolster Agency deci sions on non-waste determination petitions. The Agency may request the assistance of states or may utilize the information and contaminant data from state beneficial use determinations if it is applicable to th e non-hazardous secondary material when used as a fuel or an ingredient in combustion units. Th ese state beneficial use programs have been developed to encourage recyc ling and reuse, provided that the uses maintain the specified state’s acce ptable level of risk, protect human health and the environment, and are managed in accordance with the 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 prop erties that are comparable to th e raw material it is replacing*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

272 of 360 or, when incorporated into a produc t, its use is benefici al to the final product. Assuming the data to support the beneficial use determination re mains available, it could help support EPA’s investigation of the contaminant concentrations for the purpose of making the legitimacy criteria determination. State beneficial use determinations and procedures will continue intact for purposes of State laws, regulations, and programs. Thus, we do not expect that this rule will set a precedent or interfere with the States’ so lid waste programs and the States will continue to employ their procedures to assess and regulate the management and use of non-hazardous secondary materials for purposes of State laws and regulations. In ad dition, as we have stated elsewhere in today’s preamble, this rule is limited for purposes of determining CAA 129 applicability for nonhazardous secondary materials that are burned for energy recovery or as an ingredient in a combustion unit. Thus, EPA will not be ma king any determination that non-hazardous secondary materials are or are not solid wastes for other possible beneficial uses. Such beneficial use determinations are generally made by the state for these other beneficial uses and EPA will continue to look to the states to make such determinations (e.g., land application, reuse as nonwaste, etc.).
Comment : Commenters indicated that the petition pr ocess does not consid er potential scheduling issues regarding compliance with the section 11 2 Boiler MACT or the 129 CISWI Standards. Therefore, the non-waste determination petiti on process should include deadlines for both petition submissions and rulings from regulat ors so that the applicant would know which emission standards requirements they would be subject to—that is, the CAA section 112 standards or the CAA section 129 standards. Some commenters (includi ng many state agencies)*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

273 of 360 also expressed concern that EP A would not have the resources necessary to address such nonwaste determination petitions within a schedule consistent with State deadlines for their air permits (e.g., 90 days). In addition, a few commen ters questioned the envi ronmental benefits of shifting the burden of determin ation to EPA instead of the generators in question. EPA’s Response : EPA is not imposing deadlines for the peti tion decisions, either for the submission of such petitions or on EPA making decisions on pe titions that are submitted, since the Agency believes that before a final decision is made, that the necessary information be submitted, and the public afforded an opportunity to comment on su ch draft decisions. Se tting a time limit may make it difficult to make such informed decisions . Nevertheless, EPA commits to work with the State (where the combustor is lo cated) in an effort to not hold up, to the extent practicable, the State air permitting process. We recognize that the non-waste determination decision should be finalized prior to any related State air permit. EPA retains the responsibility for the petitions decisions in the final rule in or der 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 de terminations, commenters request that EPA Regional offices notify States when requests and determinations ar e made. In addition, several environmental groups requested th at the public notification be re quired for any petitions for nonwaste classification. EPA’s Response : Today’s rule outlines the petition process for the Regional Administrator to follow. As part of that process, the draft decision will be published in local media and will be available on*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

274 of 360 EPA’s website, and thus, all draf t 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-mak ing authority under the petition process. EPA’s Response : EPA agrees that it would be appropriate fo r EPA to maintain a database that is a compilation of decisions made on non-h azardous secondary materials non-waste determinations. This would allow decisions ma de in one EPA Region, including the basis for the decision, to be available to other EPA Regions pertaining to the same or similar non-hazardous secondary materials and would support na tional consistency and minimize redundant efforts. Thus, the Agency 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) s hould be able to submit a nonwaste determination on behalf of the petitioner. EPA’s Response : As stated in the proposal and in the final rule, states, or privat e entities, can submit nonwaste determination petitions to the EPA Regional Administrator on behalf of petitioners. They can petition for a single combustor or a class of combustors (e.g., a specific usage of a nonhazardous secondary material in a particular state).*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

275 of 360 Comment : Many commenters did not want the petiti on process included in the rule. Some commenters said it was too lenient in that the process could allow the inappropriate use of nonhazardous secondary materials. EPA’s Response : We disagree with the commenters since the petition process provides a vehicle to accommodate those instances where it is not appa rent that the non-hazardous secondary material is not discarded and that it complies with the le gitimacy criteria and thus, is not a solid waste under RCRA. Those requirements would be doc umented in addition to the other petition requirements. This would provide the needed assu rance that it is an a ppropriate non-waste fuel. In addition, all draft decisions will be made available to the public (local newspaper advertisement or radio broadcast and on EPA’s website) and the Regional Administrator may hold public hearings, such that th e public will be informed and has the opportunity to comment and be involved in the process.
Comment : Commenters mentioned that the process will be difficult to implement since the requirements in proposed §241.3(c) are too vague. A few comme nters mentioned that they preferred the clarity in state dete rminations where they have criter ia specific to each secondary material they regulate or make sp ecific beneficial use determinati ons, as opposed to this petition process where all non-hazardous secondary materials have to comply with the same guidelines. Commenters requested that we create clear guidance on the petition process and on related implementation. EPA’s Response :*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

276 of 360 We disagree with the commenters who argue that the petition process is vague and will be difficult to implement. All petitions thatare submitted must clearly explain how the nonhazardous secondary material has not been disc arded and meets the other relevant criteria, including the legitimacy criteria. All draft deci sions will also be subject to notice and comment, so any particular issues or concer ns can be raised for the Agency’s consideration. With that said, the Agency expects to develop additional guidance to assist petitioners in the implementation of the petition process. G. Comments on the Other Approac hes for Defining Solid Wastes In addition to the proposed approach, EPA also identified and so licited comment on two other approaches for defining which non-hazardou s secondary materials are solid wastes when combusted. One approach, which was called the “alternative approach,” was intended to be broader than the proposed appro ach, but still consistent, in th e Agency’s judgment, with RCRA and relevant case law. Under the alternative approach, non-hazardous secondary materials that are burned in a combustion unit would be consid ered solid wastes, unless such non-hazardous secondary materials would remain within the c ontrol of the generator and meet the legitimacy criteria; in this limited instance, the non-hazardou s secondary materials would not be considered solid wastes. Thus, under the alternative approac h, fuels and ingredients that are generated from the processing of discarded non-hazardous seconda ry materials would be considered a solid waste, as well as non-hazardous s econdary materials used as ingredients that are combusted at facilities that are not within the control of the generator. In ad dition, the alternative approach did not provide for a non-waste determination petitio n process, as described elsewhere in this preamble. The proposed rule note d that this approach could be adopted in a final rule if warranted by information presented during the public comment period and solicited comment on*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

277 of 360 all aspects of the alternative approach. The other approach on which we requested co mment was to identify all non-hazardous secondary materials that are burned in combustion units for energy recovery or as an ingredient as solid wastes and thus, all non-hazardous second ary materials would be subject to the section 129 CAA requirements. The proposal noted that while the Agency believes there are legal constraints to taking such a broad approach in defining solid waste under RCRA, we solicited comment on this approach and specifically requested that commenters provide the basis for their position, in light of the existing cas e law on the issue of “discard.”
Comment: All commenters addressing the alternative approach were opposed to the Agency adopting such an approach in the final rule. Several commenters argued generally against any approach that would allow any non-hazardous seconda ry material to ever be burned as non-waste fuels or ingredients, regardless of whether or not the secondary materials remained within the control of the generator. These commenters stro ngly urged the Agency to adopt a final rule that considers all non-hazardous secondary materials burned in a combustion unit for energy recovery or used as an ingredient to be included within the definition of solid wast e and therefore, subject to the CAA section 129 requirements. These commenters argue that non-hazardous secondary materials that are burned in combustion units fa ll within the unambiguous meaning of the term “discarded material,” and theref ore, both EPA’s proposed and alte rnative approach are unlawful, as well as arbitrary and capricious. On the other hand, industry commenters ge nerally contended that the alternative approach was unacceptable as a matter of law and policy, but for different reasons. These commenters, who also disagreed with the propos ed approach’s classification that non-hazardous*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

278 of 360 secondary materials used as fuels which did not remain within the contro l of the generator are solid waste unless granted a non-wa ste determination, strongly oppos ed the alternative approach for many of the same reasons. Of particular co ncern of the commenters was their disagreement with EPA that one may not look to a material’s transfer between entitie s to determine whether the non-hazardous secondary material has been discarded and constitutes a solid waste under RCRA, a concept which would apply equally to non-hazardous secondary materials being used as ingredients, as well as non-h azardous secondary materials used as fuels. In addition, these same commenters also st rongly disagreed with the other appr oach on which the Agency solicited comment—that is, the approach th at would characterize all non- hazardous secondary materials as solid waste when burned in a combustion unit fo r energy recovery or as an ingredient. These commenters argued that this would exceed the Agency’s authority to regulate secondary materials that have no t been discarded. EPA’s Response : Although some commenters supported a broader definition of solid waste than described in the alternative approa ch, the Agency did not receive any support for the alternative approach, and has therefore decided not to adopt it in this final rule. Re garding comments that advocated for all non-hazardous secondary materials burned in a combustion unit for energy recovery or as an ingredient to be discarded and, thus, solid wa ste, EPA has replied to this comment above in Section V.A. The Agency presumes that th ese commenters would like neither our proposed approach nor any alternative that allows any non-hazardous secondary material to be burned as other than a waste. Regarding industry comments which opposed the alternative approach because its characterization that all non-haza rdous secondary materials that do not remain within the control*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

279 of 360 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 re sinated wood) that are not discar ded and are legitimately used as fuels or ingredients are not solid waste, th at 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 previ ously discarded, but has been proce ssed in the same way as coal is today; ( 4) the definition of trad itional 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 contaminan ts, whether in a fuel or ingredient, are at concentrations that are comparable to (or lowe r than) those in traditional fuels or ingredient products. Specifically,

• Under the proposed rule, scrap tires were c onsidered to be solid waste when combusted,*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

280 of 360 even if they were not discarde d in the first instant, unless th ey were sufficiently processed into a non-waste fuel product (i.e., usi ng the ASTM standard for TDF, including shredding, sizing, and wire removal 156 ). Today’s rule continues to include this concept of processing of scrap tires that have been discarded, particularly fo r tires in waste tire piles. However, after reviewing the comments, as well as reviewing the approach that was discussed in the ANPRM for scra p tires, the Agency has concl uded that scrap tires that are managed under the oversight of an estab lished tire collection program would not be considered a solid waste provided the scrap ti res were sent from the person that collects them to a combustion unit (e.g., cement kilns) fo r use as a fuel. In this situation, the Agency believes that the scrap tires have not been discarded and th erefore, 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 residua ls that were burned in a combustion unit within the control of the gene rator and which met the legitimacy criteria was considered a non-waste fuel. However, if such resinated w ood 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 proce ssed to produce a non-waste fuel. However, after reviewing the comments, the Agency ha s concluded that resi nated wood residuals when burned in a combustion unit (whether with in 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 crite ria. In this situation, th e Agency believes that the resinated wood residuals have not been discar ded and therefore, shoul d not be considered

156 See the scrap tire comment responses for a discussion on the appropriate amount of processing and metal removal.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

281 of 360 a solid waste. See Section VII.D for a full discussion of the rationa l 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 th e 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 reviewi ng the comments and af ter further evaluation, we now believe that coal refuse that is pro cessed the same as coal is today, which serves to both increase its energy value, as well as reduce the level of c ontaminants 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 s ubject 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 se condary 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 opera tions 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 th e energy market over time have resulted in additional materials being economi cally 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 th at traditional fuels are not secondary materials and are not solid wastes unless discarded.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

282 of 360 • 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, t oday’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 fu els 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 no t been discarded and meets the legitimacy criteria when used as a fuel (by the genera tor 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 meet s the legitimacy criteria;

157 Traditional fuels are not secondary materi als or solid waste, unless discarded.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

283 of 360 • The discarded non-hazardous secondary materi al is sufficiently processed to produce legitimate fuel or ingredie nt 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-wast e 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 regulati ons 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 th e final rule based on information the Agency has received and public co mments. To the extent we have decided not to alter our supporting reasoning or have rejected comments r eceived on the proposed rule, we also discuss these matters in Section V. R easoning, information and arguments provided in the ANPRM and proposed rule that support these deci sions are also incorporated into the reasoning for the final decisions. A. Traditional Fuels 158 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 add itional materials being economically viable to be used as alternative "traditional" fuels. Thus, “traditional fuels” is defi ned 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 se condary materials, we believe it appropriate to provide a general definition and description of what is considered a traditional fuel.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

284 of 360 therefore, are not solid waste in cluding: (1) fuels that have been historically managed as valuable fuel products rather than being manage d as waste materials including fossil fuels (e.g., coal, oil and natural gas), their derivatives (e.g., petroleum coke, bituminous coke, coal tar oil, refinery gas, synthetic fuel, heavy recycle, asph alts, blast furnace gas, recovered gaseous butane, and coke oven gas) and cellulo sic biomass (virgin wood); and (2 ) alternative fuels developed from virgin materials that can now be used as valu able fuel products rather than waste materials. Alternative fuels include used oil which meet s 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 cr ops used specifically for energy production (e.g., energy cane, other fast growing grasses), bagasse and other crop residues (e.g., peanut shells), wood collected from forest fire clearance activ ities, trees and clean wood found in disaster debris, clean biomass from land clearing opera tions, and clean construction and demolition wood. Clean biomass is defined as bioma ss that does not contain contaminants at concentrations not normally asso ciated with virgin biomass ma terials. 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 fuel s. However, as the viability of these materials as fuels reflect s relatively recent changes in market conditions and technology, they are more appropriately characterized as alternative traditional fuels.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

285 of 360 The new definition also adds currently generate d coal refuse as an alternative traditional fuel. As discussed in Section V.B.8., this ma terial is distinctive among the other non-hazardous secondary materials. Coal refuse is in fact raw ma terial coal that is gene rated 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 marketab le fuel. Coal refuse is di fferent from other non-hazardous secondary materials, such as scrap tires or resina ted 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 cl ean wood includes, similar to clean disaster debris, clean construction and demolition material The definition goes on to clarify that traditiona l fuels are not secondary materials and are not solid wastes unless discarded. In respons e to comments received on the proposal and to provide clarity in the applicati on 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 discusse d 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*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

286 of 360 not be solid waste. Such non-h azardous secondary materials are re ferred to as legitimate (nonwaste) fuel products. As discussed previously in S ection V.A, if the non-hazardou s secondary material remains within the control of the generator, it is more lik ely 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 recy cled as a fuel within a continuou s 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 ce rtain non-hazardous secondary materials which may be a waste, but is unlikely. Thus, EPA belie ves that it is a reasonable interpretation of the statutory definition of discard to consider non-hazardous seconda ry materials that are managed within the control of its generator and legitimat ely 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 cat egories of non-hazardous secondary materials on a case-by-case basis by specifical ly 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 fu els 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 whet her these non-hazardous secondary materials qualify for being “within the control of the gene rator.” The first part app lies to non-hazardous secondary*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

287 of 360 materials generated and used as fuels at the gene rating facility. For purpos es of this criteria, “generating facility” m eans all contiguous property owned, leas ed, or otherwise controlled by the secondary material generator; “secondary materi al generator” means any person whose act or process produces non-hazardous secondary materials at the generating facil ity. In general, colocated facilities may be defined as the generating facility if the generator has contracted with the company to manage the secondary ma terial at that facility. A facility that collects non-hazardous seconda ry materials from other persons is not the secondary material generator of thos e materials. This is consistent with the approach taken in the 2008 DSW Final Rule, which specified that a facil ity that collects hazard ous secondary materials from other persons (for example, when merc ury-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-c ontrolled exclusion. S ee 73 FR at 64715. Thus, collection facilities are not consid ered 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 co ntracts with a different co mpany to use the non-hazardous secondary materials at the genera tor’s facility as fuel, either temporarily or permanently, these materials remain within the control of the genera tor. However, generators sometimes contract with a second company to collect non-hazardous secondary materi als at the generating facility and such materials are subsequently used as fuels in a combustion unit at anot her facility. In that situation, if the facili ty that burns the non-hazardous sec ondary 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.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

288 of 360 hazardous secondary material fuel would be considered a solid waste unless a non-waste determination has been granted pursua nt 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 th e 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, vot ing rights, or otherwise, excep t that contractors who operate facilities on behalf of a differe nt person as defined in §241.2 sha ll not be deemed to “control” such facilities. Thus, when a contractor operates tw o facilities, each of which is owned by a different company, the non-hazardous secondary materi als generated at the fi rst facility and used as a fuel at the second facil ity is not considered “within the control of the generator.” In the proposed rule, the Agen cy 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 legitim ately reclaimed by the tolling cont ractor. 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 specifi c type of arrangement us ed 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 th is option in the final ru le. We have decided not to include this option in the fi nal rule. See Section V.A.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

289 of 360 2. Restrictions and Requirements. a. Legitimate Use. Under this rule, non-hazardous secondary materi als used as fuels in combustion units that remain within the control of the generator must meet the legitimacy crite ria 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 uni t 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 discu ssed in Section VII.H. b. Notification. We are not requiring facilities that use non-haza rdous 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 notifica tion and recordkeeping requirements being promulgated for boilers and process heaters at ma jor 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 ar ea source boilers combusting non-hazardous secondary materials are also found at 40 CFR 63.11225(c)(2)(ii) under th e CAA section 112 rule for area source boilers. Additionally, regulations at 40 CFR 60.2157(v) promulgated for commercial and industrial solid waste incinera tors under CAA section 129 requi re basic recordkeeping to establish whether materials combusted in a commercial or industrial unit meet the standards and*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

290 of 360 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 recordkeepi ng provisions related to the defi nition of solid waste that may apply to them. The Agency believes that these records and notific ations under the CAA regulations provide assurance that facilities will apply the legitimacy criteria, and that requiring notification under this ru le is not necessary. C. Materials That Have Not Been Discarde d: Scrap Tires Collected Under Established Tire Collection Programs 1. Scope and Applicability. EPA has determined that scrap tires remove d 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 whol e tires and tires that have been shredded - with or without metal removal 160 ) 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 commod ity (§241.3(d)(1)(i)). State programs and other established tire co llection programs promote the collection of scrap tires in coordination with tire dealerships, haulers, proce ssors, and end users, forming an established collection infrastructure. These esta blished tire collection programs together with

160 If scrap tires are not discarded in th e 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 in to 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.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

291 of 360 state bans on landfilling in most states 161 effectively result in the bene ficial reuse of tires (as fuel or used in other scrap tire markets) as the sole 162 end use option for scrap tires in those states. While the Agency recognizes that there will be differences between the various established tire collectio n programs, at a minimum, the following components would need to be included as part of any establis hed tire collection program: (1) a comprehensive system that prevents tires from being abandoned when the scrap tires are harves ted from vehicles and collected at the various businesses where they are removed; these tires are not considered “discarded in the first instance” per this rule; an d (2) standards for the scrap tires to be managed as a valuable commodity. These programs wo uld ensure storage does not exceed reasonable time frames, the scrap tires are managed in a ma nner consistent with the analogous fuel (coal), and a system is in place to prevent scrap tire s from being discarded (according to the plain language definition) en route to the combustor (a nd during any processing prior to combustion). An example of this type of program is a tire dealership that has pr e-arranged agreements where the combustor pays for the delivery of the tires harvested from au tomobiles and can track the delivery and has contractual obligations for a safe delivery. Another example is the Texas system where tires are not seen as waste, but ha ve specifications for track ing and safe delivery to the end use markets. In essence, these programs are ones that neith er allow for an opportunity for quality tires intended as a fuel to be discarde d in the first place nor discarded in transit. Established tire collection programs are defined in today’s ru le 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 c onsidering revoking their tire landfill ban if combustors are no longer choosing to use tires for fuel based on the outcome of this rule.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

292 of 360 through the initial process of removing them from cars or co llecting them under established tire collection programs. In reaching this position, the Agency considered several factors:

a. Some Specific Types of Secondary Material s 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 sec ondary 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 automa tically involve discard. After reviewing the comments on the propos al and all other in formation 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 th at are removed from vehicles under established tire co llection 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 tire s being generated every year, nearly 90% of those tires go to beneficial use markets. The change in market conditions*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

293 of 360 since the historic management of scrap tires in pi les have helped ensure th at 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 fu el 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 inform ation 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 we re concerned about conflic ting interpretations, we recognize that states 163 typically call tires a waste until benefi cially used. As described above, we believe that discard is not occurring (accord ing to the plain language definition since they have not been abandoned, disposed of, or thrown away) for tires collected from vehicles under established tire colle ction programs (as defined). Secondly, th is rule is specifically for use of non-hazardous secondary materials as fuels and i ngredients (including scra p 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 Sec tions IX (State Authority ) and in Section V.B.5 (Response to Comments on Scrap Tires). Typically, the state and private programs work together to encour age processing, reuse, and/or recycling, that would resu lt in a market demand for scrap ti res to be collected; however,

163 There are many variations on how scrap tires are rega rded in State Environmental Agencies, of note, Texas considers that tires are non-w aste, 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.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

294 of 360 the market for fuel use is more independently su stainable in the free market, while other markets for scrap tire reuse and recycli ng 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-wast e fuels if those tires ar e removed from vehicles under established tire collection pr ograms. In particular, cement kilns operate at much higher temperatures and need, not only the fuel from th e tires, but also the non-combustible portions in order to produce cement clinker, cr eating a strong market for this ty pe of beneficial use. Whole tires removed from vehicles under established ti re collection programs still meet the legitimacy criteria and using whole tires fo r 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 environmenta l 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 environmenta l justice impacts. The assessment of the demographic analysis at the cement kilns usi ng scrap tires showed a decreased chance of impacting environmental justice communities base d on the demographic analysis at cement kilns versus the alternative sites. Th e demographics at cement kilns s howed that they were sited in areas that were lower in minority and had less poverty that the altern ative CISWI combustors, tire processors, or disposal sites. In addition, scra p tires are prevented from being disposed of in

164 The recovery and management of scrap tires that are rec overed from tire piles are largely supported or subsidized by State Agencies and these whole tires are consid ered discarded and waste when used as fuel. .*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

295 of 360 states that ban whole tires from landfills 165 and that have an establishe d collection infrastructure. Not all states have programs that prevent landf illing and tires recovere d from tire dumps are not always suitable for market use. However, have we have noted previous ly, 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 pursuan t 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 scra p tire collection program s. If at any point these tires or tires that otherw ise qualify to be non-waste (p rocessed 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 chip s) have exceptionally high heating value; they are considered to meet the legitim acy 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 valu es and other solid fuels.

• EPA’s analysis of the contaminant concentr ations 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.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

296 of 360 §241.3(d)(1)(iii). The comparison to the contaminant concentrat ions is given in the scrap tire response to comments. See Section V.B.5. b. Notification

. We are not requiring facilities that use scra p tires collected unde r established tire collection programs and that meet the legitimacy criteria to notify EPA under this rule. This notice would be duplicative of the notifica tion and recordkeeping requirements being promulgated for boilers and process heaters at ma jor 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 ar ea source boilers combusting non-hazardous secondary materials are also found at 40 CFR 63.11225(c)(2)(ii) under th e CAA section 112 rule for area source boilers. Additionally, regulations at 40 CFR 60.2157(v) promulgated for commercial and industrial solid waste incinera tors under CAA section 129 requi re 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 bu rning scrap tires, a ce rtification must be maintained stating that the sc rap tires combusted under §241.3(b)(2 )(i) were obtained through an established tire co llection program. Owners or operators of commerci al or industrial facilities th at combust materials that are not traditional fuels are direct ed to the CAA section 112 regulations for boilers, and the CAA section 129 regulations for commercial and indust rial incinerators, to determine whether there*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

297 of 360 are any recordkeeping provisions re lated to the definition of solid waste that may apply to them. The Agency believes that these records and no tifications under the CAA regulations provide assurance that facilities will apply the legitimacy criteria, an d that requiring notification under this rule is not necessary. D. Materials That Have Not Been Di scarded: Resinated Wood Residuals 1. Scope and Applicability. Resinated wood (also referred to as resina ted 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 b een codified in §241.2 and means wood products (containing resin adhesives) de rived 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 ut ilize resinated wood residuals as fuels. Specialized burners specifically to fi re 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, reinforc ing both the residue‘s value as a fuel and its desirability as a fuel . This secondary material is r outinely transferre d between either intra- or inter- company facilities and used as eith er “furnish” (i.e., raw mate rials) or fuel at the receiving facilities. This mate rial when transferred off-site is used and handled in the same manner that resinated wood residuals are used when generated on-si te, such that it is impossible to distinguish between materials that are being used as a raw ma terial and those that are being used as a fuel.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

298 of 360 Consistent with the approach taken for scra p 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 auto matically involve discar d. Thus, EPA has the discretion to determine that resina ted wood is not a solid waste, ev en 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 th ese 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 contai ns contaminants at levels comparable to (or lower than) those in traditional fuels for whic h the combustion unit is designed to burn. b. Notification

. We are not requiring facilities that use re sinated wood residuals and that meet the legitimacy criteria to notify EPA under this ru le. This notice would be duplicative of the notification and recordk eeping requirements being promulgated for boilers and process heaters at major sources of air toxics. That CAA section 112 rule requires notificat ions and recordkeeping, including documentation as to how the non-haza rdous secondary material meets the legitimacy criteria, and satisfies the defin ition of processing and/or the requi rements for the petition process. (§§40 CFR 63.7530 and 63.7555). Specific recordkeepi ng requirements for area source boilers combusting non-hazardous secondary material s are also found at 40 CFR 63.11225(c)(2)(ii) under the CAA section 112 rule for area source boilers.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

299 of 360 Additionally, regulations at 40 CFR 60.2157(v) promulgated for commercial and industrial solid waste incinera tors under CAA section 129 requi re 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 secti on 112 regulations for boilers, and the CAA section 129 regulations for commercial a nd industrial incinerators, to de termine whether there are any recordkeeping provisions re lated to the definition of solid wa ste that may apply to them. The Agency believes that these records and no tifications under the CAA regulations provide assurance that facilities will apply the legitimacy criteria, an d 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 criter ia 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 us e in a commercial manufact uring 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 dis carded in the first instance (e.g., la ndfilled) 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*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

300 of 360 included in this rule since ingr edients are not “combuste d,” 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 inte rpret 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 numb er of non-hazardous secondary materials that are currently being used as ingredients in combustion processe s that would not be c onsidered solid waste, provided they meet the legitimacy criteria for in gredients 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 requ ired elements, such as silica, alumina, and calcium, in the final composition of cement, w ith such levels of key metals needing to be carefully calibrated with other i ngredients to ensure that the fi nal 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 th at 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 reducti on 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 ba ck into the cement kiln for cli nker 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 Leg acy for Users.” June 23, 2008. (EPA530-R-08-007)*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

301 of 360 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 usag e. 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 rela ted to their extraction and processing. 2. Restrictions and Requirements. a. Legitimate Use. Under this rule, non-hazardous secondary ma terials used as ingredients in combustion units cannot be discarded in th e first instance and must meet the legitimacy criteria in §241.3(d)(2) to be considered a non-w aste ingredient. To satisfy the legitimacy criteria, the nonhazardous secondary material (non-waste) ingr edient 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-h azardous secondary mate rials 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 re quires notifications and recordkeeping, including documentation as to how the non-hazardous seconda ry 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 re quirements for area source boilers using*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

302 of 360 non-hazardous secondary materials as ingred ients 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 incinera tors under CAA section 129 requi re 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 recordkeepi ng provisions related to the defi nition of solid waste that may apply to them. The Agency believes that these records and notific ations under the CAA regulations provide assurance that facilities will apply the legitimacy criteria, and that requiring notification under this ru le is not necessary. F. Discarded Non-Hazardous Secondary Mat erials That Have Undergone Processing to Produce Legitimate Fuel or Ingredient Products 1. Scope and Applicability. Fuel or ingredient products that result fr om the processing of discarded non-hazardous secondary materials and that meet the legitimacy cr iteria as discussed belo w are not solid wastes. Because the resulting fuel/ingredient products are, in effect, reclaimed or extracted products from a recycling process, EPA considers such materi als 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 ingred ient product meeting the legitimacy criteria, the discarded non-hazardous secondary material ar e generally assumed to be solid wastes.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

303 of 360 As discussed in the proposed rule, the basic pr inciple 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 definitio n of processing is defined in §241.2). Specifically, processing in cludes, but is not limited to, operations that: remove or destroy contaminants; significantly improves the fu el characteristics of the material, e.g., sizing or drying the material in comb ination with other operations, ch emically improve the as-fired energy content, or improve the ingredient ch aracteristics. On the other hand, processing operations that are minimal, such as operations th at 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 pro cessed into new recycled paper and aluminum products that are not considered so lid waste. Collected plastic is generally sent to a reclaimer, who will sort, grind, and clean the plastic. Th e cleaned and sorted plastic is sent to a manufacturer who will use it as feedstock. Thes e are clear examples where discarded materials are processed into legitimate non-waste products. Recycled fuel products are no different fr om recycled paper and aluminum cans with respect to discard. If non-haza rdous secondary materials that are discarded by being abandoned, disposed of or thrown away, but are later collected, segregated, and processed into a*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

304 of 360 homogenous fuel product that is ma rketed and sold as a valuable commodity and is no different from traditional fuels used today, then they shoul d 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 product s. For instance, discarded spent solvents are commonly recycled via distillation into legitimat e, newly usable solvents. These regenerated solvents are clearly considered to be pr oducts, not wastes. See 50 FR 634, January 4, 1985. Another example is scrap tir es retrieved from waste ti re piles that have been shredded/chipped into TDF with the wire removed. In this instance, the scrap tires have been sufficiently processed and thus, th e 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 leg acy 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 di fferent processing scenario. Spec ifically, coal refuse that has been discarded in waste piles is unique sin ce it was a material generated during the fuel production process and then thrown away (dis carded). Over time, combustion technology changes allowed this raw material to be “re-mined” as raw material coal. The level of processing*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

305 of 360 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 re fuse to fit within what we would normally consider to be a “secondary material” (i.e., ma terial that is not the primary product of a manufacturing or commercial pro cess), since the primary product of coal mining operations is in fact fuel As a result, raw ma terials that are generated in the fuel production process that have been discarded, but that are then subsequent ly processed no differen tly 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 ul timate 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 sin ce 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 require ments of a fuel product produced from processing of discarded non-hazardous seconda ry materials, provided the syngas has been adequately processed to remove contaminants. Gasification is a chemical production process that converts carbonaceous material into a synt hesis gas that can be used for energy production (or as a building block for other chemical manuf acturing processes). In general, gasification systems are designed to react carbon-containing materials and st eam at high temperatures to*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

306 of 360 produce a synthesis gas composed main ly of carbon monoxide and hydrogen. Gasification systems include two basic component s. The first is the reactor or gasifier and the second is a gas cleanup or polishing system used to rem ove various contaminants from the raw (un-polished) synthesis gas. At a mi nimum, syngas cleanup generally includes removal of sulfur and metals. These tw o 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 char acteristics of coal. For example, the K-Fuel process employs heat and pressure to transfor m coal into a cleaner, more efficient fuel by removing water and polluting impurities, thus in creasing combustion efficiency. When applied to different lower-rank sub-bituminous and ligni te 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 (f or example, by anaerobic digester s) would also be considered a legitimate non-waste fuel that has been proce ssed from a non-hazardous secondary material provided “the biofuel” meet s 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 pr oducts must still pass the applicab le legitimacy criteria to be considered a non-waste fuel or i ngredient product. To be consid ered a legitimate fuel, the fuel product must meet the criteria iden tified 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*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

307 of 360 b. Notification. We are not requiring facilities that use disc arded non-hazardous secondary materials that are sufficiently processed to produce legitimate fu el or ingredient products to notify EPA under this rule. This notice would be duplicative of the notificati on and recordkeeping requirements being promulgated for boilers and process heater s at major sources of air toxics. That CAA section 112 rule requires notifications and reco rdkeeping, including documentation as to how the non-hazardous secondary material meets the legiti macy 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 incinera tors under CAA section 129 requi re 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 secti on 112 regulations for boilers, and the CAA section 129 regulations for commercial a nd industrial incinerators, to de termine whether there are any recordkeeping provisions re lated to the definition of solid wa ste that may apply to them. The Agency believes that these records and no tifications under the CAA regulations provide assurance that facilities will apply the legitimacy criteria, an d that requiring notification under this rule is not necessary. G. Non-Waste Determination Petitions*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

308 of 360 1. Description of the Petition Criteria for the Non-Waste Determination. The final rule establishes a non-waste de termination petition process that provides persons with an administrative process for r eceiving a formal determination from the EPA Regional Administrator that non-h azardous secondary materials that are burned as a fuel and have not been managed within th e control of the generator, ha ve 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 ex ample, a facility co mbusting non-hazardous secondary materials that is not affiliated or within the control of the generator of the nonhazardous secondary material (and thus is “outsi de the control of the generator”) can petition EPA that such non-hazardous secondary materials th ey 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 determ ination must demonstrate that the non-hazardous secondary material has not been previously di scarded and that it satisfies the fi ve 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 legiti macy criteria in 241.3(d)(1). To demonstrate that the non-haza rdous 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 th e generator of the non- hazardous secondary material. After demonstrating th at the non-hazardous s econdary material has not been discarded in the first instance, the petitioner must then dem onstrate that the material is indistinguishable in all relevant aspects from a fuel product by showing th at it satisfies all of the following five*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

309 of 360 criteria: (1) whether market pa rticipants handle the non-hazardous secondary material as a fuel rather than a waste; (2) wh ether the chemical and physical identify of the non-hazardous secondary material is comparable to a commerci al fuel; (3) whether the capacity of the market would use the non-hazardous second ary 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 pr ior 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 th e non-hazardous secondary material as a fu el rather than a solid waste. This would include consideration of likely market s for the non-hazardous secondary material (e.g., based on the current positive value of the sec ondary material, stabil ity of demand, and any contractual arrangements). This evaluation of market participation is a key element for determining whether companies view these non-h azardous secondary materials like fuels rather than as negatively-valued wastes. The second criterion for a non-waste determina tion 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 seconda ry 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 comp arison must be of the secondary*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

310 of 360 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 materi al are being used in energy recovery and not disposed of through sham recycling. The third criterion for making a non-waste dete rmination is the capacity of the market to use the non-hazardous secondary material as a fu el 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-h azardous 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 re asonable 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 determina tion is whether the constituents in the nonhazardous secondary material fuels that could be considered contaminants are at concentrations comparable to what would otherwise be releas ed from traditional fu els 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 possib le 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*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

311 of 360 released to the environment from the point of generation to the point ju st prior to combustion then that may be an indication that the non-hazar dous 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 th e non-hazardous secondary material is not discarded and thus is not a solid waste. This catch-all criterion is intended to allow th e petitioner to provide any casespecific information considered im portant and relevant in making th e 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 a nd the five petition crite ria discussed above. Thus, the same rationale used to demonstrate th at 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 crit erion number two above. 2. Non-Waste Determination Petition Process. In order to obtain a non-waste determina tion, a facility must apply to the Regional Administrator for the EPA Region where the faci lity combusting the no n-hazardous secondary material is located per the procedures describe d in today’s rule at §241.3(c). The application must address the relevant criteria discussed abov e. The Regional Administrator will evaluate the application and issue a draft not ice tentatively granting or denyi ng the application. Notification of this tentative decision will be provided by news paper advertisement or radio broadcast in the locality where the combustion unit is located. The Regional Administra tor will accept public*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

312 of 360 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 Ad ministrator 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 re levant criteria containe d 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 anothe r formal determination that the non-hazardous secondary material continues to meet the relevant criteria and is not disc arded and therefore, not a solid waste. The same criteria and procedur es described above would be used for any reapplication of the non-hazardous secondary material. As petition decisions are made by the Agenc y, they will be made available on an Agency website so the petition can be referenced when similar requests are subm itted. This will support national consistency and mi nimize redundant efforts. 3. Petition Decisions Utilizing State Environmental Agency Program’s Input. When analyzing a non-waste determina tion petition request, the EPA Regional Administrator may request or rely on informa tion generated through a st ate’s beneficial use program that certain non-hazardous secondary mate rials 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 ensu res 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*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

313 of 360 document that the chemical and physical properties ar e 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-wast e determination request on behalf of the regulated applicant for EPA to evaluate under th e non-waste determination criteria in today’s rule at §241.3(c)(1). States may petition fo r a whole category of non-hazardous secondary materials in their state for a particular type of combustor, or for speci fic 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 co mbustion unit that recovers energy, and contain contaminants at concentrations comparable to (o r lower than) those in traditional fuels which the combustion unit is designed to burn. In applying the legitimacy criteria, we woul d 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 b een discarded and is therefore a solid waste, which includes waste-derived fu els or ingredients; a nd (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 ingr edient product are being legitimately and beneficially us ed and not simply being discar ded via sham recycling. The definition of legitimate recycling developed fo r subtitle C hazardous secondary materials*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

314 of 360 carefully considered the history surrounding the uses of these seconda ry materials, as well as the applicable case law with respect to the meaning of discard. Likewise, th ose 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 cr iteria 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 sec ondary materials that are used as fuels or ingredients in combustion units. See 40 CFR 24 1.3(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 reas onable time frame. See §241.3(d)(1)(i). Where there is an analogous fuel, the non-hazardous sec ondary material must be managed in a manner consistent with the management of the analogous fu el or otherwise be adequately contained so as to prevent releases to the environment. Wh ere there is no analogous fuel, the non-hazardous secondary material must be adequa tely contained so as to prevent releases to the environment. An “analogous fuel” is a traditional fuel fo r 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 sec ondary 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*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

315 of 360 comment on whether it should provide a specif ic time-frame (e.g., one-year) as opposed to the general standard of “reasona ble time frame,” based on comments submitted, the Agency has decided not to specifically defi ne “reasonable time frame,” primarily because such time frames could and will vary according to the non-hazardous secondary ma terial 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 exclusi on, to legitimate fuel products th at have been produced from discarded non-hazardous secondary materials that have been su fficiently 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 ge nerator (i.e., scrap tires under tire collection programs and resinated wood residu als). For the generator-cont rolled 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 second ary materials that are processe d 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-haza rdous 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*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

316 of 360 appropriately before its end use as a fuel. In EPA’s view, a compa ny will value non-hazardous secondary materials used as non-waste fuels that provide an impor tant contribution and, therefore, will manage those secondary material s in a manner consistent with how it manages traditional fuels. If, on the other hand, a comp any 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 s ituations. The first situa tion 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-hazar dous 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 struct urally sound to control the release of the non-hazardous secondary material s. The Agency would also expect that the types of controls that would t ypically be part of a tank or si milar 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 cove rs 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 addr esses 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 seconda ry material fuel, such as resinated wood*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

317 of 360 residuals, or because physical or chemical differences between the non-hazardous secondary material and the traditional fuel are too signi ficant for them to be considered “analogous.” Non-hazardous secondary materials that have significantly different physical or chemical properties when compared to traditional fuels w ould not be considered analogous even if they serve the same function because it may not be appr opriate 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 st ored in a manner that both adequa tely 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 en ergy. See §241.3(d)(1)(ii). That is, since this legitimacy criterion is intended to apply only to non-h azardous secondary materials that have a specific end use (in this case, use as a fuel in an energy re covery 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 m eaningful heating value must also be burned in a combustion device specifically to recover energy; otherwise the unit that combusts such secondary materials are considered inci nerators and thus, are solid wastes. 169 We recognize that incinerators and similar type units may accep t non-hazardous secondary materials with a meaningful heating value and use th at 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 wa ste heat recovery boiler would not be considered a combustion unit that satisfies this legitimacy criterion.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

318 of 360 However, the intent of an incinerator, and sim ilar type units, is to de stroy wastes, and thus, nonhazardous secondary materials that are burned in su ch units are considered discarded, and thus, solid waste. With respect to the requirement that th e 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 de fining it with a benchmark Btu content of 5,000 Btu/lb. EPA has also previous ly 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 burni ng 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’ ge neral 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 appropri ate 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/l b. However, we also recognize that new technologies may be developed in the future that can cost-effec tively produce energy from such non-hazardous secondary materials with lower en ergy content. As a result, for purposes of meeting this legitimacy criterion, we would cons ider non-hazardous secondary materials with an energy value greater than 5,000 Btu/lb, as-fired, to have a meani ngful heating value. In addition, for facilities with energy recovery units that use a non-hazardous secondary material as a fuel*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

319 of 360 with an energy content lower than 5,000 Bt u/lb, as fired, a person may demonstrate 170 that a meaningful heating value is derived from the non-hazardous secondary material if the energy recovery unit can cost-effectively recover mean ingful energy from the non-hazardous secondary material used as a fuel. Factors that are impor tant in determining whether an energy recovery unit can cost-effectively recover energy from the non-hazardous se condary material include, but are not limited to, whether the fac ility encounters a cost savings due to not having to purchase significant amounts of traditional fuels they othe rwise would need, whether they are purchasing the non-hazardous secondary material to use as a fuel, whether the non-hazardous secondary material they are burning can self-sustain combustion, and whether their operation produces energy that is sold for a profit (e.g., a utility boiler that is dedicated to burning a specific type of non-hazardous secondary material that is 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 2 008 DSW final rule. In that rule, with respect to useful contribution, EPA said that legitimat e 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 mate rials 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 prev ent the practice of usi ng 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 accorda nce 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.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

320 of 360 materials in a manufacturing operation simply as a means of disposing or discarding them. With respect to the legitim acy criterion of producing a valu able product or intermediate, the product or intermediate is valuab le if it is (i) sold to a third pa rty or (ii) used by the recycler or the generator as an effective substitute fo r a commercial product or as an ingredient or intermediate in an industrial pr ocess.” See §260.43(b)(2). In t oday’s final rule, this criterion expresses the principle that the non-hazardous seconda ry material should be a material of value, as demonstrated by someone purchasing the material , or using it as an e ffective substitute for a commercial product that it would ot herwise 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 uni ts provide a useful contribu tion and are valuable products since they are replacing tradi tional fuels that otherwise w ould have to be burned. c. Contaminant Levels. Today’s rule includes a legitimacy cr iterion under which non-hazardous secondary materials used as non-waste fuels in combustion un its must contain contaminants at levels that are comparable to (or lower than) those in tradit ional 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). S ee §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 disposi ng of or discarding of unwanted materials. The combustion of non-hazardous secondary materials with elevated levels of contaminants results in the contaminants be ing discarded either through incineration, or by being released to the environm ent. We also believe that re quiring that the non-hazardous secondary material have contaminants at concentr ations that are comparable to or lower than*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

321 of 360 traditional fuels would ensure that the burni ng 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. T hus, ensuring that the level of contaminants in the non-hazardous secondary material is comparable to (or lower than) thos e in traditional fuels which the combustion unit is designed to burn woul d be at least as protective of human health and the environment as burning traditional fuels. The Agency took comment on a criterion wh ere 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 Ru le regarding the reclamation of hazardous secondary materials. However, we have decided not to adopt this standa rd in this rule because we are concerned that contaminants that are “not si gnificantly 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 EP A’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 po llutants required to be regulated under section 129 of the CAA. We believe that this was r easonable because this legitimacy criterion is intended to ensure that such non-hazardous seco ndary 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 C AA, 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 rem oved to the definition of “contaminant.” Based*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

322 of 360 on comments received and the Agency’s own as sessment, 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 th at can be present in several non-hazardous secondary materials evaluated (i.e., sewage sludge, manure). Pathogenic organisms are specifically defined in 40 CF R 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 pathog ens. (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 contaminan t 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 seco ndary material fuels would be compared to natural gas. The Agency believes that this appr oach 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 comb ust different types of fuels (e.g., coal vs. oil) cannot easily be modifi ed 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*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

323 of 360 operator to make the comparison based on informa tion he has or can acqui re 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 co ntaminant levels in traditional fuels. The legitimacy criterion is tailored speci fically 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 comp arable in concentration (or lower than) such concentration to be legitimately used as a non-wast e 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 ha s concluded that establis hing 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-h azardous secondary materi als 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 re sponse regarding establis hing 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 legitimatel y and beneficially used and not simply being discarded via sham recycling. A non-hazardous seconda ry materials used as an ingredient in a*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

324 of 360 combustion unit must be managed as a valuable commodity, provide a us eful contribution, be used to produce a valuable produc t or intermediate, and must resu lt in products that contain contaminants at levels that are comparable in concentration to (or lo wer than) those found in traditional products that are manufactured withou t 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 reas onable 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 an alogous ingredient or ot herwise be adequately contained so as to prevent rel eases to the environment. Wher e there is no analogous ingredient, the non-hazardous secondary material must be adequa tely 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 func tion and has similar physical and chemical properties as the non-h azardous secondary material. With respect to how long a non-hazardous sec ondary 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 specif ic time-frame (e.g., one-year) as opposed to the general standard of “reasona ble time frame,” based on comments submitted, the Agency has decided not to specifically defi ne “reasonable time frame,” primarily because such time frames could and will vary according to the non-hazardous secondary ma terial and industry involved. (See Section V.E.1 for a discussion of th e comments received and EPA’s response.)*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

325 of 360 For discarded non-hazardous secondary materi als 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 combus tion unit. As noted previously, before the non-waste product is produced, the non-haza rdous secondary material is a solid waste, and must comply with any fede ral, state, or local requirements. This criterion requires that the non-hazardous secondary material be managed appropriately before its end use as an ingred ient. In EPA’s view, a company will value nonhazardous secondary materials used as ingredient s 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 th e 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 mate rial is being discarded. This factor addresses the management of non-hazardous secondary materials used as ingredients in two distin ct situations. The first situation is when the non-hazardous secondary material is analogous to a traditi onal ingredient that ot herwise 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 ex ample, for liquid non-hazardous secondary materials that are used as a non-waste ingredient that ar e 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 structura lly sound to control the releas e of the non-hazardous secondary materials. The Agency would also expect that th e types of controls that would typically be part of a tank or similar type device fo r traditional ingredients would al so be part of any tank system*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

326 of 360 that is used to manage the non-hazardous sec ondary 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 seconda ry 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 e ither because the process is designed around a particular non-hazardous secondary material ingredient, or because physical or chemical differences between the non-hazardous secondary ma terial 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 ingredie nts 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 materi al 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 st ored in a manner that both adequa tely 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 material s used as ingredients in combustion units provide a usef ul contribution to the production/manufactur ing 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.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

327 of 360 production/manufacturing process or to the product or inte rmediate of the production/manufacturing process. This criterion is an essential component in the determination of legitimacy because legitimate use is not occurring if the no n-hazardous secondary material doesn’t add anything to the proce ss, such that the non-hazardous s econdary material is basically being disposed of or discarded. This criterion is intended to prevent the practice of “sham” recycling by adding non-hazardous secondary material s 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-hazar dous secondary materials used as ingredients may contain some constituents that are needed in the manufacturi ng 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 sec ondary material, such as lead, do not provide a useful contribution. Provided the zinc is at leve ls that provides a useful contribution, we believe the non-hazardous secondary material would sati sfy this criterion, althoug h 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 mu ch of the non-hazardous secondary material needs to provide a useful contribution for this crit erion 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 legitimat ely used as an ingredient, but in fact, only a small amount or percentage of the non-hazardou s secondary material is used. Because of the*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

328 of 360 differences in the emissions standards that th e 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 recordkeep ing 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 ma terial provides a useful contribution. c. Valuable Product. We are requiring that non- hazardous secondary material s 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 intermed iate is valuable if it is (i) sold to a third party or (ii) used as an effective substitute for a commercial pr oduct or as an ingredient or intermediate in an industrial process. This criterion expresses the principle that the product or intermediate of the manufacturing/production pro cess should be a material of value, either to a third party who buys it from the manufacturer, or to the same manufactur er that subsequently uses it as a substitute for another material that it would ot herwise have to buy or obtain for its industrial process. This criterion is an essential compone nt of the concept of legitimacy because legitimate use cannot be occurring if the product or intermed iate is not of use to anyone and, therefore, has no real value. This criterion is intended to prevent the pr actice 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 pract ice would be sham recycling. One way that the use of the non-hazardous s econdary material as an ingredient in the production/manufacturing process can be shown to produce a valuable product would be to have*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

329 of 360 documentation on the sale of the product to a th ird party. Such documentation could be in the form of receipts or contracts and agreements that establish the te rms of the sale or transaction. This transaction could include money changing hands or, in other circumstances, may involve trade or barter. A manufacturer th at has not yet arranged for the sale of its product to a third party could also establish value by dem onstrating that it can replace a nother product or intermediate that is available in the marketplace. Production/manufacturing processes that use non-hazardous sec ondary materials as ingredients may produce outputs that are not sold to another part y, but are instead used by the same manufacturer. These products or interm ediates may be used as a feedstock in a manufacturing process, but have no establishe d 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 de monstrating value for products that are sold in the marketplace. Demonstrations of intrinsic va lue could involve showing that the product or intermediate of the production/manufacturing pr ocess replaces another material that would otherwise have to be purchased or could i nvolve a showing that the non-hazardous secondary material meets specific product sp ecifications 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 compar able 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 produ ct or intermediate. When each step in the process yields a valuable product or intermediate that is salabl e or usable in that form, the*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

330 of 360 activity would conform to this criterion. d. Contaminant Levels. We are requiring that non-h azardous secondary materials us ed 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 te rm “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 pr oducts of incomplete combustion. As indicated in the discussion of th e legitimacy criteria for fuels, the Agency has decided to also include pathogens as a contaminan t 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 leve ls in the product itself with and without the use of the non-h azardous 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 tr aditional 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*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

331 of 360 or other ingredients that can be used in such unit. Alternatively, a product comparison can be made. See Section V.E for a further discus sion of the comments received regarding the legitimacy criteria for ingredients, as well as our responses to those comments. I. Determining That Non-Hazardous Seconda ry 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 th at 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 in cineration (CISWI) unit (see 40 CFR 60.2875). The CAA section 112 rule requires no tification and reco rdkeeping, including documentation as to how the non-hazardous seconda ry 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 a nd industrial solid waste inci nerators under CAA section 129 require basic recordkeeping to establish whet her materials combuste d in a commercial or industrial unit meet the standard s and procedures for identifica tion of non-hazardous secondary materials that are not solid wast es. Owners or operators of comm ercial or industrial facilities that combust materials that are not traditiona l fuels are directed to the CAA section 112 regulations for boilers, and the CAA section 129 regulations for commercial and industrial*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

332 of 360 incinerators, to determine whether there are any recordkeeping provi sions 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 determ ine 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 un it in CAA section 129(g)(6) states that the term “solid waste” will have the meaning esta blished 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 ingredie nt. This definition of “s olid 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 wa ste incineration units” under CAA section 129. The waste determinations in this rule do not s ubject 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 defi ned 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*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

333 of 360 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. Congr ess has passed several laws, such as the Energy Independence and S ecurity 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. Qu alified 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-haza rdous secondary materials burned for energy recovery. Biogenic materials are materials that result from the activity of living organisms. A number of non-hazardous seconda ry materials are partially or completely biogenic. For example, woody biomass contains recoverable en ergy and would be considered biogenic in origin. Energy from biogenic sources is ge nerally preferable to fossil fuels. In addition to these federal programs th at may be impacted, Renewable Portfolio Standards (RPS) currently prov ide states with a mechanism to increase renewable energy generation using renewable energy sources (incl uding 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 w ith 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 economical ly competitive with conventional forms of electric power. States create RPS programs becau se 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 wast es, yard wastes and clean lumber and that such air curtain incinerators comply with opacity limi tations to be established by the Administrator by rule. ...”*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

334 of 360 benefits of renewable energy and sometimes ot her clean energy approaches, such as energy efficiency and combined heat and power. If these renewable energy sources or biogeni c 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 wa ste. 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 fo r purposes of the subtitle C regulations (see 40 CFR 261.1(b)(1)). CAA section 129 also specifical ly 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 e ndangerment” 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 whet her 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 viol ations of the subtit le C hazardous waste regulations. Nothing in this rule shall impact EPA’s ability to act pur suant to RCRA sections 3007, 3008 and 7003. The rule also does not limit or otherwise affect EPA's ability to pursue*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

335 of 360 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 thehazardous waste provisions found in RCRA subtitle C (73 FR 64688). EPA is currently reexamining these exclusions, and as part of a settlement agreement w ith Sierra Club, EPA will issue a proposed rule by June 2011. This proposal wi ll address, at minimum, issues raised in an administrative petition filed by Sierra Club, includ ing 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 transf er-based exclusion. Many of the issues to be addressed in the upcoming subtitle C definition of solid waste pro posal are similar to the issues addressed in today’s final rule. However, th ere are significant diffe rences between today’s final rule and the scope of the planned June 2011 subtitle C defi nition of solid waste pr oposal. 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 th e planned subtitle C proposal, EPA will carefully consider the difference in scope between the tw o rulemakings and address it as appropriate. IX. State Authority Subtitle D of RCRA establishes a framewor k for state, federal, and local government cooperation in controlling the management of non-hazardous so lid waste. The federal role in this arrangement is to establish the over all regulatory direc tion, by providing minimum nationwide standards for protecti ng human health and the environm ent, and to provide technical*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

336 of 360 assistance to states for planni ng 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 regulati ons to determine what types of non-hazardous secondary material activities involve the manageme nt of a solid waste for the purposes of their authorities. Many states have a process or promulgated regula tions to determine when these materials are wastes, and when they can be us ed beneficially and safely in products in

commerce. Through this rulemaking, EPA is articulati ng 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 im posing solid waste requir ements for determining other possible secondary ma terial end uses nor does this ru lemaking apply to general materials management in state programs. A. Applicability of State Solid Waste Defi nitions and Beneficial Use Determinations CAA section 129 states that th e term ‘‘solid waste’’ shall ha ve the meaning ‘‘established by the Administrator pursuant to the Solid Waste Disposal Act’’ Id . at 7429(g)(6). Accordingly, the states’ definition of solid waste would not be applicable in determining whether the CAA section 129 standards apply. Specifi cally, state determinations rega rding a material’s beneficial use that may exempt a non-hazardous secondary ma terial from the state solid waste standards*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

337 of 360 would not necessarily impact the status of su ch non-hazardous secondary materials under EPA’s solid waste definition as it rela tes to which combustion units ar e subject to the CAA section 129 standards. Likewise, combustion units that use non-h azardous secondary materials as fuels or ingredients that are not solid wa ste under today’s rule would not be subject to the solid waste incineration standards under CAA section 129, ev en though the state standards may define the same material as solid wastes for their r ecycling and waste management programs. If a non-waste determination is sought by pet ition 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 ap plicable to the non-hazardous secondary material when used as a fuel or as an ingredient. These state beneficial us e programs have been developed to encourage recycling and reuse, provided that the uses mainta in 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 properti es that are comparable to the ra w material it is replacing or, when incorporated into another pr oduct, 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 th e 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 applican t 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*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

338 of 360 No federal approval procedures for state adoptio n of today's rule are included in this rule under RCRA subtitle D. Although EPA does promulga te criteria for solid waste landfills and approves state municipal solid waste landfill pe rmitting programs, RCRA does not provide EPA with authority to approve state programs beyond municipal solid wa ste landfill permitting programs. While states are not required to adopt today’s rule, some states incorporate federal regulations by reference or have sp ecific 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 ru le will be incorporated (or possibly adopted by authorized state air programs) c onsistent 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 clar ification in the final rule. Specifically, the Federal ru le applies only to the RCRA subtitle D definition of solid waste for determining use as fuel or ingredients in combustion units (as re gulated 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 fac ilities 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 us ing 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 stan dards may define the non-hazardous secondary material as a solid waste.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

339 of 360 Finally, owners and operators of affected facilities combusting non-hazardous secondary materials considered to be non-wastes based on application of the crit eria outlined in §241.3(c) must ensure that the non-hazardous secondary materi als continue to meet those provisions when combusted. Non-hazardous secondary materials th at 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 dete rmination (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 material s would be subject to the commercial or industrial solid waste in cineration (CISWI) regula tions (see 40 CFR 60.2875)). X. Cost and Benefits of the Final Rule The value of any regulatory action is traditiona lly measured by the net change in social welfare that it generates. This final rule alone does not dire ctly invoke any costs 173 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 co rresponding 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 indi rectly associated with th is action are the corresponding impacts assessed in the regulatory impact analys es prepared in support of the Boiler MACT and CISWI rules. These independent regulatory imp act analyses measure, among other factors, the

173 Excluding minor administrative burden/cost (e.g., rule familiarization) and costs related to submitting a voluntary petition. 174 National Emission Standards for H azardous Air Pollutants for Area Sour ces: Industrial, Commercial, and Institutional Boilers; National Emission Sta ndards for Hazardous Air Pollutants for Industrial/Commercial/Institutional Boilers and Process Heat ers; and Standards of Perf ormance for New Stationary Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration (CISWI) Units.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

340 of 360 estimated net change in social we lfare 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 establishe d 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 Budge t (OMB), has determined that this rule is a significant regulatory action because it contai ns 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 r ecommendations 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-w aste determination petition process for nonhazardous secondary materials iden tified 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. Su fficient information about the non-hazardous secondary material and the market demand for this material will be necessary to demonstrate that*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

341 of 360the non-hazardous secondary material in fact has not been discarded and is a legitimate nonwaste fuel or ingredient in the combustion process. Specifically, th e petition will need to contain information to assess the following criteria: (1) whether market pa rticipants handle the nonhazardous secondary material as a fuel rather than a waste; (2) whether the chemical and physical identify of the non-hazardous secondary ma terial 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 generati on to the point just prior to combustion of the non-hazardous secondary material at levels comparable to what would otherwise be released from traditional fu els; and (5) other relevant factors. The facility-level burden associat ed with this voluntary peti tion option is estimated to have an average total burden of each non-wa ste determination petition of approximately 149 hours per facility, with a total cost per facility of approxima tely $10,100. The total number of facilities likely to take advantage of this option is undetermin ed, 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) gene rally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

342 of 360 requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a signifi cant economic impact on a substantial number of small entities. Small entities include sma ll businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of toda y's rule on small entities, small entity is defined as: (1) a small business, as define d by the Small Business Administration’s (SBA) regulations at 13 CFR 121.201; (2) a small government al jurisdiction that is a government of a city, county, town, school district or special district with a popul ation of less than 50,000; and (3) a small organization that is a ny not-for-profit enterprise whic h is independently owned and operated, and is not dominant in its field. After considering the economic impacts of t oday’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 ru le (see discussion above under costs and benefits). Any potenti al impacts to small entities in these or any other potentially affected sectors are addressed in the regulatory flexibility analys es prepared in support of the CAA rules that are linked to this action. 175 Although this final rule will not have a si gnificant economic impact on a substantial number of small entities, EPA, nonetheless, has tr ied to reduce the impact of this rule on small entities through the care ful and targeted identification of which non-hazardous secondary

175 National Emission Standards for H azardous Air Pollutants for Area Sour ces: Industrial, Commercial, and Institutional Boilers; National Emission Sta ndards for Hazardous Air Pollutants for Industrial/Commercial/Institutional Boilers and Process Heat ers; and Standards of Perf ormance for New Stationary Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration (CISWI) Units.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

343 of 360 materials are solid wastes. In addition, we ha ve established a voluntar y petition process that allows for material-specific non-waste determinations. D. Unfunded Mandates Reform Act This final rule does not contain a Federal ma ndate that may result in expenditures of $100 million or more for State, local, and tribal government s, in the aggregate, or the private sector in any one year. Because this action is linked to th e CAA rules, this rule alone will not result in significant economic impacts on States, local and tr ibal governments, in the aggregate, or the private sector in any one year. T hus, this rule is not subject to th e requirements of sections 202 or 205 of UMRA. This rule is also not subject to the requireme nts of section 203 of UMRA because it contains no regulatory requirements that mi ght significantly or uniquely a ffect small governments. As described above, this action alone does not resu lt in unique effects, or significant economic impacts. E. Executive Order 13132: Federalism This action does not have federalism implica tions. 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 ru le, 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-hazar dous secondary materials. States will remain free to manage these non-hazardous secondary materials as appropr iate under their solid wa ste 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*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

344 of 360 communications between EPA and State and lo cal governments, EPA specifically solicited comment on the proposed action fromState 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, th at 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 tr ibal implications. However, it will neither impose substantial direct compliance costs on trib al governments, nor preempt Tribal law. The rule may have minor indirect tribal implications to the extent that enti ties generating or burning solid wastes on tribal lands c ould be affected in response to the corresponding CAA rules. 176 EPA consulted with tribal officials early in the process of devel oping this regulation to permit them to have meaningful and timely input into its development. G. Executive Order 13045: Protection of Chil dren 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 H azardous Air Pollutants for Area Sour ces: Industrial, Commercial, and Institutional Boilers; National Emission Sta ndards for Hazardous Air Pollutants for Industrial/Commercial/Institutional Boilers and Process Heat ers; and Standards of Perf ormance for New Stationary Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration (CISWI) Units.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

345 of 360 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 Si gnificantly 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. Th is action, independent of the CAA rules, 177 is not expected to directly affect ener gy use or use patterns. The purpos e 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 change s in the ability of facilities to use non- hazardous secondary materials as a source of energy. The Agency ack nowledges that interacti ons between this rule and the section 112 and section 129 CAA emission standards promulgated in conjunction with the final rule may affect the us e of non-hazardous secondary materi als as a source of energy. We refer persons to the dockets for those ru les for information on these energy impacts. I. National Technology Transfer Advancement Act Section 12(d) of the Na tional 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 H azardous Air Pollutants for Area Sour ces: Industrial, Commercial, and Institutional Boilers; National Emission Sta ndards for Hazardous Air Pollutants for Industrial/Commercial/Institutional Boilers and Process Heat ers; and Standards of Perf ormance for New Stationary Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration (CISWI) Units.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

346 of 360 consensus standards in its regul atory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Volunt ary consensus standards are technical standards (e.g., materials specifications, test methods, samp ling procedures, and busi ness practices) that are developed or adopted by voluntary consensus st andards bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when th e Agency decides not to use available and applicable voluntary consensus standards. This action does not involved technical standa rds. 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 (Fe b. 16, 1994)) establishes federal executive policy on environmental justice. Its main provi sion 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, disp roportionately high and adverse human health or environmental effects of their programs, policie s, 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 minor ity or low-income populations. The four-rule package that consists of this rule plus the three CAA rules 178 will generally result in an improved level of environmental protection. No dispropor tionately high and adverse human health or

178 National Emission Standards for H azardous Air Pollutants for Area Sour ces: Industrial, Commercial, and Institutional Boilers; National Emission Sta ndards for Hazardous Air Pollutants for Industrial/Commercial/Institutional Boilers and Process Heater s; and, Standards of Perf ormance for New Stationary Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration (CISWI) Units*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

347 of 360 environmental effects on any population, includi ng any minority or low-income population is expected. Because the four rules are fully interdep endent, 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 resu lt, 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 characteristic s of areas experiencing changes in environmental effects will determ ine whether the rules result in adverse and disproportionate impacts to low- income and mino rity populations. We have developed a broad environmental ju stice assessment, looking at the four rules together, that accounts for the combined impact s 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 follo wing: 1) changes in emissions from regulated combustion units, 2) changes in emissions from the potential dive rsion of non hazardous secondary materials away from combustion units to alternative recycling or landfills, and, 3) ot her impacts related to material diversion (e.g., noise, aesth etics, water pollution, etc.). Based on our assessment of the emissions changes and other environmental imp acts 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 com bustion units are unlikely to lead to adverse and disproportionate impacts fo r low-income and minority populations.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

348 of 360 a. Following implementation of the CISWI, Boiler MACT, and Area Source rules, emissions from affected f acilities are likely to decline. As a result, populations near these fa cilities, overall, are likely to experience positive impacts (e.g., redu ced incidence of adverse health effects). The demographic data for the Census blocks near the Boiler MACT and CISWI facilities 179 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 hi gher, proportionally, than the national average.

a. Our analysis of the demographic characteristics of populations living within three miles of th ese facilities suggests th at they are located in areas with high low-income and minor ity 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 co uld 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 qu antity 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 de mographic assessment does not include area source facilities.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

349 of 360 diverted, 180 the extent of any negative impacts is expected to be minimal, and will likely vary significan tly by material and facility type. A comprehensive discussion of these findings is presented in the document: “Summary of Environmental Justice Impacts for the Non-H azardous Secondary Material (NHSM) Rule, the 2010 Commercial and Industrial Solid Waste Inci nerator (CISWI) Standards, the 2010 Major Source Boiler NESHAP, and the 2010 Area Sour ce Boiler NESHAP.” This document is available in the Docket es tablished 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, genera lly provides that before a rule may take effect, the agency promulgating the rule must su bmit 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 othe r required information to the U.S. Senate, the U.S. House of Representatives, and the Comptr oller General of the United States prior to publication of the rule in the Fe deral Register. A Major rule ca nnot take effect until 60 days after it is published in the Fede ral Register. This action is not a “major rule” as defined by 5

180 Review of Costs, Benefits, Economic Impact s, Environmental Justice, and Other Impacts For the Following Interrelated Proposed Rules: St andards of Performance for New Stationary Sources and Emission Guidelines for Existi ng Sources: Commercial and Industrial Solid Waste Incineration Units; RIN 2060-AO12, Nati onal Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Comm ercial, and Institutional Boilers; RIN 2060- AM44, National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial and Institutional Boilers and Pr ocess Heaters; RIN 2060-AG69, Identification of Non-hazardous Secondary Materials That Are Solid Waste RIN 2050- AG44. April 29, 2010. (See Exhibit 14).*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

350 of 360 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 cont rol, waste treatment and disposal

Dated:

_____________________________________________ Lisa P. Jackson, Administrator.

For the reasons stated in the preamble, ti tle 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.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

351 of 360 241.2 Definitions. SUBPART B – Identification of Non-Hazardous Seco ndary Materials that are Solid Wastes When Used as Fuels or Ingred ients In Combustion Units
Sec. 241.3 Standards and Procedures for Identificatio n of Non-Hazardous Seco ndary Materials that are Solid Wastes When Used as Fuel s 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 proced ures 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 seco ndary materials that will result in emissions of the air pollutants id entified in CAA section 112(b) or the nine pollutants listed under CAA section 129(a)(4)), or th at contains pathogens when such secondary materials are burned as a fuel or used as an ingredient, in cluding those constituents that could generate*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

352 of 360 products of incomplete combustion.

Contained means the non-hazardous secondary materi al 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 th e facility, whether by the ownership of stock, voting rights, or otherwise, except that contractors who operate facili ties 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, l eased, 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.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

353 of 360 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 corporat ion), partnership, association, State, municipality, commission, political subdivision of a st ate, or any interstate body.

Processing means any operations that transform dis carded non-hazardous secondary material into a non-waste fuel or non-wast e ingredient product. Processing includes, but is not limited to, operations necessary to: remove or destroy co ntaminants; significantly improve the fuel characteristics of the material , e.g., sizing or drying the materi al 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 processi ng for purposes of this definition.

Resinated wood means wood products (containing resin ad hesives) derived from primary and secondary wood products manufacturing and comprise d of such items as board trim, sander dust, and panel trim.

Secondary material means any material that is not th e primary product of a manufacturing or commercial process, and can include post-cons umer material, off-sp ecification commercial chemical products or manufacturing chemical interm ediates, post-industrial material, and scrap.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

354 of 360 Solid waste means the term solid waste as defined in 40 CFR 258.2.

Traditional fuels means materials that are produced as fu els 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 de rivatives (e.g., petroleum coke, bituminous coke, coal tar oil, refinery gas, synt hetic fuel, heavy recycle, asphalts, blast furnace gas, recovered gaseous butane, and coke oven ga s) and cellulosic biomass (virgin wood); and (2) alternative fuels developed from virgin materi als that can now be used as fuel products, including used oil which meets the specifica tions 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 ar e akin to traditional cellulosic biomass such as forest-derived biomass (e.g., green wood, fore st thinnings, clean and unadulterated bark, sawdust, trim, and tree harvesting residuals from logging and sawmill materi als), corn stover and other biomass crops used specifically for en ergy production (e.g., ener gy cane, other fast growing grasses), bagasse and other crop residues (e.g., peanut shells), wood collected from forest fire clearance activities, trees and clean wood found in disast er debris, clean biomass from land clearing operations, and clean constructi on 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 s econdary material is generated and burned in combustion units at the generating fac ility; or that such material is generated and*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

355 of 360 burned in combustion units at different facil ities, provided the fac ility combusting the nonhazardous secondary material is controlled by the generator; or both the generating facility and the facility combusting the non-hazardous secondar y material are under the control of the same person as defined in this section.

SUBPART B - - Identification of Non-Haza rdous Secondary Materials that are Solid Wastes When Used as Fuels or Ingredients in Combustion Units

§241.3 Standards and Procedures for Iden tification 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 Administra tor pursuant to paragraph (c) of this section. The criteria to be addressed in the petition, as we ll as the process for making the non-waste determination, are specified in pa ragraph (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 meet s 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*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

356 of 360 the generator or outside the control of the generator); such materials include: (i) Scrap tires used as a fuel in a com bustion unit that are rem oved from vehicles and collected and managed under the oversight of established ti re 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 specifie d in paragraph (d)(2) of this section. (4) Fuel or ingredient products that ar e 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, wi th 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 gr ant a non-waste determination that a nonhazardous secondary material used as a fuel is no t 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 Re gional 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 indis tinguishable in all relevant as pects 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 pa ragraph (d)(1) of this section and on the following*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

357 of 360 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 iden tity 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-haza rdous secondary material are released to the air, water or land from the point of generation to the point ju st prior to combustion of the secondary material at levels comparable to what would otherwise be rele ased 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 applica tion for the non-waste determination addressing that the non-hazardous secondary material has no t been discarded, the legitimacy criteria in paragraph (d)(1) of this s ection and the relevant criteria in para graphs (c)(1)(i) through (v) of this section. (ii) The Regional Administrator will evalua te the application a nd issue a draft notice tentatively granting or denying the application. Notification of this tentative decision will be published in a newspaper advertis ement or radio broadcast in th e locality where the facility combusting the non-hazardous secondary material is located, and be made available on EPA’s website.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

358 of 360 (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 afte r a formal non-waste determination has been granted, the applicant must re-a pply to the Regional Administrator for a formal determination that the non-hazardous secondary mate rial continues to meet the rele vant criteria and thus not a solid waste. (d) Legitimacy criteria for non-ha zardous secondary materials. (1) Legitimacy criteria for non-hazardous s econdary 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 s econdary material prior to use must not exceed reasonable time frames; (B) Where there is an analogous fuel, th e non-hazardous secondary material must be managed in a manner consistent with the analogous fuel or otherwise be ad equately 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 prev ent releases to the environment; (ii) The non-hazardous secondary material mu st have a meaningful heating value and be used as a fuel in a combusti on unit that recovers energy.*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

359 of 360 (iii) The non-hazardous secondary material must contain contaminants at levels comparable in concentration to or lower than th ose 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 mate rial to the traditional fuel itself. (2) Legitimacy criteria for non-hazardous second ary 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-h azardous secondary material pr ior 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 anal ogous ingredient or otherwise be adequately contained to prevent releas es 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 proc ess. 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 materi al is sold to a third party, or (B) The non-hazardous secondary material is used as an effective substitute for a*** E.O. 12866 Review – Revised Version - Draft Do Not Cite, Quote or Release During Review *** EO12866_NHSM 2050-AG44 Final Preamble_20110110

360 of 360 commercial product or as an i ngredient or intermediate in an industrial process. (iv) The non-hazardous secondary materi al must result in products that contain contaminants at levels that are comparable in concentration to or lo wer than those found in traditional products that are manufactured wit hout the non-hazardous secondary material.