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PART 241—SOLID WASTES USED AS FUELS OR INGREDIENTS IN COMBUSTION 

UNITS 

 

SUBPART A -- General 

Sec. 

241.1 Purpose. 

241.2 Definitions. 

SUBPART B – Identification of Non-Hazardous Secondary Materials that are Solid Wastes 

When Used as Fuels or Ingredients In Combustion Units 

Sec. 

241.3 Standards and Procedures for Identification of Non-Hazardous Secondary Materials that 

are Solid Wastes When Used as Fuels or Ingredients in Combustion Units.

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

SUBPART A -- General 

§241.1 Purpose. 

This part identifies the requirements and procedures for the identification of solid wastes used as 

fuels or ingredients in combustion units under section 1004 of the Resource Conservation and 

Recovery Act and section 129 of the Clean Air Act. 

§241.2 Definitions. 

For the purposes of this subpart: 

 Clean cellulosic biomass means those residuals that are akin to traditional cellulosic 

biomass, including, but not limited to: agricultural and forest-derived biomass (e.g., green wood, 

forest thinnings, clean and unadulterated bark, sawdust, trim, tree harvesting residuals from 

logging and sawmill materials, hogged fuel, wood pellets, untreated wood pallets); urban wood 

(e.g., tree trimmings, stumps, and related forest-derived biomass from urban settings); corn 

stover and other biomass crops used specifically for the production of cellulosic biofuels (e.g., 

energy cane, other fast growing grasses, byproducts of ethanol natural fermentation processes);

bagasse and other crop residues (e.g., peanut shells, vines, orchard trees, hulls, seeds, spent 

grains, cotton byproducts, corn and peanut production residues, rice milling and grain elevator 

operation residues); wood collected from forest fire clearance activities, trees and clean wood 

found in disaster debris, clean biomass from land clearing operations, and clean construction and 

demolition wood. These fuels are not secondary materials or solid wastes unless discarded. 

Clean biomass is biomass that does not contain contaminants at concentrations not normally 

associated with virgin biomass materials. 

Contaminants means all pollutants listed in Clean Air Act sections 112(b) and 129(a)(4), 

with modifications outlined in this definition to reflect constituents found in non-hazardous 

secondary materials prior to combustion. The definition includes the following elemental 

contaminants that commonly form Clean Air Act section 112(b) and 129(a)(4) pollutants: 

antimony, arsenic, beryllium, cadmium, chlorine, chromium, cobalt, fluorine, lead, manganese, 

mercury, nickel, nitrogen, selenium, and sulfur. The definition does not include the following 

Clean Air Act section 112(b) and 129(a)(4) pollutants that are either unlikely to be found in nonDeleted: such as

Deleted: and 

Deleted: ),

Deleted: energy

Deleted: ),

Deleted: ),

Deleted: 

Deleted: 

Deleted: Contaminants means any constituent in 

non-hazardous secondary materials that will result in 

emissions of the air pollutants identified in Clean Air 

Act section 112(b) or the nine pollutants listed under 

Clean Air Act section 129(a)(4)) when such nonhazardous secondary materials are burned as a fuel 

or used as an ingredient, including those constituents 

that could generate products of incomplete 

combustion. ¶

¶
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hazardous secondary materials prior to combustion or are adequately measured by other parts of 

this definition: hydrogen chloride (HCl), chlorine gas (Cl2), hydrogen fluoride (HF), nitrogen 

oxides (NOx), sulfur dioxide (SO2), fine mineral fibers, particulate matter, coke oven emissions, 

diazomethane, white phosphorus, titanium tetrachloride, m-cresol, o-cresol, p-cresol, m-xylene, 

o-xylene, and p-xylene.

Contained means the non-hazardous secondary material 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 non-hazardous secondary material. 

 Control means the power to direct the policies of the facility, whether by the ownership 

of stock, voting rights, or otherwise, except that contractors who operate facilities on behalf of a 

different person as defined in this section shall not be deemed to “control” such facilities. 

 Established tire collection program means a comprehensive collection system or 

contractual arrangement that ensures scrap tires are not discarded and are handled as valuable 

commodities through arrival at the combustion facility.

 Generating facility means all contiguous property owned, leased, or otherwise controlled 

by the non-hazardous secondary material generator. 

 Ingredient means a non-hazardous secondary material that is a component 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. 

 Person is defined as an individual, trust, firm, joint stock company, Federal agency, 

corporation (including government corporation), partnership, association, State, municipality, 

commission, political subdivision of a state, or any interstate body. 

 Processing means any operations that transform discarded non-hazardous secondary 

material into a non-waste fuel or non-waste ingredient product. Processing includes, but is not 

limited to, operations necessary to: remove or destroy contaminants; significantly improve the 

fuel characteristics of the material, e.g., sizing or drying the material in combination with other 

operations; chemically improve the as-fired energy content; or improve the ingredient 

characteristics. Minimal operations that result only in modifying the size of the material by 

shredding do not constitute processing for purposes of this definition. 

 Resinated wood means wood products (containing resin adhesives) derived from primary 

and secondary wood products manufacturing and comprised of such items as board trim, sander 

dust, and panel trim. 

 

 Secondary material means any material that is not the primary product of a 

manufacturing or commercial process, and can include post-consumer material, off-specification 

commercial chemical products or manufacturing chemical intermediates, post-industrial material, 

Deleted: in accordance with section 241.3(b)(2)(i) 

from the point of removal from the vehicle 
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and scrap. 

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

 Traditional fuels means materials that are produced as fuels and are unused products that 

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

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

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

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

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

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

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

coal refuse that previously had not been usable as coal, and clean cellulosic biomass. These fuels 

are not secondary materials or solid wastes unless discarded. 

 Within control of the generator means that the non-hazardous secondary material is 

generated and burned in combustion units at the generating facility; or that such material is 

generated and burned in combustion units at different facilities, provided the facility combusting 

the non-hazardous secondary material is controlled by the generator; or both the generating 

facility and the facility combusting the non-hazardous secondary material are under the control 

of the same person as defined in this section. 

SUBPART B - - Identification of Non-Hazardous Secondary Materials that are Solid 

Wastes When Used as Fuels or Ingredients in Combustion Units 

§241.3 Standards and Procedures for Identification of Non-Hazardous Secondary 

Materials that are Solid Wastes When Used as Fuels or Ingredients in Combustion Units. 

(a) Except as provided in paragraph (b) of this section or in 241.4(a) of this subpart, nonhazardous secondary materials that are combusted are presumed to be solid wastes, unless a 

petition is submitted to, and a determination granted by, the Regional Administrator pursuant to 

paragraph (c) of this section. The criteria to be addressed in the petition, as well as the process 

for making the non-waste determination, are specified in paragraph (c) of this section. 

(b) The following non-hazardous secondary materials are not solid wastes when combusted: 

(1) Non-hazardous secondary materials used as a fuel in a combustion unit that remain 

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

paragraph (d)(1) of this section. 

(2) The following non-hazardous secondary materials that have not been discarded and 

meet the legitimacy criteria specified in paragraph (d)(1) of this section when used in a 

combustion unit (by the generator or outside the control of the generator): 

(i) [Reserved]

(ii) [Reserved]

(3) Non-hazardous secondary materials used as an ingredient in a combustion unit that 

meet the legitimacy criteria specified in paragraph (d)(2) of this section. 

(4) Fuel or ingredient products that are used in a combustion unit, and are produced from 

the processing of discarded non-hazardous secondary materials and that meet the 

Deleted: (i) Scrap tires used in a combustion 

unit that are removed from vehicles and managed 

under the oversight of established tire collection 

programs. ¶

(ii) Resinated wood used in a combustion unit.¶
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legitimacy criteria specified in paragraph (d)(1) of this section, with respect to fuels, and 

paragraph (d)(2) of this section, with respect to ingredients. The legitimacy criteria apply 

after the non-hazardous secondary material is processed to produce a fuel or ingredient 

product. Until the discarded non-hazardous secondary material is processed to produce a 

non-waste fuel or ingredient, the discarded non-hazardous secondary material is 

considered a solid waste and would be subject to all appropriate federal, state, and local 

requirements. 

(c) The Regional Administrator may grant a non-waste determination that a non-hazardous 

secondary material used as a fuel, not managed within the control of the generator, is not 

discarded is not a solid waste when combusted. The criteria and process for making such nonwaste determinations includes the following: 

(1) Submittal of an application to the Regional Administrator for the EPA Region where 

the facility combusting the non-hazardous secondary material is located for a 

determination that the non-hazardous secondary material, even though it has been 

transferred to a third party, has not been discarded and is indistinguishable in all relevant 

aspects from a product fuel. The determination will be based on whether the nonhazardous secondary material has been discarded, is a legitimate fuel as specified in 

paragraph (d)(1) of this section and on the following criteria: 

(i) Whether market participants treat the non-hazardous secondary material as a 

product rather than as a solid waste; 

(ii) Whether the chemical and physical identity of the non-hazardous secondary 

material is comparable to commercial fuels; 

(iii) Whether the non-hazardous secondary material will be used in a reasonable 

time frame given the state of the market; 

(iv) Whether the constituents in the non-hazardous secondary material are 

released to the air, water or land from the point of generation to the point just 

prior to combustion of the secondary material at levels comparable to what would 

otherwise be released from traditional fuels; and 

(v) Other relevant factors. 

(2) The Regional Administrator will evaluate the application pursuant to the following 

procedures: 

(i) The applicant must submit an application for the non-waste determination 

addressing the legitimacy criteria in paragraph (d)(1) of this section and the 

relevant criteria in paragraphs (c)(1)(i) through (v) of this section. In addition, the 

applicant must also show that the non-hazardous secondary material has not been 

discarded in the first instance. 

(ii) The Regional Administrator will evaluate the application and issue a draft 

notice tentatively granting or denying the application. Notification of this 

tentative decision will be published in a newspaper advertisement or radio 

broadcast in the locality where the facility combusting the non-hazardous 

secondary material is located, and be made available on EPA’s website. 

(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 
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meets the relevant criteria contained in this paragraph after a formal non-waste 

determination has been granted, the applicant must re-apply to the Regional 

Administrator for a formal determination that the non-hazardous secondary 

material continues to meet the relevant criteria and, thus not a solid waste. 

(d) Legitimacy criteria for non-hazardous secondary materials. 

(1) Legitimacy criteria for non-hazardous secondary materials used as a fuel in 

combustion units include the following: 

(i) The non-hazardous secondary material must be managed as a valuable 

commodity based on the following factors: 

(A) The storage of the non-hazardous secondary material prior to use 

must not exceed reasonable time frames; 

(B) Where there is an analogous fuel, the non-hazardous secondary 

material must be managed in a manner consistent with the analogous fuel 

or otherwise be adequately contained to prevent releases to the 

environment; 

(C) If there is no analogous fuel, the non-hazardous secondary material 

must be adequately contained so as to prevent releases to the environment; 

(ii) The non-hazardous secondary material must have a meaningful heating value 

and be used as a fuel in a combustion unit that recovers energy. 

(iii) The non-hazardous secondary material must contain contaminants or groups 

of contaminants at levels comparable in concentration to or lower than those in 

traditional fuel(s) which the combustion unit is designed to burn. In determining 

which traditional fuel(s) a unit is designed to burn, persons can choose a 

traditional fuel that can be or is burned in the particular type of boiler, whether or 

not the combustion unit is permitted to burn that traditional fuel. In comparing 

contaminants between traditional fuel(s) and a non-hazardous secondary material, 

persons can use ranges of traditional fuel contaminant levels compiled from 

national surveys, as well as contaminant level data from the specific traditional 

fuel being replaced. Such comparisons are to be based on a direct comparison of 

the contaminant levels in both the non-hazardous secondary material and

traditional fuel(s) prior to combustion. 

(2) Legitimacy criteria for non-hazardous secondary materials used as an ingredient in 

combustion units include the following: 

(i) The non-hazardous secondary material must be managed as a valuable 

commodity based on the following factors: 

(A) The storage of the non-hazardous secondary material prior to use 

must not exceed reasonable time frames; 

(B) Where there is an analogous ingredient, the non-hazardous secondary 

material must be managed in a manner consistent with the analogous 

ingredient or otherwise be adequately contained to prevent releases to the 

environment; 

(C) If there is no analogous ingredient, the non-hazardous secondary 

material must be adequately contained to prevent releases to the 

environment; 

(ii) The non-hazardous secondary material must provide a useful contribution to 

the production or manufacturing process. The non-hazardous secondary material 

Deleted: fuels

Deleted: comparison is

Deleted: to the

Deleted: itself
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provides a useful contribution if it contributes a valuable ingredient to the product 

or intermediate or is an effective substitute for a commercial product. 

(iii) The non-hazardous secondary material must be used to produce a valuable 

product or intermediate. The product or intermediate is valuable if: 

(A) The non-hazardous secondary material is sold to a third party, or 

(B) The non-hazardous secondary material is used as an effective 

substitute for a commercial product or as an ingredient or intermediate in 

an industrial process. 

(iv) The non-hazardous secondary material must result in products that contain 

contaminants at levels that are comparable in concentration to or lower than those 

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

secondary material. 

§241.4 Non-Waste Determinations for Specific Non-Hazardous Secondary Materials 

When Used as a Fuel.

(a) The following non-hazardous secondary materials are not solid wastes when used as a fuel in 

a combustion unit:

(1) Scrap tires that are not discarded and are managed under the oversight of established 

tire collection programs, including tires removed from vehicles and off-specification 

tires. 

(2) Resinated wood.

(b) Any person may submit a rulemaking petition to the Administrator to identify additional nonhazardous secondary materials to be listed in paragraph (a) of this section. Contents and 

procedures for submittal of the petitions include the following: 

(1) Each petition must be submitted to the Administrator by certified mail and must 

include:

 (i) The petitioner's name and address;

(ii) A statement of the petitioner's interest in the proposed action;

(iii) A description of the proposed action, including (where appropriate) suggested 

regulatory language; and

 (iv) A statement of the need and justification for the proposed action, including 

any supporting tests, studies, or other information. Where the non-hazardous 

secondary material does not meet the legitimacy criteria, the applicant must 

explain why such non-hazardous secondary material should be considered a nonwaste fuel, balancing the legitimacy criteria with other relevant factors.

(2) The Administrator will make a tentative decision to grant or deny a petition and will 

publish notice of such tentative decision, either in the form of an advanced notice of 

proposed rulemaking, a proposed rule, or a tentative determination to deny the petition, in 

the Federal Register for written public comment.

(3) Upon the written request of any interested person, the Administrator may, at its 

discretion, hold an informal public hearing to consider oral comments on the tentative 

decision. A person requesting a hearing must state the issues to be raised and explain 

why written comments would not suffice to communicate the person's views. The 

Administrator may in any case decide on its own motion to hold an informal public 

hearing.

(4) After evaluating all public comments the Administrator will make a final decision by 
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publishing in the Federal Register a regulatory amendment or a denial of the petition.

(5) The Administrator will grant or deny a petition based on the weight of evidence 

showing the following:

(i) The non-hazardous secondary material has not been discarded in the first 

instance and is legitimately used as a fuel in a combustion unit, or if discarded, 

has been sufficiently processed into a material that is legitimately used as a fuel. 

(ii) Where any one of the legitimacy criteria in section 241.3(d)(1) is not met, 

that the use of the non-hazardous secondary material is integrally tied to the 

industrial production process, that the non-hazardous secondary material is 

functionally the same as the comparable traditional fuel, or other relevant factors 

as appropriate.