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# Summary of Public Comments and Responses for Commercial and Industrial Solid Waste Incineration Units: Reconsideration and Final Amendments; Non-Hazardous Secondary Materials That Are Solid Waste: Final Rule

Volume 2: NHSMPage 2 of 100 July 2012



## This volume contains comments submitted for the non-hazardous secondary material (NHSM) propos ed revisions - December 23, 2011

proposed rule (76 FR 80452; Document ID: EPA-HQ-RCRA-2008- 0329-1843) and responses to those comments. 1



## DOCKET: EPA-HQ-RCRA-2008-0329 RIN: 2050-AG44

U. S. Environmental Protection Agency Office of Resource Cons ervation and Recovery Washington, DC

1 Refer to Section I of this document for the intended scope of the proposed rule and responses.Page 3 of 100 FOREWORD These documents provide EPA’s responses to public comments on EPA’s Proposed Commercial and Industrial Solid Waste In cineration (CISWI) Rule and Non-Hazardous Secondary Materials That Ar e Solid Waste (NHSM) Rule. EPA published a Notice of Proposed Reconsid eration and Amendments in the Federal Register on December 23, 2011 ( 76 FR 80452). EPA received comments on these proposed rules via mail, e-mail, and facsimile. Copies of all comments submitted are available at the EPA Docket Center Public Reading Room and are also available electronically through http://www.regulations.gov by searching Docket ID EPA-HQ-OAR-2003-0119 (for CISWI) and EPA-HQ-RCRA-2008-0329 (for NHSM). The regul ations for non-hazardous secondary materials are found at 40 CFR part 241. The overall response to comments document is divided into two volumes, volume one responds to public comments received on the CISWI reconsideration proposal and volume two responds to public comments received on the NHSM amendment proposal. Each section of these documents provides the verbatim text of comme nts extracted from the original letter.

Refer to Section I of this document for a description of the scope non-hazardous secondary material (NHSM) proposed revisions (December 23, 2011 proposed rule; 76 FR 80452; Document ID: EP A-HQ-RCRA-2008-0329-1843).Page 4 of 100 The primary contact regarding questions or comments on this document is: George Faison (703) 305-7652 U. S. Environmental Protection Agency Program Implementation and Information Division Office of Resource Conser vation and Recovery Washington, DCPage 5 of 100 

### TABLE OF CONTENTS

Section Page I. Scope and Introduction ................................................................................................... ....... vi II. Response to Comments ..................................................................................................... ...... 8 2A. Definition of “Clean Cellulosic Biomass” ......................................................................... 8 2B. Definition of “Contaminants” .......................................................................................... 13 2C. Definition of “Established Tire Collection Program” ...................................................... 14 3A. Contaminant Legitimacy Criterion for NHSMs Used as Fuels ....................................... 19 4B01. General Comments on Categorical Non-Waste Determinations .................................. 26 4B02. Scrap Tires (as Categorical Non-Wastes) ................................................................... 27 4B03. Resinated Wood (as Categorical Non-Wastes) ............................................................ 28 4B04. Pulp and Paper Sludge (as Categorical Non-Wastes) .................................................. 33 4B05. Coal Refuse and Legacy Pile s (as Categorical Non-Wastes) ....................................... 33 4C02. Comments on the Categorical Non-Waste Petition Process at §241.4(b) (i.e., imposed burden, administrative pro cess issues etc) ................................................................... 33 4C03. Categorical Non-Waste Petition Criteria ...................................................................... 48 5D03. Suggestions for Streamlining the Ex isting Petition Proce ss at §241.3(c) .................... 49 6A. General Comments on Cl arification Letters .................................................................... 54 7C. State Authority: Relati onship to State Programs.............................................................. 55 7D. Cost and Benefits ......................................................................................................... .... 56 7F. Regulatory Flexibility Act and Small Entity Impacts ....................................................... 57 7G. Executive Order Comments (other than Re gulatory Flexibility Act comments regarding NHSM impacts on small entities) ................................................................................ 59 7W. Negative Impact s to Landfills ......................................................................................... 65 8B. Requests for Extension of Comment Period .................................................................... 68 8Z. Other ..................................................................................................................... ............ 69 III. Index of Comments Covered in the Preamble .................................................................. 73 IV. Index of Comments on Topics that Are De alt With in the Rulema king Record for the March 2011 Final Rule and Were Not Reopened by the December 2011 Proposal or Were Otherwise Not in the Scope of the December 2011 Proposal ............................... 83 V. Index of Comments on Clean Air Act Aspects .................................................................. 95Page 6 of 100 

## I. Scope and Introduction

On December 23, 2011, EPA published a proposed ru le (76 FR 80452), which addressed specific targeted amendments and clarifications to the part 241 regulations. Thes e proposed revisions and clarifications were limited to certain issues on which the Agency had received new information, as well as targeted revisions th at the Agency believed were appropriate in order to allow implementation of the rule as the EPA originally intended 2 . As stated throughout the preamble to the proposed rule, the Agency was not reope ning the entire NHSM rule for reconsideration and would not respond to comments directed toward rule provisions that were not specifically identified in this proposal 3 . Therefore, comments that were submitted outside the scope of the proposal, or for which the EPA did not solicit comme nt, are not addressed in the final rule, or in this response to comments document that has been prepared for the final rule. This document includes those responses to comment s relating to the targeted changes outlined in the December 11, 2011 proposed rule as follows: Section II. – Public comments and Agency responses - in add ition to the responses included in the preamble to today‘s final rule; Section III – Index of public comments that we re addressed in the preamble to today’s final rule; Section IV – Index of public comments on issu es that were either addressed in the March 2011 final rule and not reopened for consideratio n, or issues that were not within the scope of the targeted changes specifically discussed in the December proposal; and Section V – Index of public comments more a ppropriately addressed under the associated Clean Air Act programs rulemakings.

2 For more information regarding the in tent of the December 23, 2011 proposed rule, see 76 FR 80469. For more information regarding the scope of the proposed rule, see the full proposed rule and, in particular, 76 FR 80470- 80474.

3 In the December 23, 2011 proposed ru le see 76 FR 80470; “The EPA is solic iting comment only on these targeted changes and is not reopening any other issues in the final NHSM rule. Comments that go beyond the scope of this narrow RCRA r ulemaking will not be addressed by the Agency when it finalizes today’s proposed rule.” See also 76 FR 80474, “As noted above, the intent of this proposal is to identify certain specific aspects of the rule which EPA is reconsidering and on which it is soliciting public co mment. The Agency is not reopening the entire rule for reconsideration and will not respond to comments directed toward rule provisions that are not specifically identified in this proposal.” See also 76 FR 80482, “The Agency is not considering any change to the self-implementing, mandatory nature of the §241.3 standards for individual facilities and will not respond to any comments on this topic.”Page 7 of 100 Section II has the verbatim text of comments ex tracted from the origin al letter using text recognition software. The following informati on is provided for each comment: the name and affiliation of the commenter; the Document ID number assigned to the comment by the docket, and the comment excerpt number. The comment can be easily located at www.regulations.gov by entering in the Document ID Number. EPA’s responses to comments are generally pr ovided immediately following each comment excerpt. However, in instances where several co mmenters raised similar or related issues, EPA has provided a single response after the first comment excerpt and re ferenced this response in the subsequent comment excerpts (if th e comment is in the same sect ion). In limited situations, a comment is not repeated if the commenter made the specific point twice or if it used the same comment description as another commenter. In some cases, EPA provided responses to specif ic issues raised in comments or groups of similar comments in the preamble to the final rulemaking. In many cases the responses direct the reader to aspects of the pr eamble of today’s final rule an d to aspects of the March 21, 2011 NHSM final Rule where commenter ’s issues are addressed. This document does not contain all the respons es to comments on the NHSM rulemaking since the specific comments that were responded to in the preamble of the final rule (identified in Section III) were not repeated in this document to any large exte nt. In addition, responses to comments that were finalized in the March 21, 2011 NHSM final rule are not superseded, unless specifically noted in this ru le, since the December 23, 2011 proposal was a targeted rulemaking as discussed above in this section.Page 8 of 100 

## II. Response to Comments

2A. Definition of “Clean Cellulosic Biomass”

Commenter Name: Mary S. Booth Commenter Affiliation: Partnership for Policy Integrity (PFPI) Document ID: EPA-HQ-RCRA-2008-0329-1974-A2 Comment Excerpt Number: 8

Comment: 1. Hogged fuel . “Hogging” refers to th e process of shredding material. Just because material has been shredded, does not make it clea n. This description of a process does not belong in this list, which otherwise cons ists of material fuel sources. 2. Wood pellets . Like hogging, pelletizing can be done to almost any material. Wood pellets can be made from any kind of wood. The definition should specify “wood pellets made from virgin biomass materials”. 3. Byproducts of ethanol natural fermentation processes . This is a discarded waste product and does not deserve the appellati on “clean”. What is the standard of “virgin biomass” to which is being compared? 4. Clean wood found in disaster debris . This again refers indirectly to a process (the process by which standing wood is knocked down in a disaster su ch as a tornado). This adds nothing to the list that is not already there (i.e, all the “clean” kinds of materials that co uld be found in disaster debris are already listed). Response: EPA disagrees with the commenter that the referenced materials should not be considered as examples of clean cellulosic bioma ss as outlined in today's final rule. Specifically: hogged fuel is wood chips or shavings, residu e from sawmills; wood pellets are compacted sawdust or other residues from sawmilling operations; byproducts of ethanol natural fermentation processes include fiber and pulp fr om sugar cane and othe r crops. All of these materials must be clean (i.e. not contain contamin ants at concentrations not normally associated with virgin biomass material [defined in sec tion 241.2]) to be considered as clean cellulosic biomass. Thus, for example, hogged fuel that is not clean would be a wast e. We note that clean wood found in disaster debris was included in the final March 11, 2011 rule, and was not reopened in the proposal for today's final rule.

Commenter Name: Holly R. Hart Commenter Affiliation: United Steelworkers (USW) Document ID: EPA-HQ-RCRA-2008-0329-1910-A1 Comment Excerpt Number: 1Page 9 of 100 Comment: USW supports EPA’s expanded definition of clean cellulosic biomass given at Section 241.2. USW takes particular note of the definition of clean construction and demolition waste (C&D) as clean cellulosic biomass. Response: The Agency wishes to clarify that the clean cellulosic biomass definition in Section 241.2 includes the example of clean construc tion and demolition wood, not clean construction and demolition waste as stated in the comment. For example, see section III.D.1.a of today's final rule for a further discussion of construction and demolition materials.

Commenter Name: William Turley Commenter Affiliation: Construction Materials R ecycling Association (CMRA) Document ID: EPA-HQ-RCRA-2008-0329-1928-A1 Comment Excerpt Number: 4 Comment: If in the final rule it remains necessary to consider contaminant levels to determine whether a material is discarded, CMRA request s further clarification. On page 15485, column 2, of the March 21, 2011 Preamble for the final NHS M rule, EPA states: “C&D-derived fuel ... likely meets the processing and legitimacy criteria.” This statement indicates that it is an open question as to whether a partic ular C&D-derived fuel meets th ese criteria. EPA made other statements indicating that the typical C&D r ecycling operations sufficiently “process” NHSM, which we appreciate. Meeting the “legitimacy cr iteria” remains a concern, however. While the legitimacy criteria focused on heating value, pro cessing, and treatment as a commodity are easily met by C&D wood fuel, the legitimacy criteria also require a contaminant comparison to traditional fuels. Response: As indicated in the final rule, the Agen cy has determined that contaminated C&D wood that has been processed (e.g., sorted) to re move contaminants, such as lead-painted wood, treated wood containing contaminants, such as arsenic and chromium , metals and other nonwood materials, prior to burni ng likely meets the processing and legitimacy criteria for contaminants, and thus can be combusted as a non-waste fuel. Although the Agency has made this determination, as with all NHSM under the rule , owners and operators of affected facilities combusting the materials must ensure that they meet the legitimacy criteria in § 241.3(d) and continue to meet those criteria when combuste d. The CAA section 112 rule requires notifications and recordkeeping, including docum entation as to how the non-hazardous secondary material meets the legitimacy criteria, and satisfies the definition of processing and/or the requirements for the petition process.

Commenter Name: William Turley Commenter Affiliation: Construction Materials R ecycling Association (CMRA) Document ID: EPA-HQ-RCRA-2008-0329-1928-A1 Comment Excerpt Number: 11Page 10 of 100 Comment: Finally, we support EPA’s cl arification that: “A n initial assessment [of contaminant comparability] would not generally need to be repeated, provided the facility continues to operate in the same manner and use the same t ype of NHSMs as when the original assessment was made.” 9 Based on this statement, we believe that EPA would allow a combustor to rely on the initial assessment of comparability unless th e combustor had reason to believe that the NHSM had significantly changed. The provided analyt ical data and analyses in the AFPA letter of C&D wood from a broad spectru m of facilities that collect C& D wood from various sources is indicative of the consistent and comparable nature of C&D wood and the limited change expected to occur in these facilities. Please confirm that this is EPA’s intent. [Footnotes] (9) 76 Fed. Reg. at 80481. Response: The Agency again confirms that an initi al assessment [of contaminant comparability] would not generally need to be re peated, provided the facility c ontinues to operate in the same manner and use the same type of NHSMs as when the original assessment was made. The type of information provided in the AFPA letter (see EPA-HQ-RC RA-2008-0329-1946-A1) is indicative of this type of information. Howeve r, as with all NHSM under the rule, owners and operators of affected facilities combusting the materials must ensure that they meet the legitimacy criteria in § 241.3(d) and continue to meet those cr iteria when combusted. The 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 requiremen ts for the petition process.

Commenter Name: William Turley Commenter Affiliation: Construction Materials R ecycling Association (CMRA) Document ID: EPA-HQ-RCRA-2008-0329-1928-A1 Comment Excerpt Number: 12 Comment: Appropriate contaminants for comparison. We specifically agree with EPA’s determinati on that C&D wood contaminant comparisons could be based on an evaluation of th e three metals (mercury, lead, and cadmium) and chlorine in Table I plus arsenic and chromium. In revi ew of the March 21, 2011 Preamble, on page 15485, EPA states: “The data provided by one company demonstrates that C&D derived wood can be sufficiently processed to meet the legitimacy criterion for four contaminants, even when these contaminants are compared to untreated wood concentrations presented in the background document. ... A complete determination, however, would include As and Cr concentrations.” EPA confirmed in the proposed revisions that th e EPA does not expect th e proposed revisions to affect any of the decisions previously made on whether NHSMs are solid waste when burned as a fuel. 3 Based on the proposed revisions to the NH SM rule, it appears that EPA would also require consideration of other parameters, including nitrogen and sulfur. CMRA requests confirmation that these five metals and three para meters are the only contaminants that must be compared. Any ambiguity on this point is unnecessa ry, and certainty as to the contaminants of interest to EPA is very important for our industry.Page 11 of 100 [Footnote] (3) 76 FR 80470 Response: In the preamble to the March 21, 2011 fi nal rule, as referenced by the commenter, EPA reviewed data provided by one company and concluded that, for four of the contaminants most likely to be present in C&D wood (cadmium, chlorine, lead, and mercury), it is possible for C&D wood to be processed to the point where it meets the contaminant legitimacy criterion. The Agency identified two additional contaminants (arsenic and chromium) whose concentrations it had reason to believe could also be elevated in C&D wood, but the fact that the Agency only identified two additional contaminants does not mean that others can be ignored. Additional contaminants may not require testing, but the Agency wishes to clarify that they cannot be ignored either. In the context of C&D wood, EPA acknowledges that an analysis of arsenic, cadmium, chromium, lead, mercury, chlorine, nitrogen, and sulfur levels, as indicated by the commenter, may be sufficient for a particular person to demonstrate compliance with the contaminant legitimacy criterion. Such a finding would have to be based, however, on the assumption that the additional contaminants defined in §241.2 are e ither not present or ar e present at levels comparable to or less than those found in the tr aditional fuel(s) the un it is designed to burn. Whether or not persons can make such an assu mption for each additional contaminant will likely depend on the specific operation involved ( e.g. , the type of C&D mate rials involved and the extent of their processing and process knowledge).

Commenter Name: Arthur N. Marin Commenter Affiliation: Northeast States for Coordinated Air Use Management (NESCAUM) Document ID: EPA-HQ-RCRA-2008-0329-1915-A1 Comment Excerpt Number: 5 Comment: Wood Pellets in the Definiti on of Clean Cellulosic Biomass. As part of the EPA’s changes in the definition of CCB, it is proposing to consider wood pellets the same as “virgin” wood. In tests of the composition and quality of materials marketed as pelletized wood, NESCAUM found that wood pelle ts can vary in quality and contents, and may sometimes include plastics and other non-wood materials. 1 NESCAUM recommends that EPA specify that pelletized wood classified as CCB may not include non-wood materials such as paint, plasti c, or metal. NESCAUM further suggests that wood pellets included in CCB that do contain any non-wood materi als should be required to meet the legitimacy criteria and requirements under 40 CFR 241.3(b)(3). [Footnote] 1 NESCAUM, (pending), “Analy sis of Elemental Composition and Emission Impacts of Biomass Pellets and Wood Chip Fuels.” Response: Wood pellets that contain these non-wood materials would not be considered clean cellulosic biomass and thus traditional fuel by defi nition, therefore, no furt her specifications inPage 12 of 100 the rule are warranted. Speci fically, clean cellulosic bioma ss as defined in section 241.2 includes "residuals that are akin to traditi onal cellulosic biomass" . . . "that does not contain contaminants at concentrations not normally associated with virgin biomass materials." Pelletized wood contai ning these non-wood materi als would not meet one or both of these criteria for clean cellulo sic biomass type of traditional fuel.

Commenter Name: Ted Michaels Commenter Affiliation: Energy Recovery Council (ERC) Document ID: EPA-HQ-RCRA-2008-0329-1927-A1 Comment Excerpt Number: 6

Comment: On July 12, 2011, in response to EPA’s May 18, 2011 call for emission data, the Biomass Power Association (BPA) submitted em ission data for 15 biomass units. (EPA-HQOAR- 2003-0119-2531) The submittal included a descri ption of all materials combusted during each of the tests for which data were provide d. Of the 15 units, seven combusted “urban wood” 5 from processors during the emission tests. In its submittal BPA stated that all units were “CISWIs or possible CISWIs” and explained th at the basis for that determination was a conservative reading of the conf using March 21, 2011 final NHSM rule. In its December 23 proposal and MACT floor calculations EPA has categorized 12 of these biomass units as either Major Boilers or Area Source Boilers. This includes the seven units combusting processed C&D wood. These units ar e noted in the Major Source Boiler MACT database as: CAChineseStation, CACovant aDelano Unit 1, CACovantaDelano Unit 2, CACovantaMendota, CAPacificOroville Bo iler 1, CAPacificOroville Boiler 2, and CAThermalEnergyDev. We agree that EPA shoul d recognize processed C&D as the non-waste fuel it has historically been, but we are puzzled by the conflict between these categorizations and the presumption in the NHSM rule that would re quire combustion plant operators to demonstrate that any NHSM was a non-waste fuel. BPA provi ded no contaminant data which would have enabled EPA to make the determination that the processed C&D wood met the contaminant legitimacy criterion on which a non-waste determ ination could be made according to the NHSM rule. To achieve the required consistency between th e proposed NHSM rule and the boiler and CISWI unit inventories EPA should revise the NHSM rule , deleting the waste presumption and allowing processed C&D to be classified as the fuel it has always been. [Footnotes] (5) The biomass industry term for processed C&D wood is “urban wood,” noted as unclean demolition material on the biomass list provided with the BPA submittal. The submittal predates EPA’s 12/23/11 revised definition of “clean cellulosic bioma ss” which now includes “...urban wood (e.g., tree trimmings, stumps, and related forest-derived biomass from urban settings)...” and is a different material fr om that the industry calls “urban wood.”Page 13 of 100 Response: The commenter’s statement that the wast e presumptions should be deleted for processed C&D wood discusses issues that have been addressed in the rulemaking record for the March 2011 final rule and were not reopened in the proposal for th is rule (Docket Number: EPAHQ-RCRA-0329). In short, EPA is not making a “presumption” that particular materials are wastes, certainly not as they apply to sufficiently processed C&D wood. The Agency disagrees with the commenter, moreover, th at there is inconsistency between the proposed NHSM rule and the boiler/CISWI unit inventories. Analysis of the inventories indi cates that most of the biomass units cited in the comment are area sources. For purpose of the da tabase, processed C&D materials are expected to be able to meet legitimacy criteria and, th erefore, qualify as "nonwaste" materials under the NHSM rule . It is reasonable to expect that suppliers will react to provide a processed product (fuel) that can qualify as non-wa ste per §241.3(b)(4).



### 2B. Definition of “Contaminants”

Commenter Name: Michael D. Stevens Commenter Affiliation: National Cement Company, Inc. (National Cement) Document ID: EPA-HQ-RCRA-2008-0329-1941-A1 Comment Excerpt Number: 49

Comment: Under 40 CFR Part 241, EPA is defini ng contaminants for purposes of the contaminant legitimacy criterion for fuels. Fiftee n elements are listed as contaminant under the proposed rule. Meeting the criterion on an elem ent-by element basis is an unreasonable burden, given that unduly restrictive criteria will mean that materials suitable for use as fuel in kilns will instead be unnecessarily sent to landfills. Response: EPA disagrees with this comment and not es that it discusses issues that were previously addressed in the March 21, 2011 NHS M final rule (76 FR 15456). Specifically, the Agency has previously explained its rationale for basing the contaminants definition on pollutants identified in Clean Air Act (CAA) sections 112 and 129 (76 FR 15542). The Agency has also previously responded to comments argui ng that contaminant comparisons would impose an unnecessary burden on emissions sources ( 76 FR 15524-5). Furthermore, the Agency has previously explained th at broad policy goals ( e.g. , the diversion of materials from landfills) cannot substitute for the statutory requirements which the Agency must follow (76 FR 15474). In the context of this comment, a material “sui table for use as fuel” may also have excessive contaminant levels, in which case a unit burning th at material would have to be subject to CAA section 129 standards. The Agency cannot change th e definition of contaminants solely to reduce burden or to make combustion less expensive. The comment refers to fifteen elements identifie d as contaminants in the proposed rule. As explained in the proposal, all fift een elements are either pollutant s listed in CAA sections 112(b) or 129(a)(4), or they are known to form such pollutants when combusted (76 FR 80477-8). Thus, it is reasonable and appropriate to consider each of these elements as a contaminant. ForPage 14 of 100 additional information, see the pream ble to today’s final rule, and section III.D pertaining to the definition of contaminants in particular. The comment specifically references contaminan t comparisons for the fifteen elements on an element-by-element basis. As explained in th e proposal, contaminants can be grouped when making contaminant comparisons, but groupings mu st be technically reasonable (76 FR 80477). In the context of this comment, grouping the fifteen elements together fo r the sole purpose of reducing burden, even if it meant materials woul d be diverted from landfills, would not be appropriate. For additional information, see the pr eamble to today’s final rule, and section III.D pertaining to the gr ouping of contaminants in particular. In regard to the statement on di version to landfills, refer to th e document in the docket (# EPAHQ-RCRA-2008-0329) for today's rule titled: "REGULATORY SUPPORT: Assessment of Potential Costs, Benefits, Environmental Justice, and Other Impacts; a nd Regulatory Flexibility Screening Assessment."



### 2C. Definition of “Established Tire Collection Program”

Commenter Name: Mark R. Vickery Commenter Affiliation: Texas Commission on Envi ronmental Quality (TCEQ) Document ID: EPA-HQ-RCRA-2008-0329-1943-A3 Comment Excerpt Number: 1

Comment: The rules adopted on Ma rch 21, 2011, and the pending amendments both require that discarded tires be considered waste when us ed as fuels or ingredie nts in combustion units. Part of EPA’s rationale for excluding discarded tires is that there are less than one million tires in tire piles in the United States as compared to an estimate of one bi llion tires in 1990. EPA’s estimate of abandoned tires is too low by a large magnitude and, as a result, the Reconsideration rulemaking does not go far enough in addressing a major environmental problem of scrap tires being dumped nationwide. In Texas alone, there ar e at least 14 million tires in known sites which need clean up. Dumping of tires continues to be common. Therefore, EPA’s current stance is a disincentive for the economic recovery and reuse of tires and would discourage the development of markets for recycled material. In addition, EPA’s proposed redefinition of “estab lished tire collection program” falls short of resolving nuisance conditions rela ted to temporarily abandoned tires and undermines efforts to recycle all used tires as nonhazardous secondary materials, regardless of when and under what circumstances they are collected and brought to a tire storage and processing facility. EPA should revise its limited Reconsideration rule by defining “established tire collection program” more broadly to benefit tire collec tion programs nationwide. EPA may accomplish this important goal by expanding the scope of establishe d tire collection programs to include all scrap tires (regardless of when and how the tire is collected) as follows (we bolded the changes to make them easier to identify):Page 15 of 100 241.2 Definitions. Established tire collection prog ram means a comprehensive collection system or contractual arrangement that ensures scrap tires [are not discarded and] are handled as valuable commodities through arriva l at the combustion facility. §241.4 Non-Waste Determinations for Specific Non- Hazardous Secondary Materials When Used as a Fuel. (a) The following non-hazardous secondary materials ar e not solid wastes when used as a fuel in a combustion unit: (1) Scrap tires that [are not di scarded and] are managed under the oversight of es tablished tire collection programs, including ti res removed from vehicles, abandoned tires that have been recovered , and off-specification tires. Response: In regard to the comments in para graphs 1 and 2, the Agency recognizes the problems associated with abandoned tire stockp iles and the discrepancy stated about the magnitude of tire dumps would not have changed the EPA decision on the waste status of tires abandoned in those tire dumps. As noted in the final rule, however, use of scrap tires as a fuel or an ingredient is governed by whether the tire has b een disposed in the firs t instance, and are thus a solid waste (unless processed into a non-waste) . In regard to the re quested change to the definition of established tire coll ection program to allow whole tire s that have been abandoned to be classified as non-waste, the comment discu sses issues that have been addressed in the rulemaking record for the March 2011 final rule (76 FR 15456) and were not reopened in the proposal for this rule. Refer to the 2011 response to comments document in the docket (Document ID: EPA-HQ-RCRA-2008-0329-1837 S ection 3a-B5 and 3b-B4 for example).

Commenter Name: Satish Sheth Commenter Affiliation: Cemex USA Document ID: EPA-HQ-RCRA-2008-0329-1938-A2 Comment Excerpt Number: 20

Comment: We hope that EPA will finalize the ru le with a common sense approach that recognizes the fallacies of drawi ng these types of lines. Had it not been for cement kilns using tires beneficially, the U.S. woul d have many more tire piles re maining today. Why not finalize a rule that allows these manufacturers to beneficial ly use tires to continue to reduce their negative environmental impact whether the tires are alread y in piles or are bei ng newly generated? The impact to the environment remains positive for both examples. For example, as part of the approval proce ss for CEMEX to receive and utilize tires as alternative fuels at many of our U.S. kilns, CEMEX entered into agreements with the local communities to hold tire “Amnesty Days” during which local residents are allowed to bring tires to CEMEX, which we in turn utilize as altern ative fuels for our kilns. Under EPA’s current definition of tire collection programs, it is no t clear whether tires collected during CEMEX’sPage 16 of 100 “amnesty days” would qualify under the categorical exemption. In other words, it is unclear whether tires collected under such programs, whether held by a cem ent plant or by local communities, could be utilized by kilns as whole tir es, or whether they would be presumed to be “discarded” and therefore require d to be “processed under the cu rrent processing definition” (e.g. shredded). The majority of U.S. cement plants , and likewise most of CEMEX’s U.S. plants, utilize tires as fuel, which are in troduced both in the main firing zone of the rotary kiln and in the preheater/precalciner location (faci lity-specific location). Further, many kilns utilize whole tires in place of traditional fossil fuels in order to comply with federal a nd state requirements to reduce NOx emissions. NOx emissions are regu lated under ozone transport SIPS and under Regional Haze SIPs. Therefore, the use of whole tires as alternative fuel at cement kilns is in fact a part of our company’s strategy in addition to EPA’s strategy to reduce the emissions of air contaminants. Response: The Agency agrees with the commente r regarding tires obtai ned through “Amnesty Days,” as the commenter referred to them, ar e not abandoned. Accordingly, the definition for established tire collectio n program in the final rule includes tires that are not abandoned and are received from the general public at collection pr ogram events (section 241.2). Such tires would also be categorical non-wastes in accordance with section 241.4(a)(1). Refer to the preamble in Section III.D.3.a, for example, for more details. In re gard to discarded tires in tire piles, this issue was not reopened in the December 23, 2011 propos ed rule. Refer to the March 21, 2011 final rule (76 FR 15456) Section V.B.5 (section page 15489) and the response to comments document in the docket (Document ID: EPA-HQ-RCRA-2008- 0329-1837, sections 3a and 3b for example). The responses made in the 2011 final rule are applicable to this issue.

Commenter Name: Mark R. Vickery Commenter Affiliation: Texas Commission on Envi ronmental Quality (TCEQ) Document ID: EPA-HQ-RCRA-2008-0329-1943-A3 Comment Excerpt Number: 2

Comment : The Alternative Approach EPA Should Adopt EPA should develop a regulatory mechanism for tires to be classified as a “s olid waste” and then exit that classification when speci fic conditions are met. Tires woul d be solid wastes when they are abandoned and remain in the environment as a health and nuisance hazard. However, tires would fall outside the solid waste classification when they are collected under a legitimate collection program and stored properly for re use or to be burned for energy recovery. EPA should draw a distinction between cons umer-abandoned nonhazardous secondary materials (like tires, batteries, used oil) and abandoned solid wastes dis carded by traditional industrial generators. Because EPA is deal ing with tires which are nonhazar dous secondary materials, the Agency should use its discretionary authority to develop a broader concept for “control” over tires in determining whether they remain solid wastes or become eligible for reclassification. EPA’s regulatory mechanism which allows for tire reclassification would be validated by the factPage 17 of 100 that tires are not like most solid wastes ge nerated by industrial pro cesses under the close direction of the waste generator. Tires are used by consumers, a third-party who disrupts the direct chain of control afte r the point of generation. To implement the Alternative Approach, EPA w ould allow qualified recovery programs to step into the place of the original generator by recapturing control over abandoned tires and properly storing them, prior to their bei ng recycled or burned for ener gy recovery. As the Court in Association of Battery Recyclers 4 correctly observes, “EPA's dividing line between "waste" and nonwaste is the manner of storage. If the processor stores secondary material destined for recycli ng in tanks, containers, buildings, or on properly maintained pads, the materials are not considered "solid waste." 5 Under this Alternative Appr oach, EPA would treat certain consumer-abandoned nonhazardous secondary materials (like tires) differently from solid wastes directly abandoned by industrial generators. EPA would classify ab andoned tires as solid wastes only so long as they remain in the environment as a nuisance hazard and potenti al source of contamination. After tires are recovered, EPA would allow abandoned tires to move from the classification of “solid wastes” to “exempt nonhazardous secondary materials” if they are properly stored prior to transport under an established tire collection program for r ecycling or for burning for energy recovery. In essence, the Alternative Approach would expa nd the scope of EPA’s current established tire collection program. EPA would allow tires formerly outside such a tire collection program to legitimately fall back within an established tire collection program if the operator of the tire collection program meets specified conditions (i.e., collect the tire s and properly stores them in preparation for recycling). EPA’s justification to adopt th is Alternative Approach for abandoned tires is found in the holding by the Court in American Mining Congress v. EPA 6 ("AMC I"). The AMC I Court distinguishes between “truly aba ndoned” secondary materials and t hose materials that are “slated for recycling.” 7 If read broadly, the case stands for the proposition that certai n materials destined for recycling may for some time period have a pa rticular classification (i.e., solid wastes) but then would receive a different classification (nonhazardous secondary materials exempt from the definition of “solid wastes”) if certain conditions are met. EPA should apply the Court’s distinction of “truly abandoned” versus “slated for recycling” to consumer-abandoned tires that are recovered by a collector under an established collection program. The AMC I Court acknowledged the ordina ry, plain-English meaning of "discarded" but then added: “Secondary materials destined for recycling are obviously not of that sort” because these materials are “being held or stored for later recycling or reuse.” 8 Although the facts of the case are not square ly the same as for tire piles, the Court provides EPA with a legitimate basis for use of discre tion in how the Agency addresse s secondary materials which are undisputedly destined for recycling. Applying the AMC I Court’s rati onale to the recommended Alte rnative Approach, EPA would allow all tires to be “scrap tir es” under an “established tire co llection program” under specific conditions. As a result, EPA woul d be treating abandoned tires like it treated the secondary dustsPage 18 of 100 released by the mining industry which was the su bject in the AMC I recycling case. The Court found that EPA overreached its authority by attemp ting to regulate valuab le metal-bearing and mineral-bearing dusts released in processing a particular metal. The Court found that EPA does not have jurisdiction over these dusts when they are “recaptured, recycled, and reused,” even if in production processes different from the one from which the dusts were originally emitted. 9 Hence, EPA’s jurisdiction would end when the tire s are eligible for reclassification (i.e., at the point of recapture and proper storage of abandoned tires). Similarly, under the Alternative Approach, EPA would treat recovered ti res like it handled K061 slag. The Court in American Petroleum Institutes v. EPA , 10 ("API") agreed with EPA's decision not to regulate K061 slag at the po int of recycling. At a point ea rlier in the indus trial process, K061 is a listed, zinc-bearing hazardous waste gene rated from air pollution control equipment in steel industry electric furnaces. 11 The API Court correctly concluded that K061 was a “solid waste” when it left the electric furnace in which it was produced, but that EPA can legitimately “disavow authority over K061” af ter the waste had been transpor ted to a metals reclamation facility. 12 When promulgating the K061 rules, EPA stated that a waste can become a nonwaste at the point of recycling or reclam ation and cited the AMC I case as its basis for that decision to allow for waste reclassification at a point just before recycling. 13 Hence, the Court observed that slag was not automatically classified by EPA as a solid waste when K061 material goes through a smelting furnace at the reclamation facility. 14 In short, under the Alternative Approach, EPA would regulate ti res the way it regulates certain other solid wastes destined for recycling. EP A should apply the principle of waste being reclassified to a recovered tire br ought within the scope of an es tablished tire co llection program. The parallels between smelting dusts addressed by the AMC I court and the K061 slag addressed by the API court provide EPA with a guiding prin ciple for addressing discarded-but-recovered tires: EPA would classify abandoned tires as solid wastes up to the point when they are retrieved and properly stored under an established tire co llection program, at which point they become nonhazardous secondary materials exempt from the definition of “solid waste” and hence eligible for recycling or burning for energy recove ry under CAA Section 112. Revising 40 CFR §§241.2 and 241.4(a)(1) accomplishes this important objective. The AMC I court recognized EPA's flexibility in how it regulates comparable secondary materials. The Court points to th e example of oil recyclers who t ypically collect discarded used oils, distill them, and sell the resu lting material for use as fuel in boilers without the materials being classified as “solid wastes.” 15 By analogy, if a drum of used oil were found in an abandoned warehouse, the used oil would be a solid waste. However, after testing, the used oil may be reclassified and burned under EPA standards for used oil. 16 Similarly, petroleum-based wastes like spilled or leaked gasoline whic h migrate to the surface of groundwater can be recovered and recycled into a re finery’s process. We respectfully ask for the same treatment of abandoned tires. [Footnotes] (4) See 208 F.3d 1047 (D.C. Cir ., 2000); (5) See id. at 1184, citing the American Institutes of Petroleum (API) case found at 906 F.2d 729 (D.C . Cir. 1990); (6) See 824 F.2d 1177 (D.C. Cir., 1987); (7) See id. at 1182; (8) See id. at 1184; (9) See id. at 1181; (10) See 906 F.2d 729 (D.C. Cir. 1990); (11) See id. at 734; (12) See id. at 740; (13) See id.; ( 14) See id. at 738-39;Page 19 of 100 also see 53 Fed. Reg. 11,742 at 11,753 (1988); (15) See AMC I at 824 F.2d 1177 at 1187, n.14(D.C. Cir, 1987), cited in API, 906 F.2d at 741 n.16 (D.C. Cir. 1990); (16) See 40 CFR § 279.11 related to Specifications Response: Regarding the comments in paragraphs one through five on an alternative regulatory mechanism for abandoned scrap tires, this i ssue was not reopened in the December 23, 2011 proposed rule. For example, refer to the Marc h 21, 2011 final rule (76 FR 15456) Section V.B.5 (section page 15489) and the response to comm ents document in the docket (Document ID: EPA-HQ-RCRA-2008-0329-1837, sections 3a and 3b fo r example). The responses made in the 2011 final rule are applicable to this issue. EP A did not reopen or so licit comment on expanding the scope of the established tire collection program definition to include discarded tires in the December 23, 2011 proposed rule and, thus, will not respond to them further in this rulemaking. While EPA has decided it is unnecessary to repeat legal arguments it made in the record for the March 2011 rule, this comment presents novel legal arguments with which EPA strongly disagrees. A brief di scussion of the novel arguments is warranted. As a general matter, the comment is wrong to argue that AMC I, API I, and ABR can be cited for the proposition that tires placed in landfills or piles for over 20 years can be called non-wastes simply because such tires are dug out of the landf ills, or piles, and recycled. Nor can these tires be considered “destined” for recycling in th e context of the NHSM rulemaking. In the March 2011 final rule, EPA explained that under case law a waste does not lose its status as a waste simply because it has, or may have, value. See, e.g., 76 FR 15463. The Agency finds it unnecessary to repeat these arguments. The court in API I overturned th e Agency’s rule stating that it disavowed regulating K061 waste when it was recycled. Moreover, the court stat ed that it would be un likely that EPA could “simply readopt the conclusion th at its authority to regulate K061 ends at the door of the reclamation facility.” 906 F.2d at 741. The lega l analysis in this co mment adopts a conclusion directly contrary to what the court found in API I. With respect to AMC I and ABR, those cases plainly hold that mate rials reclaimed in a continuous industrial process have not been “discarded” in the ordinary mean ing of the term. Neither of these cases can be applied to situati ons in which materials have been clearly thrown away and abandoned for 20 years or more in tire dumps. The storage argument made by the comment is incorrect. ABR's discussion of stor age, contrary to the argument posited by the comment, relates to whether storage will result in "immediate" or "direct" beneficial reuse. 208 F.3d at 1053. This is in the context of deciding th at material has not been discarded in the first instance, not in situations in which material has cl early been discarded (e.g., in waste tire piles).



### 3A. Contaminant Legitimacy Criterio n for NHSMs Used as Fuels

Commenter Name: Darryl Sanderson Commenter Affiliation: Dow Chemical Company (Dow)Page 20 of 100 Document ID: EPA-HQ-RCRA-2008-0329-1890-A1 Comment Excerpt Number: 3 Comment: EPA has proposed to modify language at 241.3(d)(1)(iii) to allow comparison between groups of contaminants in addition to contaminants. Dow appreciates EPA doing so, but believes additional changes are needed to this provision to make it clearer that a comparison to groups of contaminants is intended. Dow is proposing the following textual changes at 241.3(d)(1)(iii): (iii) The non-hazardous secondary material must c ontain contaminants or groups of contaminants at levels comparable in concentration to or lo wer than those in traditional fuel(s) which the combustion unit is designed to burn. In determini ng 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 or groups of contaminants between traditional fuel(s) and a nonhazardous secondary material, persons can use ra nges of traditional fuel contaminant levels of contaminants or groups of contaminants compiled from national surveys, as well as contaminant level data on levels of contaminants or groups of contaminants from the specific traditional fuel being replaced. Such comparisons are to be base d on a direct comparison of the contaminant levels of contaminants or groups of contaminants in both the non-hazardous secondary material and traditional fuel(s) prior to combustion. In addition, Dow believes that EPA may have mi ssed making the same change for the provision at 241.3(d)(2)(iv) when a non-hazardous secondary material is used as an ingredient in a combustion unit. Dow is proposing a compar able textual change at 241.3(d)(2)(iv): (iv) The non-hazardous secondary material must resu lt in products that contain contaminants or groups of contaminants at levels that are comparable in concentration to or lower than those found in traditional products that are manuf actured without the non-hazardous secondary material. Should EPA agree with our first comment about th e definition of contaminant and restricting it to section 129 pollutants as a basis for determini ng contaminants, then this change to legitimacy criterion number 4 may not be needed. Response: See the preamble for a discussion of the proposed textual changes at § 241.3(d)(1)(iii), and Secti on III.D in particular. As EPA stated in the December 23, 2011 proposed rule, we have not reopened the entire NHSM rule for reconsideration and will not respond to comments directed toward rule provisions that were not specifically identified in this propos al (76 FR at 80470). The legitimacy criteria for non-hazardous secondary materials used as an i ngredient in combustion units codified in § 241.3(d)(2) is one such provision that is beyond the scope of this rulemaking. That said, the Agency did intr oduce and solicit comments on se veral topics relating to the contaminant legitimacy criterion for non-hazardou s secondary materials used as a fuel in combustion units that may be applicable to ingr edients as well. These to pics include the groupingPage 21 of 100 of contaminants, the use of ranges, the use of survey data, and the applicability of process knowledge. See the preamble for a discussion of these topics, specifically Section III.D.2.b for the responses on “Grouping of Contaminants ” and Section III.D.2.d for the responses on “Contaminant Comparisons Allowed.” We also no te that the final regulatory text of the legitimacy criteria for ingredients does not preclude the application of these topics to ingredients.

Commenter Name: Susan Parker Bodine Commenter Affiliation: Federal Recycling and Re mediation Coalition (FRRC) Document ID: EPA-HQ-RCRA-2008-0329-1972-A2 Comment Excerpt Number: 6

Comment: We support EPA’s proposed regulatory la nguage allowing combustors to compare groups of contaminants in secondary materials to groups of contaminants in traditional fuels. We appreciate the examples of groupi ngs provided by EPA and the fact that combustors may rely on other groupings that are tec hnically reasonable. 76 Fed. Re g. at 80477. We agree that this flexibility will make it easier to implement th e legitimacy criterion for contaminants and will result in fewer non-waste materials be ing arbitrarily identified as wastes. EPA proposes to provide this flexibility by changi ng the lead-in to section 241.3(d)(1)(iii) to say: “The non-hazardous secondary materi al must contain contaminants or groups of contaminants at levels comparable to or lower than....” Howeve r, EPA does not propose to make a corresponding change to section 241.3(d)(2)(iv). Thus, for products made with non-hazardous secondary material, EPA is not proposing to allow a comp arison to groups of contaminants. EPA provides no explanation for allowing a discard determinati on for fuels to be made based on groups of contaminants while requiring a discard determin ation for ingredients to be made based on a contaminant-by-contaminant comparison. The fail ure to make the corresponding change may have been merely an oversight. The FRRC re quests EPA to amend section 241.3(d)(2)(iv) to allow comparison of contaminant groups for products, as well as fuel. 11 [Footnote] (11) The FRRC makes this request in the event that EPA does not agree to drop its identification of any NHSM ingredients as wa stes, as requested in Part V.C below. Response: See response to EPA-HQ-RCRA- 2008-0329-1890-A1, excerpt 3.

Commenter Name: Patricia A. Haederle Commenter Affiliation: American Chemistry Council (ACC) Document ID: EPA-HQ-RCRA-2008-0329-1932-A1 Comment Excerpt Number: 22Page 22 of 100 Comment: As previously discussed in Section III of these comments, ACC supports EPA’s proposal to allow groups of contam inants (instead of just single contaminants) to be compared when making a legitimacy criteri on determination for NHSM that are used as fuels, as proposed in § 241.3(d)(1)(iii). To be consistent, ACC be lieves EPA should also extend this same grouping approach to § 241.3(d)(2)(iv), when NHSM is used as an ingredient. Response: See response to EPA-HQ-RCR A-2008-0329-1890-A1, excerpt 3.

Commenter Name: Patricia A. Haederle Commenter Affiliation: American Chemistry Council (ACC) Document ID: EPA-HQ-RCRA-2008-0329-1932-A1 Comment Excerpt Number: 10

Comment: ACC supports EPA’s clarification that contaminant comparisons may be made based on ranges of constituents, and appreciates EPA providing some such data for selected traditional fuels on its website. In addition, ACC believes that EPA may have missed incorporating the same clarifying provision at § 241.3(d)(2)(iv) when a non-hazardous secondary material is used as an ingredient in a combustion unit and we enc ourage the Agency to do so. ACC recommends that the following sentence be added to the e nd of § 241.3(d)(2)(iv): In comparing contaminants between traditional products and products produced using non-hazardous secondary material, persons can use ranges of traditional product contaminant levels compiled from national surveys, as well as contaminant level data from the specific traditio nal product being replaced. Response: See response to EPA-HQ-RCR A-2008-0329-1890-A1, excerpt 3.

Commenter Name: Susan Parker Bodine Commenter Affiliation: Federal Recycling and Re mediation Coalition (FRRC) Document ID: EPA-HQ-RCRA-2008-0329-1972-A2 Comment Excerpt Number: 8

Comment: However, as discussed above, we beli eve that the same fl exibility should be provided when making contaminant comparisons for i ngredients. Just as a range can be used to compare contaminant levels in NHSM and traditiona l fuels, a range should be permissible when comparing contaminants in NHSM and traditional products. We request EPA to revise section 241.3(d)(2)(iv) to mirror the proposed change to section 241.3(d)(1)(i ii) as follows: “InPage 23 of 100 comparing contaminants found in traditional products and products produced using nonhazardous secondary material, persons can use ranges of traditional product contaminant levels compiled from surveys, as well as contaminant level data from the specific traditional product being replaced.” Response: See response to EPA-HQ-RCR A-2008-0329-1890-A1, excerpt 3.

Commenter Name: Susan Parker Bodine Commenter Affiliation: Federal Recycling and Re mediation Coalition (FRRC) Document ID: EPA-HQ-RCRA-2008-0329-1972-A2 Comment Excerpt Number: 9

Comment: We support EPA’s clarificat ion that a combustor need not test traditional fuels for contaminant levels and may rely on the data provid ed by EPA or other surveys, to the extent that data are available. 76 Fed. Reg. at 80477. We s upport EPA’s clarification that a combustor may use data from any traditional fuel source, not just fuel from its own supplier. Id. We support EPA’s clarification that data on contaminant leve ls in NHSM may be based on survey data such as data collected by a trade association. 76 Fe d. Reg. at 80481. We support EPA’s clarification that a combustor may use process knowledge to de termine that a constituen t will not be found in its secondary material and does not need to test that material to document this determination. 76 Fed. Reg. at 80477. Finally, we suppor t EPA’s clarification that on ce an initial assessment of comparability is made, a combustor need not repeat it unless the facility changes its operations or fuel type. 76 Fed. Reg. at 80481. All of these cha nges will result in less NHSM being arbitrarily identified as wastes. However, we request EPA to make clear in the preamble to the final rule that this flexibility is also being provided to combustors that use NHSM as an ingredient, rather than a fuel. Response: See response to EPA-HQ-RCR A-2008-0329-1890-A1, excerpt 3.

Commenter Name: Susan Parker Bodine Commenter Affiliation: Federal Recycling and Re mediation Coalition (FRRC) Document ID: EPA-HQ-RCRA-2008-0329-1972-A2 Comment Excerpt Number: 40

Comment: With respect to process k nowledge of constituents expect ed to be found in materials produced at petroleum refineries, EPA itself has identified constituents in petroleum refinery streams in at least three potentially relevant documents: (1) the Materials Characterization Paper In support of the Final Rulemaking: Identificatio n of Nonhazardous Secondary Materials That Are Solid Waste Traditional Fuels and Key Derivatives (F eb. 7, 2011) (EPA-HQ-RCRA-2008-Page 24 of 100 0329-1818), (2) Contaminant Concentrations in Tr aditional Fuels: Tables for Comparison (Nov. 29, 2011) (EPA-HQ-RCRA-2008-0329-1877), and (3) the “Skinner List” of Appendix VIII constituents that was developed by Region 5, a su bset of which would meet the definition of contaminant in the NHSM Rule. See http://www.epa.gov/Region5/waste/ cars/pdfs/r5skinner-list1997.pdf While many materials produced in refineri es will be co-products, not wastes or NHSM, please confirm that for the materials that do meet the definition of a NHSM, the petroleum industry may rely on the information provided by EPA in the three sources identified above as “process knowledge” regarding what contaminan ts are expected to be found in materials produced at refineries, in lieu of extensive testing for all HAPs and section 129 pollutants. Response: While the three documents identified in the comment may be helpful to the petroleum industry, the Agency cannot confirm th at these documents alone will be sufficient when making decisions about what contaminan ts may be present in NHSMs generated at petroleum refineries. We note that owners and operators of petroleum refineries are likely to know what contaminants are expected to be pr esent in materials produ ced at their sites. Furthermore, the specific ma terials being generated will di ctate decisions about what contaminants may be present, and that info rmation is not provided in the comment. The first two documents cited in the comment (the February 2011 Materials Characterization Paper and the November 2011 Contaminant Concen tration Tables) contain contaminant data on traditional fuels, and that information may or may not be applicable to NHSMs depending on the processes involved. The third document cited in the comment (the Sk inner List) is a subset of the Part 261 Appendix VIII hazardous constituents. The NHSM rule de finition of contaminants, however, is based on the CAA section 112(b) hazardous air pollutant list and the CAA section 129(a)(4) pollutant list- -not the Appendix VIII list. Over lap exists, and the Skinner List may be helpful in situations where a contaminant is included in both lists and has been found to be present or not be present at petroleum refineries, but materials generated at petroleum refineries may have contaminants pertinent to the NHSM rule that are not include d in the Appendix VIII lis t and, thus, would not be included in the Skinner List.

Commenter Name: William Turley Commenter Affiliation: Construction Materials R ecycling Association (CMRA) Document ID: EPA-HQ-RCRA-2008-0329-1928-A1 Comment Excerpt Number: 6

Comment: If data result in non-de tected values, one-half of th e minimum detection limit should be applied. If data result in values less than the minimum reporting leve l but above the minimum detection limit, the minimum detection level valu e should be applied. Without this clarity, EPAPage 25 of 100 cannot expect industry to have confidence in any attempt to legally define its NHSM as nonwaste fuel. The industry must have a br ight line that determines its compliance. Response: When determining whether or not contaminant comparisons satisfy the legitimacy criteria, any uncertainty is likely to focus on NHSMs with high contaminant levels, and a comparison of the upper end of statistical range s. Accordingly, it is unclear under what circumstances the difference between 0, the MDL, and the MRL for NHSM contaminant concentrations would have a not able impact on summary statistics used to make comparisons. That said, the Agency does not object to the proposed method of handling non-detect values when analyzing contaminant concentrations in NHSMs. The Agency has previously discussed its decisi on not to implement a "bright line" test for contaminants (76 FR at 15525-6). EPA did not re open or solicit comment on this issue in the December 23, 2011 proposed rule and, thus, will not respond further in this rulemaking.

Commenter Name: Patricia Wirth Commenter Affiliation: Automotive Oil Change Association (AOCA) Document ID: EPA-HQ-RCRA-2008-0329-1969-A1 Comment Excerpt Number: 3

Comment: Although EPA has listed on-specification used oil as a traditional fuel and specified that it is a “special case” and “does not need to undergo the contaminant comparison,” 1 on the same page EPA also states the following: Generators or combustors can use either tr aditional fuel data collected by the EPA or their own data for traditional fuel compar ison values. Generators or combustors are responsible, however, for either providi ng NHSM comparison values in cases where testing is required or documen ting why testing is unnecessary. AOCA would very much appreciate it if EPA would clarify for the record that the quoted paragraph does not apply to on-specification used oil and DIYer used oil collected by generators in compliance with 40 CFR Part 279. [Footnote] (1) 76 FR at 80481, footnote 44. Response: EPA reiterates the following positions fr om the March 2011 final rule (76 FR at 15502). 1) Used oil meeting the specifications in 40 CFR Part 279.11 ( i.e. , on-specification used oil) is a traditional fuel, as defined in § 241.2, and is not required to meet the legitimacy criteria. Contaminant comparisons are therefore unnecessary. 2) Since the regulations under CAA section 129 do not currently establish emission limits for space heaters, used oil combusted in an oil-fi red space heater that meets the provisions of 40Page 26 of 100 CFR 279.23 need not be tested to establish whet her or not such oil is on or off-spec, and contaminant comparisons are therefore unnecessar y. This includes used oil generated by small facilities such as auto repair shops and machine shops that have such units, and used oil generated by homeowners who change their own oil (referred to as "do-it-yourself" of "DIY" oil) that is burned in such units. We also note that the preamble to today's fina l rule discusses circumstances under which offspecification used oil may use coal data when making contaminant comparisons. See today's final rule for this discussion, and Section III.D.2.c in particular.



### 4B01. General Comments on Categoric al Non-Waste Determinations

Comment : The Agency received several comments urging additional ca tegorical non-waste determinations for NHSMs that we re not specifically proposed. Response: EPA is not issuing categorical determina tions on materials for which it did not ask for comment or propose categoric al determinations, since th e public needs to have an opportunity to comment on these decisions. To the extent new information was submitted during the comment period, EPA believes that it cannot i ssue a final categorical determination without providing adequate notice about th e information and about the Agency's interpretation of the data. EPA would further need to obtain vi ews and opinions from the public on its proposed decision and the adequacy of the data in suppor ting that position. The petition process under §241.4(b) can be used to add additi onal categorical non-wastes. Refer to description of the scope of the rulemaking in Section I of this document.

Commenter Name: Bart Sponseller Commenter Affiliation: Wisconsin Department of Natural Resources (WDNR) Document ID: EPA-HQ-RCRA-2008-0329-1929-A1 Comment Excerpt Number: 1

Comment: The Department supports the additional biomass fuels EPA identified as NHSM and the categorical determinations that pulp and paper sludge, resi nated wood debris, tires in managed programs, coal refuse from legacy pile s, and newly generated coal combustion residues are NHSM fuels. The Department requests that EPA continue reviewing and provide additional categorical determinations of NHSM as appropria te. A categorical determination provides clarity to sources and significantly st reamlines compliance demonstrations while ensuring that we do not lose current best disposition a nd use of materials. The status of materials curr ently used as fuel by several sources in Wisconsin is of particular concern as discussed below. The Department will also continue work in identi fying by-products of our wood-based industry that may qualify as NHSM and provide that information to EPA.Page 27 of 100 Response: In regard to the request for EPA to "continue reviewing and provide additional categorical determinations of NHSM as appr opriate, " the Agency will not add additional NHSMs to the categorical non-wastes listed in to day's rule (for which we did not solicit comment), but the petition process under §241.4(b) can be used to request additional categorical non-waste determinations.



### 4B02. Scrap Tires (as Categorical Non-Wastes)

General Comments: A number of comments were submitted for topics that were previously considered by EPA, and responded to and not reopened in the December 2011 proposal. The prospect of changing the criter ia for non-discarded tires to a categorical non-waste status was opened for comment, not the following topics:

 Comments that all tires (whole and shredded in to tire-derived fuel) should be non-waste

 Comments that specifically sa id recovered tires (including tires from tire dumps) should be non-waste (Note that EPA understands th ese tires from dumps are abandoned);

 Comments that legal precedent is said to allow for previously abandoned or discarded tires to be considered non- waste without processing;

 Comments arguing that, on an environmental basi s, the decision to regard tires recovered from tire dumps as waste is not justified;

 Comments on the environmenta l justification for recovering tires from tire dumps as nonwaste (which would aid in effort s to remediate tire dumps);

 Comments that a discarded tire and a non-disc arded tire have the same chemical profile and should be treated the same;

 Comments that say recovered tires should be waste until legitimately used as a nonwaste fuel;

 Comment stating that processing is not needed in order to transform the tires into nonwaste and that processing is overly burden some -- EPA has extensively discussed the issue of processing and it was not reopened;

 Comments requesting that tires be listed as a traditional fuel;

 and other related comments. Response: As stated in the March 21, 2011 NHSM final rule (76 FR 15456), the Agency rejects the view that discarded tires (e.g. tires recovered from tire du mps) that are burned for energy recovery are non-wastes. The responses made in the 2011 final rule are applicable to this issue. EPA did not reopen or solicit comment on the discarded tires in the December 23, 2011 proposed rule and, thus, will not respond to them further in this rulemaking. Comments with similar arguments will not be repeated in this section. Many commenters presented arguments (about the waste status of discarded tires) in comments on the December 23, 2011 proposed rule to which responses in th e March 21, 2011 final rule still apply.Page 28 of 100 

### 4B03. Resinated Wood (as Categorical Non-Wastes)

Commenter Name: Richard T. Weber Commenter Affiliation: Flakeboard America Limited (Flakeboard) Document ID: EPA-HQ-RCRA-2008-0329-1975-A1 Comment Excerpt Number: 1

Comment: Flakeboard and CPA are greatly encour aged that EPA has proposed to formally designate that resinated wood fuel s are not solid wastes (see propos al 40 C.F.R. 241 .4(a) (2)). In support of this designation, EPA states on page 80483 of the Non-Hazardous Secondary Materials proposal (76 Federal Register 80483, December 23, 2011) "As discussed in the 2011 NHSM final rule, wood product plants have been designed to specifi cally utilize these residuals that the wood manufacturing proce ss creates and would not be ab le to operate as designed without this material". CPA agrees fully with the statement above as well as EPA's further discussion on pages 80483- 84 in volume 76. No 247 of the Federal Register: a. Resinated wood fuels are an integral part of the compos ite manufacturing process, b. Resinated wood is not being dis carded when used as a fuel, c. Wood product plants have been designed to spec ifically utilize these residuals that the wood manufacturing process creates and would not be able to operate as de signed without this material, and d. The heating values are significantly higher than the base heating value for compliance with the legitimacy criterion. As EPA has acknowledged in the statements above, re sinated fuels have been an integral part of the composite wood product industry's production pr ocess since the industry was established. As such, facilities' combustion and energy systems were designed and constructed to utilize most, if not all of their own wood and wood by-product including resinated trim and sander dust. Excluding resinated wood fuels from our manufact uring processes would require significant reengineering of our facilities, and add insurmountab le operating costs in order to substitute fossil fuels and to transport and dispose of resinated wood fuels. Any other result would effectively make nearly impossible for these manufacturi ng facilities to conti nue operations. Flakeboard and CPA and its member companies are relieved by and agree with EPA's proposal to specifically list th em as a "non-waste fuel," which wi ll eliminate the requirement for generators or combustors of resinated wood to make legitimacy determinations on a site-by site basis. Further, there is no evidence that repl acing resinated wood fuels with other fuels would have any benefit to the environment, in fact it appears ju st the opposite is true. It is unlikely that non-resinated wood fuels would be substituted for re sinated wood fuels at most facilities because many of these plants do not have a supply of non-resinated wood or bark fuel available, nor are their burners designed to burn them . Rather, if a fuel replacement were required most facilities would have no other option but to convert to non-renewable fossil fuels or cease operations. Consistent with EPA's methodology, wood products f acilities have traditionally burned resinatedPage 29 of 100 trim and sander dust as valuable fuels. They ar e managed with the same care or better than traditional wood or bark fuels and product raw mate rials. Resinated wood fuels are not discarded, they are legitimate traditional fuels or ingredient s and therefore they are not solid wastes on any level. Flakeboard and CPA and its memb ers are appreciative of EPA's e ndeavor to designate resinated wood fuel as a "non-waste fuel." and for clearly articulating why resina ted wood is not a solid waste when burn as energy recovery. Your argumen ts make it evident that resinated wood have always been a traditional fuel and should rema in as such. The "nonwaste designation" has the potential of legal challenges which would create uncertainty and potential irreparable harm to our industry. Since these facilitie s and combustion units were orig inally designed to specifically combust resinated wood fuels, our industry considers these fuels to be the traditional fuels. In fact, many of our facilities rely exclusively on re sinated wood for its fuel and have limited access to substitutes. These facts not only supports the finding that re sinated wood is not only a nonwaste fuel, but also supports a further finding that resinated wood is in fact a traditional fuel associated with our industry. Accordingly, Fl akeboard and CPA respectfully request EPA to include resinated fuels in the "traditional fuels" category. Response: See preamble Section III.D.3, for exampl e, for responses regarding a categorical non-waste determination for resinated wood. Comments that resinated wood should be characterized as a traditional fuel, however, will not be addressed in this rulemaking. The Agency has previously addressed this issu e in the March 21, 2011 NHS M final rule (76 FR 15499). EPA did not reopen or solicit comment on this issue in the December 23, 2011 proposed rule and, thus, will not respond to th em further in this rulemaking.

Commenter Name: Thomas A. Julia Commenter Affiliation: Composite Panel Association (CPA) Document ID: EPA-HQ-RCRA-2008-0329-1888-A1 Comment Excerpt Number: 1

Comment: CPA is greatly encouraged that EPA has proposed to formally designate that resinated wood fuels are not solid wastes. See pro posal 40 C.F.R. 241.4(a) (2). In support of this designation, EPA states as follows on page 80483 of the Non-Hazardous Secondary Materials proposal (76 Federal Register 80483, Decembe r 23, 2011): “As discussed in the 2011 NHSM final rule, wood product plants have been designed to specifically utilize these resi duals that the wood manufacturing process creates and would not be able to operate as designed without this material”. CPA agrees fully with the statement above as well as EPA’s further discussion on pages 80483- 84 in volume 76. No 247 of the Federal Register: a. Resinated wood fuels are an integral part of the compos ite manufacturing process;Page 30 of 100 b. Resinated wood is not being discarded when used as a fuel; c. Wood product plants have been designed to spec ifically utilize these residuals that the wood manufacturing process creates and would not be able to operate as de signed without this material; and d. The heating values are significantly higher than the base heating value for compliance with the legitimacy criteria. As EPA has acknowledged in the statements above, re sinated fuels have been an integral part of the composite wood product indus try’s production process since th e industry was established decades ago. As such, facilities’ combustion a nd energy systems were designed and constructed to utilize most if not all of their own wood and wood by-produc ts including resinated trim and sander dust. Excluding resinated wood fuels from our manufacturing processes would require significant re-engineering of our facilities and add insurmountable operating costs in order to substitute fossil fuels, as well as to transport and dispose of resinated wood fuels. Any other result would effectively make it nearly impossibl e for these manufacturing facilities to continue operations. CPA and its member companies are relieved by a nd agree with EPA’s propos al to specifically list them as a “non-waste fuel,” which will e liminate the requirement for generators or combustors of resinated wood to make legitimacy de terminations on a site-by-site basis. Further, there is no evidence that replaci ng resinated wood fuels with othe r fuels would have any benefit to the environment, in fact it appears just the opposite is true. It is unlikely that non-resinated wood fuels would be substituted for resinated wo od fuels at most facili ties because many of these plants do not have a suppl y of non-resinated wood or bark fuel available, nor are their burners designed to burn them. Rather, if a fuel replacement were required most facilities would have no other option but to convert to non-renewa ble fossil fuels or cease operations. Consistent with EPA’s methodology, wood products facilities ha ve traditionally burned resinated trim and sander dust as valuable fuels. They are managed with the same care or better than traditional wood or bark fuels and product raw materials. Re sinated wood fuels are not discarded, they are legitimate traditional fuels or ingredients and ther efore they are not solid wastes on any level. CPA and its members are also appreciative of EP A’s clear articulation of why resinated wood is not a solid waste when utilized for energy recove ry. EPA’s discussion of our fuel and processes make it evident that resinated wood has always been a traditional fuel and should remain as such. CPA is concerned that the “non- waste designation” has the potent ial for legal challenges that may be associated with other non-waste fuels which would create uncer tainty and potential irreparable harm to our industry. Since these f acilities and combustion un its were originally designed to specifically combust resinated wood fu els, our industry considers these fuels to be the traditional fuels. In fact, many of our faciliti es rely exclusively on re sinated wood for its fuel and have limited access to substitutes. Designating resinated fuel as a “traditional” fuel would ha ve the important effect of distinguishing our processes and fuel from ot her industries that have needed to make modifications to their processes and combusti on units in order to accommodate non-waste fuels supplied from outside of their process or indus try. These facts not only support the finding thatPage 31 of 100 resinated wood is not only a non-waste fuel, but also support a further finding that resinated wood is in fact a tradit ional fuel associated w ith our industry. Accordingly, CPA is respectfully advocating that EPA include resinated fu els in the “traditional fuels” category. Response: See preamble Section III.D.3, for exampl e, for responses regarding a categorical non-waste determination for resinated wood. Comments that resinated wood should be characterized as a traditional fuel, however, will not be addressed in this rulemaking. The Agency has previously addressed this issu e in the March 21, 2011 NHS M final rule (76 FR 15499). EPA did not reopen or solicit comment on this issue in the December 23, 2011 proposed rule and, thus, will not respond to th em further in this rulemaking.

Commenter Name: Tom Lovlein Commenter Affiliation: Boise Cascade Wood Products L.L.C. (BCWP) Document ID: EPA-HQ-RCRA-2008-0329-1908-A1 Comment Excerpt Number: 1

Comment: Boise Cascade Wood Products, LLC. (BCWP), a wholly owned subsidiary of Boise Cascade, LLC owns and operates wood products plants in Oregon, Washington, and Louisiana. All of these plants have one or more boilers th at will be subject to National Emission Standards for Hazardous Air Pollutants as either Area Sour ces (Boiler GACT) or Major Sources (Boiler MACT). Many of these facilities have biomass boile rs that burn resinated trim as either their primary fuel or as a significant component of their biomass fuel mix. As such, it is very important to our facilities that resinated fuel is not considered solid waste under the referenced rule-making. While BCWP believes EPA is fundamentally wrong to identify resinated wood, and other non-hazardous secondary materials as so lid wastes, BCWP supports EPA's proposal to identify resinated wood as a non-waste fuel for purposes of this rule-making. The American Wood Council (AWC) in association with other national trade organizations has submitted comments to the referenced rule. Those comments provide the legal and technical arguments to challenge EPA's authority to re gulate resinated wood and other non-hazardous secondary materials as solid waste. And EPA ha s adequately identified technical reasons why resinated wood is not solid waste when bur ned for energy recovery. Nevertheless, BCWP believes it is important to articulate the impor tance of resinated wood to our energy strategy and to reinforce that resinated wood is ma naged as a valuable fuel resource. BCWP utilizes a variety of woody biomass, rangi ng from bark to sander dust, in our biomass boilers. Because the moisture content of resina ted wood is less than 15%, it has the highest as fired Btu value of any biomass fuel we burn. This fu el burns well as the sole fuel in some of our boilers, and it is an important fuel to enhance co mbustion of higher moisture content fuels, such as bark, in other boilers. The re sin in the wood does not detract fr om the value of resinated wood as a fuel. Because resinated wood is such a valuab le fuel, we manage the material so as not to degrade that value by storing the fuel in shed s or bins to protect it from moisture.Page 32 of 100 While we have not concluded how we would re vise our energy systems should EPA choose not to identify resinated wood as a non-waste fuel, we have conclude d that such a decision would cause a significant, potentially deva stating increase in our operating expense. At some facilities we would have to replace our biomass boilers w ith fossil fuel boilers. At other facilities we would likely have to add natural gas as a suppl emental fuel for our biomass boilers. Not only would these changes incur capital costs for our facilities, but also increase the annual fuel costs to the facilities. Furthermore, th e facilities would incur significan t disposal cost. Altogether, the annual operating costs to our faci lities could increase several m illion dollars. And while a million dollars may not be significant to some industries, it is a very significant sum to wood products facilities that continue to struggle with the hous ing market decline. BCWP appreciates the opportunity to submit comments to the proposed rule. BCWP would like to see EPA revise its overall policy toward identifying non-hazardous secondary materials as solid waste. However, if EPA retains that po licy, BCWP strongly encourages EPA to identify resinated wood as a non-waste fuel, or better yet as a traditional fuel. Response: See preamble Section III.D.3, for exampl e, for responses regarding a categorical non-waste determination for resinated wood. Comments that resinated wood should be characterized as a traditional fuel, however, will not be addressed in this rulemaking. The Agency has previously addressed this issu e in the March 21, 2011 NHS M final rule (76 FR 15499). EPA did not reopen or solicit comment on this issue in the December 23, 2011 proposed rule and, thus, will not respond to them further in this rulemaking.

Commenter Name: Traylor Champion Commenter Affiliation: Georgia-Pacific LLC (GP) Document ID: EPA-HQ-RCRA-2008-0329-1902-A1 Comment Excerpt Number: 4

Comment: GP Wood Products manufacturing facili ties were designed and built with energy systems that integrate the ma ximum utilization of wood by-pr oducts and resinated wood (trim and sander dust) as fuel for energy recovery. Th ese fuels are the main and primary energy source to generate heat and/or steam to produce buildin g products, and should be considered traditional fuels and not nonhazardous secondary materials. Response: See preamble Section III.D.3, for exampl e, for responses regarding a categorical non-waste determination for resinated wood. Comments that resinated wood should be characterized as a traditional fuel, however, will not be addressed in this rulemaking. The Agency has previously addressed this issu e in the March 21, 2011 NHS M final rule (for example, see 76 FR 15499). EPA did not reopen or solicit comment on this issue in the December 23, 2011 proposed rule and, thus, will not respond to them further in this rulemaking.Page 33 of 100 

### 4B04. Pulp and Paper Sludge (a s Categorical Non-Wastes)

Commenter Name: Heather Parent Commenter Affiliation: Maine Department of Envir onmental Protection (Maine DEP) Document ID: EPA-HQ-RCRA-2008-0329-1971-A2 Comment Excerpt Number: 5

Comment: The EPA and all states, including Maine, have goals to conserve resources and to maximize the diversion of materials from disposal . The Maine DEP is concerned that the effect of the proposed solid waste definition and CISWI standards will be diversion of pulp and paper mill sludge from its current combustion in boilers to disposal in landfills. Emission tests have shown no significant differences in emissions with or without the combustion of these residuals in boilers. Dewatered sludge has net energy value as a usable form of fuel, and provides a valued source of energy to the mills. This material has been licensed by the Maine DEP as a boiler fuel for many years and received beneficial use de terminations. The Maine DEP estimates that regulation of boilers combusting paper mill sludge under the CISWI standards will at least double the mills' landfill capacity needs. Increased landfilling of sludge will increase prod uction of methane, a powerful greenhouse gas. Maine has aggressive statutory greenhouse gas emission reduction goals to eventually achieve 75 to 85 % reductions from 2003 levels. Increasing the landfill disposal rate of pulp and paper mill sludge, thereby increasing the produ ction of methane gas, is count er-productive to this effort. Maine recommends that EPA categorically exempt boilers combusting Pulp and Paper mill sludge from the CISWI standards. In addition, some mills in Maine receive treate d municipal wastewater and landfill leachate in their wastewater treatment facilities. Maine recommends that EPA establish a de minimis level of 5% of annual municipal wastewater flows that would allow for th e processing of these wastes and the beneficial reuse (combustion) of the re sulting sludge in properly licensed boilers through air quality and solid waste permits. Response: Comment addressing pulp and paper sludge is addressed in the fi nal rule preamble. See section III.D.5.a. Comment addressing m unicipal wastewater and landfill leachate was beyond the scope of today's rulemaking as it was not included in the propo sed rule and was not subject to public comment.



### 4B05. Coal Refuse and Legacy Pile s (as Categorical Non-Wastes)

Commenter Name: Jeff A. McNelly Commenter Affiliation: ARIPPA Document ID: EPA-HQ-RCRA-2008-0329-1906-A1 Comment Excerpt Number: 1Page 34 of 100 Comment: ARIPPA generally supports EPA's proposal to expressly identify legacy coal refuse as a non-waste fuel in Section 241.4(a) of the Proposed NHSM Reconsideration. As ARIPPA has previously demonstrated, incl uding through its Petition for Regulation relative to the Final NHSM Rule, coal refuse should be cla ssified as a traditional fuel for purposes of the Final NHSM Rule, 'rather than as a solid waste. ARIPPA offered several ju stifications in support of this classification, which are detailed in th e attached copy of ARIP PA's pending Petition for Regulation. Although ARIPPA continue s to believe that legacy coal refuse is indistinguishable from currently-mined coal refuse (which is appropr iately expressly identified as a traditional fuel under the Final NHSM Rule) and should also be classified as a trad itional fuel, ARIPPA nonetheless supports EPA's proposal in the Pr oposed NHSM Reconsideration to expressly identify legacy coal refuse as a non-waste fuel in Section 241.4(a). In the preamble to the Proposed NHSM Recons ideration, EPA discu sses the August 15, 2011 interpretative letter sent by the Agency to ARIPPA. See 76 Fed. Reg. 80,486. In this letter, EPA stated that it has determined th at the processing of legacy coal refuse satisfies EPA's sufficient processing standards under 40 C.F.R. § 241.2. Id. EPA also stated in its letter that post-processed coal refuse from legacy piles clearly meets the first two legitimacy criteria for non-hazardous secondary materials used as a fuel, because leg acy coal refuse (1) is managed in the same manner, and (2) has a similar hea ting value, as traditional fuel. 2 Id. Finally in this context, EPA addressed the thir d legitimacy criterion for secondary materials used as a fuel- i.e., whether the material being combus ted contains contaminants at levels comparable to or lower than traditional fuels. Id. EPA confirmed that because currently-generated coal refuse is a traditional fuel, such fuel is the "traditional fuel benchmar k" to be used when comparing contaminant levels found in legacy coal refuse. Id. EPA reasoned that because legacy coal refuse is processed in the same manner as currently-g enerated coal refuse, EPA expects that postprocessed coal refuse from legacy piles sa tisfies EPA's contaminant legitimacy criterion. Id. Therefore, as EPA correctly concluded, "post-pro cessed coal refuse from legacy piles are not being discarded when used as fuel". Id. Based on EPA's proper classification of legacy coal refuse, as se t forth in the Agency's August 2011 letter to ARIPPA (and reiter ated in the preamble to the Proposed NHSM Reconsideration), EPA has specifically requested comment on its propos al to expressly identif y legacy coal refuse as a non-waste fuel in Section 241.4(a) of the Proposed NHSM Reconsideration. ARIPPA agrees that EPA should expressly char acterize - within the NHSM Rule-post-processed coal refuse from legacy piles as a non-waste fuel that meets the processing standards and legitimacy criteria in Section 241.3 of the Final NHSM Rule. As such, ARIPPA generally agrees that legacy coal refuse should be specifically identified as a non- waste fuel in Section 241.4(a) of the Proposed NHSM Reconsideration. [Footnote] (2) In discussing these points, EPA sp ecifically focused on currently-generated coal refuse as the traditional fuel for comparison to the heating value of and management practices for legacy coal refuse. The same conclusion would be reached by comparing legacy coal refuse to other coal types.Page 35 of 100 Response: See preamble Section III.D.5 for the re sponses regarding a ca tegorical non-waste determination for coal refuse that has been r ecovered from legacy piles and processed in the same manner as currently-generated coal refuse . Comments that EPA should consider legacy coal refuse to be a traditional fuel, however, are beyond the scope of this rulemaking. As EPA stated in the December 23, 2011 proposed rule, we have not reopened the entire NHSM rule for reconsideration and will not res pond to comments directed toward rule provisions that were not specifically identified in th is proposal (76 FR at 80470).

Commenter Name: Basil G. Constantelos Commenter Affiliation: Edison Mission Energy LLC Document ID: EPA-HQ-RCRA-2008-0329-1914-A1 Comment Excerpt Number: 5

Comment: EME generally supports EPA’s proposal to identify post-processed coal refuse from legacy piles as a non-waste fuel, but encourages EPA to expand th at treatment and recognize that all legacy coal refuse, regardle ss of processing, is not being discarded when used as a fuel. Alternatively, EME urges EPA to revise its definition of “traditional fuels” to include all coal refuse. As issued, the Solid Waste Rule treats coal mining rejects from prior mining operations as solid waste unless they are su fficiently “processed” in to a fuel product. Yet this treatment is distinct from that of coal mi ning rejects that are currently ge nerated by mining operations, which are not required to be processed to be considered fuel. Coal refuse from legacy piles is identical, if not superior, to currently-p roduced coal refuse. In fact, EPA has itself acknowledged the “inherent illogic in treating coal refuse generated from mining ope rations today and used as fuel differently from coal refuse mined from the ‘l egacy’ piles, which seem to be no different.” 10 Fortunately, the law does not mandate that EPA treat legacy materials as solid wastes under RCRA. EPA treats legacy coal piles as solid waste based on a presump tion that everything that is discarded necessarily constitutes a solid waste unless it is sufficiently processed. EPA should reconsider this presumption for three reasons. Fi rst, EPA recognizes in th e NHSM final rule that certain materials that are discarded are not solid wastes. Second, EPA failed adequately to consider support in both the st atutory text and case law that suggests that although a material must be “discarded” to be considered a solid waste, not every materi al that is discarded necessarily constitutes a solid waste. Finally, the case law sugge sting a contrary approach is premised explicitly on the “cradle to grave” na ture of the RCRA hazardous waste regime—a regime that is utterly inappli cable to the non-hazardous material s at issue in this rule. A. EPA Properly Recognizes In The Proposed Rule And Reconsideration That Not Everything That Is Discarded Constit utes “Solid Waste” 1. EPA Explicitly Treats Some Materials That Have Been Discarded As FuelsPage 36 of 100 EPA expressly excludes from consideration as a “secondary material” or “solid waste” certain categories of materials that the agency believ es constitute “traditi onal fuels.” EPA defines “traditional fuels” as “materials that are produced as fuels and are unused products that have not been discarded and therefore, are not solid waste...”. 11 That definition incl udes fuels that have been historically managed as valuable fuel products rather than as waste materials, and alternative fuels “developed from virgin materi als that can now be used as fuel products,” including used oil, curren tly mined coal refuse, and clean cellulosic biomass. 12 Clean cellulosic biomass includes, among other things , materials such as corn stover (t ypically left in the field to decay), peanut shells, certain demolition debris , wood materials that are effectively discarded from construction sites, and milling and lumber byproducts. 13 Each of those materials is either discarded or has filled its original purpose a nd may be collected by a different party for a different purpose. Yet EPA treats eac h as a fuel and not as a sec ondary material or solid waste “unless discarded.” 14 That restriction, that “[t]hese fuels are not sec ondary materials or solid wastes unless discarded,” contradicts both the primary language of the “traditional fuels” defi nition and its intent, which is that materials that have been traditionally produced and consumed as fuels, and that are themselves products, are not solid wastes. EPA’ s approach belies its stated reliance on the “ordinary plain-English meaning” of the term “dis carded” (i.e., “disposed of ,” “thrown away,” or “abandoned”). 15 In other words, EPA includes numerous materials within its definitions of “traditional fuels” and “clean cellulosic biomass” that ar e commonly understood as used, discarded, and abandoned, rather than as “virgin” materials. Although EPA has ample authority to exempt certain articles from classification as solid wastes, it did not consistently apply the term “discarded” in this context. EPA’s approach to used oil and clean cellulosic biomass is appropriate and amply supported by the case law (as discussed below). EPA reasonably recognized that there are multiple categories of materials, such as “onspecification” used oil and clean wood from c onstruction and demolition projects, that should be treated as fuels when combusted for energy ge neration. However, EPA unnecessarily restricted the application of this principle when consider ing coal mining rejects. EPA expressly included “currently mined coal refuse” as an alternative fu el in its definition of traditional fuels, but excluded coal refuse from legacy piles, even though legacy coal is no more “discarded” than used oil or clean cellulosic biomass. Unlike construction and demolition debris, coal refuse is generated during the production of fu el and can itself be used as a fuel. In fact, coal refuse in legacy piles, which was mined years ago to pr oduce a fuel, has never been used for anything other than as a fuel. EPA should r econsider its inconsistent applic ation of the “discard” principle and treat all coal rejects as fuels, not solid wa stes, regardless of when they were generated and regardless of whether th ey are processed. 2. EPA Exempts Other Materials From Treatment As Solid Waste, Effectively Treating Them As Fuels In the Solid Waste Rule, EPA also excluded two categories of materials from consideration as solid waste when burned in a combustion unit—us ed tires and resinated wood. To avoid being classified as a solid waste, used tires “discard ed” by a user must be collected as part of an established tire collection program. EPA now proposes to revise its definition of “established tirePage 37 of 100 collection programs” to clarify that off-specifica tion tires (including factory scrap tires) are not discarded when combusted, in the same way as tires that are removed from vehicles. 16 Offspecification (“off-spec”) tires are analogous to coal refuse, to the extent they are set aside and not used immediately by the factory. Coal refuse is generated when coal is mined, and comprises non-combustible rock with some attached carbon mate rial that is not easily separated due to its small size. Unlike tires, however, coal rejects ar e intended to be burned as useful fuels. To promote consistency throughout its regulatory sc heme, EPA should make a similar exemption available for legacy coal rejects, if for some reason treatment as a fuel like currently mined coal rejects were not available. 3. EPA’s Legitimacy Criteria Serve As The Proper Means By Which To Determine Which Materials Constitute Non-Waste Fuels Generally speaking, the Solid Waste Rule a nd its implementing regulations classify nonhazardous secondary materials burned in combus tion units as solid wastes unless they are expressly excluded. Section 241.3 of the regu lations, which governs the standards and procedures for identifying NHSMs that are solid wa stes when used as fuels or ingredients in combustion units, excludes from the definition of solid waste (among others) those NHSMs that meet certain “legitimacy criteria.” These legiti macy criteria consider whether the product is handled as a valuable commodity, has a meaningf ul heating value, and contains contaminant concentrations at levels comparable to or lower than traditional fuels 17 – and they speak to the statutory purpose behind EPA’s defi nition of “solid waste,” which is to encourage the reuse of and/or energy recovery from materials that previously se rved other purposes. 18 Based on the legitimacy criteria, coal mining re jects more closely resemble materials EPA classifies as fuels than wastes. Like used o il and demolition and construction debris, which EPA considers “traditional fuels,” coal mining reject s have high heating valu es. Although coal mining rejects have been burned for fuel for several ye ars, that was not always the case, much like disaster debris and demolition materials. And like used oil, coal rejects in legacy piles meet EPA’s criteria for contaminants. 19 Similarly, coal rejects now have value in the marketplace due to their potential use as a fuel, just like many previously discarded biomass materials that EPA now treats as fuels, including corn stover, peanut shells, clean wood debris from disaster areas, and wood from forest fire cleara nce activities. Like those materi als, coal rejects now have an independent economic value as fuel a nd are collected for that purpose. Thus, although EME appreciates that EPA has formally recognized the role of currently generated coal rejects as fuels and that EPA ha s proposed to identify post-processed coal refuse from legacy piles as a non-waste fuel, EME also believes that EPA should reconsider its exclusion of unprocessed legacy coal. EPA does not require used oil, trad itional fuels (including currently generated coal refuse), or resinated wood to undergo proces sing to be treated as a fuel, even though many of those materials would be unders tood to be discarded. A pplication of a strict rule applying to “discarded” materials does not a ccomplish the intent of the statute, and is not how EPA has approached the entirety of the ru le. Here, EPA should similarly conclude that unprocessed legacy coal piles do no t constitute solid waste. It can do so either by eliminating its processing requirement, or revising its definition of “traditional fu els” to apply to more than currently generated coal refuse.Page 38 of 100 [Footnotes] (10) 76 Fed. Reg. 15,507. (11) 76 Fed. Reg. 80,481. (12) Id. (13) 76 Fed. Reg. 80,470. (14) Id.; see also 76 Fed. Reg. 80,481. (15) 76 Fed. Reg. 15,463. (16) 76 Fed. Reg. 80,471. (17) 40 C.F.R. § 241.3(d)(1). (18) See Se ction III.D. below. (19) 40 C.F.R. § 241.2. Response: See preamble Section III.D.5 for the re sponses regarding a ca tegorical non-waste determination for coal refuse that has been r ecovered from legacy piles and processed in the same manner as currently-generated coal refuse. Comments that should re vise the definition of traditional fuel (as codified in 241.2), however, are beyond the scope of this rulemaking. As EPA stated in the December 23, 2011 proposed rule , we have not reopened the entire NHSM rule for reconsideration and will not respond to comments directed toward rule provisions that were not specifically id entified in this proposal (76 FR at 80470). Comments regarding the Agency's interpretation of the concept of "discard," as we ll as the commenter's comparisons of legacy coal refuse to other materials (e.g., used oil, construc tion and demolition materials, etc.), have been addressed in the preamble to today's final action.

Commenter Name: Jeff A. McNelly Commenter Affiliation: ARIPPA Document ID: EPA-HQ-RCRA-2008-0329-1906-A1 Comment Excerpt Number: 2

Comment: In order to ensure that EPA's stated inte nt for expressly identifying certain materials, including legacy coal refuse, as non-waste fuels under Section 241.4( a) is properly reflected in the regulatory text, ARIPPA believes it is also ne cessary to revise the in troductory language of Section 241.4(a). As currently drafted, Secti on 241.4(a) of the Proposed NHSM Reconsideration provides that certain "non-hazardous sec ondary materials are not solid wastes when used as a fuel in a combustion unit" (emphasis added). 76 Fed. Reg. 80,530. On its face, the inclusion of the qualifying language "when used as a fuel" in subsection (a) could be in terpreted to impose an additional criterion to be satisfied before the listed non-hazardous second ary material can be determined not to constitute solid waste. Specif ically, inclusion of the phrase, "when used as a fuel," could be interpreted to impose an obliga tion on the source combusting such listed material to affirmatively demonstrate that the material was indeed used as a fuel at the point of combustion. As the agency is aware, the determin ation of whether specific material is indeed "used as a fuel" at the point of combustion is at the core of the regulatory purpose for this rulemaking. Indeed, the Final NHSM Rule undertak es to establish a regulatory basis for the determination of whether a combusted secondary material is, in f act, used as a fuel at the point of combustion. This regulatory analysis is directly tied to th e rule's legitimacy criteria. Specifically, Section 241.3(d)(1) sets forth the legitimacy criteria fo r "nonhazardous secondary materials used as a fuel". According to the basic construct of the NHSM Rule, if a non-hazardous secondary material has previously been di scarded and is, therefore, consid ered a solid waste in the first instance, such material can only be converted into a non-waste fuel if it meets the processingPage 39 of 100 standards and legitimacy criteria at the point of combustion. Therefore, reading these two regulatory provisions together - i.e., the introductory language of Section 241.4(a) and the provisions setting forth the legitimacy criteria for fuels in Section 241.3( d)(1) - Section 241.4(a) would arguably require that the materials listed in subsection (a) are not solid wastes only upon an additional demonstration that the material sati sfies the legitimacy criteria for fuels in Section 241.3(d)(1). ARIPPA recognizes that it is necessary for a non-hazardous secondary material that has been discarded to meet the legitimacy criteria for fu els in order for such the NHSM Rule. However, EPA clarifies in the preamble to the Proposed NHSM Reconsideration that the purpose of new Section 241.4(a) is to identify those materials that EPA has determ ined meet the legitimacy criteria, and therefore can be combusted as fuel, ra ther than as solid waste. Indeed, EPA expressly states in the preamble to the Proposed NHSM Reconsideration that "[t]he practical effect of these categorical listi ngs [in Section 241.4(a)] is that pe rsons that generate or burn these materials will not need to make individual determinations, as re quired under the existing rules, that these materials meet the legitimacy crit eria. Except where noted, combustors of these materials will not be required to provide fu rther information demons trating their nonwaste status." 76 Fed. Reg. 80,482. See also 77 Fed. Reg. 80,484 (by way of example, EPA explains that "[b]y specifically listing [resinated wood] as a non-wast e fuel [in Section 241.4(a)], generators or combustors of this material will not need to make legitimacy determinations on a site-by-site basis). In other word s, the very purpose of Section 241.4(a) is to provide a regulatory provision specifying those non-hazar dous secondary materials that have already been determined by EPA to satisfy the legitimacy criteria; the re gulatory provision would provide clarity and certainty, such that a separate determination need not be made each time the material would be combusted. However, by including the phrase "when used as a fuel" in a manner that could be perceived as qualifying language in Section 241.4(a), the obj ective of the provision could be directly undermined by re-introducing the requirement fo r the facility combusting the material to demonstrate that the material is indeed being used as a fuel at the point of combustion, with such demonstration requiring proof of satisfaction of legitimacy crite ria. ARIPPA therefore requests that the Agency revise the introductory langua ge within Section 241.4(a) by deleting the phrase "when used as a fuel." Alternatively, EPA could s ubstitute either of the following phrases for the, phrase "when used as a fuel": (i) "when combuste d" or (ii) "when combus ted by a source utilized in the generation of ther mal or electric energy." It is important to recognize that implementation of any of these proposed alternative revisions to Section 241.4(a) would not undermine EPA's objectiv e in clarifying the standard that must be satisfied by any facility seeki ng to classify a nonhazardous secondary material as a non-solid waste within Section 241 .4. While Section 241.4(a) is intended to list those materials for which EPA has made a regulatory determ ination that the materials are a non-waste fuel at the point of combustion, Section 241.4(b) separately addresse s the standards that must be satisfied for additional nonhazardous secondary materials to be included within the list provided in Section 241.4(a). In particular, Section 241.4(b) expressly addresses the application of the legitimacy criteria to the determination of whether a non-hazardous secondary material should be expressly listed as a non-waste fuel in Section 241.4(a) ("[w]here the nonhazardous secondary materialPage 40 of 100 does not meet the legitimacy criteria, the applic ant [for a regulatory determination] must explain why such non-hazardous secondary material should be considered a non-waste fuel, balancing the legitimacy criteria with other releva nt factors") 76 Fed. Reg. 80,530. Indeed, Section 241.4(b) clearly indicates that certain non-hazardous seconda ry materials may nonetheless qualify as a non-waste fuel in certain circumstances even if it does not satisfy the legitimacy criteria. Because the phrase "when used as a fuel" in the current proposed language for Section 241.4(a) could be interpreted to require a demonstr ation of satisfaction of the legitimacy criteria by a source operator combusting mate rial already listed in such section, Section 241.4(a) could be interpreted to impose a more stringent requirement than Section 241.4 (b), since subsection (b) would allow a material to be classified as a non- waste fuel even if it does not meet the legitimacy criteria. Based upon EPA's statements in the pr eamble to the Proposed NHSM Reconsideration, it is clear that this is not EPA's intent, and su ch outcome would indeed frustrate the purpose of Section 241.4(a) to provide clarity regarding the proper classifica tion of the materials listed in that subsection. In other words, EPA's statements in the preamble and in several interpretative letters make clear that inclusion of specific mate rial within the regulatory list promulgated under Section 241.4(a) is intended to reflect that EPA has determined th at such material meets the legitimacy criteria when combusted, and therefore is "used as a fuel ." No case-by-case determinations are required for such materials. Accordingly, there is no n eed to include any qualif ying language in Section 241.4(a) referring to materials "used as a fuel"; by definition, the mere listing of a material in subsection (a) indicates that a determination has alr eady been made that such material is used as a legitimate fuel. In the specific case of legacy coal refuse, su ch proposition could not be more clear, as EPA has repeatedly recognized that legacy coal refuse is a legitima te fuel at the point of combustion. The uncertainty created by the inclusi on of the phrase "when used as a fuel" in Section 241.4(a) should th erefore be eliminated. Based on the foregoing comments, ARIPPA reques ts that EPA revise Section 241.4(a) of the Proposed NHSM Reconsideration as follows: (a) The following non-hazardous secondary ma terials are not solid wastes when combusted 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 fr om vehicles and off-specification tires. (2) Resinated wood. 3 (3) Coal refuse that does not constitute currently-g enerated coal refuse, but that is processed in the same manner as currently-generated coal refuse. Expressly identifying legacy coal refuse as a non-waste fuel in Section 241.4(a) of the Proposed NHSM Reconsideration would also be consistent with EPA's stat ed expectation published in the context of the Agency's Utility MACT and NSPS regulations. In particular, EPA commented that a unit combusting coal refuse, including legacy co al refuse, would be s ubject to regulation under EPA's Utility MACT rules as long as the unit qua lifies as an electric generating unit ("EGU"), rather than subject to regulation under Section 129 of the CM. 76 Fed. Reg. 25,026.Page 41 of 100 Specifically, for purposes of the Proposed Utility MACT and NSPS, the Agency "assumed that all units that combust coal refuse and otherwise meet the definition of a coal refuse-fired EGU combust newly mined coal refuse or coal refuse from legacy piles that has been processed such that it is not a solid waste." Id. EPA specifically requested co mment on this assumption and whether there are any units combusting coal refuse that qualifies as a solid waste, such that the units would be solid waste incineration units (subject to regulati on under CAA Section 129) instead of EGUs. Id. In the preamble to the final Utility MACT and NSPS, EPA confirms that "[the Agency] did not receive any information since [the Proposed Utility MACT and NSPS] that would cause [it] to revise this determinati on in the final rule." "N ational Emission Standards for Hazardous Air Pollutants from Coal- and Oil -fired Electric Utility Steam Generating Units and Standards of Performance for Fossil-Fuel-Fir ed Electric Utility, Industrial- CommercialInstitutional, and Small industrial-Commercial-in stitutional Stem Generating Units; Final rule". 77 Fed. Reg. 9,304, 9,310 (Feb. 16,2012) (to be codifi ed at 40 C.F.R. pts. 60 and 63). [Footnote] (3) ARIPPA notes th at the Proposed NHSM Reconsideration, as published in the Federal Register, would identify scrap tires and re sinated wood in both Section 241.4(a) (subsections (a)(l) and (2 ), respectively), and Section 24 1.3 (b) (subsections ((b )(2)(i) and (ii), respectively). However, according to both the "pre-publication" version of the Proposed NHSM Reconsideration that was initially made availabl e on EPA's website, and th e "redlined" version of the Proposed NHSM Reconsideration included with in the rulemaking docket, EPA would delete the references to scrap tires and resinated w ood from Section 241.3(b). To the extent that the official version of the proposed reconsideration published in the Federal Register simply reflects an error or other technical overs ight, EPA would presumably prope rly exclude the references to scrap tires and resinated wood from Section 241.3(b) when the NHSM rule is ultimately formalized. In any event, although scrap tires an d resinated wood are addressed in the proposed Section 241.4( a) classification, and ARIPPA endorses EPA's propos al to include legacy coal refuse within Section 241.4(a), ARIPPA believe s that legacy coal refuse should not be simultaneously referenced in Section 241.3(b), regardless of whether EPA ultimately determines to list scrap tires and resinated wood in both regulatory sections. Response: We disagree with the commenter's assert ion that having the phrase "when used as a fuel" in the introductory text of section 241.4(a) imposes an additional obligation on the source-- i.e., a demonstration that the legitimacy criteria are met. Fo r NHSMs listed in Section 241.4(a), the EPA has determined that these materials are non-waste fuels on a categorical basis, either because they meet legitimacy in all instances or the Agency has determined they are non-wastes when used as fuels, after balancing the legitimacy criteria with other re levant factors. We note that the qualification that NHSMs be used as fuels can be found throughout the Part 241 regulations. In fact, this phrase is integral to the purpose of th e Part 241 regulations (see Section 241.1, entitled, "Purpose": "This part identifies the requireme nts 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 Ac t and section 129 of the Clean Air Act." (emphasis added)). In fact, the phrase "when used as a fuel" appears in the title of Section 241.4. If a material is not being used for its fuel va lue, then the categorical non-waste determination made in Section 241.4 would not apply (e.g., a NHSM be ing beneficially used as a fertilizer is a matter not dealt with in this rulemaking). Thus, we believe that it is unnecessary and in factPage 42 of 100 would be inappropriate to remove this phrase fr om the introductory text of Section 241.4(a). However, we reiterate here that for NHSMs liste d in Section 241.4(a), persons that generate or burn these materials will not need to make indi vidual determinations, as required under other provisions in Part 241, that these mate rials meet the legi timacy criteria. We also disagree with the comm ent that section 241.4(a) could be interpreted as being more stringent that the provisions codi fied in section 241.4(b) because of the "when used as a fuel" qualification. First, as we've already stated, th e "when used as a fuel" language does not require an additional demonstration of legitimacy. S econdly, attempting to determine whether Section 241.4(a) or (b) is more stringent is not appropriate, as subsection (a) is merely a list of those NHSMs that the Agency has determined to be no n-wastes when used as fuels on a categorical basis, whereas subsection (b) codifies the proc ess for adding other NHSMs to subsection (a) as appropriate through a future rulemaking. Finall y, the commenter makes the point that the proposed Utility MACT and NSPS assumed that a ll coal refuse would be a non-waste and that identifying legacy coal refuse in section 241.4(a) would be consistent with that assumption. We agree that the language cited by th e commenter and today's determination that coal refuse that has been recovered from legacy piles and proces sed in the same manner as currently-generated coal refuse are consistent, as both rec ognize this material as a non-waste fuel.

Commenter Name: Jeff A. McNelly Commenter Affiliation: ARIPPA Document ID: EPA-HQ-RCRA-2008-0329-1906-A1 Comment Excerpt Number: 3

Comment: To the extent EPA determines not to e xpressly identify legacy coal refuse as a nonwaste fuel in Section 241.4(a) of the Proposed NHSM Reconsider ation, ARIPPA requests that the Agency otherwise revise the Final NHS M Rule to properly reflect the Agency's determination that legacy coal refuse is a non-waste fuel at the point of combustion. In the event the Agency determines not to specifically identify le gacy coal refuse as a non-waste fuel in Section 241.4(a) of the Proposed NHSM Reconsideration, then ARIPPA requests that EPA nevertheless revise the Final NHSM Rule to properly reflect EPA's apparent prior determination that legacy coal refuse is a non- waste fuel meeting the legitimacy criteria at the point of combustion. EPA initially articulated this view in the preamble to the Final NHSM Rule and then clearly reaffirmed its position in the preamble to the Proposed NHSM Reconsideration. Based on the preamble to the Final NHSM Rule, it is clear that EPA has a ppropriately concluded that legacy coal refuse would not constitute a solid waste at the point of combustion, based upon EPA's determination that the processing of legacy coal refuse is directly comparable to the processing of virgin coal prior to combustion of both materials. See 76 Fed. Reg. 15,509; 15,537. For this reason, EPA determined that legacy co al refuse satisfies the processing standards imposed under the Final NHSM Rule and ultimately meets the legitimacy criteria set forth at Section 241.3(d)(1), prior to the point of combustion.Page 43 of 100 Within its Petition for Regulation of the Final NHSM Rule, ARIPPA proposed for EPA's consideration, three options for revising the Final NHSM Rule in order to ensure that the regulatory text of the final rule comports with EPA's stated intent in the preamble to the Final NHSM Rule. ARIPPA also provided within its Pe tition specific proposed regulatory language to implement these three options, each of which is described in detail in ARIPPA's Petition for Regulation, which is attached to these comments. Specifically, AR IPPA first proposed that EPA revise the Final NHSM Rule by establishing an additional category, within 40 C.F.R. § 241.3(b) (to be codified as Section 241.3(b)(3), of non-h azardous secondary materials that are not solid waste when combusted; such additional category would specifically include legacy coal refuse. To the extent EPA determined not to adopt th at proposed alternative, ARIPPA next proposed that EPA could revise the current provisions of Section 241.3(b)(4) to expressly provide that legacy coal refuse satisfies the relevant processi ng and legitimacy standards contemplated by this provision. 'As a third and final option, ARIPPA proposed that EPA esta blish an additional category within 40 C.F.R. § 241.3(b) (to be c odified as Section 241.3(b)(3)) of non-hazardous secondary materials that are not solid waste when combusted for any material that is processed and/or managed pursuant to a permit or other regulatory standards es tablished under SMCRA. Each of the proposed options for revising the te xt of the Final NHSM Rule would be equally applicable to the Proposed NHSM Reconsiderati on, and would achieve the desired outcome of ensuring that the regulatory language of EPA's final NHSM regulation is consistent with the Agency's appropriate determination that legacy co al refuse qualifies as a legitimate fuel, and not a solid waste, at the point of co mbustion. Also, such proposed altern atives afford the benefit that EPA would not be required to revise the curr ent regulatory framework under the Final NHSM or the Proposed NHSM Reconsideration. As ARIPPA has repeatedly demonstrated throughout this rulemaking process, legacy coal refuse should not be considered a solid waste because it constitutes a as a solid waste, ARIPPA supports EPA's objective through the Proposed NHSM Reconsideration of clearly reflecting, in the regulatory text, EPA's determin ation that legacy coal refuse is a non-waste fuel at the point of combustion. Specifically, ARIPPA agrees with EPA's proposal to include within Section 241.4(a) specific reference to legacy coal refuse as constituting a non-waste fuel. However, in order to ensure that EPA's stated 'regulatory objectives are accomplished, certain additional revisions to the proposed NHSM Re gulation are necessary. In particular, the introductory language within Section 241.4(a) should not include, as a qua lifier, that the listed materials are not solid wast e "when used as a fuel." Response: See preamble Section III.D.5 for the re sponses regarding a ca tegorical non-waste determination for coal refuse that has been r ecovered from legacy piles and processed in the same manner as currently-generated coal refuse. For the reasons stated in the preamble, EPA has determined to list "coal refuse that has been re covered from legacy piles and processed in the same manner as currently-generated coal refuse " categorically to the list of non-waste fuels codified in Part 241.4(a). This determination is consistent with the pr imary approach supported by the commenter. Should the EPA not make such a determination, the commenter discusses alternative suggestions for addressing processed coal refuse recovered from legacy piles that were enumerated in a petition that was submitte d to the Agency prior to publication of thePage 44 of 100 proposed rule in December 2011. The commenter ma y decide whether to continue to proceed with that petition or operate under the rules issued today.

Commenter Name: Dan Traynor Commenter Affiliation: Northampton Generating Company, L.P. (NGC) Document ID: EPA-HQ-RCRA-2008-0329-1912-A2 Comment Excerpt Number: 1

Comment: The use of coal refuse as fuel generate s environmentally-beneficial energy with the additional benefit of abandoned mine land reclam ation. The removal of abandoned coal refuse would not happen except for the abil ity of CFB combustion to utilize this as a fuel while at the same time generating an ash that can be used at these mining sites for reclamation of the land and preservation of water quality. The PADEP r ecently confirmed (in its comments addressing EPA’s proposed “Non-Hazardous Secondary Material s Identification” rule) the coal refuse burning industry’s environmental benefits. PADEP stated that “[t]he mo st effective means of reclaiming these coal refuse piles is through the use of coal refuse as a fuel. Everything should be done to encourage this practice. Putting additional burdens on the re-mining of these piles, which will mean the continued pollution of Pennsylvania’ s rivers and streams, we believe EPA would agree is not a desirable outcome.” In response to EPA’s request for comments on coal refuse, NGC believes a categorical determination under proposed Section 241.4(a) that coal refuse, when used as a fuel is a nonwaste regardless of whether the coal refuse is “processed”, is both a sound judgment and an appropriate decision. NGC believes co al refuse when put to use as a fuel, has been regulated as a non- waste material for decades under both the C AA and a number of othe r regulatory programs. The usage of coal refuse as fuel by CFB’s ove r the last 20 years shoul d justify coal refuse, whether currently-used or legacy coal refuse, as a traditional fuel. There is simply no other reason or sufficient incentive to ex cavate legacy coal refuse if it is not used as fuel. Since the coal refuse is a traditional fuel, a categorical determination for it to be deemed a non-waste should be created in the regulations. NGC has been in operation over 15 years. In th at time, NGC has utiliz ed over 10,000,000 tons of coal refuse as fuel. The coal refuse is shi pped to NGC from the fuel sites located in the Scranton/Wilkes-Barre Area of Pennsylvania whic h is located approximately 50 miles north of the plant. There are instances where it is more co st effective to “shovel and ship” coal refuse to a plant as fuel. Specifically, NGC has a crusher at our plant in Northampton, PA and NGC has in the past received “raw” coal refuse that was crushe d on site rather than in the field. EPA has used language to date indicating an incl ination to classify “post-processe d” legacy coal as a nonwaste. However, this “post-processing” provision is to o vague and should be eliminated so the use of extracted coal refuse undergoing further processing at the generating facility is not discouraged. If applied too literally, any “post-processing” provision bein g imposed on treating legacy coalPage 45 of 100 piles as fuel would not benefit the CFB community and could hinde r the usage of these piles as fuels. The “post-processing” provision doe s not provide any addi tional protection to the environment, or clarity to the intent of acceptable practices, but merely places a burden on the CFB community in our effort to clean up the environment. CFB’s utilize the coal refuse as fuel while cleaning up the environmental at no cost to the taxpayer. If the CFB community were not using coal refuse for fuel, the legacy piles would remain where they are, unused and continuing to pollute the water. Moreover, there is no reason to extract coal refuse other than to use it as fuel. Therefore, use of the “post-processing” term in such a way that could be unnecessarily interpreted as requiring processing at the coal refuse excavatio n site is not determinative of any relevant characterization of the coal refuse or its in tended use. NGC and the CFB community appreciate EPA’s consideration in providing cl arification that coal refuse is a fuel when “processed” but NGC strongly believes that a cate gorical determination be created to specifically identify coal refuse as a non-waste fuel would be a much sounder alternative. However, even if a post-processing element were necessary, the legacy coal refuse extraction process itself should be considered “processing.” Processing of extracted legacy coal refuse occurs through the controls imposed through surface mining permits (e.g., through erosion and sedimentation, mine drainage discharge or recl amation requirements), the process of separating boulders and other non-fuel material from the coal refuse, and other materials processing in the field. To the extent that EPA c ontinues to focus on a “post-pro cessing” criterion for extracted legacy coal for use as fuel to qualify as non-waste, NGC requests that EPA clarify in its final rule that proper legacy coal extraction for use as fuel qualifies as proces sing for purposes of its categorization as a non-waste fuel. Response: See preamble Section III.D.5 for the re sponses regarding a ca tegorical non-waste determination for coal refuse that has been r ecovered from legacy piles and processed in the same manner as currently-generated coal refuse , specifically in regards to comments that the term "post-processing" is too va gue. Comments that legacy coal refuse should be considered a traditional fuel, however, are beyond the scope of this rulemaking. Similarly, comments that coal refuse that has been discarded in legacy pile s should not have to be pr ocessed in order to be a non-waste fuel are also beyond the scope of this rulemaking. As EPA stated in the December 23, 2011 proposed rule, we have not reopened the en tire NHSM rule for reconsideration and will not respond to comments directed toward rule pr ovisions that were not sp ecifically identified in this proposal (for example, see 76 FR at 80470).

Commenter Name: Basil G. Constantelos Commenter Affiliation: Edison Mission Energy LLC Document ID: EPA-HQ-RCRA-2008-0329-1914-A1 Comment Excerpt Number: 1Page 46 of 100 Comment : EME supports EPA’s proposed listing of coal refuse as a non-waste fuel in §241.4; however, EME believes that EPA should remove th e “post-processing” requirement, given that all coal refuse will necessarily be processed when mined, as EPA recognizes in the Reconsideration. 7 As an alternative, EPA should remove the “currently generated” limitation on coal refuse in its definiti on of traditional fuels. [Footnote] (7) 76 Fed. Reg. 80,486. Response: See preamble Section III.D.5 for the re sponses regarding a ca tegorical non-waste determination for coal refuse that has been r ecovered from legacy piles and processed in the same manner as currently-generated coal refuse. Comments that should re vise the definition of traditional fuel (as codified in 241.2), however, are beyond the scope of this rulemaking. As EPA stated in the December 23, 2011 proposed rule , we have not reopened the entire NHSM rule for reconsideration and will not respond to comments directed toward rule provisions that were not specifically iden tified in this proposal (76 FR at 80470).



### 4C02. Comments on the Categorical No n-Waste Petition Process at §241.4(b) (i.e., imposed burden, administra tive process issues etc)

Commenter Name: Arthur N. Marin Commenter Affiliation: Northeast States for Coordina ted Air Use Management (NESCAUM) Document ID: EPA-HQ-RCRA-2008-0329-1915-A1 Comment Excerpt Number: 7

Comment: NESCAUM also advises that no site-sp ecific determination should be treated as precedent for any categorical determination, as s ite-specific determinations are not subject to public comment and review requirements. Response: The decision will be based on the mate rial submitted under §241.4(b)(1). For the categorical non-waste petitions all public comment will be incor porated into any finding for a §241.4 categorical non-waste petition. This may in clude information for specific determinations if made part of the record for the petitions. Th e site-specific determinations will be considered, if appropriate, but would not c onstitute binding precedent.

Commenter Name: Michel R. Benoit Commenter Affiliation: Cement Kiln Recycling Coalition (CKRC) Document ID: EPA-HQ-RCRA-2008-0329-1962-A1 Comment Excerpt Number: 5Page 47 of 100 Comment: Although we support the creation of a cat egorical non-waste determination, we do not agree that using an appro ach similar to 40 CFR 260.20 is a ppropriate for possible future determinations pursuant to petition. It would be unnecessarily burdensome for the Agency to impose similar procedural requirements for nonhazardous secondary materials as it does for hazardous waste. Response: We are applying rules we think are appropr iate for the materials in question and are not reopening the hazardous waste rules. This pro cess is needed in order to provide a procedural process to deal with informa tion received and have appropria te public input. Section 260.20 provides appropriate guidance for the NHSM petition process and was considered as a template for appropriate process, not as a hazardous waste rule per se. In addition, there are other options available that enable a decision to be reache d. We are retaining th is option (petitions under §241.4) for the more limited number of situations for which this process would be appropriate. For example, see preamble Section III.D.4 rega rding the petitions unde r §241.4 and see Section III.D.6 for the responses on streamlini ng the §241.3(c) petition process.

Commenter Name: Michel R. Benoit Commenter Affiliation: Cement Kiln Recycling Coalition (CKRC) Document ID: EPA-HQ-RCRA-2008-0329-1962-A1 Comment Excerpt Number: 10

Comment: While emphasizing our opposition to EPA’s a pproach to defining solid waste in this rule, we nonetheless wish to comment on the proposed “ petition process ” to allow regulated entities to submit a rulemaking petition whereby EPA can determine whether “ a particular NHSM should not be considered solid waste when burned as fuel in a combustion unit .” 76 FR 80472. If EPA persists with its flawed defin ition, CKRC would support the creation of a rulemaking petition process for a non-waste dete rmination. However, modeling that on 40 CFR 260.20, which applies to hazardous waste, would result in an unnecessarily burdensome approach. There is no justifica tion for EPA to impose procedural requirements on non-hazardous secondary materials that are as stringent or more stringent than those for hazardous waste. 7 A much simpler procedure is more appropriate. The proposed petition process is yet one more example of EPA using its past decisions about ha zardous waste under Subtitle C as an excuse to limit its flexibility in this rulemaking, which deals exclus ively with non-hazardous materials, which, by definition, pose minimal risk to human health and the environment.

[Footnote] (7) As we pointed out in our March 2 010 comments, absent a shred of justification in terms of risk to human health and the environmen t, many of the Agency’s decisions in this rule arbitrarily impose requirements on non-hazardous sec ondary materials that are significantly more stringent and more burdensome than EPA’s hazardous waste regulations.Page 48 of 100 Response: Refer to the response to comme nt EPA-HQ-RCRA-2008-0329-1962-A1, excerpt number 5.



### 4C03. Categorical Non-Was te Petition Criteria

Commenter Name: Chris Hornback Commenter Affiliation: National Association of Clean Water Agencies (NACWA) Document ID: EPA-HQ-RCRA-2008-0329-1955-A2 Comment Excerpt Number: 5

Comment: EPA’s current proposed language for the categorical determination, however, provides insufficient information on the rulema king petition process EPA envisions for this determination. Biosolids are gene rated by thousands of clean wate r agencies nati onwide and it is unclear how broad and comprehensive a petition would need to be to encompass this diverse community. Response: In order for a categorical non-waste peti tion to encompass a "diverse community" for any type of NHSM, the NHSM properties and handli ng have to be consistent enough to be able to be characterized in a single petition. In re gard to the question of how comprehensive the petition needs to be, refer to th e criteria stated in §241.4(b) EPA can work with the petitioner to ensure that th e appropriate level of deta il is included in the petition. The application would have to address the fu ll set of NHSM propertie s that are assessed. Supporting tests, studies, or other information would provide better ju stification if the petition is relying on the legitimacy criteria. For example, if the heating value for the NHSM is low at many sites, that data would have to be consid ered if the petition is relying on the legitimacy criteria. In regard to the assessment of th e contaminant legitimacy criteria (in §241.3(d)(1)), refer to today's rule, and in par ticular refer to Section III.D.2.

Commenter Name: Sheila C. Holman Commenter Affiliation: North Carolina Department of Environment and Natural Resources (NCDENR) Document ID: EPA-HQ-RCRA-2008-0329-1956-A2 Comment Excerpt Number: 3

Comment: NC DAQ would like US EPA to indicat e whether state-enacted renewable energy portfolio standards, and the ability of a materi al to satisfy statutory requirements under those standards, is an "other relevant factor" that the Agency would consider in case-by-case NHSMPage 49 of 100 determinations pursuant to 40 CF R 241.3(c) or a categor ical NHSM determination pursuant to 40 CFR 241.4. Response: EPA will consider on a case-by-case basis wh ether particular "other factors" would be relevant. The consideration will depend on wh ether any particular factors would allow the Agency to determine whether a material is or is not a waste.



### 5D03. Suggestions for Streamlining the Ex isting Petition Process at §241.3(c)

Commenter Name: Jeff Lloyd Commenter Affiliation: Nisus Corporation (Nisus) Document ID: EPA-HQ-RCRA-2008-0329-1970-A2 Comment Excerpt Number: 6

Comment: Nisus believes that the same objectives can be accomplished without resorting to formal rulemaking procedures if EPA considers such petitions as part of its administrative authority to administer the hazardous and so lid waste programs under RCRA. In fact, EPA already provides for such dete rminations in the regulations at 40 C.F.R. § 241.3(c) at the Regional level. Rather than seeking to im pose more stringent requirements for national implementation, EPA should utilize its administrativ e authority to build u pon the process already administered by the Regions. So, for example, once a petition was granted under section 241.3(c) by a Regional Administrator, a petitioner c ould seek broader app lication by the same administrative process from EPA headquarters. Th is would benefit both the petitioner and the Agency by building upon existing reviews. Moreover , Nisus also believes that any such process should have well defined time lines on both the part of the petitioni ng stakeholder and the Agency to ensure certainty in the process and pr edictability of timing. Fa ilure to establish such timelines will only discourage petitions for le gitimate secondary use products leading to unnecessary disposal. This will have the effect of generating more waste with the attendant adverse environmental impacts. Nisus again appreciates the opportunity to submit these comments to the NHSM proposed rulemaking. Response: We agree that the preceding §241.3(c) petition results can be used to support subsequent petitions if they are for a similar material and are handled similarly. Methods to support the access to non-waste determinations that have been made are discussed in today's rule and in the March 21, 2011 final rule. EPA will retain the petition results in a database or another searchable directory available from EPA's NHSM we b site. In regard to th e rest of the comment, refer to the rulemaking record and for exam ple, see preamble Section III.D.6, regarding streamlining the petition process, approval for mu ltiple facilities at the national level, and timelines.Page 50 of 100 Commenter Name: Satish Sheth Commenter Affiliation: Cemex USA Document ID: EPA-HQ-RCRA-2008-0329-1938-A2 Comment Excerpt Number: 14

Comment: To address our concerns and EPA’s request, we believe that additional options should be added to the final rule for the dete rmination process in 40 CFR 241.3(c). We believe these additions will improve our industry’s certainty in our compliance regime, and have the potential to reduce EPA and indus try resources while allowing EPA oversight, as designed for the NHSM rule. Option 1: The determination process should also be made available for ingredients; especially if EPA fails to address ingredients clearly in the fi nal rule as noted elsewhere in our comments. Option 2: In the spirit of traditional RCRA progr ams, and to “right-size” the approval process for non-hazardous waste, we request the addition of an option for a facility (or f acilities, for companies with common programs at multiple facilities) to have their alternate material management program approved in place of i ndividual non-hazardous secondary material approvals. The management programs have been in place at our facilities for years, and have often already been scrutinized through our state permitting programs. Our management programs are designed to include criteria for material acceptance, and handling. We would like the ability to demonstrate to EPA that we have a program in place that addresse s the criteria EPA has outlined as critical to the EPA determination and categorical exclusions decisions. These criteria address how the material is used for its value, how it inherently fits into the needs of the industrial process, and how the constituents ar e addressed to ensure that permit limits and (future) MACT emissions standards are met. In essence, our material acceptance plan would be submitted for a determination by EPA that the facility is operating in a manner to demonstrate legitimacy. We believe that by EPA approving the overall program, and letting the facility subsequently operate under the approved program, that 1) the EPA will have considerably streamlined the process at a level that is more warranted for nonhazardous materials, and 2) our facilities will have much more confidence in moving forward with sustainability initiatives without the ongoing fear of fu ture compliance issues and enforcement due to differing interpretations on a difficult rule. ...CEMEX, therefore, requests that EPA work w ith us toward a facility-based determination option, with an example of a more certain process having the following types of characteristics: - A facility may submit a peti tion for an EPA determination as a 241.3(c) option whereby EPA approves the material management program outlining the facility procedures to accept materials as a legitimate alternate fuel (and ingredie nts, if this issue is not addressed). - The information submitted would address simila r types of criteria as outlined by EPA for the pulp and paper decision or for resinated wood, whic h acknowledge the effective use of a material in an industrial process and allows for balanc ing legitimacy criteria with other factors.Page 51 of 100 - The program would identify steps used to conf irm that a material meets a pre-established acceptable “fuel spec” through generator knowledge a nd supplemented with laboratory analysis for appropriate constituents 1 . Once approved, the material-by- material evaluation would be performed by the facility while knowing that EPA agrees through a pr e-approved process. We again urge EPA to address the inherent uncertainty introduced by these legitimacy and discard criteria by allowing the a pproval of a program that outlines management practices and thresholds in place of the unwieldy approval of each and every material. With the one-time approval versus re-approval for each individual material; more streamlined implementation would be expected for EPA and facilities. [Footnote] (1) Similar to EPA’s process as outlin ed for evaluating beneficial use by the pulp and paper industry (p. 80472 of the 12/23/11 FR) Response: EPA considered this comment in draf ting the revisions to the §241.3(c) petition process. The part of the comment that suggests using a balancing of legitimacy criteria in the petition process was specifically mentioned in the preamble of t oday’s rule in Section III.D.6. The overall rationale for EPA approved non-waste petitions under §241.3(c) was discussed in the rulemaking record for the March 21, 2011 NHSM final rule in various sec tions. This includes the rationale for the NHSM-specific approvals. The rest of the commenter's "Option 2" concepts were previously consid ered and addressed in the rulemaking record for the March 21, 2011 NHSM final rule. In particular see the discussion about EPA petition determinations versus altern ate approval methods lik e state beneficial use programs in Section IX (in regard to the suggest ion to use material management plans) and see the petition response to comments in Sec tion V.F of the March 21, 2011 NHSM final rule. In regard to the commenter's "Option 1" suggesti ng that the determination process should also be made available for ingredients, this was not an issue that was reopened in the December 23, 2011 proposed rule.

Commenter Name: Bart Sponseller Commenter Affiliation: Wisconsin Department of Natural Resources (WDNR) Document ID: EPA-HQ-RCRA-2008-0329-1929-A1 Comment Excerpt Number: 6

Comment: We also encourage EPA to streamlin e the petition proce ss by relying on, or including, determinations of beneficial reuse made under existing state regulations. Response: While the proposed rule took comment on methods to streamline the petition process, the comment discusses i ssues that have been addressed in the rulemaking record for the March 2011 final rule and the rationa le for the decision is still app licable in today's final rule.Page 52 of 100 Refer to Section IX of th e 2011 final rule (76 FR 15456 pa ge 15528) and the response to comments document (Document ID: EPA-HQ-R CRA-2008-0329-1837) at comment 3a-F-1).

Commenter Name: Mark Calmes Commenter Affiliation: Archer Daniels Mi dland Company (ADM) Document ID: EPA-HQ-RCRA-2008-0329-1954-A2 Comment Excerpt Number: 4

Comment: EPA is aware of the longstanding re liance by sources on the ability to make reasonable decisions, consistent with the law a nd important RCRA principles, to utilize some materials as fuels and dispose of other materials as waste. As discussed above in the context of the limitations EPA places on transfer of material s, EPA should allow sources to self-determine that materials are NHSM and transfer them for us e as fuel to 3rd parties. The petition process should be voluntary only, so that sources that would like confirmation of their conclusions from EPA have the opportunity to obtain that regulato ry certainty. Otherwise, sources should be allowed to make decisions regarding their secondar y material streams as they have in the past. As CIBO has noted in other comments, the peti tion process does not increase environmental protection. EPA pledges in the Preamble that it does not inte nd the proposed administrative petition process to be "time consuming or extensive." 76 FR 80474. If EPA is sincere in that statement, then it should establish a process that is disciplined, science-based and th at ensures a neutral decision by a date certain. In light of the above discussion, ADM suggests that EPA adopt a streamlined and efficient process for making optional non-waste determinations . We believe that a process similar to its applicability determination process, which is commonly used for many permitting applicability questions, would be a better model rather than the proposed mandatory petition process EPA suggests. EPA's applicability determinations ar e generally made in a timely manner allowing industry certainty and the opportunity to move forward with projec ts in an efficient manner. In cases where the NHSM is not discarded, there s hould be a presumption that the material is an NHSM as aligned with other RCRA waste regu lations. However, given EPA's current NHSM presumption and criteria which requires that a mate rial whether it is discarded or not would have to meet the additional legitimacy criteria, we strongly recommend EPA establish a much more streamlined process, such as an applicability de termination process, to promptly make non-waste determinations, consistent with the regulated community's needs. Response: The part of the comment that says “EPA should allow sources to self-determine that materials are NHSM and transfer them for use as fu el to 3rd parties” is not an aspect that was opened in the December 23, 2011 proposed rule.Page 53 of 100 EPA has considered the aspect of this commen t on streamlining the petition process and the suggestion to use a system like the CAA section 129 applicability determination process instead of petitions. The CAA applicabil ity process is by its nature, a site specific response to a determination of applicability of a particular rule to a par ticular source. That process incorporates public comment. Furthermore, it is not used to amend the applicability or scope of the rule. The petition process, on the other hand, results in a broa dly applicable determination of the waste status of a NHSM to any appropriate combustion source which may use that as a fuel, and results in an amendment to the rule to list that fuel as a non waste. During implementation of the rule, we will coordinate with programs th at oversee the CAA applicability determinations in the event there are related inquiries, and the petition can utilize existing data from the applicability determinat ion as appropriate.

EPA maintains that a non-waste de termination petition as outlined in secti on 241.3(c) of today’s rule is appropriate to determine the waste status of a NHSM fuel. The petition process (including the timeframe for the EPA petition decisi ons) is discussed in the preamble of today’s rule in Section III.D.6. In addition, refer to di scussion in the proposed rule at 76 FR 80473-4 that explains how the Agency does not intend for the process to be extensiv e or lengthy.

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industria l Boiler Owners (CIBO) Document ID: EPA-HQ-RCRA-2008-0329-1948-A1 Comment Excerpt Number: 10

Comment: Both the RA and Administrator determin ations should be posted to the site. This will enhance consistency and predictability for regulated sources. In ad dition, sources need to know that their petitions will be handled within a clear timeframe. It is not reasonable for EPA to force sources to submit to an indefinite period of time for making fuel decisions, particularly where EPA has made every indication that it doe s not intend the petition process to be overly complex or lengthy. A rational approach would be to establish a process with a decision assured by a date certain, and a process to make known to all regulated sources th e basis of and outcome of EPA’s interpretations of its regulatory criteria. Response: The agency agrees that the petitions deci sions should be posted on an internet site to enhance consistency as the commenter mentioned. The rationale for this was discussed in the rulemaking record for the 2011 NHSM final ru le. See the response to comments document (EPA-HQ-RCRA-2008-0329-1837) and refer to comment 3a-F-4. In regard to the commenter's request for EPA to specify a period of time to complete the petition decision, EPA responded to this in the preamble. This comment is addressed for example, in Section III.D.6 in the second comment response.Page 54 of 100 

### 6A. General Comments on Clarification Letters

Commenter Name: Kerry Kelly Commenter Affiliation: Waste Management (WM) Document ID: EPA-HQ-RCRA-2008-0329-1957-A2 Comment Excerpt Number: 20

Comment: EPA has issued a number of “comfort lette rs,” which it has posted on the official NHSM Rulemaking web site. These letters have b een carefully crafted to discuss how various secondary materials meet the processing definitio n and legitimacy criteria of the NHSM Rule. However, the preamble and rule language in the NHSM Final Rule and the proposed NHSM Rule Amendments do not discuss whether a combus tion source may rely on the comfort letters to meet its recordkeeping requirements. We respectfully urge the Agency to address this issue in its final NHSM Rule Amendments and on its rule making web site. EPA should clarify that combustion sources burning a secondary material fuel that meets the processing and legitimacy criteria circumstances as described in an EPA “comfort letter” may use the letter to meet the recordkeeping requirements of §60.2175(v) and §63.7555(d)(2). Further, EPA should clarify that no additional petitions for a non-waste determ ination from either the Regional Administrator or Administrator are necessary where the sec ondary material fuel meets the circumstances described in the comfort letter. Failure to adequately clarify the status and use of comfort letters to demonstrate fuel legitimacy determinations will create enormous disincentives to recovering energy value from materials which otherwise would be landfilled. Response: The preamble, in Section III.D.2 a for example, clarifies that a number of interpretative letters have been written that a ddress specific fact situ ations as presented by specific facilities, and th ese letters have been posted on the EPA website. These letters serve as examples of acceptable ways to demonstrate le gitimacy for the recordkeeping requirements under the air program. We note, however, that under the §241.3(b) provisions (e.g., when a NHSM is used as a fuel, remains within the cont rol of the generator, and meets the legitimacy criteria), a combustor can self-d etermine the waste/non-waste st atus of a particular NHSM and does not require additional confirmation from the Agency. Regarding the comment that “EPA should clarif y that no additional petitions for a non-waste determination from either the Regional Admini strator or Administrato r are necessary,” NHSMs that would be subject to the petitions under §241. 3(c) and §241.4(b) would not be the subject of clarification letters. For exampl e, NHSMs that are not discarded in the first instance, are sent to third parties for use as fuel, and have not been determined by EPA to be non-wastes must be addressed through non-waste petition requests or cat egorical determinations (unless "processed" per section 241.3(b)(4)).Page 55 of 100 

### 7C. State Authority: Relationship to State Programs

Commenter Name: Heather Parent Commenter Affiliation: Maine Department of Envir onmental Protection (Maine DEP) Document ID: EPA-HQ-RCRA-2008-0329-1971-A2 Comment Excerpt Number: 3

Comment: Maine DEP submits these comments requesting that EPA redefine the scope of materials that would be defined as solid wast es. Maine DEP must regulate the management of solid waste in a manner that reduces the need for di sposal of solid waste in landfills, if that waste can be beneficially reused. Maine DEP acco mplishes this through its beneficial use determination (BUD) program. This program not only reduces consumption of landfill space, but also reduces methane gas gene ration and emissions from tran sportation of materials. Maine DEP regulates the use of non-hazardous sec ondary materials as a fuel or ingredient. Maine DEP's comments on the proposed changes to the CISWI standards would ensure that Maine DEP maintains regulatory authority over th ese materials and their disposition. Redefining the scope of materials defined as solid waste wi ll be necessary for Maine DEP to continue to maximize the diversion of nonhazardous materials from disposal by continuing the uses that have already been carefully review ed through the stat e's BUD program. Ideally, all non-hazardou s solid wastes would be considered solid wastes unless the disposition of the materials has been vetted through a stat e's BUD program. Facilities combusting materials that have received a BUD require both an air emissions license and a secondary materials use permit. Since states will be required to submit a plan per Section 111(d)/129 of the Clean Air Act for existing CISWI units, this would be an idea l mechanism for a State to describe its BUD program. Response: This comment discusses beneficial use determination issues that the Agency has previously addressed in the March 21, 2011 NHSM final rule (76 FR 15456). While the comment raises this issue in regard to the December 23, 2011 proposed rule provisions (76 FR 80452), the responses made in the 2011 final rule ar e applicable to this is sue. EPA did not reopen or solicit comment on these issu es in the 2011 proposed rule and, thus, will not respond to them further in this rulemaking. Please refer to the "State Authority section in the 2011 NHSM Final Rule.

Commenter Name: Robert E. Cleaves and Julee Malinowski-Ball Commenter Affiliation: Biomass Power Association (B PA) and California Biomass Energy Alliance (CBEA) Document ID: EPA-HQ-RCRA-2008-0329-1887-A1 Comment Excerpt Number: 2Page 56 of 100 Comment: In summary, BPA and CBEA strongly urge EPA to allow for the use of non-virgin wood as fuel when done pursuant to a state pr ogram. We would welcome the opportunity to work with EPA in making sure state-approved pr ograms contain best management practices and appropriate QA/QC safeguards. Fundamentally, the goal of the regulation should be to defer to the role of States when evaluating the most ef ficient means of regulating the use of non-virgin wood as fuel-a use that has a long history of producing renewable electricity, avoiding the landfilling of millions of tons of material, and providing rural jobs for thousands of Americans. Response: This comment discusses state program st andards and the commenters' wish that EPA defer to state programs. The Agency has prev iously addressed this issue in the March 21, 2011 NHSM final rule (76 FR 15456). While the comment ra ises this issue in regard to the December 23, 2011 proposed rule provisions (76 FR 80452), the responses made in the 2011 final rule are applicable to this issue. EPA did not reope n or solicit comment on these issues in the 2011 proposed rule and, thus, will not respond to them further in this rulemaking. Please refer to the "State Authority" section in the 2011 NHSM Final Rule.



### 7D. Cost and Benefits

Commenter Name: Andrew T. O'Hare Commenter Affiliation: Portland Cement Association (PCA) Document ID: EPA-HQ-RCRA-2008-0329-1924-A1 Comment Excerpt Number: 19

Comment: EPA's contention that the NHSM final rule "does not dir ectly invoke any costs," and thus a separate cost and benefit analysis for the NHSM final was not requ ired, is erroneous: The NHSM final rule contends that the final NHSM rule "alone does not directly invoke any costs or benefits," 76 Fed. Reg. at 15547, and that any co sts and benefits that may be incurred are "indirectly associated" with the CISWI final rule. Id. PCA disagrees. While it is true that most of the costs that w ould be incurred as a result of how EPA defines "solid waste" would be the compliance costs incurred pursuant to the CISWI final rule, the NHSM rulemaking does, in fact, impose some specific direct costs. Clearly, direct costs resulting from compliance with the processing requirement s imposed by the NHSM rule will be incurred. Costs will also be incurred to transport NHSM, su ch as importing scrap tires from an established tire collection program outside of the local area solely because the final rule would classify local supplies as "discarded" or not part of an esta blished program. Considerin g the significant volume of secondary materials which indus try currently uses as alterna tive fuels, and the extent of processing to which some scrap tires and ot her the NHSM would curr ently be required to undergo, even under the amendments now being proposed, PCA contends such costs will be considerable. These are costs which EPA should ha ve considered before issuing its final NHSM rule, but must now consider before it issues a re vised final NHSM rule at the completion of this reconsideration.Page 57 of 100 Response: This final action alone will not result in a ny costs, benefits or other impacts to the regulated community (aside from negligible admi nistrative costs e.g., reading the RCRA part of the proposal). The NHSM part of this rule its elf does not include any emission standards and does not require changes in the management or us e of secondary materials. Only in conjunction with the promulgation of the final CISWI and ma jor source boiler rules w ould society realize any costs, benefits, environmental justice, or other impacts.



### 7F. Regulatory Flexibility Act and Small Entity Impacts

Commenter Name: Paul Noe Commenter Affiliation: American Forest & Paper Association, et al. Document ID: EPA-HQ-RCRA-2008-0329-1946-A1 Comment Excerpt Number: 45

Comment: EPA has continued to fail to develop a regulatory impact analysis of the NHSM Rule in compliance with the Regulatory Flexibility Act (RFA). Under the RFA, whenever it is developing a proposed rulemaking EPA must prepare a regulatory flexibility analysis that describes imp act of the proposed rule on small entities. 5 U.S.C. 603. The RFA requires EPA to determine if a proposed rule may impose a significant economic impact on a substantial number of small en tities. If the answer to that question is yes, then EPA must prepare a formal analysis of the potential adverse economic impacts on small entities, participate in a Sma ll Business Advocacy Review Pane l (proposed rule stage), and prepare a Small Entity Compliance Guide (final rule stage). EPA has done none of these things. Instead, EPA has relied upon a certification that the requirements of the RFA do not apply. See 5 U.S.C. 605(b) (requiring such a certification, and an explanation of the basis for such a certification, if the agency believes that the requirements of the RFA do not apply). EPA has no factual basis for making any such certification. As EPA conceded when it promulgated revisions to the definition of so lid waste under subtitle C of RCRA, regulatory definitions can have significant regulatory imp acts, even if the rule does not change any underlying requirements. See 73 Fed. Reg. 64668, 64755 (noting that the subtitle C definition of solid waste has a positive economic impact on all of the small entities subj ect to the rule). EPA conducted a Regulatory Impact Analysis for the s ubtitle C definition of solid waste rulemaking and determined that it would have average annu al net benefits to the national economy of $95 million. 73 Fed. Reg. at. 64754. It is not credible for EPA to now argue that a definition of solid waste promulgated under subtitle D of RCRA will have no economic impacts, much less no economic impacts on small businesses. As EPA know s, this definition will determine how a unit is permitted under the Clean Air Act, and that determination can have significant economic impacts. EPA is under a legal obligat ion to quantify those impacts. As discussed above, the NHSM Rule and NHS M Proposal will impose real costs on the regulated community. These costs in clude the costs of testing, stor age of material during testing,Page 58 of 100 disposal of secondary materials, and the cost of replacement fuels. We request EPA to do a full Regulatory Impact Analysis on the NHSM Rule and NHSM Proposal. As noted above, EPA will have to take into consideration the signifi cant impacts on alternativ e fuel suppliers and combustors, many of whom are small businesses. Response: The final NHSM amendments will not impose requirements (aside from negligible administrative costs e.g., readi ng the RCRA part of the proposal) on any small entities apart from those that become effective in conjunction with the promulgati on of the final CISWI and boiler rules. No small entities are directly regulated by the final NHSM amendments. As such, no outreach is necessary. Any potential impacts to small entities are addressed in the regulatory flexibility analyses prepared in s upport of the CISWI and boiler rules. Refer to the document in the docket (# EP A-HQ-RCRA-2008-0329) for today's rule titled: "REGULATORY SUPPORT: Assessment of Potentia l Costs, Benefits, Environmental Justice, and Other Impacts; and Regulator y Flexibility Screening Assessmen t." In addition, refer to the Regulatory Impact Analysis (RIA) for the CI SWI and boiler rules (CISWI docket # EPA-HQOAR-2003-0119, major source boiler docket #E PA-HQ-OAR-2002-0058, area source boiler docket #EPA-HQ-OAR-2006-0790).

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industria l Boiler Owners (CIBO) Document ID: EPA-HQ-RCRA-2008-0329-1948-A1 Comment Excerpt Number: 18

Comment: EPA seeks comment on poten tial impacts of the proposed rule on small entities. 76 Fed. Reg. 80487. CIBO recommends that EPA conduct extensive outreach to small entities to help them understand implications of these complicated rule s. Given the very small sources covered by these rules, it is highly likely that many small entities are unaware that they are covered by the rules, much less understand their comp lexities in order to comply We also request, so as not to overburden or threaten small businesses, which are often the suppliers of by-products or materials for use as fuel, that the self-d etermination, regulatory petition or administrative process for determination of the material as NHSM rather than waste, be acceptable if prepared by the generator, buyer, trade association or other interested party. Response: Refer to the response to comment for EPA-HQ-RCRA-2008-0329-1946-A1, excerpt number 45.Page 59 of 100 Commenter Name: Susan Parker Bodine Commenter Affiliation: Federal Recycling and Re mediation Coalition (FRRC) Document ID: EPA-HQ-RCRA-2008-0329-1972-A2 Comment Excerpt Number: 39

Comment: We support EPA’s clarificat ion that a combustor need not test traditional fuels for contaminant levels and may rely on the data provid ed by EPA or other surveys, to the extent that data are available. 13 76 Fed. Reg. at 80477. [Footnote] (13) Given the paucity of available da ta, a significant amount of testing may still be required, at a significant cost, wh ich is not captured in the Regul atory Impact Analysis (RIA) of the CISWI Rule or the Boiler MACT Rule (or th e NHSM Rule since EPA inappropriately failed to complete an RIA for this rule). Response: Refer to the response to comment for EPA-HQ-RCRA-2008-0329-1946-A1, excerpt number 45.



### 7G. Executive Order Comments (other than Regulatory Flexibility Act comments regarding NHSM impacts on small entities)

Commenter Name: Andrew T. O'Hare Commenter Affiliation: Portland Cement Association (PCA) Document ID: EPA-HQ-RCRA-2008-0329-1924-A1 Comment Excerpt Number: 18

Comment: EPA's imposed limit of the issues it will consider under r econsideration is arbitrary and violates EO 13563: Conceptually, PCA ackno wledges that EPA has some discretion to decide the parameters of specific rulemakings, and thus decide what particular issues the Agency will address in any particular rulemaking. However, as we discuss in greater detail below, EPA's above stated effort to restrict the scope and subs tance of the specific issues it will address here, on reconsideration, in a proceeding that EPA vol untarily - indeed unilate rally - initiated to forestall the pending court challenges to its NHSW and CISWI final rules (and arguably avoid the potential of remand), deprives PCA and othe r members of the public of their right to participate meaningfully in this rulemaking a nd is inherently arbitr ary and capricious. 1. PCA is entitled both to raise and comment upon all of the issues we believe are critical and relevant to the outcome of this rulemaking: PCA recognizes that any comments which we previously filed in response to the June 2010 CISWI and NHSM proposed rules will remain part of the record for judicial revi ew via our pending judicial petiti ons for review of the two final rules that the Court of Appeals for the DC Circ uit is currently holding in abeyance. We also recognize that once EPA concludes this reconsid eration proceeding and issues the new NHSM and CISWI final rules, parties may file new judi cial petitions for revi ew which can then bePage 60 of 100 consolidated with those judicial petitions previously filed w ith the court and that cases filed on the original and amended rules can then pro ceed to briefing and argument and PCA would be able to still raise before the court the issues we raised in the prior rulemakings and petitions for review which EPA has not resolved in its current reconsideration. Nonetheless, we believe that EPA's attempt to limit so severely and arbitrarily the scope of public comment for reconsideration is entirely in appropriate given the particular circumstances of the pending CISWI and NHSM rules. PCA recogni ze that D.C. Circuit de cisions can be cited for the proposition that EPA can effectively choose not to "reopen" portions of a final rule when it proposes changes to other por tions of that final rule. 14 However, such cases relate to situations wherein EPA proposed changes to final rules which have been effective and in force for several years, and for which the statutory period for judi cial review had expired. Those circumstances do not exist here. For a number of reasons, the current CISWI and NHS M situations are entirely different from the factual circumstances previously addressed in thos e court decisions. First, neither rule has yet been implemented, or undergone the judicial re view which has been requested but held in abeyance pending the outcome of EPA's rec onsideration of the final rules. Second, EPA is now proposing a number of major ch anges to the previously finalized rules. For example, EPA is now proposing a number of highl y significant revisions to the NHSM final rule which could dramatically change the universe of "solid waste" for NHS M and thus the number and locations of the specific cement plants which will ultimately classified as CISWI. Third, PCA filed timely administrative petitions for reconsideration and for a new rulemaking eight months ago, which raised a number of issues. Despite the fact that EP A is mandated to take action on PCA's petition within reasonable time pursuant to RCRA §7004(a) , EPA's has yet to respond to our petition and the current NHSM reproposal also makes no mention of PCA's petition or address the issues that our petiti on raised. Therefore, assuming that EPA will now comply with a RCRA §7004(a), EPA's response to our petition could further dramatically change the NHSM solid waste universe. Additionally, the changes that EPA is now propos ing to make to the NHSM and CISWI rules are closely related to, and may signi ficantly affect, provisions of th e rule for which EPA is not proposing changes. For EPA to seek to slice piec es of complex rules so thinly by making some provisions out-of-bounds of the cu rrent consideration is arbitrar y as well as impractical. We believe that in this situation it is therefore en tirely appropriate for parties to raise issues and re-submit comments previously pr esented, either in their ini tial comments responding to the proposed rules and/or re-raised in administrative petitions, wh ich EPA has yet to address. Therefore, as we previously noted, in order to assure that our prior rulemaking comments and our administrative petitions (all attached hereto) become part of the reco rd for judicial review, we are incorporating our previous comments to EPA by reference into these comments. 2. EPA is obligated to consider substantively an d respond to the issues raised by PCA in these comments: There are a number of independent reasons why EPA is obligated both to consider as well as respond to the issues PCA raises in these comments.Page 61 of 100 As the DC Circuit observed in its cement NESHAP decision: Reasoned decision making requires an agency to "examine the relevant data and articulate a satisfactory expl anation for its action[s]." Motor Vehicles Mfrs. Ass'n v. State Farm Mut. Auto.Ins. Co., 463 U.S. 29, 43 (1983). Slip op. at 13. The reconsideration notice fails th is standard. Other than asserting EPA's general admonition to the public against comments on ot her issues, the NPRM has offered no reasoned explanation for why there is a compelling need fo r EPA to restrict the scope and substance of what the public may comment upon or to what the Agency will respond. The DC Circuit also underscored in its cement NESHAP decision that: The impending definition of an undeniably rela ted source category is clearly a "relevant factor[ ]" or an "important aspect of the problem" that must be considered. Id. Indeed, EPA stated as much in its proposed rule, de scribing the CISWI rule making as "relevant" to the NESHAP proceeding. 74 Fed. Reg. 21,136, 21,138 (May 6, 2009). Slop op. at 13. The NPRM effectively echoes the court's position, by recognizing the “integral” relevance of EPA's definition of non-hazardous solid waste in this proceeding to the Agency's designation of the specific sources that will be subject either to the CISWI sta ndards or the applicable NESHAP standard. 76 Fed. Reg. at 90456. Thus, as the DC Circuit instructed in the cement NESHAP decision: But reasoned decision making is not a dispensabl e part of the administrative machine that can be blithely discarded even in pursuit of a laudable regulatory goal. “The importance of reasoned decision making in an agency action cannot be overemphasized. When an agency ... is vested with di scretion to impose re strictions on an entity's freedom to conduct its business, the agency must exer cise that discretion in a well-reasoned, consistent, and evenhanded manner: ” Greyhound Corp. v. ICC, 668 F.2d 1354, 1359 (D.C. Cir. 1981). Slip op. at 15. As such, it would be irresponsible as well as ar bitrary and capricious for EPA to maintain its currently-stated position. Limiting the issues fo r comment and thereby rejecting summarily to consider such issues would demonstrates the Agency's lack of open-mindedness and willingness to respond to the submission of additional facts a nd legal circumstances that may, in fact, bear directly upon the propriety of whether and how certain material s are classified as NHSM for CISWI versus NESHAP purposes, even before the Agency receives and takes the time sufficient to consider meaningfully the merits of such comments. The arbitrariness of EPA's decision to continue down its current path would be compounded by the manner in which it has handled PCA's petitions for reconsideration of the CISWI final rule, which was submitted to EPA on May 20, 2011, and our petition for a new rulemaking to amend the March 21, 2011 NHSM final rule, which PCA submitted to EPA on June 16, 2011.Page 62 of 100 PCA's two administrative petitions presented subs tantive issues for EPA to address, to which EPA has either not yet responded, or in respondi ng raised new issues to which a response from PCA in these comments has become necessa ry and has therefore been provided. For example, PCA was compelled to submit its petition for new rulemaking because of EPA's failure to address, i.e., EPA did not respond to, issues PCA raised in its initial comments. EPA has not only yet to respond to PCA's petition as of the date of these comments (either by initiating the requested rulemaking, or by denying our petition in a responsive decision), but the instant reconsideration NPRM makes no mention of our petiti on, let alone requested the public to comment on any of the specific issues which we raised. As a consequence, PCA believes it is necessary to preserve those issues now, by re newing the presentation of those same outstanding issues in these comments. For EPA to continue to fail to address our issues before issuing a final rule would be, to quote the DC Circuit, "put[ti ng] the cart before the horse." Slip op. at 16. PCA also contends that EPA's refusal to consid er issues beyond those sp ecifically identified in the reconsideration notice contravenes Executive Order (EO) 13563 and EPA's stated commitment "to apply the principl es and directives of EO 13563 to both retrospec tive reviews of existing regulations and the development of new regulations ," Improving Our Regulations: Final Plan/or Periodic Retrospective Re views of Existing Regulations (August 2011) at 5 (emphasis supplied). In that regard, EPA's arbitrary li mitation of the issues to be considered on reconsideration contravenes either the letter, or at the very least spirit, of the EO's following principles and directives; principles and directives which EPA has previously committed to adhere to and apply in developi ng and retrospectively reviewing ru lemakings just like the instant proceeding 15 :

 Allow for public participation and an open exchange of ideas

.

 Identify and use the best, most innovative, and least burdensome tools for achieving regulatory ends.

 Take into account benefits and costs , both quantitative and qualitative.

 Provide an opportunity for public comment on all pertinent parts a/the rulemaking docket , including relevant scientif ic and technical findings.

 Before issuing a notice of proposed rule making, each agency, where feasible and appropriate, shall seek the views of those who are likely to be affected, including those who are likely to benefit from and those who ar e potentially subject to such rulemaking.

 Seek to identify, as appropriate, means to ach ieve regulatory goals that are designed to promote innovation

.

 Identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public.Page 63 of 100  Consider how best to promote retrospectiv e analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome , and to modify, streamline, expand, or repeal them in accordance with what has been learned

. [Footnotes] (14) E.g., NRDC v. EPA, 571 F .3d 1245. 1266 (D.C. Cir. 2009); AISI v. EPA, 886 F.2d 390, 397-98 (D.C. Cir. 1989). (15) PCA contends that EPA's reconsidera tion of a final rule is either an extension of the development of a new regulation or substant ively no different than engaging in retrospective review of an existing regulation. It would therefore be unreasonable were EPA to attempt to assert that the presen t reconsideration is neith er and thus EO 13563 does not apply. Response: As EPA has stated repeatedly in th is rulemaking proceeding, as well as the proceeding on the March 2011 rule, the definition of solid waste portion of the rule, by itself, imposes no costs on the regulated community. It is only once the standards of the Clean Air Act apply that the costs are imposed. EO 13563 is supplemental to and reaffirms the principles, structures, and definitions governing regulatory re view, as established in Executive Order 12866. The NHSM part of the rule itself does not in clude any emission standa rds and does not require changes in the management or use of secondary materials. Only with the promulgation of the final CISWI and major source boiler rules w ould society realize any costs, benefits, environmental justice, or other impacts. As such, the NHSM impacts a ssessment deferral to the CISWI and boiler rule supporti ng assessments meets EO 13563 a ssessment requirements. Further, EPA is in no way preventing any party of the right to participate in the rulemakings in this case or forestall any court challenges. Th e March 2011 rule remains under litigation, as it is only held in abeyance at this time, as the co mment notes. EPA relies on the entire rulemaking record for the March 2011 rule, as well as the instant rulemaking on the amendments to the March 2011 rule, for appropriate issues. Issues related to the cement NESHAP are addressed in that rulemaking. The petition for new rulemaking re ferred to in the comment is not part of this rulemaking.

Commenter Name: Susan Parker Bodine Commenter Affiliation: Federal Recycling and Re mediation Coalition (FRRC) Document ID: EPA-HQ-RCRA-2008-0329-1972-A2 Comment Excerpt Number: 36

Comment: On January 18, 2011, President Ob ama issued Executive Order 13563, on Improving Regulation a nd Regulatory Review. See http://www.whitehouse.gov/thepressoffice/2011/01/18/improving-regulation-and-re gulatory-review-executive-order. The FRRC submitted comments on April 4, 2011, on EPA’s implementation of this Executive Order. As stated on those comments, the FRRC strongly agr ees with many aspects of the Executive Order, including the requirement that estimates of costs, benefits and burdens associated with agency regulations must be considered (Sec. 1 of th e Executive Order), that agencies must avoid duplicative regulation (Sec. 3), that cumulative eff ects of regulations must be considered, (Sec.Page 64 of 100 3), that agencies should adopt re gulatory approaches that reduce burdens and maintain flexibility, support performance-based regulatory approaches, and freedom of choice fo r the public (Sec. 4), and that objective scientific and technological information must be used to support agency decisions (Sec. 5) Unfortunately, EPA has failed to comply with Executive Order 13563 in this rulemaking. Specifically, EPA has failed to consider any cost s associated with the NHSM rule, refusing to conduct a regulatory impact analysis for this rule . EPA has failed to avoi d duplicative regulation, including duplicative regulation of used oils. EPA has failed to reduce burdens by promulgating and proposing regulations that would identify many non-wastes as wast es under RCRA. Finally, given the complete absence of a record to support this rulemaking, it is not supported by objective information. We urge EPA to carry out both the letter and the spirit of Executive Order 13563 and follow the recommendations set forth herein. Response: EO 13563 is supplemental to and reaffirms the principles, structures, and definitions governing regulatory review, as established in Executive Order 12866. The NHSM part of the rule itself does not include any emission sta ndards and does not requ ire changes in the management or use of secondary materials. On ly with the promulgation of the final CISWI and major source boiler rules would so ciety realize any costs, benef its, environmental justice, or other impacts. As such, the NHSM impacts a ssessment deferral to the CISWI and boiler rule supporting assessments meets EO 1 3563 assessment requirements.

Commenter Name: Christopher Harris Commenter Affiliation: NORA, An Association of Responsible Recyclers, Inc. (NORA) Document ID: EPA-HQ-RCRA-2008-0329-1958-A2 Comment Excerpt Number: 14 Comment: Executive Order 13211 (66 Fed. Reg. 28355, May 22, 2001) directs federal agencies to consider the impact of proposed regulations on energy supply, dist ribution or usage. EPA asserts that its proposed rule is “not likely to have a signif icant adverse effect on the supply, distribution or use of energy.” 75 Fed. Re g. 31891. NORA strongly disagrees with this conclusion. As NORA has pointed out in its comme nts, EPA has failed to analyze the impact of the proposed NHSM rule with respect to the capacity of section 129-permitted facilities to manage the materials designated as solid waste-derived fuels. As discussed below, relatively few facilities and a relative small quant ity of burning capacity will remain once the proposed NHSM rule has been promulgated. When these major restrictions are in place, relatively little of the solid waste- derived fuel will be bur ned (legally) for energy recovery. The section 112-permitted facilities and other burners (that previously burned the fuel targeted by the rule) will have to rely on other sour ces of fuel including vi rgin fuel oils, natural gas, and coal. With respect to virgin fuels oils the proposed rule will create greater dependence on foreign fuel, not less. Although EPA has not undertaken a calculati on of this fuelPage 65 of 100 displacement, by any measure it is a massive amount of energy. In addition, EPA has failed to calculate the energy costs of dis posing of the vast quantity of solid waste-derived fuels into landfills. Nor has the Agency examined the probab ility that large quantitie s of off-spec used oil fuel will be exported to China. Consequently it is clear that the proposed ru le (as well as the Alte rnative Approach) would constitute “a significant energy action” within the meaning of Executive Order 13211 and it was improper for EPA, particularly without any analysis, to reach the opposite conclusion. Response: The NHSM section of this final rulema king does not represent a “significant energy action” as defined in Executive Order 13211 because it will not have a si gnificant adverse effect on the supply, distribution, or use of energy. Th is action, independent of the Clean Air Act (CAA) rules is not expected to di rectly affect energy use or use patterns. We refer the commenter to the dockets for sections 112 and 129 CAA emission standards rules for information on possible impacts from those rules on the use of non- hazardous secondary mate rials as a source of energy. 

### 7W. Negative Impacts to Landfills

Commenter Name: Jeff Lloyd Commenter Affiliation: Nisus Corporation (Nisus) Document ID: EPA-HQ-RCRA-2008-0329-1970-A2 Comment Excerpt Number: 2 Comment: In addition to removing a less environm entally impactful fuel from the market, EPA’s proposal will have the uni ntended consequence of causing a large increase in the quantity of treated wood products going to land fill. Appr oximately 25 million ties (100 million cubic feet of wood) are replaced each year (after a comp letion of 20 to 50 years service in track). The volume of wood from utility poles is also signif icant. By diverting these products away from combustion facilities due to their new status as “solid waste,” EPA will incentivize industry to avoid legitimate and environmenta lly appropriate secondary uses of treated wood products and dispose of the wood through other means – specifi cally land disposal. Such practices will put a strain on existing landfill resource s and raise costs to the railway and utility sector s. Any increase in costs will only be passed on, resulting in higher costs for rail trans portation and electricity distribution in an economy that can ill afford significant increases in costs of operation and distribution for the movement of goods and transmission of power. Response: This final action alone will not result in a ny costs, benefits or other impacts to the regulated community (aside from negligible admi nistrative costs e.g., reading the RCRA part of the proposal). The NHSM part of this rule its elf does not include any emission standards and does not require changes in the management or us e of secondary materials. Only in conjunction with the promulgation of the final CISWI and ma jor source boiler rules w ould society realize any costs, benefits, environmental just ice, or other impacts. In add ition, refer to the document in the docket for today's rule titled: "REGULATOR Y SUPPORT: Assessment of Potential Costs, Benefits, Environmental Justice, and Other Im pacts; and Regulatory Flexibility Screening Assessment."Page 66 of 100 Commenter Name: Richard D. Garber Commenter Affiliation: Boise Inc. Document ID: EPA-HQ-RCRA-2008-0329-1940-A2 Comment Excerpt Number: 1

Comment: Such a decision would have obvious fina ncial impacts to our competitiveness, but could also cause these valuable fuels to be la ndfilled. Landfilling of these materials would, in most cases, require that additiona l disposal costs be incurred a nd that fossil-fuels be used to make up for the lost energy BTU value. Boise believes that this outcome is not what EPA intends, and can be avoided if EPA specifically designates th ese materials as fuels, or alternatively, allows sufficient flexibility in the final NHSM rule so that these materials can meet regulatory tests and be properly classified as fuels. The poten tial economic penalty for make-up fuel value and disposal costs is on the order of several million dollars per facility, per year for our paper mills. Response: See the response for EPA-HQ-RCRA-2008-0329-1970-A2 excerpt #2.

Commenter Name: Louis P. Warchot and Michael J. Rush Commenter Affiliation: The Association of American Railroads (AAR) Document ID: EPA-HQ-RCRA-2008-0329-1920-A1 Comment Excerpt Number: 6

Comment: This proceeding is important to the railro ad industry. If the industry does not have a viable way of obtaining a non-waste determination a nd crossties are classified as solid wastes for combustion purposes, the railroads might be forced to landfill their ties, which would adversely affect the environment and cost the industr y millions annually. From both EPA's and the railroads' perspectives it makes sense to adopt a practical procedure for making nationwide nonpreemption determinations. Response: See the response for EPA-HQ-RCRA-2008-0329-1970-A2 excerpt #2.

Commenter Name: Ted Michaels Commenter Affiliation: Energy Recovery Council (ERC) Document ID: EPA-HQ-RCRA-2008-0329-1927-A1 Comment Excerpt Number: 2Page 67 of 100 Comment: Together, the NHSM rule presumpti on and CISWI MACT limits will force operators to stop combusting processed C&D and cr eosote wood, even as state programs such as California’s AB2588 law health risk assessmen t have assured facilities combusting these materials meet stringent health-based standards. We expect millions of tons of C&D and other wood now being combusted for energy recovery 1 will instead be landfilled, and that fossil fuels will be used to replace the lost energy. And if the rules cause existing plants to shut down, a distinct possibility given their thin operati ng margins and inability to pass through costs of facility changes under existing pow er agreements, then clean biomass such as agricultural wood and residue currently combusted in these facilities will also be landfilled, or worse, open burned. EPA’s CISWI and NHSM rules have the combined effect of discouraging recovery of renewable energy from biomass and promoting use of landfills and fossil fuels, a result contrary to EPA’s own Solid Waste Management Hierarchy, federa l and state air polluti on control programs, renewable energy policies, solid waste landf ill diversion programs, and mandated permit requirements to generate emissions offsets from combusted biomass. We urge EPA to make appropriate changes to the NHSM rule and CISW I MACT which will correct these detrimental effects. [Footnote] (1) In its Materials Characterization Paper “Identification of Nonhazardous Secondary Materials That Are Solid Waste, Constr uction and Demolition Building-Related C&D Materials,” February 3, 2011, EP A reported 4.7 to 6.5 million tons of C&D combusted annually. The California Biomass Energy Alliance reports 1.6 million tons per year are combusted in California alone. Response: See the response for EPA-HQ-RCRA-2008-0329-1970-A2 excerpt #2.

Commenter Name: Heather Parent Commenter Affiliation: Maine Department of Envir onmental Protection (Maine DEP) Document ID: EPA-HQ-RCRA-2008-0329-1971-A2 Comment Excerpt Number: 4

Comment: Hundreds of boilers in Maine combust a combination of traditional fuels and a variety of secondary materials, many of which ha ve been granted beneficial use determinations by the Maine DEP's Solid Waste Program. The major ity of those boilers ar e oil-fired units that also combust waste oil generated on-site. Ot her commonly combusted secondary materials include tire derived fuel (subject to a range of processing), wast e water biosolids, waste paper, on- and off-specification used oil, oily solids, coffee grounds, and construction and demolition wood fuel. Much of these materials is generate d on-site at pulp and paper mills and biomass energy production facilities, and are diverted from the landfill waste stream by their combustion for heat and energy recovery. Howe ver, the heat input contribution of many of these materials is minimal and will no longer be cost effective for facilities as an alternative to disposal if combustion in their boilers subjects the units to the CISWI standards. Maine DEP is extremely concerned that the proposed standards will nega tively impact beneficial use of secondaryPage 68 of 100 materials, increase the volume of Maine's waste stream, unnecessarily consume important landfill space, increase motor vehicle exhaust emissions by transporting these materials for disposal, and impose significant costs on Maine's industrial, commercial facilities without effectively reducing the prim ary pollutants of concern. Response: See the response for EPA-HQ-RCRA-2008-0329-1970-A2 excerpt #2.



### 8B. Requests for Extension of Comment Period

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industria l Boiler Owners (CIBO) Document ID: EPA-HQ-RCRA-2008-0329-1948-A1 Comment Excerpt Number: 2

Comment: Under basic principles of due process a nd administrative law, EPA has an obligation to provide the public with a r easonable opportunity to comment on proposed rules. Specifically, Congress requires EPA to give the public “a reasona ble period . . . of at least 30 days” in which to comment on “any regulation” promulgated under the CAA. 9 By the clear terms of the CAA, Congress indicates that 30 days is the minimum time necessary to give the public a reasonable opportunity to evaluate a proposed rule and prov ide adequate feedback to the Agency. Thus, a comment period meeting the statutory 30-day mi nimum would be reasonable for a single, ordinary proposed rule. Here, EP A has violated the clear terms of the CAA and deprived sources of a means to adequately protect their interest s and rights in the admi nistrative and judicial processes by providing 60 days of comment for four complex interrelated rules. Under reconsideration, the rules are no less complex then when they were first proposed in June 2010. A 60-day comment period is pa rticularly inadequate given their complexity, breadth of applicability, and economic impact. EPA has a dded data on reconsideration for 300 additional sources that must be reviewed and sources f ace the pressures of sorting complex data and developing thorough comments that address very technical issues . Although EPA released the signed rule proposals almost one month 10 prior to their publication in the Federal Register, it did not provide the majority of the supporting docume ntation for the proposed rules until publication on December 23, 2011, just two days before the ho lidays, effectively shortening the comment period. The four proposed rules under re consideration make for an enormously broad and costly proposal, which would have a si gnificant economic impact acro ss numerous and diverse sectors of the US economy, with the boi ler MACT rule alone imposing capital costs of more than $5 billion and affecting over 200,000 sources, a ccording to EPA. 76 Fed. Reg. 80622. This economic impact alone, which CIBO estimates to be over $14 billion, 11 requires a comment period sufficient to ensure thorough consideration of the proposed rules. CIBO joined with 26 other entities and trade a ssociations, representing tens of thousands of affected sources, to ask EPA to extend the comment period by 30 days and explaining in detail why the extra 30 daysPage 69 of 100 was needed and justified. 12 On February 14, 2011, just seven days before the comments were due, EPA denied the request. Sources have done the best under the circumst ances to develop thoughtful comments on their concerns and the specific requests for comment EP A made in the four rule s, and where necessary or appropriate, and where time permitted, to compile data to support its positions. [Footnotes] (9) 42 U.S.C. § 7607(h) (2006). (10) EPA posted a versi on of the rules on its website on December 2, 2011. (11) How Costs Were Determ ined for CIBO Boiler MACT Study, January 2012, Appendix D. (12) See January 18, 2012 Letter of 27 Organi zations to EPA, Appendix E. Response: Please refer to the letter responding to the request fo r the extension of comment period signed by the OSWER Assistant Administra tor, Mathy Stanislaus, on February 15, 2012. The letter is in the docket and is titled "2- 15-2012 Letter to Bessette regarding Request for Extension of Comment Period."

Commenter Name: Ted Michaels Commenter Affiliation: Energy Recovery Council (ERC) Document ID: EPA-HQ-RCRA-2008-0329-1927-A1 Comment Excerpt Number: 1

Comment: In general, the Energy Recovery Coun cil believes that the comment period was inadequate given the complexity, breadth of applicabil ity, and economic impact of the rules as proposed on December 23, 2011. The proposed rules are complex, driven by intensive data collection and calculation. While ERC joined other groups in re questing an extension of the deadline for public comments, EPA refused the extension request. Sixty days is simply insufficient especially given that the rules were published immediately prior to the holidays. Response: Refer to the response to EP A-HQ-RCRA-2008-0329-1948- A1 excerpt # 2.



### 8Z. Other

Commenter Name: Kerry Kelly Commenter Affiliation: Waste Management (WM) Document ID: EPA-HQ-RCRA-2008-0329-1957-A2 Comment Excerpt Number: 21 Comment: EPA should clarify that secondary materi al fuels may be processed from municipal solid waste.Page 70 of 100 The NHSM Rule is clear on its face that secondar y materials that have been discarded may be processed into legitimate non-hazardous secondary material fuels. See 40 CFR §241.3(b)(4). Because the definition of “secondary materials” is broad in scope, the NHSM Rule provides an opportunity for meaningful and innovative materi als recovery and management. However, the rulemaking record indicates that the Agency has responded to questions and comments expressing concerns that the NHSM Rule would allow for the combustion of “solid waste” in contravention of CAA Section 129. In responding to comments about the application of the NHSM Rule to municipal solid waste streams, EP A has looked to the language of CAA Section 129 to underpin its responses. EPA has stated that Section 129 of the CAA does not define “solid waste,” but instead provides under 129(g)(6) that the definition and scope of “solid waste” will be established by the Administrator under RCRA. EPA has clearly promulgated the NHSM Rule precisely for the purpose of defining solid waste, and for providi ng a rigorous framework under which solid wastes may be sufficiently pr ocessed, managed as valuable commodities, and have comparable contaminant levels to those of traditional fuels, to be considered legitimate nonwaste fuels. EPA has not applie d the framework differently to various components of the solid waste stream. The Agency has established a fr amework in which the Agency maintains strict control and oversight over the us e of secondary materials as fuel s so that it may prevent sham recycling or combustion fo r the sake of disposal. As companies continue to work to recover valu e from spent materials that would otherwise be disposed, they will focus on all aspects of the solid waste stream as sources of valuable feedstock. These material streams will like ly include components of the post-consumer municipal solid waste stream that are difficult to recycle, as well as pre-consumer industrial, commercial and other sorted waste materials. As part of its mission to support materials management and sustainability efforts of the publ ic and private sectors, EPA should clarify that municipal solid waste, like any other solid wast e fuel feedstock, is eligible for evaluation under the NHSM Rule legitimacy framework. WM has appended a legal analysis at Attachment B to assist in this effort. * * * * * From Attachment B . . . [I]n responding speci fically to concerns surrounding Refuse Derived Fuel (“RDF”) 1 identified in CAA Section 129, EPA states the following: The comment is incorrect that section 129, by excluding “refuse-deri ved 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 t hat were the case, section 12 9(g)(6) would be superfluous. Nevertheless, today’s rule iden tifying which non-hazardous secondary materials that are solid wastes when combusted does not include fu el derived from municipal waste refuse [EMPHASIS ADDED] under 129(g)(5). Some fuels may be pro cessed from solid waste, but that determination by the Agency stands or falls bas ed on the RCRA statute and case law, not the CAA. EPA is not defining “refuse derived fuel ” in this RCRA rule. The validity of EPA’s interpretation on whether commodity fuels may be processed, or extracted, from a waste must stand or fall based on the RCRA definition, not provisions of the CAA.Page 71 of 100 Id . EPA’s statements here reflect its belief th at Section 129 does not, and cannot, mandate that RDF be a “solid waste” under RCRA. Pursuant to Section 129(g)(6), only a RCRA rulemaking can determine the scope of the “solid waste” definition. However, because RDF is already subjected to municipal waste combustor sta ndards under Section 129, the NHSM Rule does not attempt to determine the scope of RFD for those pur poses. Further, EPA clearly states that fuels may be processed from solid waste, and the legi timacy of those fuels will determined based on the NHSM Rule, not the language of CAA Secti on 129. Accordingly, a material that is determined to be a legitimate fuel material under the NHSM Rule, and therefore is not a “solid waste,” cannot be considered RDF. [Footnote] (1) RDF is identified in Section 129 as a type of muni cipal waste, and its combustion is regulated under municipal waste combustor standards promulgated under Section 129. See e.g. 40 CFR Part 60, Subpart AAAA, Standards of Performance for Small Municipal Waste Combustion Units for Which Construction is commenced After August 30, 1999 or for Which Modification or Reconstruction is Commenced Af ter June 6, 2001. RDF is specifically defined under such standards as follows: Refuse-derived fuel means a ty pe of municipal solid waste produced by processing municipal solid waste th rough shredding and size classification. That includes all classes of refuse-derived fuel in cluding two fuels: (1) Low density fluff refusederived fuel through densified refuse-derived fuel. (2) Pelle tized refuse-derived fuel. 40 CFR §60.1465. Response: This issue has not been reopened in this rulemaking proceeding. However, as noted below, the comment indicates a n eed to clarify matters. EPA agrees with the general point made by the comment that municipal waste may be pr ocessed into a product fu el under the NHSM rule framework and that a material determined to be a legitimate product fu el under the NHSM Rule “cannot be considered RDF.” Under section 129, a “solid waste in cineration unit” is defined as “a distinct operating unit of any facility” which combusts “any solid waste.” Th e term “solid waste” in turn has the meaning established by the Administrator pursuant to RCRA , and EPA has defined the term “solid waste” for purposes of non-hazardous secondary materials in this rule. Section 129(a)(1) requires EPA to establish emissions standards under section 12 9(a)(1)(B) and (C) for “solid waste incineration units ... combusting municipal waste.” Since section 129(g)(6) states that solid waste incineration units include units that combust municipal waste, municipal waste is a type of solid waste as that term is defined by the Administ rator under RCRA in the NHSM rule. Since EPA issued regulations under section 129 for munici pal waste combustors pr ior to the NHSM rule, EPA intends to evaluate whether any revisions to the municipal waste combustor regulations are needed to ensure consistency with the NHSM rule. The Agency also agrees that this point should be clarified in view of the context in which the language emphasized above appears in the preambl e to the March 2011 final rule. The specific language in question -- today’s rule . . . does not incl ude fuel derived from municipal waste refuse -- was only meant to reply to a comment that ar gued that the inclusi on of “refuse-derived fuel” in 129(g)(1)(B) shows that Congress intended that the universe of “fuel” consisted of “waste” and “fossil fuel.” Th erefore, according to the comment, any secondary material, regardless of whether it is legitimately burned for energy recovery, is a waste. This is aPage 72 of 100 formulation that EPA has reject ed, since there would be no poin t in providing that the Agency should determine whether material is waste under RCRA. Thus, the language emphasized was only meant to state that fuels processed fr om secondary materials may be products. While the NHSM rule does not include a specific discussion as to how municipal waste could be further processed into a product fuel, it does not preclude processing under RCRA of any nonhazardous waste, including municipa l waste, into a product fuel.Page 73 of 100 

## III. Index of Comments Covered in the Preamble

The comments in Table 1 below were considered in the development of the preamble and regulations for today’s rule and are not re peated in this document.

For example, this includes th e following type of comments: - Comments that were specifica lly addressed in the preamble. - The comment response in the preamble of today’s rule applies to the issues raised in the comment (although the preamble does not mention the specific comment). - General statements that were considered on approval or disapprova l of the proposed rule, but that do not provide specific reas oning (if reasoning is provided, the Agen cy responds to those reasons, as appropriate, in the enti re rulemaking record). - Summation of the proposed rule aspects or other items that are not substantive points or legal arguments (but these were considered within cont ext of the entire comment related to the proposal). - Responses that were addressed in the preamble a nd, in rare cases, the comment had components that were not reopened or were otherwise out of scope.

Note that the roman numerals in brack ets after the topic titles indicate th e main location where the topics are addressed in the preamble of today’s rule. The following information is provided for each comment: the name and affiliation of the commenter; the Document ID number assigned to the comment by the docket, and the comment excerpt number. The full comment can be easily located at www.regulations.gov by entering in the Document ID Number.Page 74 of 100 

### Table 1. Comments Finali zed in the Preamble

Document ID Number Excerpt Number Commenter Affiliation Commenter Name

2A - General support of the proposed rule EPA-HQ-RCRA-2008-0329-1913-A2 1 Michigan Department of E nvironmental Quality (MDEQ) Steven R. Sliver EPA-HQ-RCRA-2008-0329-1915-A1 1 Northeast States for Coordinated Air Use Management (NESCAUM) Arthur N. Marin

EPA-HQ-RCRA-2008-0329-1934-A2 1 Ohio Environmental Protection Agency Ohio Environmental Protection Agency

3A01 - Definition of “clean cellulos ic biomass:” General [Section III.D.1] EPA-HQ-RCRA-2008-0329-1890-A1 1 Dow Chemical Company (Dow) Darryl Sanderson EPA-HQ-RCRA-2008-0329-1898-A1 1 JELD-WEN, inc. Claudia M. O'Brien EPA-HQ-RCRA-2008-0329-1909-A1 8 Dominion Resources Serv ices, Inc. (Dominion) Pamela F. Faggert EPA-HQ-RCRA-2008-0329-1915-A1 4 Northeast States for Coordinated Air Use Management (NESCAUM) Arthur N. Marin

EPA-HQ-RCRA-2008-0329-1918 2 National Associatio n of Manufacturers Alicia Meads EPA-HQ-RCRA-2008-0329-1930-A1 2 Weyerhaeuser Stephen E. Woock EPA-HQ-RCRA-2008-0329-1932-A1 19 American Chemistr y Council (ACC) Patricia A. Haederle EPA-HQ-RCRA-2008-0329-1932-A1 20 American Chemistr y Council (ACC) Patricia A. Haederle EPA-HQ-RCRA-2008-0329-1934-A2 2 Ohio Environmental Protection Agency Ohio Environmental Protection Agency EPA-HQ-RCRA-2008-0329-1938-A2 10 Cemex USA Satish Sheth EPA-HQ-RCRA-2008-0329-1944-A2 3 NewPage Corporation (NewPage) Steve List EPA-HQ-RCRA-2008-0329-1946-A1 12 American Forest & Paper Association, et al. Paul Noe EPA-HQ-RCRA-2008-0329-1948-A1 13 Council of Industrial Boiler Owners (CIBO) Robert D. Bessette EPA-HQ-RCRA-2008-0329-1948-A1 16 Council of Industrial Boiler Owners (CIBO) Robert D. Bessette EPA-HQ-RCRA-2008-0329-1950-A2 3 National Alliance of Fo rest Owners (NAFO) Christian Paul Huebner EPA-HQ-RCRA-2008-0329-1953-A2 4 Association of State and Territorial Solid Waste Management Offi cials (ASTSWMO) Charles G. Johnson

EPA-HQ-RCRA-2008-0329-1954-A2 7 Archer Daniels Midland Company (ADM) Mark Calmes EPA-HQ-RCRA-2008-0329-1963-A2 23 U.S. Small Business Administ ration Office of Advocacy (SBA) Winslow Sargeant

3A02 – Definition of clean cellulosic biomass: Clea n construction and demolition wood [Section III.D.1] EPA-HQ-RCRA-2008-0329-1910-A1 2 United Steel workers (USW) Holly R. Hart EPA-HQ-RCRA-2008-0329-1928-A1 1 Construction Materials Recycling Association (CMRA) William Turley EPA-HQ-RCRA-2008-0329-1963-A2 24 U.S. Small Business Administ ration Office of Advocacy (SBA) Winslow SargeantPage 75 of 100 

### Table 1. Comments Finali zed in the Preamble

Document ID Number Excerpt Number Commenter Affiliation Commenter Name EPA-HQ-RCRA-2008-0329-1974-A2 5 Partnership for Policy Integrity (PFPI) Mary S. Booth EPA-HQ-RCRA-2008-0329-1974-A2 7 Partnership for Policy Integrity (PFPI) Mary S. Booth 3B01- Definition of “Contaminants” [Section III.D.1.] EPA-HQ-RCRA-2008-0329-1905-A1 11 Michigan Biomass Gary Melow EPA-HQ-RCRA-2008-0329-1907-A1 6 Utility Solid Waste Activities Group (USWAG) Jim R. Roewer EPA-HQ-RCRA-2008-0329-1911-A1 5 Ameren Cor poration (AMEREN) Paul R. Pike EPA-HQ-RCRA-2008-0329-1932-A1 21 American Chemistr y Council (ACC) Patricia A. Haederle EPA-HQ-RCRA-2008-0329-1953-A2 5 Association of State and Territorial Solid Waste Management Offi cials (ASTSWMO) Charles G. Johnson

EPA-HQ-RCRA-2008-0329-1962-A1 7 Cement Kiln Recycl ing Coalition (CKRC) Michel R. Benoit EPA-HQ-RCRA-2008-0329-1972-A2 7 Federal Recycling and Re mediation Coalition (FRRC) Susan Parker Bodine

3B02 - Contaminants: Elemental cont aminants list [Section III.D.1-2] EPA-HQ-RCRA-2008-0329-1889-A1 1 Coalition for Responsible Waste Incineration (CRWI) Melvin E. Keener EPA-HQ-RCRA-2008-0329-1890-A1 2 Dow Chemical Company (Dow) Darryl Sanderson EPA-HQ-RCRA-2008-0329-1941-A1 51 National Cement Company, Inc. (National Cement ) Michael D. Stevens EPA-HQ-RCRA-2008-0329-1946-A1 14 American Forest & Paper Association, et al. Paul Noe EPA-HQ-RCRA-2008-0329-1946-A1 15 American Forest & Paper Association, et al. Paul Noe 3B03 - Compounds excluded from the contaminants list [Section III.D.1-2.] EPA-HQ-RCRA-2008-0329-1932-A1 4 American Chemistr y Council (ACC) Patricia A. Haederle EPA-HQ-RCRA-2008-0329-1946-A1 46 American Forest & Paper Association, et al. Paul Noe EPA-HQ-RCRA-2008-0329-1974-A2 10 Partnership for Policy Integrity (PFPI) Mary S. Booth

3B04 - Clauses removed from the definition of “contaminants” [Section III.D.1.] EPA-HQ-RCRA-2008-0329-1889-A1 3 Coalition for Responsible Waste Incineration (CRWI) Melvin E. Keener 3C – Definition of “Established Tire Collection Program” [Section III.D.1] EPA-HQ-RCRA-2008-0329-1885-A1 2 M. A. Asso ciates, Inc. Michael A. Sorcher EPA-HQ-RCRA-2008-0329-1924-A1 21 Portland Cement Association (PCA) Andrew T. O'Hare EPA-HQ-RCRA-2008-0329-1938-A2 7 Cemex USA Satish Sheth EPA-HQ-RCRA-2008-0329-1946-A1 16 American Forest & Paper Association, et al. Paul Noe EPA-HQ-RCRA-2008-0329-1968-A2 10 Lafarge North Amer ica Inc. (Lafarge) Michael L. Pelan 3Z - Other [III.C-D]Page 76 of 100 

### Table 1. Comments Finali zed in the Preamble

Document ID Number Excerpt Number Commenter Affiliation Commenter Name EPA-HQ-RCRA-2008-0329-1972-A2 34 Federal Recycling and Re mediation Coalition (FRRC) Susan Parker Bodine 4A01 - General contaminant legitimacy criterion comments [Section III.D.1-2] EPA-HQ-RCRA-2008-0329-1907-A1 8 Utility Solid Waste Activities Group (USWAG) Jim R. Roewer EPA-HQ-RCRA-2008-0329-1907-A1 9 Utility Solid Waste Activities Group (USWAG) Jim R. Roewer EPA-HQ-RCRA-2008-0329-1910-A1 4 United Steel workers (USW) Holly R. Hart EPA-HQ-RCRA-2008-0329-1928-A1 3 Construction Materials Recycling Association (CMRA) William Turley EPA-HQ-RCRA-2008-0329-1930-A1 6 Weyerhaeuser Stephen E. Woock EPA-HQ-RCRA-2008-0329-1938-A2 11 Cemex USA Satish Sheth EPA-HQ-RCRA-2008-0329-1944-A2 5 NewPage Corporation (NewPage) Steve List EPA-HQ-RCRA-2008-0329-1946-A1 20 American Forest & Paper Association, et al. Paul Noe EPA-HQ-RCRA-2008-0329-1948-A1 9 Council of Industrial Boiler Owners (CIBO) Robert D. Bessette EPA-HQ-RCRA-2008-0329-1954-A2 6 Archer Daniels Midland Company (ADM) Mark Calmes EPA-HQ-RCRA-2008-0329-1955-A2 2 National Association of Clean Water Agencies (NACWA) Chris Hornback EPA-HQ-RCRA-2008-0329-1962-A1 8 Cement Kiln Recycl ing Coalition (CKRC) Michel R. Benoit 4A02 - “Groups of contaminants” [Section III.D.2.b] EPA-HQ-RCRA-2008-0329-1907-A1 7 Utility Solid Waste Activities Group (USWAG) Jim R. Roewer EPA-HQ-RCRA-2008-0329-1911-A1 6 Ameren Cor poration (AMEREN) Paul R. Pike EPA-HQ-RCRA-2008-0329-1917-A1 2 ReCommuni ty, Inc. Claudia M. O'Brien EPA-HQ-RCRA-2008-0329-1924-A1 2 Portland Cement Association (PCA) Andrew T. O'Hare EPA-HQ-RCRA-2008-0329-1928-A1 13 Construction Materials Recycling Association (CMRA) William Turley EPA-HQ-RCRA-2008-0329-1932-A1 6 American Chemistr y Council (ACC) Patricia A. Haederle EPA-HQ-RCRA-2008-0329-1932-A1 8 American Chemistr y Council (ACC) Patricia A. Haederle EPA-HQ-RCRA-2008-0329-1941-A1 50 National Cement Company, Inc. (National Cement ) Michael D. Stevens EPA-HQ-RCRA-2008-0329-1946-A1 19 American Forest & Paper Association, et al. Paul Noe EPA-HQ-RCRA-2008-0329-1946-A1 21 American Forest & Paper Association, et al. Paul Noe EPA-HQ-RCRA-2008-0329-1950-A2 14 National Alliance of Fo rest Owners (NAFO) Christian Paul Huebner 4A03 - “Designed to burn” comments [Section III.D.2.c] EPA-HQ-RCRA-2008-0329-1886-A1 1 Wisconsin Electric Po wer Company (We Energies) Bruce W. Ramme EPA-HQ-RCRA-2008-0329-1905-A1 9 Michigan Biomass Gary MelowPage 77 of 100 

### Table 1. Comments Finali zed in the Preamble

Document ID Number Excerpt Number Commenter Affiliation Commenter Name EPA-HQ-RCRA-2008-0329-1905-A1 10 Michigan Biomass Gary Melow EPA-HQ-RCRA-2008-0329-1915-A1 6 Northeast States for Coordinated Air Use Management (NESCAUM) Arthur N. Marin

EPA-HQ-RCRA-2008-0329-1917-A1 1 ReCommuni ty, Inc. Claudia M. O'Brien EPA-HQ-RCRA-2008-0329-1929-A1 2 Wisconsin Department of Natural Res ources (WDNR) Bart Sponseller EPA-HQ-RCRA-2008-0329-1932-A1 9 American Chemistr y Council (ACC) Patricia A. Haederle EPA-HQ-RCRA-2008-0329-1946-A1 26 American Forest & Paper Association, et al. Paul Noe EPA-HQ-RCRA-2008-0329-1946-A1 27 American Forest & Paper Association, et al. Paul Noe EPA-HQ-RCRA-2008-0329-1946-A1 49 American Forest & Paper Association, et al. Paul Noe EPA-HQ-RCRA-2008-0329-1946-A1 50 American Forest & Paper Association, et al. Paul Noe EPA-HQ-RCRA-2008-0329-1950-A2 15 National Alliance of Fo rest Owners (NAFO) Christian Paul Huebner EPA-HQ-RCRA-2008-0329-1958-A2 3 NORA, An Association of Re sponsible Recyclers, Inc. (NORA) Christopher Harris

EPA-HQ-RCRA-2008-0329-1958-A2 4 NORA, An Association of Re sponsible Recyclers, Inc. (NORA) Christopher Harris

EPA-HQ-RCRA-2008-0329-1972-A2 41 Federal Recycling and Re mediation Coalition (FRRC) Susan Parker Bodine EPA-HQ-RCRA-2008-0329-1974-A2 11 Partnership for Policy Integrity (PFPI) Mary S. Booth

4A04 - Allowable contaminant co mparisons [Section III.D.2(d)] EPA-HQ-RCRA-2008-0329-1886-A1 2 Wisconsin Electric Po wer Company (We Energies) Bruce W. Ramme EPA-HQ-RCRA-2008-0329-1917-A1 3 ReCommuni ty, Inc. Claudia M. O'Brien EPA-HQ-RCRA-2008-0329-1917-A1 10 ReCommuni ty, Inc. Claudia M. O'Brien EPA-HQ-RCRA-2008-0329-1920-A1 4 The Association of American Railroads (AAR) Louis P. Warchot and Michael J. Rush EPA-HQ-RCRA-2008-0329-1920-A1 5 The Association of American Railroads (AAR) Louis P. Warchot and Michael J. Rush EPA-HQ-RCRA-2008-0329-1924-A1 3 Portland Cement Association (PCA) Andrew T. O'Hare EPA-HQ-RCRA-2008-0329-1928-A1 7 Construction Materials Recycling Association (CMRA) William Turley EPA-HQ-RCRA-2008-0329-1928-A1 10 Construction Materials Recycling Association (CMRA) William Turley EPA-HQ-RCRA-2008-0329-1928-A1 14 Construction Materials Recycling Association (CMRA) William Turley EPA-HQ-RCRA-2008-0329-1946-A1 22 American Forest & Paper Association, et al. Paul Noe EPA-HQ-RCRA-2008-0329-1946-A1 24 American Forest & Paper Association, et al. Paul Noe EPA-HQ-RCRA-2008-0329-1946-A1 25 American Forest & Paper Association, et al. Paul NoePage 78 of 100 

### Table 1. Comments Finali zed in the Preamble

Document ID Number Excerpt Number Commenter Affiliation Commenter Name

EPA-HQ-RCRA-2008-0329-1946-A1 48 American Forest & Paper Association, et al. Paul Noe EPA-HQ-RCRA-2008-0329-1955-A2 3 National Association of Clean Water Agencies (NACWA) Chris Hornback EPA-HQ-RCRA-2008-0329-1958-A2 2 NORA, An Association of Re sponsible Recyclers, Inc. (NORA) Christopher Harris

EPA-HQ-RCRA-2008-0329-1963-A2 29 U.S. Small Business Administ ration Office of Advocacy (SBA) Winslow Sargeant

EPA-HQ-RCRA-2008-0329-1972-A2 38 Federal Recycling and Re mediation Coalition (FRRC) Susan Parker Bodine EPA-HQ-RCRA-2008-0329-1974-A2 6 Partnership for Policy Integrity (PFPI) Mary S. Booth 4B01 - General comments on categorical non-waste determinations [Section III.D.3] EPA-HQ-RCRA-2008-0329-1905-A1 2 Michigan Biomass Gary Melow EPA-HQ-RCRA-2008-0329-1907-A1 11 Utility Solid Waste Activities Group (USWAG) Jim R. Roewer EPA-HQ-RCRA-2008-0329-1934-A2 4 Ohio Environmental Protection Agency Ohio Environmental Protection Agency EPA-HQ-RCRA-2008-0329-1937-A2 3 Pennsylvania Chamber of Business and Industry Samuel Denisco EPA-HQ-RCRA-2008-0329-1938-A2 5 Cemex USA Satish Sheth EPA-HQ-RCRA-2008-0329-1938-A2 15 Cemex USA Satish Sheth EPA-HQ-RCRA-2008-0329-1948-A1 5 Council of Industrial Boiler Owners (CIBO) Robert D. Bessette EPA-HQ-RCRA-2008-0329-1950-A2 10 National Alliance of Fo rest Owners (NAFO) Christian Paul Huebner EPA-HQ-RCRA-2008-0329-1953-A2 6 Association of State and Territorial Solid Waste Management Offi cials (ASTSWMO) Charles G. Johnson

EPA-HQ-RCRA-2008-0329-1968-A2 11 Lafarge North Amer ica Inc. (Lafarge) Michael L. Pelan EPA-HQ-RCRA-2008-0329-1968-A2 14 Lafarge North Amer ica Inc. (Lafarge) Michael L. Pelan EPA-HQ-RCRA-2008-0329-1968-A2 17 Lafarge North Amer ica Inc. (Lafarge) Michael L. Pelan 4B02 - Categorical non-waste determination for scrap ti res that have not been discarded [Section III.D.3.a] EPA-HQ-RCRA-2008-0329-1905-A1 3 Michigan Biomass Gary Melow EPA-HQ-RCRA-2008-0329-1924-A1 6 Portland Cement Association (PCA) Andrew T. O'Hare EPA-HQ-RCRA-2008-0329-1924-A1 23 Portland Cement Association (PCA) Andrew T. O'Hare EPA-HQ-RCRA-2008-0329-1932-A1 14 American Chemistr y Council (ACC) Patricia A. Haederle EPA-HQ-RCRA-2008-0329-1946-A1 29 American Forest & Paper Association, et al. Paul Noe EPA-HQ-RCRA-2008-0329-1947-A1 1 Rubber Manufacturer s Association (RMA) Sarah E. Amick EPA-HQ-RCRA-2008-0329-1959-A2 12 Earthjustice Neil GormleyPage 79 of 100 

### Table 1. Comments Finali zed in the Preamble

Document ID Number Excerpt Number Commenter Affiliation Commenter Name EPA-HQ-RCRA-2008-0329-1960-A2 4 Institute of Scrap Recyc ling Industries, Inc. (ISRI) David L. Wagger EPA-HQ-RCRA-2008-0329-1962-A1 6 Cement Kiln Recycl ing Coalition (CKRC) Michel R. Benoit EPA-HQ-RCRA-2008-0329-1968-A2 18 Lafarge North Amer ica Inc. (Lafarge) Michael L. Pelan 4B03 - Resinated wood [Section III.D.3.b] EPA-HQ-RCRA-2008-0329-1898-A1 2 JELD-WEN, inc. Claudia M. O'Brien EPA-HQ-RCRA-2008-0329-1902-A1 8 Georgia-Pacific LLC (GP) Traylor Champion EPA-HQ-RCRA-2008-0329-1905-A1 4 Michigan Biomass Gary Melow EPA-HQ-RCRA-2008-0329-1909-A1 9 Dominion Resources Serv ices, Inc. (Dominion) Pamela F. Faggert EPA-HQ-RCRA-2008-0329-1930-A1 3 Weyerhaeuser Stephen E. Woock EPA-HQ-RCRA-2008-0329-1932-A1 15 American Chemistr y Council (ACC) Patricia A. Haederle EPA-HQ-RCRA-2008-0329-1939-A2 1 American Home Furnishings Alliance (AHFA) Bill Perdue EPA-HQ-RCRA-2008-0329-1946-A1 30 American Forest & Paper Association, et al. Paul Noe EPA-HQ-RCRA-2008-0329-1950-A2 5 National Alliance of Fo rest Owners (NAFO) Christian Paul Huebner EPA-HQ-RCRA-2008-0329-1959-A2 9 Earthjustice Neil Gormley EPA-HQ-RCRA-2008-0329-1972-A2 15 Federal Recycling and Re mediation Coalition (FRRC) Susan Parker Bodine 4C01 - General comments on approval or disa pproval of the categorical no n-waste petition process at §241.4(b) [Section III.D.4] EPA-HQ-RCRA-2008-0329-1907-A1 10 Utility Solid Waste Activities Group (USWAG) Jim R. Roewer EPA-HQ-RCRA-2008-0329-1910-A1 5 United Steel workers (USW) Holly R. Hart EPA-HQ-RCRA-2008-0329-1911-A1 7 Ameren Cor poration (AMEREN) Paul R. Pike EPA-HQ-RCRA-2008-0329-1924-A1 7 Portland Cement Association (PCA) Andrew T. O'Hare EPA-HQ-RCRA-2008-0329-1934-A2 3 Ohio Environmental Protection Agency Ohio Environmental Protection Agency EPA-HQ-RCRA-2008-0329-1950-A2 11 National Alliance of Fo rest Owners (NAFO) Christian Paul Huebner EPA-HQ-RCRA-2008-0329-1954-A2 5 Archer Daniels Midland Company (ADM) Mark Calmes EPA-HQ-RCRA-2008-0329-1955-A2 7 National Association of Clean Water Agencies (NACWA) Chris Hornback EPA-HQ-RCRA-2008-0329-1957-A2 16 Waste Ma nagement (WM) Kerry Kelly EPA-HQ-RCRA-2008-0329-1963-A2 27 U.S. Small Business Administ ration Office of Advocacy (SBA) Winslow Sargeant

EPA-HQ-RCRA-2008-0329-1963-A2 35 U.S. Small Business Administ ration Office of Advocacy (SBA) Winslow Sargeant

EPA-HQ-RCRA-2008-0329-1972-A2 12 Federal Recycling and Re mediation Coalition (FRRC) Susan Parker BodinePage 80 of 100 

### Table 1. Comments Finali zed in the Preamble

Document ID Number Excerpt Number Commenter Affiliation Commenter Name EPA-HQ-RCRA-2008-0329-1972-A2 25 Federal Recycling and Re mediation Coalition (FRRC) Susan Parker Bodine 4C02 - Comments on the categorical non-waste petition process at §241.4(b) (i.e., imposed burden, administrative process issues etc) [Section III.D.4] EPA-HQ-RCRA-2008-0329-1895-A1 4 Ash Grove Ce ment Company Curtis D. Lesslie EPA-HQ-RCRA-2008-0329-1920-A1 3 The Association of American Railroads (AAR) Louis P. Warchot and Michael J. Rush EPA-HQ-RCRA-2008-0329-1924-A1 10 Portland Cement Association (PCA) Andrew T. O'Hare EPA-HQ-RCRA-2008-0329-1928-A1 8 Construction Materials Recycling Association (CMRA) William Turley EPA-HQ-RCRA-2008-0329-1944-A2 7 NewPage Corporation (NewPage) Steve List EPA-HQ-RCRA-2008-0329-1948-A1 7 Council of Industrial Boiler Owners (CIBO) Robert D. Bessette EPA-HQ-RCRA-2008-0329-1948-A1 8 Council of Industrial Boiler Owners (CIBO) Robert D. Bessette EPA-HQ-RCRA-2008-0329-1968-A2 20 Lafarge North Amer ica Inc. (Lafarge) Michael L. Pelan EPA-HQ-RCRA-2008-0329-1972-A2 26 Federal Recycling and Re mediation Coalition (FRRC) Susan Parker Bodine 4C03 - Categorical non-waste peti tion criteria [Section III.D.4] EPA-HQ-RCRA-2008-0329-1909-A1 7 Dominion Resources Serv ices, Inc. (Dominion) Pamela F. Faggert EPA-HQ-RCRA-2008-0329-1911-A1 8 Ameren Cor poration (AMEREN) Paul R. Pike EPA-HQ-RCRA-2008-0329-1915-A1 8 Northeast States for Coordinated Air Use Management (NESCAUM) Arthur N. Marin

EPA-HQ-RCRA-2008-0329-1929-A1 5 Wisconsin Department of Natural Res ources (WDNR) Bart Sponseller EPA-HQ-RCRA-2008-0329-1946-A1 40 American Forest & Paper Association, et al. Paul Noe 4C04 - What components a successful categorical no n-waste petition should have [Section III.D.4] EPA-HQ-RCRA-2008-0329-1917-A1 4 ReCommuni ty, Inc. Claudia M. O'Brien 4C05 - “balancing” the legitimacy criteria [Section III.D] EPA-HQ-RCRA-2008-0329-1886-A1 3 Wisconsin Electric Po wer Company (We Energies) Bruce W. Ramme EPA-HQ-RCRA-2008-0329-1946-A1 17 American Forest & Paper Association, et al. Paul Noe EPA-HQ-RCRA-2008-0329-1950-A2 12 National Alliance of Fo rest Owners (NAFO) Christian Paul Huebner EPA-HQ-RCRA-2008-0329-1957-A2 17 Waste Ma nagement (WM) Kerry Kelly EPA-HQ-RCRA-2008-0329-1972-A2 13 Federal Recycling and Re mediation Coalition (FRRC) Susan Parker Bodine 5A - Pulp and paper sludge [Section III.D.5.a] EPA-HQ-RCRA-2008-0329-1894-A1 2 Maine Pulp and Paper Association ("MPPA") John S. Williams EPA-HQ-RCRA-2008-0329-1894-A1 4 Maine Pulp and Paper Association ("MPPA") John S. WilliamsPage 81 of 100 

### Table 1. Comments Finali zed in the Preamble

Document ID Number Excerpt Number Commenter Affiliation Commenter Name EPA-HQ-RCRA-2008-0329-1902-A1 3 Georgia-Pacific LLC (GP) Traylor Champion EPA-HQ-RCRA-2008-0329-1910-A1 6 United Steel workers (USW) Holly R. Hart EPA-HQ-RCRA-2008-0329-1912-A2 2 Northampton Genera ting Company, L.P. (NGC) Dan Traynor EPA-HQ-RCRA-2008-0329-1921-A1 1 MeadWestvaco Corporation Dirk J. Krouskop EPA-HQ-RCRA-2008-0329-1930-A1 4 Weyerhaeuser Stephen E. Woock EPA-HQ-RCRA-2008-0329-1940-A2 4 Boise Inc. Richard D. Garber EPA-HQ-RCRA-2008-0329-1942-A2 21 Verso Paper Corp. (Verso) Craig Liska EPA-HQ-RCRA-2008-0329-1942-A2 23 Verso Paper Corp. (Verso) Craig Liska EPA-HQ-RCRA-2008-0329-1944-A2 8 NewPage Corporation (NewPage) Steve List EPA-HQ-RCRA-2008-0329-1946-A1 31 American Forest & Paper Association, et al. Paul Noe EPA-HQ-RCRA-2008-0329-1946-A1 32 American Forest & Paper Association, et al. Paul Noe EPA-HQ-RCRA-2008-0329-1946-A1 33 American Forest & Paper Association, et al. Paul Noe EPA-HQ-RCRA-2008-0329-1948-A1 17 Council of Industrial Boiler Owners (CIBO) Robert D. Bessette EPA-HQ-RCRA-2008-0329-1950-A2 7 National Alliance of Fo rest Owners (NAFO) Christian Paul Huebner EPA-HQ-RCRA-2008-0329-1959-A2 10 Earthjustice Neil Gormley EPA-HQ-RCRA-2008-0329-1963-A2 33 U.S. Small Business Administ ration Office of Advocacy (SBA) Winslow Sargeant

EPA-HQ-RCRA-2008-0329-1963-A2 34 U.S. Small Business Administ ration Office of Advocacy (SBA) Winslow Sargeant

EPA-HQ-RCRA-2008-0329-1971-A2 1 Maine Department of Envir onmental Protection (Maine DEP) Heather Parent

EPA-HQ-RCRA-2008-0329-1977 1 American Forest & Pape r Association (AF&PA) Timothy G. Hunt 5B - Coal refuse and legacy piles [Section III.D.5.b] EPA-HQ-RCRA-2008-0329-1909-A1 2 Dominion Resources Serv ices, Inc. (Dominion) Pamela F. Faggert EPA-HQ-RCRA-2008-0329-1948-A1 12 Council of Industrial Boiler Owners (CIBO) Robert D. Bessette EPA-HQ-RCRA-2008-0329-1963-A2 28 U.S. Small Business Administ ration Office of Advocacy (SBA) Winslow Sargeant

5C01 - Manure [Section III.D.5.b] EPA-HQ-RCRA-2008-0329-1963-A2 32 U.S. Small Business Administ ration Office of Advocacy (SBA) Winslow Sargeant

5D01 – Proposed revision of introduc tory text for §241.3 [Section III.D.7] EPA-HQ-RCRA-2008-0329-1897-A2 4 Treated Wood Council (TWC) Je ffrey T. MillerPage 82 of 100 

### Table 1. Comments Finali zed in the Preamble

Document ID Number Excerpt Number Commenter Affiliation Commenter Name EPA-HQ-RCRA-2008-0329-1907-A1 13 Utility Solid Waste Activities Group (USWAG) Jim R. Roewer EPA-HQ-RCRA-2008-0329-1911-A1 9 Ameren Cor poration (AMEREN) Paul R. Pike EPA-HQ-RCRA-2008-0329-1927-A1 13 Energy Recovery Council (ERC) Ted Michaels EPA-HQ-RCRA-2008-0329-1946-A1 2 American Forest & Paper Association, et al. Paul Noe EPA-HQ-RCRA-2008-0329-1962-A1 9 Cement Kiln Recycl ing Coalition (CKRC) Michel R. Benoit EPA-HQ-RCRA-2008-0329-1968-A2 12 Lafarge North Amer ica Inc. (Lafarge) Michael L. Pelan 5D02 - Burden of the existing petition process at §241.3(c) [Section III.D.6] EPA-HQ-RCRA-2008-0329-1920-A1 2 The Association of American Railroads (AAR) Louis P. Warchot and Michael J. Rush EPA-HQ-RCRA-2008-0329-1938-A2 13 Cemex USA Satish Sheth EPA-HQ-RCRA-2008-0329-1963-A2 20 U.S. Small Business Administ ration Office of Advocacy (SBA) Winslow Sargeant

5D03 - Suggestions for streamlining the existi ng petition process at §241.3(c) (e.g., by not seeking public co mment on each ind ividual petition) [Section III.D.6] EPA-HQ-RCRA-2008-0329-1895-A1 3 Ash Grove Ce ment Company Curtis D. Lesslie EPA-HQ-RCRA-2008-0329-1907-A1 12 Utility Solid Waste Activities Group (USWAG) Jim R. Roewer EPA-HQ-RCRA-2008-0329-1924-A1 8 Portland Cement Association (PCA) Andrew T. O'Hare EPA-HQ-RCRA-2008-0329-1932-A1 18 American Chemistr y Council (ACC) Patricia A. Haederle EPA-HQ-RCRA-2008-0329-1938-A2 16 Cemex USA Satish Sheth EPA-HQ-RCRA-2008-0329-1946-A1 42 American Forest & Paper Association, et al. Paul Noe EPA-HQ-RCRA-2008-0329-1950-A2 4 National Alliance of Fo rest Owners (NAFO) Christian Paul Huebner EPA-HQ-RCRA-2008-0329-1953-A2 3 Association of State and Territorial Solid Waste Management Offi cials (ASTSWMO) Charles G. Johnson

EPA-HQ-RCRA-2008-0329-1962-A1 11 Cement Kiln Recycl ing Coalition (CKRC) Michel R. Benoit EPA-HQ-RCRA-2008-0329-1968-A2 21 Lafarge North Amer ica Inc. (Lafarge) Michael L. Pelan 6A - General comments on clarification letters [Section III.C-D] EPA-HQ-RCRA-2008-0329-1946-A1 43 American Forest & Paper Association, et al. Paul Noe 6Z – Other [Section III.C-D] EPA-HQ-RCRA-2008-0329-1932-A1 17 American Chemistr y Council (ACC) Patricia A. Haederle EPA-HQ-RCRA-2008-0329-1954-A2 9 Archer Daniels Midland Company (ADM) Mark CalmesPage 83 of 100 

## IV. Index of Comments on Topics that Are Dealt With in the Rulemaking Record for the March 2011 Final Ru le and Were Not Reopened by the December 2011 Proposal or Were Otherw ise Not in the Scope of the December 2011 Proposal

The comments in Table 2 below are on topics that were not reopened in the NHSM aspects of the December 23, 2011 proposed rule (76 FR 80252; Document ID: EPA-HQ-RCRA-2008-0329-1843). Please note that EPA was soliciting comment only on the targeted changes and did no t reopen any other issues. Refer to the full statement on the scope of the rule in Section I of this document.

For example, we are not providing in dividual responses for the comment excerpts listed below that have the following characteristics: - Comments on the NHSM regulations/rationale for the basis of the rule that were not reopened in the targeted 2011 proposal (these are covered in the record for the 2011 final rule). - Issues that have been addressed in the record for the 2011 final rule, in cluding the 2011 response to comments document even though the commenter mentione d proposed rule aspects (the findings in the 2011 final rule still apply). For example, comments on the categorical non-wast e provision for tires, but the point of the comment was on the rationale for de termining if a tire in a tire dump is discarded. - Comments on topics that were not reopened or were otherwise out of scope, although in rare cases they also had components that were addressed in the preamble.

The following information is provided for each comment: the name and affiliation of the commenter; the Document ID number assigned to the comment by the docket, and the comment excerpt number. The full comment can be easily located at www.regulations.gov by entering in the Document ID Number.Page 84 of 100 

### Table 2. Comments Not Reopened

Document ID Number Excerpt Number Commenter Affiliation Commenter Name

2A - General Support or Opposition EPA-HQ-RCRA-2008-0329-1901-A2 1 Wisconsin Paper Council Edward J. Wilusz EPA-HQ-RCRA-2008-0329-1905-A1 1 Michigan Biomass Gary Melow

3A01 - Clean cellulosic biomass: General EPA-HQ-RCRA-2008-0329-1950-A2 2 National Alliance of Fo rest Owners (NAFO) Christian Paul Huebner EPA-HQ-RCRA-2008-0329-1940-A2 3 Boise Inc. Richard D. Garber EPA-HQ-RCRA-2008-0329-1887-A1 1 Biomass Power Association (BPA) and California Biomass Energy Alliance (CBEA) Robert E. Cleaves and Julee Malinowski-Ball

3A02 - Clean cellulosic biomass: Clean construction and demolition wood EPA-HQ-RCRA-2008-0329-1950-A2 6 National Alliance of Fo rest Owners (NAFO) Christian Paul Huebner EPA-HQ-RCRA-2008-0329-1905-A1 6 Michigan Biomass Gary Melow EPA-HQ-RCRA-2008-0329-1946-A1 35 American Forest & Paper Association, et al. Paul Noe EPA-HQ-RCRA-2008-0329-1957-A2 18 Waste Ma nagement (WM) Kerry Kelly EPA-HQ-RCRA-2008-0329-1974-A2 1 Partnership for Policy Integrity (PFPI) Mary S. Booth EPA-HQ-RCRA-2008-0329-1974-A2 4 Partnership for Policy Integrity (PFPI) Mary S. Booth EPA-HQ-RCRA-2008-0329-1974-A2 9 Partnership for Policy Integrity (PFPI) Mary S. Booth EPA-HQ-RCRA-2008-0329-1959-A2 8 Earthjustice Neil Gormley EPA-HQ-RCRA-2008-0329-1893-A1 1 Covanta Energy Corporation (Covanta) Paul Gilman EPA-HQ-RCRA-2008-0329-1930-A1 5 Weyerhaeuser Stephen E. Woock EPA-HQ-RCRA-2008-0329-1935-A2 1 Bureau of Environmental Health, Commonwealth of Massachusetts Suzanne K. Condon

EPA-HQ-RCRA-2008-0329-1902-A1 2 Georgia-Pacific LLC (GP) Traylor Champion EPA-HQ-RCRA-2008-0329-1928-A1 9 Construction Materials Recycling Association (CMRA) William Turley 3A03 - Clean cellulosic biomass: Wood pellets EPA-HQ-RCRA-2008-0329-1946-A1 38 American Forest & Paper Association, et al. Paul Noe

3A04 - Clean cellulosic biomass: Treated wood EPA-HQ-RCRA-2008-0329-1929-A1 4 Wisconsin Department of Natural Res ources (WDNR) Bart Sponseller EPA-HQ-RCRA-2008-0329-1950-A2 9 National Alliance of Fo rest Owners (NAFO) Christian Paul Huebner EPA-HQ-RCRA-2008-0329-1952-A2 1 SP Newsprint Co., LLC Edward Bortz EPA-HQ-RCRA-2008-0329-1905-A1 5 Michigan Biomass Gary Melow EPA-HQ-RCRA-2008-0329-1910-A1 3 United Steel workers (USW) Holly R. HartPage 85 of 100 

### Table 2. Comments Not Reopened

Document ID Number Excerpt Number Commenter Affiliation Commenter Name

EPA-HQ-RCRA-2008-0329-1970-A2 1 Nisus Corporation (Nisus) Jeff Lloyd EPA-HQ-RCRA-2008-0329-1970-A2 4 Nisus Corporation (Nisus) Jeff Lloyd EPA-HQ-RCRA-2008-0329-1970-A2 5 Nisus Corporation (Nisus) Jeff Lloyd EPA-HQ-RCRA-2008-0329-1897-A2 2 Treated Wood Council (TWC) Je ffrey T. Miller EPA-HQ-RCRA-2008-0329-1897-A2 3 Treated Wood Council (TWC) Je ffrey T. Miller EPA-HQ-RCRA-2008-0329-1904-A1 1 Michigan Forest Products Council (MFPC) Kevin W. Korpi EPA-HQ-RCRA-2008-0329-1920-A1 1 The Association of American Railroads (AAR) Louis P. Warchot and Michael J. Rush EPA-HQ-RCRA-2008-0329-1954-A2 8 Archer Daniels Midland Company (ADM) Mark Calmes EPA-HQ-RCRA-2008-0329-1903-A2 1 White Pine El ectric Power, LLC. Mike Reid EPA-HQ-RCRA-2008-0329-1946-A1 36 American Forest & Paper Association, et al. Paul Noe EPA-HQ-RCRA-2008-0329-1948-A1 14 Council of Industrial Boiler Owners (CIBO) Robert D. Bessette EPA-HQ-RCRA-2008-0329-1948-A1 15 Council of Industrial Boiler Owners (CIBO) Robert D. Bessette EPA-HQ-RCRA-2008-0329-1944-A2 4 NewPage Corporation (NewPage) Steve List EPA-HQ-RCRA-2008-0329-1963-A2 31 U.S. Small Business Administ ration Office of Advocacy (SBA) Winslow Sargeant

3C – Established Tire Collection Progr am; waste status of scrap tires EPA-HQ-RCRA-2008-0329-1924-A1 20 Portland Cement Association (PCA) Andrew T. O'Hare EPA-HQ-RCRA-2008-0329-1924-A1 22 Portland Cement Association (PCA) Andrew T. O'Hare EPA-HQ-RCRA-2008-0329-1924-A1 24 Portland Cement Association (PCA) Andrew T. O'Hare EPA-HQ-RCRA-2008-0329-1896-A1 1 Kentucky Department fo r Environmental Protecti on George F. Gilbert EPA-HQ-RCRA-2008-0329-1943-A3 5 Texas Commission on Envir onmental Quality (TCEQ) Mark R. Vickery EPA-HQ-RCRA-2008-0329-1943-A3 6 Texas Commission on Envir onmental Quality (TCEQ) Mark R. Vickery EPA-HQ-RCRA-2008-0329-1962-A1 3 Cement Kiln Recycl ing Coalition (CKRC) Michel R. Benoit EPA-HQ-RCRA-2008-0329-1938-A2 21 Cemex USA Satish Sheth

3Z – Other EPA-HQ-RCRA-2008-0329-1907-A1 14 Utility Solid Waste Activities Group (USWAG) Jim R. Roewer EPA-HQ-RCRA-2008-0329-1972-A2 32 Federal Recycling and Re mediation Coalition (FRRC) Susan Parker Bodine 4A - Contaminants; legitimacy criterion EPA-HQ-RCRA-2008-0329-1932-A1 1 American Chemistr y Council (ACC) Patricia A. HaederlePage 86 of 100 

### Table 2. Comments Not Reopened

Document ID Number Excerpt Number Commenter Affiliation Commenter Name

EPA-HQ-RCRA-2008-0329-1932-A1 3 American Chemistr y Council (ACC) Patricia A. Haederle EPA-HQ-RCRA-2008-0329-1950-A2 13 National Alliance of Fo rest Owners (NAFO) Christian Paul Huebner EPA-HQ-RCRA-2008-0329-1954-A2 10 Archer Daniels Midland Company (ADM) Mark Calmes EPA-HQ-RCRA-2008-0329-1968-A2 16 Lafarge North Amer ica Inc. (Lafarge) Michael L. Pelan EPA-HQ-RCRA-2008-0329-1968-A2 22 Lafarge North Amer ica Inc. (Lafarge) Michael L. Pelan EPA-HQ-RCRA-2008-0329-1962-A1 16 Cement Kiln Recycl ing Coalition (CKRC) Michel R. Benoit EPA-HQ-RCRA-2008-0329-1962-A1 17 Cement Kiln Recycl ing Coalition (CKRC) Michel R. Benoit EPA-HQ-RCRA-2008-0329-1946-A1 13 American Forest & Paper Association, et al. Paul Noe EPA-HQ-RCRA-2008-0329-1948-A1 19 Council of Industrial Boiler Owners (CIBO) Robert D. Bessette EPA-HQ-RCRA-2008-0329-1944-A2 10 NewPage Corporation (NewPage) Steve List EPA-HQ-RCRA-2008-0329-1963-A2 22 U.S. Small Business Administ ration Office of Advocacy (SBA) Winslow Sargeant

EPA-HQ-RCRA-2008-0329-1972-A2 37 Federal Recycling and Re mediation Coalition (FRRC) Susan Parker Bodine EPA-HQ-RCRA-2008-0329-1972-A2 10 Federal Recycling and Re mediation Coalition (FRRC) Susan Parker Bodine EPA-HQ-RCRA-2008-0329-1958-A2 5 NORA, An Association of Re sponsible Recyclers, Inc. (NORA) Christopher Harris

EPA-HQ-RCRA-2008-0329-1958-A2 6 NORA, An Association of Re sponsible Recyclers, Inc. (NORA) Christopher Harris

EPA-HQ-RCRA-2008-0329-1958-A2 8 NORA, An Association of Re sponsible Recyclers, Inc. (NORA) Christopher Harris

EPA-HQ-RCRA-2008-0329-1958-A2 9 NORA, An Association of Re sponsible Recyclers, Inc. (NORA) Christopher Harris

EPA-HQ-RCRA-2008-0329-1958-A2 10 NORA, An Association of Re sponsible Recyclers, Inc. (NORA) Christopher Harris

EPA-HQ-RCRA-2008-0329-1958-A2 12 NORA, An Association of Re sponsible Recyclers, Inc. (NORA) Christopher Harris

EPA-HQ-RCRA-2008-0329-1958-A2 15 NORA, An Association of Re sponsible Recyclers, Inc. (NORA) Christopher Harris

EPA-HQ-RCRA-2008-0329-1971-A2 2 Maine Department of Envir onmental Protection (Maine DEP) Heather Parent

EPA-HQ-RCRA-2008-0329-1951-A2 6 American Petroleum Institute (API) and American Fuel & Petrochemical Manufacturers (AFPM) Matthew Todd and David Friedman EPA-HQ-RCRA-2008-0329-1969-A1 2 Automotive Oil Cha nge Association (AOCA) Patricia WirthPage 87 of 100 

### Table 2. Comments Not Reopened

Document ID Number Excerpt Number Commenter Affiliation Commenter Name

EPA-HQ-RCRA-2008-0329-1946-A1 37 American Forest & Paper Association, et al. Paul Noe EPA-HQ-RCRA-2008-0329-1925-A1 2 Used Oil Management Association (UOMA) Susan Parker Bodine EPA-HQ-RCRA-2008-0329-1972-A2 33 Federal Recycling and Re mediation Coalition (FRRC) Susan Parker Bodine EPA-HQ-RCRA-2008-0329-1962-A1 12 Cement Kiln Recycl ing Coalition (CKRC) Michel R. Benoit

4B01 - General comments on non-waste determinations EPA-HQ-RCRA-2008-0329-1924-A1 4 Portland Cement Association (PCA) Andrew T. O'Hare EPA-HQ-RCRA-2008-0329-1917-A1 5 ReCommuni ty, Inc. Claudia M. O'Brien EPA-HQ-RCRA-2008-0329-1946-A1 28 American Forest & Paper Association, et al. Paul Noe EPA-HQ-RCRA-2008-0329-1946-A1 39 American Forest & Paper Association, et al. Paul Noe EPA-HQ-RCRA-2008-0329-1948-A1 6 Council of Industrial Boiler Owners (CIBO) Robert D. Bessette EPA-HQ-RCRA-2008-0329-1956-A2 2 North Carolina Department of Environment and Natural Resources (NCDENR) Sheila C. Holman

EPA-HQ-RCRA-2008-0329-1972-A2 20 Federal Recycling and Re mediation Coalition (FRRC) Susan Parker Bodine 4B02 - Scrap tires EPA-HQ-RCRA-2008-0329-1924-A1 11 Portland Cement Association (PCA) Andrew T. O'Hare EPA-HQ-RCRA-2008-0329-1924-A1 14 Portland Cement Association (PCA) Andrew T. O'Hare EPA-HQ-RCRA-2008-0329-1953-A2 1 Association of State and Territorial Solid Waste Management Offi cials (ASTSWMO) Charles G. Johnson

EPA-HQ-RCRA-2008-0329-1960-A2 1 Institute of Scrap Recyc ling Industries, Inc. (ISRI) David L. Wagger EPA-HQ-RCRA-2008-0329-1960-A2 3 Institute of Scrap Recyc ling Industries, Inc. (ISRI) David L. Wagger EPA-HQ-RCRA-2008-0329-1960-A2 6 Institute of Scrap Recyc ling Industries, Inc. (ISRI) David L. Wagger EPA-HQ-RCRA-2008-0329-1905-A1 12 Michigan Biomass Gary Melow EPA-HQ-RCRA-2008-0329-1943-A3 3 Texas Commission on Envir onmental Quality (TCEQ) Mark R. Vickery EPA-HQ-RCRA-2008-0329-1943-A3 4 Texas Commission on Envir onmental Quality (TCEQ) Mark R. Vickery EPA-HQ-RCRA-2008-0329-1943-A3 7 Texas Commission on Envir onmental Quality (TCEQ) Mark R. Vickery EPA-HQ-RCRA-2008-0329-1885-A1 1 M. A. Asso ciates, Inc. Michael A. Sorcher EPA-HQ-RCRA-2008-0329-1968-A2 19 Lafarge North Amer ica Inc. (Lafarge) Michael L. Pelan EPA-HQ-RCRA-2008-0329-1962-A1 2 Cement Kiln Recycl ing Coalition (CKRC) Michel R. Benoit EPA-HQ-RCRA-2008-0329-1962-A1 4 Cement Kiln Recycl ing Coalition (CKRC) Michel R. Benoit EPA-HQ-RCRA-2008-0329-1962-A1 14 Cement Kiln Recycl ing Coalition (CKRC) Michel R. BenoitPage 88 of 100 

### Table 2. Comments Not Reopened

Document ID Number Excerpt Number Commenter Affiliation Commenter Name

EPA-HQ-RCRA-2008-0329-1962-A1 18 Cement Kiln Recycl ing Coalition (CKRC) Michel R. Benoit EPA-HQ-RCRA-2008-0329-1962-A1 19 Cement Kiln Recycl ing Coalition (CKRC) Michel R. Benoit EPA-HQ-RCRA-2008-0329-1959-A2 7 Earthjustice Neil Gormley EPA-HQ-RCRA-2008-0329-1959-A2 13 Earthjustice Neil Gormley EPA-HQ-RCRA-2008-0329-1938-A2 8 Cemex USA Satish Sheth EPA-HQ-RCRA-2008-0329-1944-A2 6 NewPage Corporation (NewPage) Steve List EPA-HQ-RCRA-2008-0329-1972-A2 14 Federal Recycling and Re mediation Coalition (FRRC) Susan Parker Bodine EPA-HQ-RCRA-2008-0329-1963-A2 30 U.S. Small Business Administ ration Office of Advocacy (SBA) Winslow Sargeant

EPA-HQ-RCRA-2008-0329-1938-A2 12 Cemex USA Satish Sheth

4C – Other EPA-HQ-RCRA-2008-0329-1895-A1 6 Ash Grove Ce ment Company Curtis D. Lesslie 5B - Coal refuse and legacy piles EPA-HQ-RCRA-2008-0329-1914-A1 7 Edison Mission Energy LLC Basil G. Constantelos EPA-HQ-RCRA-2008-0329-1914-A1 8 Edison Mission Energy LLC Basil G. Constantelos EPA-HQ-RCRA-2008-0329-1914-A1 9 Edison Mission Energy LLC Basil G. Constantelos 5C02 - Suggested material category – OCC rejects for new categorical non-waste: not opened in the proposed rule EPA-HQ-RCRA-2008-0329-1966-A1 3 Packaging Corpora tion of America (PCA) Bruce A. Ridley EPA-HQ-RCRA-2008-0329-1950-A2 8 National Alliance of Fo rest Owners (NAFO) Christian Paul Huebner EPA-HQ-RCRA-2008-0329-1910-A1 7 United Steel workers (USW) Holly R. Hart EPA-HQ-RCRA-2008-0329-1946-A1 34 American Forest & Paper Association, et al. Paul Noe EPA-HQ-RCRA-2008-0329-1902-A1 1 Georgia-Pacific LLC (GP) Traylor Champion EPA-HQ-RCRA-2008-0329-1902-A1 9 Georgia-Pacific LLC (GP) Traylor Champion EPA-HQ-RCRA-2008-0329-1902-A1 10 Georgia-Pacific LLC (GP) Traylor Champion 5C03 - Suggested material category – Municipal WWTP biosolids for new categorical non-waste: not opened in the proposed rule EPA-HQ-RCRA-2008-0329-1955-A2 1 National Association of Clean Water Agencies (NACWA) Chris Hornback

EPA-HQ-RCRA-2008-0329-1955-A2 4 National Association of Clean Water Agencies (NACWA) Chris Hornback

EPA-HQ-RCRA-2008-0329-1922-A1 1 MaxWest Environm ental Systems, Inc. Wendy BroleyPage 89 of 100 

### Table 2. Comments Not Reopened

Document ID Number Excerpt Number Commenter Affiliation Commenter Name

5C04 - Suggested material category – Recovered paint solids for ne w categorical non-waste: not opened in the proposed rule EPA-HQ-RCRA-2008-0329-1933-A1 9 Auto Industry Forum Shannon S. Broome EPA-HQ-RCRA-2008-0329-1972-A2 17 Federal Recycling and Re mediation Coalition (FRRC) Susan Parker Bodine EPA-HQ-RCRA-2008-0329-1972-A2 18 Federal Recycling and Re mediation Coalition (FRRC) Susan Parker Bodine 5C05 - Suggested material category – Coal co mbustion residuals for new categorical non-waste: not opened in the proposed rule EPA-HQ-RCRA-2008-0329-1929-A1 3 Wisconsin Department of Natural Res ources (WDNR) Bart Sponseller EPA-HQ-RCRA-2008-0329-1886-A1 9 Wisconsin Electric Po wer Company (We Energies) Bruce W. Ramme EPA-HQ-RCRA-2008-0329-1886-A1 10 Wisconsin Electric Po wer Company (We Energies) Bruce W. Ramme

5Z – Other EPA-HQ-RCRA-2008-0329-1924-A1 13 Portland Cement Association (PCA) Andrew T. O'Hare EPA-HQ-RCRA-2008-0329-1917-A1 7 ReCommuni ty, Inc. Claudia M. O'Brien EPA-HQ-RCRA-2008-0329-1917-A1 8 ReCommuni ty, Inc. Claudia M. O'Brien EPA-HQ-RCRA-2008-0329-1917-A1 9 ReCommuni ty, Inc. Claudia M. O'Brien EPA-HQ-RCRA-2008-0329-1895-A1 2 Ash Grove Ce ment Company Curtis D. Lesslie EPA-HQ-RCRA-2008-0329-1892-A1 3 National Renderer s Association (NRA) David L. Meeker EPA-HQ-RCRA-2008-0329-1892-A1 4 National Renderer s Association (NRA) David L. Meeker EPA-HQ-RCRA-2008-0329-1892-A1 5 National Renderer s Association (NRA) David L. Meeker EPA-HQ-RCRA-2008-0329-1892-A1 6 National Renderer s Association (NRA) David L. Meeker EPA-HQ-RCRA-2008-0329-1926-A1 1 DTE Energy Services , Inc. (DTEES) Fadi K. Mourad, P.E. EPA-HQ-RCRA-2008-0329-1909-A1 3 Dominion Resources Serv ices, Inc. (Dominion) Pamela F. Faggert EPA-HQ-RCRA-2008-0329-1909-A1 5 Dominion Resources Serv ices, Inc. (Dominion) Pamela F. Faggert EPA-HQ-RCRA-2008-0329-1902-A1 6 Georgia-Pacific LLC (GP) Traylor Champion EPA-HQ-RCRA-2008-0329-1951-A2 1 American Petroleum Institute (API) and American Fuel & Petrochemical Manufacturers (AFPM) Matthew Todd and David Friedman EPA-HQ-RCRA-2008-0329-1951-A2 2 American Petroleum Institute (API) and American Fuel & Petrochemical Manufacturers (AFPM) Matthew Todd and David Friedman EPA-HQ-RCRA-2008-0329-1923-A1 2 Federal Recycling a nd Remediation Coalition (FRRC) Susan Bodine EPA-HQ-RCRA-2008-0329-1963-A2 36 U.S. Small Business Administ ration Office of Advocacy (SBA) Winslow Sargeant

6B - “Contained gaseous material”Page 90 of 100 

### Table 2. Comments Not Reopened

Document ID Number Excerpt Number Commenter Affiliation Commenter Name

EPA-HQ-RCRA-2008-0329-1965-A1 9 Alyeska Pipelin e Service Company Carl R. Rutz EPA-HQ-RCRA-2008-0329-1955-A2 6 National Association of Clean Water Agencies (NACWA) Chris Hornback

EPA-HQ-RCRA-2008-0329-1964-A1 2 Lafarge North Am erica Inc. (Lafarge ) Craig Campbell EPA-HQ-RCRA-2008-0329-1957-A2 3 Waste Ma nagement (WM) Kerry Kelly EPA-HQ-RCRA-2008-0329-1957-A2 5 Waste Ma nagement (WM) Kerry Kelly EPA-HQ-RCRA-2008-0329-1957-A2 8 Waste Ma nagement (WM) Kerry Kelly EPA-HQ-RCRA-2008-0329-1951-A2 3 American Petroleum Institute (API) and American Fuel & Petrochemical Manufacturers (AFPM) Matthew Todd and David Friedman EPA-HQ-RCRA-2008-0329-1889-A1 2 Coalition for Responsible Waste Incineration (CRWI) Melvin E. Keener EPA-HQ-RCRA-2008-0329-1909-A1 6 Dominion Resources Serv ices, Inc. (Dominion) Pamela F. Faggert EPA-HQ-RCRA-2008-0329-1933-A1 10 Auto Industry Forum Shannon S. Broome EPA-HQ-RCRA-2008-0329-1944-A2 9 NewPage Corporation (NewPage) Steve List EPA-HQ-RCRA-2008-0329-1972-A2 30 Federal Recycling and Re mediation Coalition (FRRC) Susan Parker Bodine 6C - Materials used in recirculation/reinjection processes and carbon burn-out (CBO) units EPA-HQ-RCRA-2008-0329-1907-A1 4 Utility Solid Waste Activities Group (USWAG) Jim R. Roewer EPA-HQ-RCRA-2008-0329-1909-A1 4 Dominion Resources Serv ices, Inc. (Dominion) Pamela F. Faggert 6D - Landfill gas EPA-HQ-RCRA-2008-0329-1936-A2 3 Delaware Solid Wast e Authority (DSWA) Angela D. Marconi EPA-HQ-RCRA-2008-0329-1953-A2 7 Association of State and Territorial Solid Waste Management Offi cials (ASTSWMO) Charles G. Johnson

EPA-HQ-RCRA-2008-0329-1964-A1 1 Lafarge North Am erica Inc. (Lafarge ) Craig Campbell EPA-HQ-RCRA-2008-0329-1964-A1 4 Lafarge North Am erica Inc. (Lafarge ) Craig Campbell EPA-HQ-RCRA-2008-0329-1907-A1 3 Utility Solid Waste Activities Group (USWAG) Jim R. Roewer EPA-HQ-RCRA-2008-0329-1957-A2 2 Waste Ma nagement (WM) Kerry Kelly EPA-HQ-RCRA-2008-0329-1957-A2 4 Waste Ma nagement (WM) Kerry Kelly EPA-HQ-RCRA-2008-0329-1957-A2 6 Waste Ma nagement (WM) Kerry Kelly EPA-HQ-RCRA-2008-0329-1891-A1 2 Richardson Smit h Gardner and Associates Matt Lamb EPA-HQ-RCRA-2008-0329-1911-A1 3 Ameren Cor poration (AMEREN) Paul R. Pike EPA-HQ-RCRA-2008-0329-1933-A1 11 Auto Industry Forum Shannon S. BroomePage 91 of 100 

### Table 2. Comments Not Reopened

Document ID Number Excerpt Number Commenter Affiliation Commenter Name

EPA-HQ-RCRA-2008-0329-1956-A2 1 North Carolina Department of Environment and Natural Resources (NCDENR) Sheila C. Holman

6Z – Other EPA-HQ-RCRA-2008-0329-1951-A2 5 American Petroleum Institute (API) and American Fuel & Petrochemical Manufacturers (AFPM) Matthew Todd and David Friedman EPA-HQ-RCRA-2008-0329-1932-A1 7 American Chemistr y Council (ACC) Patricia A. Haederle EPA-HQ-RCRA-2008-0329-1938-A2 4 Cemex USA Satish Sheth 7D – Comments on costs and impacts covered und er the 2011 NHSM final rulemaking record EPA-HQ-RCRA-2008-0329-1909-A1 1 Dominion Resources Serv ices, Inc. (Dominion) Pamela F. Faggert EPA-HQ-RCRA-2008-0329-1938-A2 1 Cemex USA Satish Sheth EPA-HQ-RCRA-2008-0329-1938-A2 6 Cemex USA Satish Sheth EPA-HQ-RCRA-2008-0329-1940-A2 2 Boise Inc. Richard D. Garber EPA-HQ-RCRA-2008-0329-1946-A1 44 American Forest & Paper Association, et al. Paul Noe EPA-HQ-RCRA-2008-0329-1957-A2 1 Waste Ma nagement (WM) Kerry Kelly EPA-HQ-RCRA-2008-0329-1958-A2 1 NORA, An Association of Re sponsible Recyclers, Inc. (NORA) Christopher Harris

EPA-HQ-RCRA-2008-0329-1958-A2 11 NORA, An Association of Re sponsible Recyclers, Inc. (NORA) Christopher Harris

EPA-HQ-RCRA-2008-0329-1958-A2 13 NORA, An Association of Re sponsible Recyclers, Inc. (NORA) Christopher Harris

EPA-HQ-RCRA-2008-0329-1962-A1 15 Cement Kiln Recycl ing Coalition (CKRC) Michel R. Benoit EPA-HQ-RCRA-2008-0329-1969-A1 1 Automotive Oil Cha nge Association (AOCA) Patricia Wirth EPA-HQ-RCRA-2008-0329-1970-A2 3 Nisus Corporation (Nisus) Jeff Lloyd EPA-HQ-OAR-2003-0119-2576-A1 1 Ash Grove Ce ment Company Curtis D. Lesslie

7Z - Other 4 EPA-HQ-RCRA-2008-0329-1907-A1 1 Utility Solid Waste Activities Group (USWAG) Jim R. Roewer 8A - Legal/Statutory authority comments EPA-HQ-RCRA-2008-0329-1924-A1 15 Portland Cement Association (PCA) Andrew T. O'Hare EPA-HQ-RCRA-2008-0329-1962-A1 13 Cement Kiln Recycl ing Coalition (CKRC) Michel R. Benoit EPA-HQ-RCRA-2008-0329-1932-A1 5 American Chemistr y Council (ACC) Patricia A. Haederle EPA-HQ-RCRA-2008-0329-1932-A1 11 American Chemistr y Council (ACC) Patricia A. HaederlePage 92 of 100 

### Table 2. Comments Not Reopened

Document ID Number Excerpt Number Commenter Affiliation Commenter Name

EPA-HQ-RCRA-2008-0329-1946-A1 8 American Forest & Paper Association, et al. Paul Noe EPA-HQ-RCRA-2008-0329-1946-A1 18 American Forest & Paper Association, et al. Paul Noe EPA-HQ-RCRA-2008-0329-1972-A2 2 Federal Recycling and Re mediation Coalition (FRRC) Susan Parker Bodine EPA-HQ-RCRA-2008-0329-1972-A2 3 Federal Recycling and Re mediation Coalition (FRRC) Susan Parker Bodine EPA-HQ-RCRA-2008-0329-1972-A2 11 Federal Recycling and Re mediation Coalition (FRRC) Susan Parker Bodine 8C - Comments on timing of NHSM clarifications and CISWI/boiler rules Note: these comments may have also bean a ddressed in the Clean Air Act rulemakings. EPA-HQ-RCRA-2008-0329-1968-A2 2 Lafarge North Amer ica Inc. (Lafarge) Michael L. Pelan EPA-HQ-RCRA-2008-0329-1932-A1 13 American Chemistr y Council (ACC) Patricia A. Haederle EPA-HQ-RCRA-2008-0329-1946-A1 1 American Forest & Paper Association, et al. Paul Noe EPA-HQ-RCRA-2008-0329-1948-A1 1 Council of Industrial Boiler Owners (CIBO) Robert D. Bessette EPA-HQ-RCRA-2008-0329-1933-A1 1 Auto Industry Forum Shannon S. Broome EPA-HQ-RCRA-2008-0329-1933-A1 5 Auto Industry Forum Shannon S. Broome

8Z – Other EPA-HQ-RCRA-2008-0329-1924-A1 9 Portland Cement Association (PCA) Andrew T. O'Hare EPA-HQ-RCRA-2008-0329-1950-A2 17 National Alliance of Fo rest Owners (NAFO) Christian Paul Huebner EPA-HQ-RCRA-2008-0329-1958-A2 7 NORA, An Association of Re sponsible Recyclers, Inc. (NORA) Christopher Harris

EPA-HQ-RCRA-2008-0329-1895-A1 5 Ash Grove Ce ment Company Curtis D. Lesslie EPA-HQ-RCRA-2008-0329-1895-A1 7 Ash Grove Ce ment Company Curtis D. Lesslie EPA-HQ-RCRA-2008-0329-1897-A2 1 Treated Wood Council (TWC) Je ffrey T. Miller EPA-HQ-RCRA-2008-0329-1907-A1 5 Utility Solid Waste Activities Group (USWAG) Jim R. Roewer EPA-HQ-RCRA-2008-0329-1954-A2 3 Archer Daniels Midland Company (ADM) Mark Calmes EPA-HQ-RCRA-2008-0329-1968-A2 1 Lafarge North Amer ica Inc. (Lafarge) Michael L. Pelan EPA-HQ-RCRA-2008-0329-1968-A2 13 Lafarge North Amer ica Inc. (Lafarge) Michael L. Pelan EPA-HQ-RCRA-2008-0329-1968-A2 15 Lafarge North Amer ica Inc. (Lafarge) Michael L. Pelan EPA-HQ-RCRA-2008-0329-1962-A1 1 Cement Kiln Recycl ing Coalition (CKRC) Michel R. Benoit EPA-HQ-RCRA-2008-0329-1946-A1 3 American Forest & Paper Association, et al. Paul Noe EPA-HQ-RCRA-2008-0329-1946-A1 5 American Forest & Paper Association, et al. Paul NoePage 93 of 100 

### Table 2. Comments Not Reopened

Document ID Number Excerpt Number Commenter Affiliation Commenter Name

EPA-HQ-RCRA-2008-0329-1946-A1 6 American Forest & Paper Association, et al. Paul Noe EPA-HQ-RCRA-2008-0329-1946-A1 7 American Forest & Paper Association, et al. Paul Noe EPA-HQ-RCRA-2008-0329-1946-A1 41 American Forest & Paper Association, et al. Paul Noe EPA-HQ-RCRA-2008-0329-1946-A1 52 American Forest & Paper Association, et al. Paul Noe EPA-HQ-RCRA-2008-0329-1946-A1 53 American Forest & Paper Association, et al. Paul Noe EPA-HQ-RCRA-2008-0329-1911-A1 4 Ameren Cor poration (AMEREN) Paul R. Pike EPA-HQ-RCRA-2008-0329-1900-A2 1 Georgia Paper & Forest Pr oducts Association, Inc. (GPFPA) Randall D. Quintrell

EPA-HQ-RCRA-2008-0329-1938-A2 17 Cemex USA Satish Sheth EPA-HQ-RCRA-2008-0329-1938-A2 22 Cemex USA Satish Sheth EPA-HQ-RCRA-2008-0329-1930-A1 1 Weyerhaeuser Stephen E. Woock EPA-HQ-RCRA-2008-0329-1972-A2 1 Federal Recycling and Re mediation Coalition (FRRC) Susan Parker Bodine EPA-HQ-RCRA-2008-0329-1972-A2 4 Federal Recycling and Re mediation Coalition (FRRC) Susan Parker Bodine EPA-HQ-RCRA-2008-0329-1972-A2 5 Federal Recycling and Re mediation Coalition (FRRC) Susan Parker Bodine EPA-HQ-RCRA-2008-0329-1972-A2 22 Federal Recycling and Re mediation Coalition (FRRC) Susan Parker Bodine EPA-HQ-RCRA-2008-0329-1972-A2 24 Federal Recycling and Re mediation Coalition (FRRC) Susan Parker Bodine EPA-HQ-RCRA-2008-0329-1963-A2 21 U.S. Small Business Administ ration Office of Advocacy (SBA) Winslow Sargeant

9A - Definitions (existing) EPA-HQ-RCRA-2008-0329-1924-A1 12 Portland Cement Association (PCA) Andrew T. O'Hare EPA-HQ-RCRA-2008-0329-1960-A2 2 Institute of Scrap Recyc ling Industries, Inc. (ISRI) David L. Wagger EPA-HQ-RCRA-2008-0329-1960-A2 5 Institute of Scrap Recyc ling Industries, Inc. (ISRI) David L. Wagger EPA-HQ-RCRA-2008-0329-1960-A2 7 Institute of Scrap Recyc ling Industries, Inc. (ISRI) David L. Wagger EPA-HQ-RCRA-2008-0329-1954-A2 2 Archer Daniels Midland Company (ADM) Mark Calmes EPA-HQ-RCRA-2008-0329-1951-A2 4 American Petroleum Institute (API) and American Fuel & Petrochemical Manufacturers (AFPM) Matthew Todd and David Friedman EPA-HQ-RCRA-2008-0329-1948-A1 4 Council of Industrial Boiler Owners (CIBO) Robert D. Bessette EPA-HQ-RCRA-2008-0329-1938-A2 9 Cemex USA Satish Sheth EPA-HQ-RCRA-2008-0329-1972-A2 31 Federal Recycling and Re mediation Coalition (FRRC) Susan Parker Bodine EPA-HQ-RCRA-2008-0329-1963-A2 25 U.S. Small Business Administ ration Office of Advocacy (SBA) Winslow SargeantPage 94 of 100 

### Table 2. Comments Not Reopened

Document ID Number Excerpt Number Commenter Affiliation Commenter Name

EPA-HQ-RCRA-2008-0329-1963-A2 26 U.S. Small Business Administ ration Office of Advocacy (SBA) Winslow Sargeant

9B - Definitions (new suggestions) EPA-HQ-RCRA-2008-0329-1972-A2 16 Federal Recycling and Re mediation Coalition (FRRC) Susan Parker Bodine EPA-HQ-RCRA-2008-0329-1972-A2 19 Federal Recycling and Re mediation Coalition (FRRC) Susan Parker BodinePage 95 of 100 

## V. Index of Comments on Clean Air Act Aspects

A number of comments were submitted to the NHSM docket for the 2011 proposed rule (document ID: EPAHQ-RCRA-2008-0329-1843) but the commenter primarily di scussed issues relating to the Clean Air Act Program (Docket: EPA-HQ-OAR-2003-0119. To the extent that the commente r has provided these comments to those Clean Air Act rulemakings, they will be addressed there. Refer to Table 3 for the comments on Clean Air Ac t topics that were submitted to the NHSM docket. The following information is provided for each comment: the name and affiliation of the commenter; the Document ID number assigned to the comment by the docket, and the comment excerpt number. The full comment can be easily located at www.regulations.gov by entering in the Document ID Number.Page 96 of 100 

### Table 3. Comment on Clean Air Act Aspects

Document ID Number Excerpt Number Commenter Affiliation Commenter Name

1A - CISWI (NSPS and Emission Guidelin es and other CISWI-related comments) EPA-HQ-RCRA-2008-0329-1886-A1 4 Wisconsin Electric Po wer Company (We Energies) Bruce W. Ramme EPA-HQ-RCRA-2008-0329-1886-A1 5 Wisconsin Electric Po wer Company (We Energies) Bruce W. Ramme EPA-HQ-RCRA-2008-0329-1891-A1 1 Richardson Smit h Gardner and Associates Matt Lamb EPA-HQ-RCRA-2008-0329-1895-A1 1 Ash Grove Ce ment Company Curtis D. Lesslie EPA-HQ-RCRA-2008-0329-1899-A2 1 Argos USA William Voshell EPA-HQ-RCRA-2008-0329-1901-A2 2 Wisconsin Paper Council Edward J. Wilusz EPA-HQ-RCRA-2008-0329-1902-A1 5 Georgia-Pacific LLC (GP) Traylor Champion EPA-HQ-RCRA-2008-0329-1902-A1 7 Georgia-Pacific LLC (GP) Traylor Champion EPA-HQ-RCRA-2008-0329-1905-A1 7 Michigan Biomass Gary Melow EPA-HQ-RCRA-2008-0329-1907-A1 2 Utility Solid Waste Activities Group (USWAG) Jim R. Roewer EPA-HQ-RCRA-2008-0329-1910-A1 8 United Steel workers (USW) Holly R. Hart EPA-HQ-RCRA-2008-0329-1911-A1 1 Ameren Cor poration (AMEREN) Paul R. Pike EPA-HQ-RCRA-2008-0329-1911-A1 2 Ameren Cor poration (AMEREN) Paul R. Pike EPA-HQ-RCRA-2008-0329-1915-A1 2 Northeast States for Coordinated Air Use Management (NESCAUM) Arthur N. Marin

EPA-HQ-RCRA-2008-0329-1915-A1 3 Northeast States for Coordinated Air Use Management (NESCAUM) Arthur N. Marin

EPA-HQ-RCRA-2008-0329-1916-A2 1 Calgon Carbon Cor poration (Calgon Carbon) Erika H. Frank EPA-HQ-RCRA-2008-0329-1916-A2 2 Calgon Carbon Cor poration (Calgon Carbon) Erika H. Frank EPA-HQ-RCRA-2008-0329-1917-A1 6 ReCommuni ty, Inc. Claudia M. O'Brien EPA-HQ-RCRA-2008-0329-1924-A1 17 Portland Cement Association (PCA) Andrew T. O'Hare EPA-HQ-RCRA-2008-0329-1924-A1 25 Portland Cement Association (PCA) Andrew T. O'Hare EPA-HQ-RCRA-2008-0329-1925-A1 1 Used Oil Management Association (UOMA) Susan Parker Bodine EPA-HQ-RCRA-2008-0329-1925-A1 3 Used Oil Management Association (UOMA) Susan Parker Bodine EPA-HQ-RCRA-2008-0329-1925-A1 5 Used Oil Management Association (UOMA) Susan Parker Bodine EPA-HQ-RCRA-2008-0329-1926-A1 2 DTE Energy Services , Inc. (DTEES) Fadi K. Mourad, P.E. EPA-HQ-RCRA-2008-0329-1927-A1 3 Energy Recovery Council (ERC) Ted Michaels EPA-HQ-RCRA-2008-0329-1927-A1 4 Energy Recovery Council (ERC) Ted Michaels EPA-HQ-RCRA-2008-0329-1927-A1 5 Energy Recovery Council (ERC) Ted Michaels EPA-HQ-RCRA-2008-0329-1927-A1 8 Energy Recovery Council (ERC) Ted MichaelsPage 97 of 100 

### Table 3. Comment on Clean Air Act Aspects

Document ID Number Excerpt Number Commenter Affiliation Commenter Name

EPA-HQ-RCRA-2008-0329-1927-A1 9 Energy Recovery Council (ERC) Ted Michaels EPA-HQ-RCRA-2008-0329-1927-A1 10 Energy Recovery Council (ERC) Ted Michaels EPA-HQ-RCRA-2008-0329-1927-A1 11 Energy Recovery Council (ERC) Ted Michaels EPA-HQ-RCRA-2008-0329-1927-A1 12 Energy Recovery Council (ERC) Ted Michaels EPA-HQ-RCRA-2008-0329-1927-A1 14 Energy Recovery Council (ERC) Ted Michaels EPA-HQ-RCRA-2008-0329-1928-A1 2 Construction Materials Recycling Association (CMRA) William Turley EPA-HQ-RCRA-2008-0329-1929-A1 7 Wisconsin Department of Natural Res ources (WDNR) Bart Sponseller EPA-HQ-RCRA-2008-0329-1931-A2 1 American Foundry Society (AFS) Jerry Call EPA-HQ-RCRA-2008-0329-1932-A1 2 American Chemistr y Council (ACC) Patricia A. Haederle EPA-HQ-RCRA-2008-0329-1932-A1 12 American Chemistr y Council (ACC) Patricia A. Haederle EPA-HQ-RCRA-2008-0329-1933-A1 2 Auto Industry Forum Shannon S. Broome EPA-HQ-RCRA-2008-0329-1933-A1 8 Auto Industry Forum Shannon S. Broome EPA-HQ-RCRA-2008-0329-1936-A2 2 Delaware Solid Wast e Authority (DSWA) Angela D. Marconi EPA-HQ-RCRA-2008-0329-1936-A2 4 Delaware Solid Wast e Authority (DSWA) Angela D. Marconi EPA-HQ-RCRA-2008-0329-1937-A2 2 Pennsylvania Chamber of Business and Industry Samuel Denisco EPA-HQ-RCRA-2008-0329-1938-A2 2 Cemex USA Satish Sheth EPA-HQ-RCRA-2008-0329-1938-A2 3 Cemex USA Satish Sheth EPA-HQ-RCRA-2008-0329-1938-A2 18 Cemex USA Satish Sheth EPA-HQ-RCRA-2008-0329-1938-A2 19 Cemex USA Satish Sheth EPA-HQ-RCRA-2008-0329-1941-A1 47 National Cement Company, Inc. (National Cement ) Michael D. Stevens EPA-HQ-RCRA-2008-0329-1941-A1 48 National Cement Company, Inc. (National Cement ) Michael D. Stevens EPA-HQ-RCRA-2008-0329-1944-A2 1 NewPage Corporation (NewPage) Steve List EPA-HQ-RCRA-2008-0329-1944-A2 2 NewPage Corporation (NewPage) Steve List EPA-HQ-RCRA-2008-0329-1946-A1 4 American Forest & Paper Association, et al. Paul Noe EPA-HQ-RCRA-2008-0329-1946-A1 10 American Forest & Paper Association, et al. Paul Noe EPA-HQ-RCRA-2008-0329-1946-A1 11 American Forest & Paper Association, et al. Paul Noe EPA-HQ-RCRA-2008-0329-1946-A1 51 American Forest & Paper Association, et al. Paul Noe EPA-HQ-RCRA-2008-0329-1948-A1 3 Council of Industrial Boiler Owners (CIBO) Robert D. Bessette EPA-HQ-RCRA-2008-0329-1948-A1 11 Council of Industrial Boiler Owners (CIBO) Robert D. BessettePage 98 of 100 

### Table 3. Comment on Clean Air Act Aspects

Document ID Number Excerpt Number Commenter Affiliation Commenter Name

EPA-HQ-RCRA-2008-0329-1954-A2 1 Archer Daniels Midland Company (ADM) Mark Calmes EPA-HQ-RCRA-2008-0329-1957-A2 7 Waste Ma nagement (WM) Kerry Kelly EPA-HQ-RCRA-2008-0329-1957-A2 9 Waste Ma nagement (WM) Kerry Kelly EPA-HQ-RCRA-2008-0329-1957-A2 10 Waste Ma nagement (WM) Kerry Kelly EPA-HQ-RCRA-2008-0329-1957-A2 11 Waste Ma nagement (WM) Kerry Kelly EPA-HQ-RCRA-2008-0329-1957-A2 12 Waste Ma nagement (WM) Kerry Kelly EPA-HQ-RCRA-2008-0329-1957-A2 13 Waste Ma nagement (WM) Kerry Kelly EPA-HQ-RCRA-2008-0329-1957-A2 14 Waste Ma nagement (WM) Kerry Kelly EPA-HQ-RCRA-2008-0329-1957-A2 15 Waste Ma nagement (WM) Kerry Kelly EPA-HQ-RCRA-2008-0329-1957-A2 19 Waste Ma nagement (WM) Kerry Kelly EPA-HQ-RCRA-2008-0329-1959-A2 1 Earthjustice Neil Gormley EPA-HQ-RCRA-2008-0329-1959-A2 2 Earthjustice Neil Gormley EPA-HQ-RCRA-2008-0329-1959-A2 3 Earthjustice Neil Gormley EPA-HQ-RCRA-2008-0329-1959-A2 4 Earthjustice Neil Gormley EPA-HQ-RCRA-2008-0329-1959-A2 5 Earthjustice Neil Gormley EPA-HQ-RCRA-2008-0329-1959-A2 6 Earthjustice Neil Gormley EPA-HQ-RCRA-2008-0329-1959-A2 11 Earthjustice Neil Gormley EPA-HQ-RCRA-2008-0329-1961-A1 1 Rhodia Inc. (Rhodia) Eric E. Boyd EPA-HQ-RCRA-2008-0329-1964-A1 3 Lafarge North Am erica Inc. (Lafarge ) Craig Campbell EPA-HQ-RCRA-2008-0329-1965-A1 2 Alyeska Pipelin e Service Company Carl R. Rutz EPA-HQ-RCRA-2008-0329-1965-A1 3 Alyeska Pipelin e Service Company Carl R. Rutz EPA-HQ-RCRA-2008-0329-1965-A1 4 Alyeska Pipelin e Service Company Carl R. Rutz EPA-HQ-RCRA-2008-0329-1965-A1 5 Alyeska Pipelin e Service Company Carl R. Rutz EPA-HQ-RCRA-2008-0329-1965-A1 6 Alyeska Pipelin e Service Company Carl R. Rutz EPA-HQ-RCRA-2008-0329-1965-A1 8 Alyeska Pipelin e Service Company Carl R. Rutz EPA-HQ-RCRA-2008-0329-1965-A1 10 Alyeska Pipelin e Service Company Carl R. Rutz EPA-HQ-RCRA-2008-0329-1967-A1 1 VMS Environmental Development, LLC M. L. Smith, P.E. EPA-HQ-RCRA-2008-0329-1968-A2 3 Lafarge North Amer ica Inc. (Lafarge) Michael L. Pelan EPA-HQ-RCRA-2008-0329-1968-A2 6 Lafarge North Amer ica Inc. (Lafarge) Michael L. PelanPage 99 of 100 

### Table 3. Comment on Clean Air Act Aspects

Document ID Number Excerpt Number Commenter Affiliation Commenter Name

EPA-HQ-RCRA-2008-0329-1968-A2 7 Lafarge North Amer ica Inc. (Lafarge) Michael L. Pelan EPA-HQ-RCRA-2008-0329-1968-A2 8 Lafarge North Amer ica Inc. (Lafarge) Michael L. Pelan EPA-HQ-RCRA-2008-0329-1968-A2 9 Lafarge North Amer ica Inc. (Lafarge) Michael L. Pelan EPA-HQ-RCRA-2008-0329-1971-A2 7 Maine Department of Envir onmental Protection (Maine DEP) Heather Parent EPA-HQ-RCRA-2008-0329-1972-A2 23 Federal Recycling and Re mediation Coalition (FRRC) Susan Parker Bodine EPA-HQ-RCRA-2008-0329-1972-A2 27 Federal Recycling and Re mediation Coalition (FRRC) Susan Parker Bodine EPA-HQ-RCRA-2008-0329-1972-A2 28 Federal Recycling and Re mediation Coalition (FRRC) Susan Parker Bodine EPA-HQ-RCRA-2008-0329-1972-A2 29 Federal Recycling and Re mediation Coalition (FRRC) Susan Parker Bodine EPA-HQ-RCRA-2008-0329-1972-A2 35 Federal Recycling and Re mediation Coalition (FRRC) Susan Parker Bodine EPA-HQ-RCRA-2008-0329-1972-A2 42 Federal Recycling and Re mediation Coalition (FRRC) Susan Parker Bodine EPA-HQ-RCRA-2008-0329-1972-A2 43 Federal Recycling and Re mediation Coalition (FRRC) Susan Parker Bodine EPA-HQ-RCRA-2008-0329-1974-A2 2 Partnership for Policy Integrity (PFPI) Mary S. Booth EPA-HQ-RCRA-2008-0329-1978 1 Lafarge North Ameri ca Inc. (Lafarge) Richard G. Stoll 2 – Other comments on Clean Air Act Topics EPA-HQ-RCRA-2008-0329-1894-A1 1 Maine Pulp and Paper Association ("MPPA") John S. Williams EPA-HQ-RCRA-2008-0329-1894-A1 3 Maine Pulp and Paper Association ("MPPA") John S. Williams EPA-HQ-RCRA-2008-0329-1900-A2 2 Georgia Paper & Forest Products Association, Inc. (GPFPA) Randall D. Quintrell EPA-HQ-RCRA-2008-0329-1914-A1 2 Edison Mission Energy LLC Basil G. Constantelos EPA-HQ-RCRA-2008-0329-1914-A1 4 Edison Mission Energy LLC Basil G. Constantelos EPA-HQ-RCRA-2008-0329-1914-A1 6 Edison Mission Energy LLC Basil G. Constantelos EPA-HQ-RCRA-2008-0329-1918 1 National Associatio n of Manufacturers Alicia Meads EPA-HQ-RCRA-2008-0329-1933-A1 3 Auto Industry Forum Shannon S. Broome EPA-HQ-RCRA-2008-0329-1933-A1 4 Auto Industry Forum Shannon S. Broome EPA-HQ-RCRA-2008-0329-1933-A1 6 Auto Industry Forum Shannon S. Broome EPA-HQ-RCRA-2008-0329-1933-A1 7 Auto Industry Forum Shannon S. Broome EPA-HQ-RCRA-2008-0329-1937-A2 1 Pennsylvania Chamber of Business and Industry Samuel Denisco EPA-HQ-RCRA-2008-0329-1942-A2 20 Verso Paper Corp. (Verso) Craig Liska EPA-HQ-RCRA-2008-0329-1942-A2 22 Verso Paper Corp. (Verso) Craig Liska EPA-HQ-RCRA-2008-0329-1950-A2 16 National Alliance of Fo rest Owners (NAFO) Christian Paul HuebnerPage 100 of 100 

### Table 3. Comment on Clean Air Act Aspects

Document ID Number Excerpt Number Commenter Affiliation Commenter Name

EPA-HQ-RCRA-2008-0329-1965-A1 1 Alyeska Pipelin e Service Company Carl R. Rutz EPA-HQ-RCRA-2008-0329-1965-A1 7 Alyeska Pipelin e Service Company Carl R. Rutz EPA-HQ-RCRA-2008-0329-1966-A1 1 Packaging Corpora tion of America (PCA) Bruce A. Ridley EPA-HQ-RCRA-2008-0329-1974-A2 3 Partnership for Policy Integrity (PFPI) Mary S. Booth EPA-HQ-RCRA-2008-0329-1924-A1 16 Portland Cement Association (PCA) Andrew T. O'Hare EPA-HQ-RCRA-2008-0329-1968-A2 5 Lafarge North Amer ica Inc. (Lafarge) Michael L. Pelan EPA-HQ-RCRA-2008-0329-1927-A1 7 Energy Recovery Council (ERC) Ted Michaels EPA-HQ-RCRA-2008-0329-1941-A1 46 National Cement Company, Inc. (National Cement ) Michael D. Stevens EPA-HQ-RCRA-2008-0329-1950-A2 1 National Alliance of Fo rest Owners (NAFO) Christian Paul Huebner