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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: NHSM 

 
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July 2012

This volume contains comments submitted for the non-hazardous 

secondary material (NHSM) proposed 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 Conservation and Recovery 

Washington, DC

 

1

 Refer to Section I of this document for the intended scope of the proposed rule and responses. 
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FOREWORD 

These documents provide EPA’s responses to public comments on EPA’s Proposed 

Commercial and Industrial Solid Waste Incineration (CISWI) Rule and Non-Hazardous 

Secondary Materials That Are Solid Waste (NHSM) Rule. 

EPA published a Notice of Proposed Reconsideration 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 regulations 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 comments 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: EPA-HQ-RCRA-2008-0329-1843). 
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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 Conservation and Recovery 

Washington, DC 
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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 Piles (as Categorical Non-Wastes) ....................................... 33

4C02. Comments on the Categorical Non-Waste Petition Process at §241.4(b) (i.e., imposed 

burden, administrative process issues etc) ................................................................... 33

4C03. Categorical Non-Waste Petition Criteria ...................................................................... 48

5D03. Suggestions for Streamlining the Existing Petition Process at §241.3(c) .................... 49

6A. General Comments on Clarification Letters .................................................................... 54

7C. State Authority: Relationship to State Programs.............................................................. 55

7D. Cost and Benefits ............................................................................................................. 56

7F. Regulatory Flexibility Act and Small Entity Impacts ....................................................... 57

7G. Executive Order Comments (other than Regulatory Flexibility Act comments regarding 

NHSM impacts on small entities) ................................................................................ 59

7W. Negative Impacts 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 Dealt With in the Rulemaking 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 .................................................................. 95
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I. Scope and Introduction 

On December 23, 2011, EPA published a proposed rule (76 FR 80452), which addressed specific 

targeted amendments and clarifications to the part 241 regulations. These proposed revisions and 

clarifications were limited to certain issues on which the Agency had received new information, 

as well as targeted revisions that the Agency believed were appropriate in order to allow 

implementation of the rule as the EPA originally intended2. As stated throughout the preamble 

to the proposed rule, the Agency was not reopening the entire NHSM rule for reconsideration 

and would not respond to comments directed toward rule provisions that were not specifically 

identified in this proposal3

. Therefore, comments that were submitted outside the scope of the 

proposal, or for which the EPA did not solicit comment, 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 comments relating to the targeted changes outlined in 

the December 11, 2011 proposed rule as follows: 

Section II. – Public comments and Agency responses - in addition to the responses 

included in the preamble to today‘s final rule; 

Section III – Index of public comments that were addressed in the preamble to today’s 

final rule; 

Section IV – Index of public comments on issues that were either addressed in the March 

2011 final rule and not reopened for consideration, 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 appropriately addressed under the associated 

Clean Air Act programs rulemakings. 

 

2

 For more information regarding the intent 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 rule see 76 FR 80470; “The EPA is soliciting 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 rulemaking 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 comment. 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.” 
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Section II has the verbatim text of comments extracted from the original letter using text 

recognition software. 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 comment can be easily located at www.regulations.gov

by entering in the Document ID Number. 

EPA’s responses to comments are generally provided immediately following each comment 

excerpt. However, in instances where several commenters raised similar or related issues, EPA 

has provided a single response after the first comment excerpt and referenced this response in the 

subsequent comment excerpts (if the comment is in the same section). 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 specific 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 preamble of today’s final rule and to aspects of the March 21, 2011 

NHSM final Rule where commenter’s issues are addressed. 

This document does not contain all the responses 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 extent. In addition, responses to 

comments that were finalized in the March 21, 2011 NHSM final rule are not superseded, unless 

specifically noted in this rule, since the December 23, 2011 proposal was a targeted rulemaking 

as discussed above in this section. 
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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 the process of shredding material. Just because 

material has been shredded, does not make it clean. This description of a process does not belong 

in this list, which otherwise consists 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 appellation “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 such as a tornado). This adds nothing to the 

list that is not already there (i.e, all the “clean” kinds of materials that could 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 biomass as outlined in today's final rule. Specifically: 

hogged fuel is wood chips or shavings, residue from sawmills; wood pellets are compacted 

sawdust or other residues from sawmilling operations; byproducts of ethanol natural 

fermentation processes include fiber and pulp from sugar cane and other crops. All of these 

materials must be clean (i.e. not contain contaminants at concentrations not normally associated 

with virgin biomass material [defined in section 241.2]) to be considered as clean cellulosic 

biomass. Thus, for example, hogged fuel that is not clean would be a waste. 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: 1 
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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 construction 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 Recycling 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 requests further clarification. On page 15485, column 2, 

of the March 21, 2011 Preamble for the final NHSM 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 particular C&D-derived fuel meets these criteria. EPA made other 

statements indicating that the typical C&D recycling operations sufficiently “process” NHSM, 

which we appreciate. Meeting the “legitimacy criteria” remains a concern, however. While the 

legitimacy criteria focused on heating value, processing, 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 Agency has determined that contaminated C&D 

wood that has been processed (e.g., sorted) to remove contaminants, such as lead-painted wood, 

treated wood containing contaminants, such as arsenic and chromium, metals and other nonwood materials, prior to burning 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 combusted. The CAA section 112 rule requires notifications 

and recordkeeping, including documentation as to how the non-hazardous secondary material 

meets the legitimacy criteria, and satisfies the definition of processing and/or the requirements 

for the petition process. 

Commenter Name: William Turley 

Commenter Affiliation: Construction Materials Recycling Association (CMRA) 

Document ID: EPA-HQ-RCRA-2008-0329-1928-A1 

Comment Excerpt Number: 11 
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Comment: Finally, we support EPA’s clarification that: “An 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 type 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 the combustor had reason to believe that the 

NHSM had significantly changed. The provided analytical data and analyses in the AFPA letter 

of C&D wood from a broad spectrum 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 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 type of NHSMs as when the original assessment was made. The type 

of information provided in the AFPA letter (see EPA-HQ-RCRA-2008-0329-1946-A1) is 

indicative of this type of information. However, 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 combusted. The CAA 

section 112 rule requires notifications and recordkeeping, including documentation as to how the 

non-hazardous secondary material meets the legitimacy criteria, and satisfies the definition of 

processing and/or the requirements for the petition process. 

Commenter Name: William Turley 

Commenter Affiliation: Construction Materials Recycling 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 determination that C&D wood contaminant comparisons could 

be based on an evaluation of the three metals (mercury, lead, and cadmium) and chlorine in 

Table I plus arsenic and chromium. In review 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 the EPA does not expect the 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 NHSM 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 parameters are the only contaminants that must be 

compared. Any ambiguity on this point is unnecessary, and certainty as to the contaminants of 

interest to EPA is very important for our industry. 
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 [Footnote] (3) 76 FR 80470 

Response: In the preamble to the March 21, 2011 final 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 either not present or are present at levels 

comparable to or less than those found in the traditional fuel(s) the unit is designed to burn. 

Whether or not persons can make such an assumption for each additional contaminant will likely 

depend on the specific operation involved (e.g., the type of C&D materials 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 Definition 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 pellets 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, plastic, or metal. NESCAUM further suggests that 

wood pellets included in CCB that do contain any non-wood materials should be required to 

meet the legitimacy criteria and requirements under 40 CFR 241.3(b)(3). 

[Footnote] 1 NESCAUM, (pending), “Analysis 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 definition, therefore, no further specifications in 
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the rule are warranted. Specifically, clean cellulosic biomass as defined in section 241.2 

includes "residuals that are akin to traditional cellulosic biomass" . . . "that does not 

contain contaminants at concentrations not normally associated with virgin 

biomass materials." Pelletized wood containing these non-wood materials would not meet one 

or both of these criteria for clean cellulosic 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 emission data for 15 biomass units. (EPA-HQOAR- 2003-0119-2531) The submittal included a description of all materials combusted during 

each of the tests for which data were provided. 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 that the basis for that determination was a 

conservative reading of the confusing 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 are noted in the Major Source Boiler MACT 

database as: CAChineseStation, CACovantaDelano Unit 1, CACovantaDelano Unit 2, 

CACovantaMendota, CAPacificOroville Boiler 1, CAPacificOroville Boiler 2, and 

CAThermalEnergyDev. We agree that EPA should 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 require combustion plant operators to demonstrate 

that any NHSM was a non-waste fuel. BPA provided 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 determination could be made according to the NHSM 

rule. 

To achieve the required consistency between the 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 biomass” which now includes 

“...urban wood (e.g., tree trimmings, stumps, and related forest-derived biomass from urban 

settings)...” and is a different material from that the industry calls “urban wood.” 
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Response: The commenter’s statement that the waste 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 this 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, that there is inconsistency between the proposed NHSM rule and 

the boiler/CISWI unit inventories. Analysis of the inventories indicates that most of the biomass 

units cited in the comment are area sources. For purpose of the database, processed C&D 

materials are expected to be able to meet legitimacy criteria and, therefore, 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-waste 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 defining contaminants for purposes of the 

contaminant legitimacy criterion for fuels. Fifteen elements are listed as contaminant under the 

proposed rule. Meeting the criterion on an element-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 notes that it discusses issues that were 

previously addressed in the March 21, 2011 NHSM 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 arguing that contaminant comparisons would impose 

an unnecessary burden on emissions sources (76 FR 15524-5). Furthermore, the Agency has 

previously explained that 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 “suitable for use as fuel” may also have excessive 

contaminant levels, in which case a unit burning that material would have to be subject to CAA 

section 129 standards. The Agency cannot change the definition of contaminants solely to reduce 

burden or to make combustion less expensive. 

The comment refers to fifteen elements identified as contaminants in the proposed rule. As 

explained in the proposal, all fifteen elements are either pollutants 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. For 
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additional information, see the preamble to today’s final rule, and section III.D pertaining to the 

definition of contaminants in particular. 

The comment specifically references contaminant comparisons for the fifteen elements on an 

element-by-element basis. As explained in the proposal, contaminants can be grouped when 

making contaminant comparisons, but groupings must be technically reasonable (76 FR 80477). 

In the context of this comment, grouping the fifteen elements together for the sole purpose of 

reducing burden, even if it meant materials would be diverted from landfills, would not be 

appropriate. For additional information, see the preamble to today’s final rule, and section III.D 

pertaining to the grouping of contaminants in particular. 

In regard to the statement on diversion to landfills, refer to the 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; and Regulatory Flexibility 

Screening Assessment." 

2C. Definition of “Established Tire Collection Program” 

Commenter Name: Mark R. Vickery 

Commenter Affiliation: Texas Commission on Environmental Quality (TCEQ) 

Document ID: EPA-HQ-RCRA-2008-0329-1943-A3 

Comment Excerpt Number: 1 

Comment: The rules adopted on March 21, 2011, and the pending amendments both require 

that discarded tires be considered waste when used as fuels or ingredients 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 billion 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 are 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 “established tire collection program” falls short of 

resolving nuisance conditions related 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 collection programs nationwide. EPA may accomplish this 

important goal by expanding the scope of established 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 program means a comprehensive collection system 

or contractual arrangement that ensures scrap tires [are not discarded and] are handled as 

valuable commodities through arrival at the combustion facility. 

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

as a Fuel. 

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

a combustion unit: 

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

collection programs, including tires removed from vehicles, abandoned tires that have been 

recovered, and off-specification tires. 

Response: In regard to the comments in paragraphs 1 and 2, the Agency recognizes the 

problems associated with abandoned tire stockpiles 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 been disposed in the first instance, and are thus 

a solid waste (unless processed into a non-waste). In regard to the requested change to the 

definition of established tire collection program to allow whole tires that have been abandoned to 

be classified as non-waste, the comment discusses 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 Section 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 rule with a common sense approach that 

recognizes the fallacies of drawing these types of lines. Had it not been for cement kilns using 

tires beneficially, the U.S. would have many more tire piles remaining today. Why not finalize a 

rule that allows these manufacturers to beneficially use tires to continue to reduce their negative 

environmental impact whether the tires are already in piles or are being newly generated? The 

impact to the environment remains positive for both examples. 

For example, as part of the approval process 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 alternative fuels for our kilns. Under EPA’s current 

definition of tire collection programs, it is not clear whether tires collected during CEMEX’s 
Page 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 cement plant or by local 

communities, could be utilized by kilns as whole tires, or whether they would be presumed to be 

“discarded” and therefore required to be “processed under the current 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 introduced both in the main firing zone of the rotary kiln and in the 

preheater/precalciner location (facility-specific location). Further, many kilns utilize whole tires 

in place of traditional fossil fuels in order to comply with federal and state requirements to 

reduce NOx emissions. NOx emissions are regulated 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 commenter regarding tires obtained through “Amnesty 

Days,” as the commenter referred to them, are not abandoned. Accordingly, the definition for 

established tire collection program in the final rule includes tires that are not abandoned and are 

received from the general public at collection program 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 regard to discarded tires in tire piles, this issue 

was not reopened in the December 23, 2011 proposed 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 Environmental 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 “solid waste” and then 

exit that classification when specific conditions are met. Tires would 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 reuse or to be burned for energy recovery. 

EPA should draw a distinction between consumer-abandoned nonhazardous secondary materials 

(like tires, batteries, used oil) and abandoned solid wastes discarded by traditional industrial 

generators. Because EPA is dealing with tires which are nonhazardous 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 fact 
Page 17 of 100

that tires are not like most solid wastes generated by industrial processes under the close 

direction of the waste generator. Tires are used by consumers, a third-party who disrupts the 

direct chain of control after the point of generation. 

To implement the Alternative Approach, EPA would 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 being recycled or burned for energy recovery. As the Court in 

Association of Battery Recyclers4

 correctly observes, 

“EPA's dividing line between "waste" and nonwaste is the manner of storage. If the processor 

stores secondary material destined for recycling in tanks, containers, buildings, or on properly 

maintained pads, the materials are not considered "solid waste."5

 

Under this Alternative Approach, EPA would treat certain consumer-abandoned nonhazardous 

secondary materials (like tires) differently from solid wastes directly abandoned by industrial 

generators. EPA would classify abandoned tires as solid wastes only so long as they remain in 

the environment as a nuisance hazard and potential 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 recycling or for burning for energy recovery. 

In essence, the Alternative Approach would expand 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 tires and properly stores them in 

preparation for recycling). 

EPA’s justification to adopt this Alternative Approach for abandoned tires is found in the 

holding by the Court in American Mining Congress v. EPA6

 ("AMC I"). The AMC I Court 

distinguishes between “truly abandoned” secondary materials and those materials that are “slated 

for recycling.”7 If read broadly, the case stands for the proposition that certain materials destined 

for recycling may for some time period have a particular 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 ordinary, 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 squarely the same as for tire piles, the Court provides EPA with a 

legitimate basis for use of discretion in how the Agency addresses secondary materials which are 

undisputedly destined for recycling. 

Applying the AMC I Court’s rationale to the recommended Alternative Approach, EPA would 

allow all tires to be “scrap tires” under an “established tire collection program” under specific 

conditions. As a result, EPA would be treating abandoned tires like it treated the secondary dusts 
Page 18 of 100

released by the mining industry which was the subject in the AMC I recycling case. The Court 

found that EPA overreached its authority by attempting to regulate valuable 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 tires 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 tires 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 point of recycling. At a point earlier in the industrial process, 

K061 is a listed, zinc-bearing hazardous waste generated 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” after the waste had been transported 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 reclamation 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 tires the way it regulates certain 

other solid wastes destined for recycling. EPA should apply the principle of waste being 

reclassified to a recovered tire brought within the scope of an established tire collection 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 principle 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 collection 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 recovery 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 the example of oil recyclers who typically collect discarded used 

oils, distill them, and sell the resulting 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 which migrate to the surface of groundwater can be 

recovered and recycled into a refinery’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 issue was not reopened in the December 23, 2011 

proposed rule. For example, 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. EPA did not reopen or solicit 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 discussion 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 landfills, or piles, and recycled. Nor can these tires 

be considered “destined” for recycling in the 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 the Agency’s rule stating that it disavowed regulating K061 waste 

when it was recycled. Moreover, the court stated that it would be unlikely that EPA could 

“simply readopt the conclusion that its authority to regulate K061 ends at the door of the 

reclamation facility.” 906 F.2d at 741. The legal analysis in this comment 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 materials reclaimed in a 

continuous industrial process have not been “discarded” in the ordinary meaning of the term. 

Neither of these cases can be applied to situations 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 storage, 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 that material has not been discarded in the first 

instance, not in situations in which material has clearly been discarded (e.g., in waste tire piles). 

3A. Contaminant Legitimacy Criterion 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 contain contaminants or groups of contaminants 

at levels comparable in concentration to or lower than those in traditional fuel(s) which the 

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

burn, persons can choose a traditional fuel that can be or is burned in the particular type of boiler, 

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

contaminants or groups of contaminants between traditional fuel(s) and a nonhazardous 

secondary material, persons can use ranges 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 based 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 missed 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 comparable textual change at 241.3(d)(2)(iv): 

(iv) The non-hazardous secondary material must result 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 manufactured without the non-hazardous secondary 

material. 

Should EPA agree with our first comment about the definition of contaminant and restricting it 

to section 129 pollutants as a basis for determining 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 Section 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 proposal (76 FR at 80470). The legitimacy criteria for 

non-hazardous secondary materials used as an ingredient 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 introduce and solicit comments on several topics relating to the 

contaminant legitimacy criterion for non-hazardous secondary materials used as a fuel in 

combustion units that may be applicable to ingredients as well. These topics include the grouping 
Page 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 note 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 Remediation Coalition (FRRC) 

Document ID: EPA-HQ-RCRA-2008-0329-1972-A2 

Comment Excerpt Number: 6 

Comment: We support EPA’s proposed regulatory language allowing combustors to compare 

groups of contaminants in secondary materials to groups of contaminants in traditional fuels. We 

appreciate the examples of groupings provided by EPA and the fact that combustors may rely on 

other groupings that are technically reasonable. 76 Fed. Reg. at 80477. We agree that this 

flexibility will make it easier to implement the legitimacy criterion for contaminants and will 

result in fewer non-waste materials being arbitrarily identified as wastes. 

EPA proposes to provide this flexibility by changing the lead-in to section 241.3(d)(1)(iii) to say: 

“The non-hazardous secondary material must contain contaminants or groups of contaminants at 

levels comparable to or lower than....” However, 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 comparison to groups of contaminants. EPA provides 

no explanation for allowing a discard determination for fuels to be made based on groups of 

contaminants while requiring a discard determination for ingredients to be made based on a 

contaminant-by-contaminant comparison. The failure to make the corresponding change may 

have been merely an oversight. The FRRC requests 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 wastes, 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: 22 
Page 22 of 100

Comment: As previously discussed in Section III of these comments, ACC supports EPA’s 

proposal to allow groups of contaminants (instead of just single contaminants) to be compared 

when making a legitimacy criterion determination for NHSM that are used as fuels, as proposed 

in § 241.3(d)(1)(iii). To be consistent, ACC believes 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-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: 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 encourage the Agency to do so. 

ACC recommends that the following sentence be added to the end 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 traditional product being replaced. 

Response: See response to EPA-HQ-RCRA-2008-0329-1890-A1, excerpt 3. 

Commenter Name: Susan Parker Bodine 

Commenter Affiliation: Federal Recycling and Remediation Coalition (FRRC) 

Document ID: EPA-HQ-RCRA-2008-0329-1972-A2 

Comment Excerpt Number: 8 

Comment: However, as discussed above, we believe that the same flexibility should be 

provided when making contaminant comparisons for ingredients. Just as a range can be used to 

compare contaminant levels in NHSM and traditional 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)(iii) as follows: “In 
Page 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-RCRA-2008-0329-1890-A1, excerpt 3. 

Commenter Name: Susan Parker Bodine 

Commenter Affiliation: Federal Recycling and Remediation Coalition (FRRC) 

Document ID: EPA-HQ-RCRA-2008-0329-1972-A2 

Comment Excerpt Number: 9 

Comment: We support EPA’s clarification that a combustor need not test traditional fuels for 

contaminant levels and may rely on the data provided by EPA or other surveys, to the extent that 

data are available. 76 Fed. Reg. at 80477. We support 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 levels in NHSM may be based on survey data such 

as data collected by a trade association. 76 Fed. Reg. at 80481. We support EPA’s clarification 

that a combustor may use process knowledge to determine that a constituent 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 support EPA’s clarification that once 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 changes 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-RCRA-2008-0329-1890-A1, excerpt 3. 

Commenter Name: Susan Parker Bodine 

Commenter Affiliation: Federal Recycling and Remediation Coalition (FRRC) 

Document ID: EPA-HQ-RCRA-2008-0329-1972-A2 

Comment Excerpt Number: 40 

Comment: With respect to process knowledge of constituents expected 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: Identification of Nonhazardous Secondary Materials That 

Are Solid Waste Traditional Fuels and Key Derivatives (Feb. 7, 2011) (EPA-HQ-RCRA-2008-
Page 24 of 100

0329-1818), (2) Contaminant Concentrations in Traditional 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 subset 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 refineries 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 contaminants 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 that these documents alone will be sufficient 

when making decisions about what contaminants 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 present in materials produced at their sites. 

Furthermore, the specific materials being generated will dictate decisions about what 

contaminants may be present, and that information 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 Concentration 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 Skinner List) is a subset of the Part 261 Appendix 

VIII hazardous constituents. The NHSM rule definition 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. Overlap 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 included in the Appendix VIII list and, thus, would not 

be included in the Skinner List. 

Commenter Name: William Turley 

Commenter Affiliation: Construction Materials Recycling Association (CMRA) 

Document ID: EPA-HQ-RCRA-2008-0329-1928-A1 

Comment Excerpt Number: 6 

Comment: If data result in non-detected values, one-half of the minimum detection limit should 

be applied. If data result in values less than the minimum reporting level but above the minimum 

detection limit, the minimum detection level value should be applied. Without this clarity, EPA 
Page 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 bright 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 ranges. Accordingly, it is unclear under what 

circumstances the difference between 0, the MDL, and the MRL for NHSM contaminant 

concentrations would have a notable 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 decision not to implement a "bright line" test for 

contaminants (76 FR at 15525-6). EPA did not reopen 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 traditional fuel data collected by the EPA or 

their own data for traditional fuel comparison values. Generators or combustors are 

responsible, however, for either providing NHSM comparison values in cases where 

testing is required or documenting 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 from 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-fired space heater that meets the provisions of 40 
Page 26 of 100

CFR 279.23 need not be tested to establish whether or not such oil is on or off-spec, and 

contaminant comparisons are therefore unnecessary. 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 final 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 Categorical Non-Waste Determinations 

Comment: The Agency received several comments urging additional categorical non-waste 

determinations for NHSMs that were not specifically proposed. 

Response: EPA is not issuing categorical determinations on materials for which it did not ask 

for comment or propose categorical determinations, since the 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 issue a final categorical determination without 

providing adequate notice about the information and about the Agency's interpretation of the 

data. EPA would further need to obtain views and opinions from the public on its proposed 

decision and the adequacy of the data in supporting that position. The petition process under 

§241.4(b) can be used to add additional 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, resinated wood debris, tires in 

managed programs, coal refuse from legacy piles, and newly generated coal combustion residues 

are NHSM fuels. The Department requests that EPA continue reviewing and provide additional 

categorical determinations of NHSM as appropriate. A categorical determination provides clarity 

to sources and significantly streamlines compliance demonstrations while ensuring that we do 

not lose current best disposition and use of materials. The status of materials currently used as 

fuel by several sources in Wisconsin is of particular concern as discussed below. The 

Department will also continue work in identifying 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 appropriate, " the Agency will not add additional 

NHSMs to the categorical non-wastes listed in today'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 criteria 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 into tire-derived fuel) should be non-waste 

 Comments that specifically said recovered tires (including tires from tire dumps) should 

be non-waste (Note that EPA understands these 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 basis, the decision to regard tires recovered 

from tire dumps as waste is not justified; 

 Comments on the environmental justification for recovering tires from tire dumps as nonwaste (which would aid in efforts to remediate tire dumps); 

 Comments that a discarded tire and a non-discarded 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 burdensome -- 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 dumps) 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 the 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 encouraged that EPA has proposed to formally 

designate that resinated wood fuels are not solid wastes (see proposal 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 specifically utilize these residuals 

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 composite manufacturing process, 

b. Resinated wood is not being discarded when used as a fuel, 

c. Wood product plants have been designed to specifically utilize these residuals that the wood 

manufacturing process creates and would not be able to operate as designed 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, resinated fuels have been an integral part of 

the composite wood product industry's production process 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 manufacturing processes would require significant reengineering of our facilities, and add insurmountable 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 manufacturing facilities to continue operations. 

Flakeboard and CPA and its member companies are relieved by and agree with EPA's proposal 

to specifically list them as a "non-waste fuel," which will 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 replacing resinated wood fuels with other 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 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 facilities have traditionally burned resinated 
Page 29 of 100

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. Resinated wood fuels are not discarded, 

they are legitimate traditional fuels or ingredients and therefore they are not solid wastes on any 

level. 

Flakeboard and CPA and its members are appreciative of EPA's endeavor to designate resinated 

wood fuel as a "non-waste fuel." and for clearly articulating why resinated wood is not a solid 

waste when burn as energy recovery. Your arguments make it evident that resinated wood have 

always been a traditional fuel and should remain as such. The "nonwaste designation" has the 

potential of legal challenges which would create uncertainty and potential irreparable harm to 

our industry. Since these facilities and combustion units were originally 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 resinated wood for its fuel and have limited access 

to substitutes. These facts not only supports the finding that resinated 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, Flakeboard and CPA respectfully request EPA to 

include resinated fuels in the "traditional fuels" category. 

Response: See preamble Section III.D.3, for example, 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 issue in the March 21, 2011 NHSM 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: 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 proposal 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, December 23, 2011): “As discussed in the 2011 NHSM 

final rule, wood product plants have been designed to specifically utilize these residuals 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 composite 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 specifically utilize these residuals that the wood 

manufacturing process creates and would not be able to operate as designed 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, resinated fuels have been an integral part of 

the composite wood product industry’s production process since the industry was established 

decades ago. As such, facilities’ combustion and energy systems were designed and constructed 

to utilize most if not all of their own wood and wood by-products 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 impossible for these manufacturing facilities to continue 

operations. 

CPA and its member companies are relieved by and agree with EPA’s proposal to specifically 

list them as a “non-waste fuel,” which will 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 replacing resinated wood fuels with other 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 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 facilities have 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. Resinated wood fuels are not discarded, they are 

legitimate traditional fuels or ingredients and therefore they are not solid wastes on any level. 

CPA and its members are also appreciative of EPA’s clear articulation of why resinated wood is 

not a solid waste when utilized for energy recovery. 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 potential for legal challenges that 

may be associated with other non-waste fuels which would create uncertainty and potential 

irreparable harm to our industry. Since these facilities and combustion units were originally 

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 resinated wood for its fuel 

and have limited access to substitutes. 

Designating resinated fuel as a “traditional” fuel would have the important effect of 

distinguishing our processes and fuel from other industries that have needed to make 

modifications to their processes and combustion units in order to accommodate non-waste fuels 

supplied from outside of their process or industry. These facts not only support the finding that 
Page 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 traditional fuel associated with our industry. Accordingly, CPA is respectfully 

advocating that EPA include resinated fuels in the “traditional fuels” category. 

Response: See preamble Section III.D.3, for example, 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 issue in the March 21, 2011 NHSM 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: 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 that will be subject to National Emission Standards 

for Hazardous Air Pollutants as either Area Sources (Boiler GACT) or Major Sources (Boiler 

MACT). Many of these facilities have biomass boilers 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 solid 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 regulate resinated wood and other non-hazardous 

secondary materials as solid waste. And EPA has adequately identified technical reasons why 

resinated wood is not solid waste when burned for energy recovery. Nevertheless, BCWP 

believes it is important to articulate the importance of resinated wood to our energy strategy and 

to reinforce that resinated wood is managed as a valuable fuel resource. 

BCWP utilizes a variety of woody biomass, ranging from bark to sander dust, in our biomass 

boilers. Because the moisture content of resinated wood is less than 15%, it has the highest as 

fired Btu value of any biomass fuel we burn. This fuel burns well as the sole fuel in some of our 

boilers, and it is an important fuel to enhance combustion of higher moisture content fuels, such 

as bark, in other boilers. The resin in the wood does not detract from the value of resinated wood 

as a fuel. Because resinated wood is such a valuable fuel, we manage the material so as not to 

degrade that value by storing the fuel in sheds or bins to protect it from moisture. 
Page 32 of 100

While we have not concluded how we would revise our energy systems should EPA choose not 

to identify resinated wood as a non-waste fuel, we have concluded that such a decision would 

cause a significant, potentially devastating increase in our operating expense. At some facilities 

we would have to replace our biomass boilers with fossil fuel boilers. At other facilities we 

would likely have to add natural gas as a supplemental 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, the facilities would incur significant disposal cost. Altogether, the 

annual operating costs to our facilities could increase several million 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 housing 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 policy, 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 example, 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 issue in the March 21, 2011 NHSM 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 facilities were designed and built with energy 

systems that integrate the maximum utilization of wood by-products and resinated wood (trim 

and sander dust) as fuel for energy recovery. These fuels are the main and primary energy source 

to generate heat and/or steam to produce building products, and should be considered traditional 

fuels and not nonhazardous secondary materials. 

Response: See preamble Section III.D.3, for example, 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 issue in the March 21, 2011 NHSM 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 (as Categorical Non-Wastes) 

Commenter Name: Heather Parent 

Commenter Affiliation: Maine Department of Environmental 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 determinations. 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 production 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 production of methane gas, is counter-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 treated 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 the processing of these wastes 

and the beneficial reuse (combustion) of the resulting sludge in properly licensed boilers through 

air quality and solid waste permits.

Response: Comment addressing pulp and paper sludge is addressed in the final rule preamble. 

See section III.D.5.a. Comment addressing municipal wastewater and landfill leachate was 

beyond the scope of today's rulemaking as it was not included in the proposed rule and was not 

subject to public comment. 

4B05. Coal Refuse and Legacy Piles (as Categorical Non-Wastes) 

Commenter Name: Jeff A. McNelly 

Commenter Affiliation: ARIPPA 

Document ID: EPA-HQ-RCRA-2008-0329-1906-A1 

Comment Excerpt Number: 1 
Page 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, including through its Petition for Regulation relative 

to the Final NHSM Rule, coal refuse should be classified as a traditional fuel for purposes of the 

Final NHSM Rule, 'rather than as a solid waste. ARIPPA offered several justifications in support 

of this classification, which are detailed in the attached copy of ARIPPA's pending Petition for 

Regulation. Although ARIPPA continues to believe that legacy coal refuse is indistinguishable 

from currently-mined coal refuse (which is appropriately expressly identified as a traditional fuel 

under the Final NHSM Rule) and should also be classified as a traditional fuel, ARIPPA 

nonetheless supports EPA's proposal in the Proposed 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 Reconsideration, EPA discusses 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 that 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 legacy coal refuse (1) is managed in the same 

manner, and (2) has a similar heating value, as traditional fuel.2 Id. 

Finally in this context, EPA addressed the third legitimacy criterion for secondary materials used 

as a fuel- i.e., whether the material being combusted 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 benchmark" 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-generated coal refuse, EPA expects that postprocessed coal refuse from legacy piles satisfies EPA's contaminant legitimacy criterion. Id. 

Therefore, as EPA correctly concluded, "post-processed 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 set forth in the Agency's August 

2011 letter to ARIPPA (and reiterated in the preamble to the Proposed NHSM Reconsideration), 

EPA has specifically requested comment on its proposal to expressly identify legacy coal refuse 

as a non-waste fuel in Section 241.4(a) of the Proposed NHSM Reconsideration. 

ARIPPA agrees that EPA should expressly characterize - 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 specifically 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 responses regarding a categorical non-waste 

determination for coal refuse that has been recovered 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 respond to comments directed toward rule provisions that were not 

specifically identified in this 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 that treatment and recognize that 

all legacy coal refuse, regardless 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 sufficiently “processed” into a fuel product. Yet this treatment is 

distinct from that of coal mining rejects that are currently generated 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-produced coal refuse. In fact, EPA has itself acknowledged the 

“inherent illogic in treating coal refuse generated from mining operations today and used as fuel 

differently from coal refuse mined from the ‘legacy’ piles, which seem to be no different.”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 presumption that everything that is 

discarded necessarily constitutes a solid waste unless it is sufficiently processed. EPA should 

reconsider this presumption for three reasons. First, EPA recognizes in the NHSM final rule that 

certain materials that are discarded are not solid wastes. Second, EPA failed adequately to 

consider support in both the statutory text and case law that suggests that although a material 

must be “discarded” to be considered a solid waste, not every material that is discarded 

necessarily constitutes a solid waste. Finally, the case law suggesting a contrary approach is 

premised explicitly on the “cradle to grave” nature of the RCRA hazardous waste regime—a 

regime that is utterly inapplicable to the non-hazardous materials at issue in this rule. 

A. EPA Properly Recognizes In The Proposed Rule And Reconsideration That Not Everything 

That Is Discarded Constitutes “Solid Waste” 

1. EPA Explicitly Treats Some Materials That Have Been Discarded As Fuels 
Page 36 of 100

EPA expressly excludes from consideration as a “secondary material” or “solid waste” certain 

categories of materials that the agency believes constitute “traditional 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 includes fuels that have 

been historically managed as valuable fuel products rather than as waste materials, and 

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

including used oil, currently mined coal refuse, and clean cellulosic biomass.12 Clean cellulosic 

biomass includes, among other things, materials such as corn stover (typically 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 and may be collected by a different party for a 

different purpose. Yet EPA treats each as a fuel and not as a secondary material or solid waste 

“unless discarded.”14 

That restriction, that “[t]hese fuels are not secondary materials or solid wastes unless discarded,” 

contradicts both the primary language of the “traditional fuels” definition 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 “discarded” (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 are 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 construction and demolition projects, that should be 

treated as fuels when combusted for energy generation. However, EPA unnecessarily restricted 

the application of this principle when considering coal mining rejects. EPA expressly included 

“currently mined coal refuse” as an alternative fuel 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 fuel and can itself be used as a fuel. In fact, coal refuse in 

legacy piles, which was mined years ago to produce a fuel, has never been used for anything 

other than as a fuel. EPA should reconsider its inconsistent application of the “discard” principle 

and treat all coal rejects as fuels, not solid wastes, regardless of when they were generated and 

regardless of whether they 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—used tires and resinated wood. To avoid being 

classified as a solid waste, used tires “discarded” by a user must be collected as part of an 

established tire collection program. EPA now proposes to revise its definition of “established tire 
Page 37 of 100

collection programs” to clarify that off-specification 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 material that is not easily separated due to its 

small size. Unlike tires, however, coal rejects are intended to be burned as useful fuels. To 

promote consistency throughout its regulatory scheme, 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 and its implementing regulations classify 

nonhazardous secondary materials burned in combustion units as solid wastes unless they are 

expressly excluded. Section 241.3 of the regulations, which governs the standards and 

procedures for identifying NHSMs that are solid wastes 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 legitimacy criteria consider whether the product is 

handled as a valuable commodity, has a meaningful heating value, and contains contaminant 

concentrations at levels comparable to or lower than traditional fuels17 – and they speak to the 

statutory purpose behind EPA’s definition of “solid waste,” which is to encourage the reuse of 

and/or energy recovery from materials that previously served other purposes.18 

Based on the legitimacy criteria, coal mining rejects more closely resemble materials EPA 

classifies as fuels than wastes. Like used oil and demolition and construction debris, which EPA 

considers “traditional fuels,” coal mining rejects have high heating values. Although coal mining 

rejects have been burned for fuel for several years, 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 clearance activities. Like those materials, coal rejects now have an 

independent economic value as fuel and 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 has 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, traditional fuels (including 

currently generated coal refuse), or resinated wood to undergo processing to be treated as a fuel, 

even though many of those materials would be understood to be discarded. Application of a strict 

rule applying to “discarded” materials does not accomplish the intent of the statute, and is not 

how EPA has approached the entirety of the rule. Here, EPA should similarly conclude that 

unprocessed legacy coal piles do not constitute solid waste. It can do so either by eliminating its 

processing requirement, or revising its definition of “traditional fuels” 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 Section III.D. below. (19) 40 C.F.R. § 241.2. 

Response: See preamble Section III.D.5 for the responses regarding a categorical non-waste 

determination for coal refuse that has been recovered from legacy piles and processed in the 

same manner as currently-generated coal refuse. Comments that should revise 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 identified in this proposal (76 FR at 80470). Comments regarding the Agency's 

interpretation of the concept of "discard," as well as the commenter's comparisons of legacy coal 

refuse to other materials (e.g., used oil, construction 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 intent 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 necessary to revise the introductory language of 

Section 241.4(a). As currently drafted, Section 241.4(a) of the Proposed NHSM Reconsideration 

provides that certain "non-hazardous secondary 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 interpreted to impose an 

additional criterion to be satisfied before the listed non-hazardous secondary material can be 

determined not to constitute solid waste. Specifically, inclusion of the phrase, "when used as a 

fuel," could be interpreted to impose an obligation 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 determination 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 undertakes to establish a regulatory basis for the determination of 

whether a combusted secondary material is, in fact, used as a fuel at the point of combustion. 

This regulatory analysis is directly tied to the rule's legitimacy criteria. Specifically, Section 

241.3(d)(1) sets forth the legitimacy criteria for "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 discarded and is, therefore, considered a solid waste in the first 

instance, such material can only be converted into a non-waste fuel if it meets the processing 
Page 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 satisfies 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 fuels 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 determined meet the legitimacy 

criteria, and therefore can be combusted as fuel, rather than as solid waste. Indeed, EPA 

expressly states in the preamble to the Proposed NHSM Reconsideration that "[t]he practical 

effect of these categorical listings [in Section 241.4(a)] is that persons that generate or burn these 

materials will not need to make individual determinations, as required under the existing rules, 

that these materials meet the legitimacy criteria. Except where noted, combustors of these 

materials will not be required to provide further information demonstrating 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-waste 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 words, the very purpose of Section 241.4(a) is to provide a regulatory 

provision specifying those non-hazardous secondary materials that have already been determined 

by EPA to satisfy the legitimacy criteria; the regulatory 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 objective of the provision could be directly 

undermined by re-introducing the requirement for 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 criteria. ARIPPA therefore requests 

that the Agency revise the introductory language within Section 241.4(a) by deleting the phrase 

"when used as a fuel." Alternatively, EPA could substitute either of the following phrases for the, 

phrase "when used as a fuel": (i) "when combusted" or (ii) "when combusted by a source utilized 

in the generation of thermal 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 objective in clarifying the standard that must be 

satisfied by any facility seeking 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 determination that the materials are a non-waste fuel at the point of 

combustion, Section 241.4(b) separately addresses 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 material 
Page 40 of 100

does not meet the legitimacy criteria, the applicant [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 relevant factors") 76 Fed. Reg. 80,530. Indeed, Section 

241.4(b) clearly indicates that certain non-hazardous secondary 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 demonstration of satisfaction of the legitimacy criteria 

by a source operator combusting material 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 preamble to the Proposed NHSM Reconsideration, 

it is clear that this is not EPA's intent, and such outcome would indeed frustrate the purpose of 

Section 241.4(a) to provide clarity regarding the proper classification 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 material within the regulatory list promulgated under Section 241.4(a) 

is intended to reflect that EPA has determined that 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 need to include any qualifying 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 already been made that such material is used as 

a legitimate fuel. In the specific case of legacy coal refuse, such proposition could not be more 

clear, as EPA has repeatedly recognized that legacy coal refuse is a legitimate fuel at the point of 

combustion. The uncertainty created by the inclusion of the phrase "when used as a fuel" in 

Section 241.4(a) should therefore be eliminated. 

Based on the foregoing comments, ARIPPA requests that EPA revise Section 241.4(a) of the 

Proposed NHSM Reconsideration as follows: 

(a) The following non-hazardous secondary materials 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 from vehicles and off-specification tires. 

(2) Resinated wood.3

 

(3) Coal refuse that does not constitute currently-generated 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 stated 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 coal refuse, would be subject to regulation under 

EPA's Utility MACT rules as long as the unit qualifies 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 comment 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 regulation 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 determination in the final rule." "National Emission Standards 

for Hazardous Air Pollutants from Coal- and Oil-fired Electric Utility Steam Generating Units 

and Standards of Performance for Fossil-Fuel-Fired Electric Utility, Industrial- CommercialInstitutional, and Small industrial-Commercial-institutional Stem Generating Units; Final rule". 

77 Fed. Reg. 9,304, 9,310 (Feb. 16,2012) (to be codified at 40 C.F.R. pts. 60 and 63). 

[Footnote] (3) ARIPPA notes that the Proposed NHSM Reconsideration, as published in the 

Federal Register, would identify scrap tires and resinated 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 available on EPA's website, and the "redlined" version of 

the Proposed NHSM Reconsideration included within the rulemaking docket, EPA would delete 

the references to scrap tires and resinated wood 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 oversight, EPA would presumably properly 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 and resinated wood are addressed in the proposed 

Section 241.4( a) classification, and ARIPPA endorses EPA's proposal to include legacy coal 

refuse within Section 241.4(a), ARIPPA believes 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 assertion 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. For 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 relevant 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 the Part 241 regulations (see Section 

241.1, entitled, "Purpose": "This part identifies the requirements and procedures for the 

identification of solid wastes used as fuels or ingredients in combustion units under section 1004 

of the Resource Conservation and Recovery Act and section 129 of the Clean Air Act." 

(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 value, then the categorical non-waste determination 

made in Section 241.4 would not apply (e.g., a NHSM being beneficially used as a fertilizer is a 

matter not dealt with in this rulemaking). Thus, we believe that it is unnecessary and in fact 
Page 42 of 100

would be inappropriate to remove this phrase from the introductory text of Section 241.4(a). 

However, we reiterate here that for NHSMs listed in Section 241.4(a), persons that generate or 

burn these materials will not need to make individual determinations, as required under other 

provisions in Part 241, that these materials meet the legitimacy criteria. 

We also disagree with the comment that section 241.4(a) could be interpreted as being more 

stringent that the provisions codified in section 241.4(b) because of the "when used as a fuel" 

qualification. First, as we've already stated, the "when used as a fuel" language does not require 

an additional demonstration of legitimacy. Secondly, 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 non-wastes when used as fuels on a categorical 

basis, whereas subsection (b) codifies the process for adding other NHSMs to subsection (a) as 

appropriate through a future rulemaking. Finally, the commenter makes the point that the 

proposed Utility MACT and NSPS assumed that all 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 the commenter and today's determination that coal refuse that 

has been recovered from legacy piles and processed in the same manner as currently-generated 

coal refuse are consistent, as both recognize 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 expressly identify legacy coal refuse as a nonwaste fuel in Section 241.4(a) of the Proposed NHSM Reconsideration, ARIPPA requests that 

the Agency otherwise revise the Final NHSM 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 legacy 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 appropriately 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 coal 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 Petition 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, ARIPPA 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-hazardous 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 that 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 processing and legitimacy standards contemplated by this 

provision. 'As a third and final option, ARIPPA proposed that EPA establish an additional 

category within 40 C.F.R. § 241.3(b) (to be codified 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 established under SMCRA. 

Each of the proposed options for revising the text of the Final NHSM Rule would be equally 

applicable to the Proposed NHSM Reconsideration, 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 coal refuse qualifies as a legitimate fuel, and not 

a solid waste, at the point of combustion. Also, such proposed alternatives afford the benefit that 

EPA would not be required to revise the current 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 determination 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 Regulation are necessary. In particular, the 

introductory language within Section 241.4(a) should not include, as a qualifier, that the listed 

materials are not solid waste "when used as a fuel." 

Response: See preamble Section III.D.5 for the responses regarding a categorical non-waste 

determination for coal refuse that has been recovered 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 recovered 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 primary 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 submitted to the Agency prior to publication of the 
Page 44 of 100

proposed rule in December 2011. The commenter may 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 generates environmentally-beneficial energy with the 

additional benefit of abandoned mine land reclamation. The removal of abandoned coal refuse 

would not happen except for the ability 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 recently confirmed (in its comments addressing 

EPA’s proposed “Non-Hazardous Secondary Materials Identification” rule) the coal refuse 

burning industry’s environmental benefits. PADEP stated that “[t]he most 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 coal refuse when put to use as a fuel, has been regulated as a 

non- waste material for decades under both the CAA and a number of other regulatory programs. 

The usage of coal refuse as fuel by CFB’s over the last 20 years should justify coal refuse, 

whether currently-used or legacy coal refuse, as a traditional fuel. There is simply no other 

reason or sufficient incentive to excavate 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 that time, NGC has utilized over 10,000,000 tons of 

coal refuse as fuel. The coal refuse is shipped to NGC from the fuel sites located in the 

Scranton/Wilkes-Barre Area of Pennsylvania which is located approximately 50 miles north of 

the plant. There are instances where it is more cost 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 crushed on site rather than in the field. EPA has used 

language to date indicating an inclination to classify “post-processed” legacy coal as a nonwaste. 

However, this “post-processing” provision is too 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 being imposed on treating legacy coal 
Page 45 of 100

piles as fuel would not benefit the CFB community and could hinder the usage of these piles as 

fuels. 

The “post-processing” provision does not provide any additional 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 excavation site is not determinative of any relevant 

characterization of the coal refuse or its intended use. NGC and the CFB community appreciate 

EPA’s consideration in providing clarification that coal refuse is a fuel when “processed” but 

NGC strongly believes that a categorical 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 reclamation 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 continues to focus on a “post-processing” 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 processing for purposes of its 

categorization as a non-waste fuel. 

Response: See preamble Section III.D.5 for the responses regarding a categorical non-waste 

determination for coal refuse that has been recovered 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 vague. 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 piles should not have to be processed 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 entire NHSM rule for reconsideration and will 

not respond to comments directed toward rule provisions that were not specifically 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: 1 
Page 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 the “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 definition of traditional fuels. 

[Footnote] (7) 76 Fed. Reg. 80,486. 

Response: See preamble Section III.D.5 for the responses regarding a categorical non-waste 

determination for coal refuse that has been recovered from legacy piles and processed in the 

same manner as currently-generated coal refuse. Comments that should revise 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 identified in this proposal (76 FR at 80470). 

4C02. Comments on the Categorical Non-Waste Petition Process at §241.4(b)

(i.e., imposed burden, administrative process issues etc) 

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: 7 

Comment: NESCAUM also advises that no site-specific determination should be treated as 

precedent for any categorical determination, as site-specific determinations are not subject to 

public comment and review requirements. 

Response: The decision will be based on the material submitted under §241.4(b)(1). For the 

categorical non-waste petitions all public comment will be incorporated into any finding for a 

§241.4 categorical non-waste petition. This may include information for specific determinations 

if made part of the record for the petitions. The site-specific determinations will be considered, 

if appropriate, but would not constitute 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: 5 
Page 47 of 100

Comment: Although we support the creation of a categorical non-waste determination, we do 

not agree that using an approach similar to 40 CFR 260.20 is appropriate 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 appropriate for the materials in question and are 

not reopening the hazardous waste rules. This process is needed in order to provide a procedural 

process to deal with information received and have appropriate 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 reached. We are retaining this 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 regarding the petitions under §241.4 and see Section 

III.D.6 for the responses on streamlining 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 approach 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 definition, CKRC would support the creation of a 

rulemaking petition process for a non-waste determination. However, modeling that on 40 CFR 

260.20, which applies to hazardous waste, would result in an unnecessarily burdensome 

approach. There is no justification 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 hazardous waste under Subtitle C as an excuse to 

limit its flexibility in this rulemaking, which deals exclusively 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 2010 comments, absent a shred of justification in 

terms of risk to human health and the environment, many of the Agency’s decisions in this rule 

arbitrarily impose requirements on non-hazardous secondary 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 comment EPA-HQ-RCRA-2008-0329-1962-A1, excerpt 

number 5. 

 4C03. Categorical Non-Waste 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 rulemaking petition process EPA envisions for this 

determination. Biosolids are generated by thousands of clean water agencies nationwide 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 petition to encompass a "diverse community" for 

any type of NHSM, the NHSM properties and handling have to be consistent enough to be able 

to be characterized in a single petition. In regard to the question of how comprehensive the 

petition needs to be, refer to the criteria stated in §241.4(b) 

EPA can work with the petitioner to ensure that the appropriate level of detail is included in the 

petition. 

The application would have to address the full set of NHSM properties that are assessed. 

Supporting tests, studies, or other information would provide better justification 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 considered if the petition is relying on the legitimacy 

criteria. In regard to the assessment of the contaminant legitimacy criteria (in §241.3(d)(1)), 

refer to today's rule, and in particular 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 indicate whether state-enacted renewable energy 

portfolio standards, and the ability of a material to satisfy statutory requirements under those 

standards, is an "other relevant factor" that the Agency would consider in case-by-case NHSM 
Page 49 of 100

determinations pursuant to 40 CFR 241.3(c) or a categorical NHSM determination pursuant to 40 

CFR 241.4. 

Response: EPA will consider on a case-by-case basis whether particular "other factors" would 

be relevant. The consideration will depend on whether any particular factors would allow the 

Agency to determine whether a material is or is not a waste. 

5D03. Suggestions for Streamlining the Existing 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 solid waste programs under RCRA. In fact, EPA 

already provides for such determinations in the regulations at 40 C.F.R. § 241.3(c) at the 

Regional level. Rather than seeking to impose more stringent requirements for national 

implementation, EPA should utilize its administrative authority to build upon 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 could seek broader application by the same 

administrative process from EPA headquarters. This 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 petitioning stakeholder and the 

Agency to ensure certainty in the process and predictability of timing. Failure to establish such 

timelines will only discourage petitions for legitimate 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 web site. In regard to the rest of the comment, 

refer to the rulemaking record and for example, see preamble Section III.D.6, regarding 

streamlining the petition process, approval for multiple 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 determination 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 industry 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 final rule as noted elsewhere in our comments. 

Option 2: In the spirit of traditional RCRA programs, and to “right-size” the approval process for 

non-hazardous waste, we request the addition of an option for a facility (or facilities, for 

companies with common programs at multiple facilities) to have their alternate material 

management program approved in place of individual 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 addresses 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 are 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 future compliance issues and enforcement due to differing 

interpretations on a difficult rule. 

...CEMEX, therefore, requests that EPA work with 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 petition 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 ingredients, if this issue is not addressed). 

- The information submitted would address similar types of criteria as outlined by EPA for the 

pulp and paper decision or for resinated wood, which acknowledge the effective use of a material 

in an industrial process and allows for balancing legitimacy criteria with other factors. 
Page 51 of 100

- The program would identify steps used to confirm that a material meets a pre-established 

acceptable “fuel spec” through generator knowledge and supplemented with laboratory analysis 

for appropriate constituents1. Once approved, the material-by-material evaluation would be 

performed by the facility while knowing that EPA agrees through a pre-approved process. 

We again urge EPA to address the inherent uncertainty introduced by these legitimacy and 

discard criteria by allowing the approval 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 outlined for evaluating beneficial use by the pulp and 

paper industry (p. 80472 of the 12/23/11 FR) 

Response: EPA considered this comment in drafting 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 today’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 sections. This includes 

the rationale for the NHSM-specific approvals. 

The rest of the commenter's "Option 2" concepts were previously considered and addressed in 

the rulemaking record for the March 21, 2011 NHSM final rule. In particular see the discussion 

about EPA petition determinations versus alternate approval methods like state beneficial use 

programs in Section IX (in regard to the suggestion to use material management plans) and see 

the petition response to comments in Section V.F of the March 21, 2011 NHSM final rule. 

In regard to the commenter's "Option 1" suggesting 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 streamline the petition process 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 issues that have been addressed in the rulemaking record for the 

March 2011 final rule and the rationale for the decision is still applicable in today's final rule. 
Page 52 of 100

Refer to Section IX of the 2011 final rule (76 FR 15456 page 15528) and the response to 

comments document (Document ID: EPA-HQ-RCRA-2008-0329-1837) at comment 3a-F-1). 

Commenter Name: Mark Calmes 

Commenter Affiliation: Archer Daniels Midland Company (ADM) 

Document ID: EPA-HQ-RCRA-2008-0329-1954-A2 

Comment Excerpt Number: 4 

Comment: EPA is aware of the longstanding reliance by sources on the ability to make 

reasonable decisions, consistent with the law and 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 materials, EPA should allow sources to self-determine 

that materials are NHSM and transfer them for use 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 regulatory certainty. Otherwise, sources should be 

allowed to make decisions regarding their secondary material streams as they have in the past. 

As CIBO has noted in other comments, the petition process does not increase environmental 

protection. 

EPA pledges in the Preamble that it does not intend 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 that 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 are generally made in a timely manner allowing 

industry certainty and the opportunity to move forward with projects in an efficient manner. 

In cases where the NHSM is not discarded, there should be a presumption that the material is an 

NHSM as aligned with other RCRA waste regulations. However, given EPA's current NHSM 

presumption and criteria which requires that a material 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 determination 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 fuel 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 comment 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 applicability process is by its nature, a site specific response to a 

determination of applicability of a particular rule to a particular 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 broadly 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 that oversee the CAA applicability determinations 

in the event there are related inquiries, and the petition can utilize existing data from the 

applicability determination as appropriate. 

EPA maintains that a non-waste determination petition as outlined in section 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 decisions) is discussed in the preamble of today’s 

rule in Section III.D.6. In addition, refer to discussion in the proposed rule at 76 FR 80473-4 that 

explains how the Agency does not intend for the process to be extensive or lengthy. 

Commenter Name: Robert D. Bessette 

Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) 

Document ID: EPA-HQ-RCRA-2008-0329-1948-A1 

Comment Excerpt Number: 10 

Comment: Both the RA and Administrator determinations should be posted to the site. This 

will enhance consistency and predictability for regulated sources. In addition, 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 does 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 the basis of and outcome 

of EPA’s interpretations of its regulatory criteria. 

Response: The agency agrees that the petitions decisions 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 rule. 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 letters,” which it has posted on the official 

NHSM Rulemaking web site. These letters have been carefully crafted to discuss how various 

secondary materials meet the processing definition 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 combustion 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 rulemaking 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 determination from either the Regional Administrator 

or Administrator are necessary where the secondary 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 address specific fact situations as presented by 

specific facilities, and these letters have been posted on the EPA website. These letters serve as 

examples of acceptable ways to demonstrate legitimacy 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 control of the generator, and meets the legitimacy 

criteria), a combustor can self-determine the waste/non-waste status of a particular NHSM and 

does not require additional confirmation from the Agency. 

Regarding the comment that “EPA should clarify that no additional petitions for a non-waste 

determination from either the Regional Administrator or Administrator 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 example, 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 categorical 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 Environmental 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 wastes. Maine DEP must regulate the management of 

solid waste in a manner that reduces the need for disposal of solid waste in landfills, if that waste 

can be beneficially reused. Maine DEP accomplishes this through its beneficial use 

determination (BUD) program. This program not only reduces consumption of landfill space, but 

also reduces methane gas generation and emissions from transportation of materials. 

Maine DEP regulates the use of non-hazardous secondary 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 these materials and their disposition. Redefining 

the scope of materials defined as solid waste will 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 reviewed through the state's BUD program. 

Ideally, all non-hazardous solid wastes would be considered solid wastes unless the disposition 

of the materials has been vetted through a state'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 ideal 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 are applicable to this issue. EPA did not reopen 

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. 

Commenter Name: Robert E. Cleaves and Julee Malinowski-Ball 

Commenter Affiliation: Biomass Power Association (BPA) and California Biomass Energy 

Alliance (CBEA) 

Document ID: EPA-HQ-RCRA-2008-0329-1887-A1 

Comment Excerpt Number: 2 
Page 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 program. We would welcome the opportunity to 

work with EPA in making sure state-approved programs 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 efficient 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 standards and the commenters' wish that EPA 

defer to state programs. The Agency has previously addressed this issue 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 are 

applicable to this issue. EPA did not reopen 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 directly invoke any costs," and 

thus a separate cost and benefit analysis for the NHSM final was not required, 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 costs 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 would 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 requirements imposed by the NHSM rule will be incurred. 

Costs will also be incurred to transport NHSM, such 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 established program. Considering the significant volume 

of secondary materials which industry currently uses as alternative fuels, and the extent of 

processing to which some scrap tires and other the NHSM would currently be required to 

undergo, even under the amendments now being proposed, PCA contends such costs will be 

considerable. These are costs which EPA should have considered before issuing its final NHSM 

rule, but must now consider before it issues a revised final NHSM rule at the completion of this 

reconsideration. 
Page 57 of 100

Response: This final action alone will not result in any costs, benefits or other impacts to the 

regulated community (aside from negligible administrative costs e.g., reading the RCRA part of 

the proposal). The NHSM part of this rule itself does not include any emission standards and 

does not require changes in the management or use of secondary materials. Only in conjunction 

with the promulgation of the final CISWI and major source boiler rules would 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 impact 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 entities. 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 Small Business Advocacy Review Panel (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 solid waste under subtitle C of RCRA, regulatory 

definitions can have significant regulatory impacts, 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 subject to the rule). EPA 

conducted a Regulatory Impact Analysis for the subtitle C definition of solid waste rulemaking 

and determined that it would have average annual 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 knows, 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 obligation to quantify those impacts. 

As discussed above, the NHSM Rule and NHSM Proposal will impose real costs on the 

regulated community. These costs include the costs of testing, storage 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 significant impacts on alternative 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., reading the RCRA part of the proposal) on any small entities apart from 

those that become effective in conjunction with the promulgation 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 support of the CISWI and boiler rules. 

Refer to the document in the docket (# EPA-HQ-RCRA-2008-0329) for today's rule titled: 

"REGULATORY SUPPORT: Assessment of Potential Costs, Benefits, Environmental Justice, 

and Other Impacts; and Regulatory Flexibility Screening Assessment." In addition, refer to the 

Regulatory Impact Analysis (RIA) for the CISWI and boiler rules (CISWI docket # EPA-HQOAR-2003-0119, major source boiler docket #EPA-HQ-OAR-2002-0058, area source boiler 

docket #EPA-HQ-OAR-2006-0790). 

Commenter Name: Robert D. Bessette 

Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) 

Document ID: EPA-HQ-RCRA-2008-0329-1948-A1 

Comment Excerpt Number: 18 

Comment: EPA seeks comment on potential 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 rules. 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 complexities 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-determination, 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 Remediation Coalition (FRRC) 

Document ID: EPA-HQ-RCRA-2008-0329-1972-A2 

Comment Excerpt Number: 39 

Comment: We support EPA’s clarification that a combustor need not test traditional fuels for 

contaminant levels and may rely on the data provided 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 data, a significant amount of testing may still be 

required, at a significant cost, which is not captured in the Regulatory Impact Analysis (RIA) of 

the CISWI Rule or the Boiler MACT Rule (or the 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 reconsideration is arbitrary 

and violates EO 13563: Conceptually, PCA acknowledges 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 substance of the specific issues it will address here, 

on reconsideration, in a proceeding that EPA voluntarily - indeed unilaterally - initiated to 

forestall the pending court challenges to its NHSW and CISWI final rules (and arguably avoid 

the potential of remand), deprives PCA and other members of the public of their right to 

participate meaningfully in this rulemaking and is inherently arbitrary 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 review via our pending judicial petitions for review of the two final 

rules that the Court of Appeals for the DC Circuit is currently holding in abeyance. We also 

recognize that once EPA concludes this reconsideration proceeding and issues the new NHSM 

and CISWI final rules, parties may file new judicial petitions for review which can then be 
Page 60 of 100

consolidated with those judicial petitions previously filed with the court and that cases filed on 

the original and amended rules can then proceed 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 inappropriate given the particular circumstances 

of the pending CISWI and NHSM rules. PCA recognize that D.C. Circuit decisions 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 portions 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 judicial review had expired. Those circumstances do 

not exist here. 

For a number of reasons, the current CISWI and NHSM situations are entirely different from the 

factual circumstances previously addressed in those court decisions. First, neither rule has yet 

been implemented, or undergone the judicial review which has been requested but held in 

abeyance pending the outcome of EPA's reconsideration of the final rules. 

Second, EPA is now proposing a number of major changes to the previously finalized rules. For 

example, EPA is now proposing a number of highly significant revisions to the NHSM final rule 

which could dramatically change the universe of "solid waste" for NHSM 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 EPA 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 petition 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 proposing to make to the NHSM and CISWI rules are 

closely related to, and may significantly affect, provisions of the rule for which EPA is not 

proposing changes. For EPA to seek to slice pieces of complex rules so thinly by making some 

provisions out-of-bounds of the current consideration is arbitrary as well as impractical. 

We believe that in this situation it is therefore entirely appropriate for parties to raise issues and 

re-submit comments previously presented, either in their initial comments responding to the 

proposed rules and/or re-raised in administrative petitions, which 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 record for judicial review, 

we are incorporating our previous comments to EPA by reference into these comments. 

2. EPA is obligated to consider substantively and 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 explanation 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 this standard. Other than asserting EPA's general 

admonition to the public against comments on other issues, the NPRM has offered no reasoned 

explanation for why there is a compelling need for 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 related 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, describing 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 standards 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 dispensable 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 discretion to impose restrictions on an entity's freedom to 

conduct its business, the agency must exercise 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 arbitrary and capricious for EPA to maintain its 

currently-stated position. Limiting the issues for 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 and legal circumstances that may, in fact, bear 

directly upon the propriety of whether and how certain materials 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 substantive issues for EPA to address, to which 

EPA has either not yet responded, or in responding raised new issues to which a response from 

PCA in these comments has become necessary 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 petition, 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 renewing 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[ting] the cart before the horse." Slip op. at 16. 

PCA also contends that EPA's refusal to consider issues beyond those specifically identified in 

the reconsideration notice contravenes Executive Order (EO) 13563 and EPA's stated 

commitment "to apply the principles and directives of EO 13563 to both retrospective reviews of 

existing regulations and the development of new regulations," Improving Our Regulations: Final 

Plan/or Periodic Retrospective Reviews of Existing Regulations (August 2011) at 5 (emphasis 

supplied). In that regard, EPA's arbitrary limitation 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 developing and retrospectively reviewing rulemakings just like the instant 

proceeding15: 

 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 scientific and technical findings. 

 Before issuing a notice of proposed rulemaking, 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 are potentially subject to such rulemaking. 

 Seek to identify, as appropriate, means to achieve 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 retrospective 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 reconsideration of a final rule 

is either an extension of the development of a new regulation or substantively no different than 

engaging in retrospective review of an existing regulation. It would therefore be unreasonable 

were EPA to attempt to assert that the present reconsideration is neither and thus EO 13563 does 

not apply. 

Response: As EPA has stated repeatedly in this 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 review, as established in Executive Order 12866. 

The NHSM part of the rule itself does not include any emission standards 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 would society realize any costs, benefits, 

environmental justice, or other impacts. As such, the NHSM impacts assessment deferral to the 

CISWI and boiler rule supporting assessments meets EO 13563 assessment 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. The March 2011 rule remains under litigation, as it is 

only held in abeyance at this time, as the comment 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 referred to in the comment is not part of this 

rulemaking. 

Commenter Name: Susan Parker Bodine 

Commenter Affiliation: Federal Recycling and Remediation Coalition (FRRC) 

Document ID: EPA-HQ-RCRA-2008-0329-1972-A2 

Comment Excerpt Number: 36 

Comment: On January 18, 2011, President Obama issued Executive Order 13563, on 

Improving Regulation and Regulatory Review. See http://www.whitehouse.gov/thepressoffice/2011/01/18/improving-regulation-and-regulatory-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 agrees 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 the Executive Order), that agencies must avoid 

duplicative regulation (Sec. 3), that cumulative effects of regulations must be considered, (Sec. 
Page 64 of 100

3), that agencies should adopt regulatory approaches that reduce burdens and maintain flexibility, 

support performance-based regulatory approaches, and freedom of choice for 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 costs associated with the NHSM rule, refusing to 

conduct a regulatory impact analysis for this rule. EPA has failed to avoid 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 wastes 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 standards 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 would society realize any costs, benefits, environmental justice, or 

other impacts. As such, the NHSM impacts assessment deferral to the CISWI and boiler rule 

supporting assessments meets EO 13563 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, distribution or usage. EPA 

asserts that its proposed rule is “not likely to have a significant adverse effect on the supply, 

distribution or use of energy.” 75 Fed. Reg. 31891. NORA strongly disagrees with this 

conclusion. As NORA has pointed out in its comments, 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 quantity 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 burned (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 sources of fuel including virgin 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 calculation of this fuel 
Page 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 disposing of the vast quantity of solid waste-derived fuels into 

landfills. Nor has the Agency examined the probability that large quantities of off-spec used oil 

fuel will be exported to China. 

Consequently it is clear that the proposed rule (as well as the Alternative 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 rulemaking does not represent a “significant energy 

action” as defined in Executive Order 13211 because it will not have a significant adverse effect 

on the supply, distribution, or use of energy. This action, independent of the Clean Air Act 

(CAA) rules is not expected to directly 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 materials 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 environmentally impactful fuel from the market, 

EPA’s proposal will have the unintended consequence of causing a large increase in the quantity 

of treated wood products going to land fill. Approximately 25 million ties (100 million cubic feet 

of wood) are replaced each year (after a completion of 20 to 50 years service in track). The 

volume of wood from utility poles is also significant. By diverting these products away from 

combustion facilities due to their new status as “solid waste,” EPA will incentivize industry to 

avoid legitimate and environmentally appropriate secondary uses of treated wood products and 

dispose of the wood through other means – specifically land disposal. Such practices will put a 

strain on existing landfill resources and raise costs to the railway and utility sectors. Any increase 

in costs will only be passed on, resulting in higher costs for rail transportation 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 any costs, benefits or other impacts to the 

regulated community (aside from negligible administrative costs e.g., reading the RCRA part of 

the proposal). The NHSM part of this rule itself does not include any emission standards and 

does not require changes in the management or use of secondary materials. Only in conjunction 

with the promulgation of the final CISWI and major source boiler rules would society realize any 

costs, benefits, environmental justice, or other impacts. In addition, refer to the document in the 

docket for today's rule titled: "REGULATORY SUPPORT: Assessment of Potential Costs, 

Benefits, Environmental Justice, and Other Impacts; 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 financial impacts to our competitiveness, but 

could also cause these valuable fuels to be landfilled. Landfilling of these materials would, in 

most cases, require that additional disposal costs be incurred and 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 these 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 potential 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 railroad industry. If the industry does not have a 

viable way of obtaining a non-waste determination and 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 industry 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: 2 
Page 67 of 100

Comment: Together, the NHSM rule presumption and CISWI MACT limits will force 

operators to stop combusting processed C&D and creosote wood, even as state programs such as 

California’s AB2588 law health risk assessment 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 recovery1 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 operating margins and inability to pass through costs of 

facility changes under existing power 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, federal and state air pollution control programs, 

renewable energy policies, solid waste landfill 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 CISWI MACT which will correct these detrimental 

effects. 

[Footnote] (1) In its Materials Characterization Paper “Identification of Nonhazardous Secondary 

Materials That Are Solid Waste, Construction and Demolition Building-Related C&D 

Materials,” February 3, 2011, EPA 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 Environmental 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 have been granted beneficial use determinations 

by the Maine DEP's Solid Waste Program. The majority of those boilers are oil-fired units that 

also combust waste oil generated on-site. Other commonly combusted secondary materials 

include tire derived fuel (subject to a range of processing), waste 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 generated 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. However, 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 negatively impact beneficial use of secondary 
Page 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 primary 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 Industrial Boiler Owners (CIBO) 

Document ID: EPA-HQ-RCRA-2008-0329-1948-A1 

Comment Excerpt Number: 2 

Comment: Under basic principles of due process and administrative law, EPA has an obligation 

to provide the public with a reasonable opportunity to comment on proposed rules. Specifically, 

Congress requires EPA to give the public “a reasonable 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 provide adequate feedback to the Agency. Thus, a 

comment period meeting the statutory 30-day minimum would be reasonable for a single, 

ordinary proposed rule. Here, EPA has violated the clear terms of the CAA and deprived sources 

of a means to adequately protect their interests and rights in the administrative 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 particularly inadequate given their complexity, breadth of 

applicability, and economic impact. EPA has added data on reconsideration for 300 additional 

sources that must be reviewed and sources face the pressures of sorting complex data and 

developing thorough comments that address very technical issues. Although EPA released the 

signed rule proposals almost one month10 prior to their publication in the Federal Register, it did 

not provide the majority of the supporting documentation for the proposed rules until publication 

on December 23, 2011, just two days before the holidays, effectively shortening the comment 

period. 

The four proposed rules under reconsideration make for an enormously broad and costly 

proposal, which would have a significant economic impact across numerous and diverse sectors 

of the US economy, with the boiler MACT rule alone imposing capital costs of more than $5 

billion and affecting over 200,000 sources, according 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 associations, 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 days 
Page 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 circumstances to develop thoughtful comments on their 

concerns and the specific requests for comment EPA made in the four rules, 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 version of the rules on its website 

on December 2, 2011. (11) How Costs Were Determined for CIBO Boiler MACT Study, January 

2012, Appendix D. (12) See January 18, 2012 Letter of 27 Organizations to EPA, Appendix E. 

Response: Please refer to the letter responding to the request for the extension of comment 

period signed by the OSWER Assistant Administrator, 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 Council believes that the comment period was 

inadequate given the complexity, breadth of applicability, 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 requesting 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 EPA-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 material fuels may be processed from municipal 

solid waste. 
Page 70 of 100

The NHSM Rule is clear on its face that secondary 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 materials 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, EPA 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 providing a rigorous framework 

under which solid wastes may be sufficiently processed, managed as valuable commodities, and 

have comparable contaminant levels to those of traditional fuels, to be considered legitimate nonwaste fuels. EPA has not applied the framework differently to various components of the solid 

waste stream. The Agency has established a framework in which the Agency maintains strict 

control and oversight over the use of secondary materials as fuels so that it may prevent sham 

recycling or combustion for the sake of disposal. 

As companies continue to work to recover value 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 likely 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 public and private sectors, EPA should clarify that 

municipal solid waste, like any other solid waste 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 specifically 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-derived fuel” from the 

exclusion in 129(g)(1)(B) was somehow defining the term as being included in the term, “solid 

waste,” under RCRA. Again, if that were the case, section 129(g)(6) would be superfluous. 

Nevertheless, today’s rule identifying which non-hazardous secondary materials that are solid 

wastes when combusted does not include fuel derived from municipal waste refuse 

[EMPHASIS ADDED] under 129(g)(5). Some fuels may be processed from solid waste, but that 

determination by the Agency stands or falls based on the RCRA statute and case law, not the 

CAA. EPA is not defining “refuse derived fuel” in this RCRA rule. The validity of EPA’s 

interpretation on whether commodity fuels may be processed, or extracted, from a waste must 

stand or fall based on the RCRA definition, not provisions of the CAA. 
Page 71 of 100

 Id. EPA’s statements here reflect its belief that 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 standards under Section 129, the NHSM Rule does not 

attempt to determine the scope of RFD for those purposes. Further, EPA clearly states that fuels 

may be processed from solid waste, and the legitimacy of those fuels will determined based on 

the NHSM Rule, not the language of CAA Section 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 municipal 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 After June 6, 2001. RDF is specifically defined 

under such standards as follows: Refuse-derived fuel means a type of municipal solid waste 

produced by processing municipal solid waste through shredding and size classification. That 

includes all classes of refuse-derived fuel including two fuels: (1) Low density fluff refusederived fuel through densified refuse-derived fuel. (2) Pelletized 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 need to clarify matters. EPA agrees with the general point made 

by the comment that municipal waste may be processed into a product fuel under the NHSM rule 

framework and that a material determined to be a legitimate product fuel under the NHSM Rule 

“cannot be considered RDF.” 

Under section 129, a “solid waste incineration unit” is defined as “a distinct operating unit of any 

facility” which combusts “any solid waste.” The 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 129(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 Administrator under RCRA in the NHSM rule. Since EPA 

issued regulations under section 129 for municipal waste combustors prior 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 preamble to the March 2011 final rule. The specific 

language in question -- today’s rule . . . does not include fuel derived from municipal waste 

refuse -- was only meant to reply to a comment that argued that the inclusion of “refuse-derived 

fuel” in 129(g)(1)(B) shows that Congress intended that the universe of “fuel” consisted of 

“waste” and “fossil fuel.” Therefore, according to the comment, any secondary material, 

regardless of whether it is legitimately burned for energy recovery, is a waste. This is a 
Page 72 of 100

formulation that EPA has rejected, since there would be no point 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 from 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 municipal 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 repeated in this document. 

For example, this includes the following type of comments: 

- Comments that were specifically 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 disapproval of the proposed rule, but that do 

not provide specific reasoning (if reasoning is provided, the Agency responds to those reasons, as 

appropriate, in the entire rulemaking record). 

- Summation of the proposed rule aspects or other items that are not substantive points or legal 

arguments (but these were considered within context of the entire comment related to the proposal). 

- Responses that were addressed in the preamble and, in rare cases, the comment had components that 

were not reopened or were otherwise out of scope. 

Note that the roman numerals in brackets after the topic titles indicate the 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 Finalized 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 Environmental 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 cellulosic 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 Services, 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 Association 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 Chemistry Council (ACC) Patricia A. Haederle 

EPA-HQ-RCRA-2008-0329-1932-A1 20 American Chemistry 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 Forest Owners (NAFO) Christian Paul Huebner 

EPA-HQ-RCRA-2008-0329-1953-A2 4 Association of State and Territorial Solid Waste 

Management Officials (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 Administration Office of Advocacy 

(SBA) 

Winslow Sargeant 

3A02 – Definition of clean cellulosic biomass: Clean construction and demolition wood [Section III.D.1] 

EPA-HQ-RCRA-2008-0329-1910-A1 2 United Steelworkers (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 Administration Office of Advocacy 

(SBA) 

Winslow Sargeant 
Page 75 of 100

Table 1. Comments Finalized 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 Corporation (AMEREN) Paul R. Pike 

EPA-HQ-RCRA-2008-0329-1932-A1 21 American Chemistry Council (ACC) Patricia A. Haederle 

EPA-HQ-RCRA-2008-0329-1953-A2 5 Association of State and Territorial Solid Waste 

Management Officials (ASTSWMO) 

Charles G. Johnson 

EPA-HQ-RCRA-2008-0329-1962-A1 7 Cement Kiln Recycling Coalition (CKRC) Michel R. Benoit 

EPA-HQ-RCRA-2008-0329-1972-A2 7 Federal Recycling and Remediation Coalition (FRRC) Susan Parker Bodine 

3B02 - Contaminants: Elemental contaminants 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 Chemistry 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. Associates, 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 America Inc. (Lafarge) Michael L. Pelan 

3Z - Other [III.C-D] 
Page 76 of 100

Table 1. Comments Finalized in the Preamble 

Document ID Number Excerpt 

Number Commenter Affiliation Commenter Name 

EPA-HQ-RCRA-2008-0329-1972-A2 34 Federal Recycling and Remediation 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 Steelworkers (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 Recycling 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 Corporation (AMEREN) Paul R. Pike 

EPA-HQ-RCRA-2008-0329-1917-A1 2 ReCommunity, 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 Chemistry Council (ACC) Patricia A. Haederle 

EPA-HQ-RCRA-2008-0329-1932-A1 8 American Chemistry 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 Forest 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 Power Company (We Energies) Bruce W. Ramme 

EPA-HQ-RCRA-2008-0329-1905-A1 9 Michigan Biomass Gary Melow 
Page 77 of 100

Table 1. Comments Finalized 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 ReCommunity, Inc. Claudia M. O'Brien 

EPA-HQ-RCRA-2008-0329-1929-A1 2 Wisconsin Department of Natural Resources (WDNR) Bart Sponseller 

EPA-HQ-RCRA-2008-0329-1932-A1 9 American Chemistry 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 Forest Owners (NAFO) Christian Paul Huebner 

EPA-HQ-RCRA-2008-0329-1958-A2 3 NORA, An Association of Responsible Recyclers, Inc. 

(NORA) 

Christopher Harris 

EPA-HQ-RCRA-2008-0329-1958-A2 4 NORA, An Association of Responsible Recyclers, Inc. 

(NORA) 

Christopher Harris 

EPA-HQ-RCRA-2008-0329-1972-A2 41 Federal Recycling and Remediation Coalition (FRRC) Susan Parker Bodine 

EPA-HQ-RCRA-2008-0329-1974-A2 11 Partnership for Policy Integrity (PFPI) Mary S. Booth 

4A04 - Allowable contaminant comparisons [Section III.D.2(d)] 

EPA-HQ-RCRA-2008-0329-1886-A1 2 Wisconsin Electric Power Company (We Energies) Bruce W. Ramme 

EPA-HQ-RCRA-2008-0329-1917-A1 3 ReCommunity, Inc. Claudia M. O'Brien 

EPA-HQ-RCRA-2008-0329-1917-A1 10 ReCommunity, 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 Noe 
Page 78 of 100

Table 1. Comments Finalized 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 Responsible Recyclers, Inc. 

(NORA) 

Christopher Harris 

EPA-HQ-RCRA-2008-0329-1963-A2 29 U.S. Small Business Administration Office of Advocacy 

(SBA) 

Winslow Sargeant 

EPA-HQ-RCRA-2008-0329-1972-A2 38 Federal Recycling and Remediation 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 Forest Owners (NAFO) Christian Paul Huebner 

EPA-HQ-RCRA-2008-0329-1953-A2 6 Association of State and Territorial Solid Waste 

Management Officials (ASTSWMO) 

Charles G. Johnson 

EPA-HQ-RCRA-2008-0329-1968-A2 11 Lafarge North America Inc. (Lafarge) Michael L. Pelan 

EPA-HQ-RCRA-2008-0329-1968-A2 14 Lafarge North America Inc. (Lafarge) Michael L. Pelan 

EPA-HQ-RCRA-2008-0329-1968-A2 17 Lafarge North America Inc. (Lafarge) Michael L. Pelan 

4B02 - Categorical non-waste determination for scrap tires 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 Chemistry 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 Manufacturers Association (RMA) Sarah E. Amick 

EPA-HQ-RCRA-2008-0329-1959-A2 12 Earthjustice Neil Gormley 
Page 79 of 100

Table 1. Comments Finalized in the Preamble 

Document ID Number Excerpt 

Number Commenter Affiliation Commenter Name 

EPA-HQ-RCRA-2008-0329-1960-A2 4 Institute of Scrap Recycling Industries, Inc. (ISRI) David L. Wagger 

EPA-HQ-RCRA-2008-0329-1962-A1 6 Cement Kiln Recycling Coalition (CKRC) Michel R. Benoit 

EPA-HQ-RCRA-2008-0329-1968-A2 18 Lafarge North America 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 Services, 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 Chemistry 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 Forest 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 Remediation Coalition (FRRC) Susan Parker Bodine 

4C01 - General comments on approval or disapproval of the categorical non-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 Steelworkers (USW) Holly R. Hart 

EPA-HQ-RCRA-2008-0329-1911-A1 7 Ameren Corporation (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 Forest 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 Management (WM) Kerry Kelly 

EPA-HQ-RCRA-2008-0329-1963-A2 27 U.S. Small Business Administration Office of Advocacy 

(SBA) 

Winslow Sargeant 

EPA-HQ-RCRA-2008-0329-1963-A2 35 U.S. Small Business Administration Office of Advocacy 

(SBA) 

Winslow Sargeant 

EPA-HQ-RCRA-2008-0329-1972-A2 12 Federal Recycling and Remediation Coalition (FRRC) Susan Parker Bodine 
Page 80 of 100

Table 1. Comments Finalized in the Preamble 

Document ID Number Excerpt 

Number Commenter Affiliation Commenter Name 

EPA-HQ-RCRA-2008-0329-1972-A2 25 Federal Recycling and Remediation 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 Cement 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 America Inc. (Lafarge) Michael L. Pelan 

EPA-HQ-RCRA-2008-0329-1972-A2 26 Federal Recycling and Remediation Coalition (FRRC) Susan Parker Bodine 

4C03 - Categorical non-waste petition criteria [Section III.D.4] 

EPA-HQ-RCRA-2008-0329-1909-A1 7 Dominion Resources Services, Inc. (Dominion) Pamela F. Faggert 

EPA-HQ-RCRA-2008-0329-1911-A1 8 Ameren Corporation (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 Resources (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 non-waste petition should have [Section III.D.4] 

EPA-HQ-RCRA-2008-0329-1917-A1 4 ReCommunity, Inc. Claudia M. O'Brien 

4C05 - “balancing” the legitimacy criteria [Section III.D] 

EPA-HQ-RCRA-2008-0329-1886-A1 3 Wisconsin Electric Power 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 Forest Owners (NAFO) Christian Paul Huebner 

EPA-HQ-RCRA-2008-0329-1957-A2 17 Waste Management (WM) Kerry Kelly 

EPA-HQ-RCRA-2008-0329-1972-A2 13 Federal Recycling and Remediation 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. Williams 
Page 81 of 100

Table 1. Comments Finalized 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 Steelworkers (USW) Holly R. Hart 

EPA-HQ-RCRA-2008-0329-1912-A2 2 Northampton Generating 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 Forest 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 Administration Office of Advocacy 

(SBA) 

Winslow Sargeant 

EPA-HQ-RCRA-2008-0329-1963-A2 34 U.S. Small Business Administration Office of Advocacy 

(SBA) 

Winslow Sargeant 

EPA-HQ-RCRA-2008-0329-1971-A2 1 Maine Department of Environmental Protection (Maine 

DEP) 

Heather Parent 

EPA-HQ-RCRA-2008-0329-1977 1 American Forest & Paper 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 Services, 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 Administration 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 Administration Office of Advocacy 

(SBA) 

Winslow Sargeant 

5D01 – Proposed revision of introductory text for §241.3 [Section III.D.7] 

EPA-HQ-RCRA-2008-0329-1897-A2 4 Treated Wood Council (TWC) Jeffrey T. Miller 
Page 82 of 100

Table 1. Comments Finalized 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 Corporation (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 Recycling Coalition (CKRC) Michel R. Benoit 

EPA-HQ-RCRA-2008-0329-1968-A2 12 Lafarge North America 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 Administration Office of Advocacy 

(SBA) 

Winslow Sargeant 

5D03 - Suggestions for streamlining the existing petition process at §241.3(c) (e.g., by not seeking public comment on each individual 

petition) [Section III.D.6] 

EPA-HQ-RCRA-2008-0329-1895-A1 3 Ash Grove Cement 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 Chemistry 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 Forest Owners (NAFO) Christian Paul Huebner 

EPA-HQ-RCRA-2008-0329-1953-A2 3 Association of State and Territorial Solid Waste 

Management Officials (ASTSWMO) 

Charles G. Johnson 

EPA-HQ-RCRA-2008-0329-1962-A1 11 Cement Kiln Recycling Coalition (CKRC) Michel R. Benoit 

EPA-HQ-RCRA-2008-0329-1968-A2 21 Lafarge North America 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 Chemistry Council (ACC) Patricia A. Haederle 

EPA-HQ-RCRA-2008-0329-1954-A2 9 Archer Daniels Midland Company (ADM) Mark Calmes 
Page 83 of 100

IV. Index of Comments on Topics that Are Dealt With in the Rulemaking 

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 

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 not 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 individual 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, including the 2011 response to 

comments document even though the commenter mentioned proposed rule aspects (the findings in the 

2011 final rule still apply). For example, comments on the categorical non-waste provision for tires, but 

the point of the comment was on the rationale for determining 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 Forest 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 Forest 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 Management (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 Resources (WDNR) Bart Sponseller 

EPA-HQ-RCRA-2008-0329-1950-A2 9 National Alliance of Forest 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 Steelworkers (USW) Holly R. Hart 
Page 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) Jeffrey T. Miller 

EPA-HQ-RCRA-2008-0329-1897-A2 3 Treated Wood Council (TWC) Jeffrey 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 Electric 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 Administration Office of Advocacy 

(SBA) 

Winslow Sargeant 

3C – Established Tire Collection Program; 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 for Environmental Protection George F. Gilbert 

EPA-HQ-RCRA-2008-0329-1943-A3 5 Texas Commission on Environmental Quality (TCEQ) Mark R. Vickery 

EPA-HQ-RCRA-2008-0329-1943-A3 6 Texas Commission on Environmental Quality (TCEQ) Mark R. Vickery 

EPA-HQ-RCRA-2008-0329-1962-A1 3 Cement Kiln Recycling 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 Remediation Coalition (FRRC) Susan Parker Bodine 

4A - Contaminants; legitimacy criterion 

EPA-HQ-RCRA-2008-0329-1932-A1 1 American Chemistry Council (ACC) Patricia A. Haederle 
Page 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 Chemistry Council (ACC) Patricia A. Haederle 

EPA-HQ-RCRA-2008-0329-1950-A2 13 National Alliance of Forest 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 America Inc. (Lafarge) Michael L. Pelan 

EPA-HQ-RCRA-2008-0329-1968-A2 22 Lafarge North America Inc. (Lafarge) Michael L. Pelan 

EPA-HQ-RCRA-2008-0329-1962-A1 16 Cement Kiln Recycling Coalition (CKRC) Michel R. Benoit 

EPA-HQ-RCRA-2008-0329-1962-A1 17 Cement Kiln Recycling 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 Administration Office of Advocacy 

(SBA) 

Winslow Sargeant 

EPA-HQ-RCRA-2008-0329-1972-A2 37 Federal Recycling and Remediation Coalition (FRRC) Susan Parker Bodine 

EPA-HQ-RCRA-2008-0329-1972-A2 10 Federal Recycling and Remediation Coalition (FRRC) Susan Parker Bodine 

EPA-HQ-RCRA-2008-0329-1958-A2 5 NORA, An Association of Responsible Recyclers, Inc. 

(NORA) 

Christopher Harris 

EPA-HQ-RCRA-2008-0329-1958-A2 6 NORA, An Association of Responsible Recyclers, Inc. 

(NORA) 

Christopher Harris 

EPA-HQ-RCRA-2008-0329-1958-A2 8 NORA, An Association of Responsible Recyclers, Inc. 

(NORA) 

Christopher Harris 

EPA-HQ-RCRA-2008-0329-1958-A2 9 NORA, An Association of Responsible Recyclers, Inc. 

(NORA) 

Christopher Harris 

EPA-HQ-RCRA-2008-0329-1958-A2 10 NORA, An Association of Responsible Recyclers, Inc. 

(NORA) 

Christopher Harris 

EPA-HQ-RCRA-2008-0329-1958-A2 12 NORA, An Association of Responsible Recyclers, Inc. 

(NORA) 

Christopher Harris 

EPA-HQ-RCRA-2008-0329-1958-A2 15 NORA, An Association of Responsible Recyclers, Inc. 

(NORA) 

Christopher Harris 

EPA-HQ-RCRA-2008-0329-1971-A2 2 Maine Department of Environmental 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 Change Association (AOCA) Patricia Wirth 
Page 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 Remediation Coalition (FRRC) Susan Parker Bodine 

EPA-HQ-RCRA-2008-0329-1962-A1 12 Cement Kiln Recycling 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 ReCommunity, 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 Remediation 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 Officials (ASTSWMO) 

Charles G. Johnson 

EPA-HQ-RCRA-2008-0329-1960-A2 1 Institute of Scrap Recycling Industries, Inc. (ISRI) David L. Wagger 

EPA-HQ-RCRA-2008-0329-1960-A2 3 Institute of Scrap Recycling Industries, Inc. (ISRI) David L. Wagger 

EPA-HQ-RCRA-2008-0329-1960-A2 6 Institute of Scrap Recycling 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 Environmental Quality (TCEQ) Mark R. Vickery 

EPA-HQ-RCRA-2008-0329-1943-A3 4 Texas Commission on Environmental Quality (TCEQ) Mark R. Vickery 

EPA-HQ-RCRA-2008-0329-1943-A3 7 Texas Commission on Environmental Quality (TCEQ) Mark R. Vickery 

EPA-HQ-RCRA-2008-0329-1885-A1 1 M. A. Associates, Inc. Michael A. Sorcher 

EPA-HQ-RCRA-2008-0329-1968-A2 19 Lafarge North America Inc. (Lafarge) Michael L. Pelan 

EPA-HQ-RCRA-2008-0329-1962-A1 2 Cement Kiln Recycling Coalition (CKRC) Michel R. Benoit 

EPA-HQ-RCRA-2008-0329-1962-A1 4 Cement Kiln Recycling Coalition (CKRC) Michel R. Benoit 

EPA-HQ-RCRA-2008-0329-1962-A1 14 Cement Kiln Recycling Coalition (CKRC) Michel R. Benoit 
Page 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 Recycling Coalition (CKRC) Michel R. Benoit 

EPA-HQ-RCRA-2008-0329-1962-A1 19 Cement Kiln Recycling 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 Remediation Coalition (FRRC) Susan Parker Bodine 

EPA-HQ-RCRA-2008-0329-1963-A2 30 U.S. Small Business Administration 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 Cement 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 Corporation of America (PCA) Bruce A. Ridley 

EPA-HQ-RCRA-2008-0329-1950-A2 8 National Alliance of Forest Owners (NAFO) Christian Paul Huebner 

EPA-HQ-RCRA-2008-0329-1910-A1 7 United Steelworkers (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 Environmental Systems, Inc. Wendy Broley 
Page 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 new 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 Remediation Coalition (FRRC) Susan Parker Bodine 

EPA-HQ-RCRA-2008-0329-1972-A2 18 Federal Recycling and Remediation Coalition (FRRC) Susan Parker Bodine 

5C05 - Suggested material category – Coal combustion residuals for new categorical non-waste: not opened in the proposed rule 

EPA-HQ-RCRA-2008-0329-1929-A1 3 Wisconsin Department of Natural Resources (WDNR) Bart Sponseller 

EPA-HQ-RCRA-2008-0329-1886-A1 9 Wisconsin Electric Power Company (We Energies) Bruce W. Ramme 

EPA-HQ-RCRA-2008-0329-1886-A1 10 Wisconsin Electric Power 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 ReCommunity, Inc. Claudia M. O'Brien 

EPA-HQ-RCRA-2008-0329-1917-A1 8 ReCommunity, Inc. Claudia M. O'Brien 

EPA-HQ-RCRA-2008-0329-1917-A1 9 ReCommunity, Inc. Claudia M. O'Brien 

EPA-HQ-RCRA-2008-0329-1895-A1 2 Ash Grove Cement Company Curtis D. Lesslie 

EPA-HQ-RCRA-2008-0329-1892-A1 3 National Renderers Association (NRA) David L. Meeker 

EPA-HQ-RCRA-2008-0329-1892-A1 4 National Renderers Association (NRA) David L. Meeker 

EPA-HQ-RCRA-2008-0329-1892-A1 5 National Renderers Association (NRA) David L. Meeker 

EPA-HQ-RCRA-2008-0329-1892-A1 6 National Renderers 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 Services, Inc. (Dominion) Pamela F. Faggert 

EPA-HQ-RCRA-2008-0329-1909-A1 5 Dominion Resources Services, 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 and Remediation Coalition (FRRC) Susan Bodine 

EPA-HQ-RCRA-2008-0329-1963-A2 36 U.S. Small Business Administration 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 Pipeline 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 America Inc. (Lafarge) Craig Campbell 

EPA-HQ-RCRA-2008-0329-1957-A2 3 Waste Management (WM) Kerry Kelly 

EPA-HQ-RCRA-2008-0329-1957-A2 5 Waste Management (WM) Kerry Kelly 

EPA-HQ-RCRA-2008-0329-1957-A2 8 Waste Management (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 Services, 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 Remediation 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 Services, Inc. (Dominion) Pamela F. Faggert 

6D - Landfill gas

EPA-HQ-RCRA-2008-0329-1936-A2 3 Delaware Solid Waste Authority (DSWA) Angela D. Marconi 

EPA-HQ-RCRA-2008-0329-1953-A2 7 Association of State and Territorial Solid Waste 

Management Officials (ASTSWMO) 

Charles G. Johnson 

EPA-HQ-RCRA-2008-0329-1964-A1 1 Lafarge North America Inc. (Lafarge) Craig Campbell 

EPA-HQ-RCRA-2008-0329-1964-A1 4 Lafarge North America 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 Management (WM) Kerry Kelly 

EPA-HQ-RCRA-2008-0329-1957-A2 4 Waste Management (WM) Kerry Kelly 

EPA-HQ-RCRA-2008-0329-1957-A2 6 Waste Management (WM) Kerry Kelly 

EPA-HQ-RCRA-2008-0329-1891-A1 2 Richardson Smith Gardner and Associates Matt Lamb 

EPA-HQ-RCRA-2008-0329-1911-A1 3 Ameren Corporation (AMEREN) Paul R. Pike 

EPA-HQ-RCRA-2008-0329-1933-A1 11 Auto Industry Forum Shannon S. Broome 
Page 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 Chemistry Council (ACC) Patricia A. Haederle 

EPA-HQ-RCRA-2008-0329-1938-A2 4 Cemex USA Satish Sheth 

7D – Comments on costs and impacts covered under the 2011 NHSM final rulemaking record 

EPA-HQ-RCRA-2008-0329-1909-A1 1 Dominion Resources Services, 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 Management (WM) Kerry Kelly 

EPA-HQ-RCRA-2008-0329-1958-A2 1 NORA, An Association of Responsible Recyclers, Inc. 

(NORA) 

Christopher Harris 

EPA-HQ-RCRA-2008-0329-1958-A2 11 NORA, An Association of Responsible Recyclers, Inc. 

(NORA) 

Christopher Harris 

EPA-HQ-RCRA-2008-0329-1958-A2 13 NORA, An Association of Responsible Recyclers, Inc. 

(NORA) 

Christopher Harris 

EPA-HQ-RCRA-2008-0329-1962-A1 15 Cement Kiln Recycling Coalition (CKRC) Michel R. Benoit 

EPA-HQ-RCRA-2008-0329-1969-A1 1 Automotive Oil Change 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 Cement 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 Recycling Coalition (CKRC) Michel R. Benoit 

EPA-HQ-RCRA-2008-0329-1932-A1 5 American Chemistry Council (ACC) Patricia A. Haederle 

EPA-HQ-RCRA-2008-0329-1932-A1 11 American Chemistry Council (ACC) Patricia A. Haederle 
Page 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 Remediation Coalition (FRRC) Susan Parker Bodine 

EPA-HQ-RCRA-2008-0329-1972-A2 3 Federal Recycling and Remediation Coalition (FRRC) Susan Parker Bodine 

EPA-HQ-RCRA-2008-0329-1972-A2 11 Federal Recycling and Remediation Coalition (FRRC) Susan Parker Bodine 

8C - Comments on timing of NHSM clarifications and CISWI/boiler rules 

Note: these comments may have also bean addressed in the Clean Air Act rulemakings.

EPA-HQ-RCRA-2008-0329-1968-A2 2 Lafarge North America Inc. (Lafarge) Michael L. Pelan 

EPA-HQ-RCRA-2008-0329-1932-A1 13 American Chemistry 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 Forest Owners (NAFO) Christian Paul Huebner 

EPA-HQ-RCRA-2008-0329-1958-A2 7 NORA, An Association of Responsible Recyclers, Inc. 

(NORA) 

Christopher Harris 

EPA-HQ-RCRA-2008-0329-1895-A1 5 Ash Grove Cement Company Curtis D. Lesslie 

EPA-HQ-RCRA-2008-0329-1895-A1 7 Ash Grove Cement Company Curtis D. Lesslie 

EPA-HQ-RCRA-2008-0329-1897-A2 1 Treated Wood Council (TWC) Jeffrey 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 America Inc. (Lafarge) Michael L. Pelan 

EPA-HQ-RCRA-2008-0329-1968-A2 13 Lafarge North America Inc. (Lafarge) Michael L. Pelan 

EPA-HQ-RCRA-2008-0329-1968-A2 15 Lafarge North America Inc. (Lafarge) Michael L. Pelan 

EPA-HQ-RCRA-2008-0329-1962-A1 1 Cement Kiln Recycling 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 Noe 
Page 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 Corporation (AMEREN) Paul R. Pike 

EPA-HQ-RCRA-2008-0329-1900-A2 1 Georgia Paper & Forest Products 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 Remediation Coalition (FRRC) Susan Parker Bodine 

EPA-HQ-RCRA-2008-0329-1972-A2 4 Federal Recycling and Remediation Coalition (FRRC) Susan Parker Bodine 

EPA-HQ-RCRA-2008-0329-1972-A2 5 Federal Recycling and Remediation Coalition (FRRC) Susan Parker Bodine 

EPA-HQ-RCRA-2008-0329-1972-A2 22 Federal Recycling and Remediation Coalition (FRRC) Susan Parker Bodine 

EPA-HQ-RCRA-2008-0329-1972-A2 24 Federal Recycling and Remediation Coalition (FRRC) Susan Parker Bodine 

EPA-HQ-RCRA-2008-0329-1963-A2 21 U.S. Small Business Administration 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 Recycling Industries, Inc. (ISRI) David L. Wagger 

EPA-HQ-RCRA-2008-0329-1960-A2 5 Institute of Scrap Recycling Industries, Inc. (ISRI) David L. Wagger 

EPA-HQ-RCRA-2008-0329-1960-A2 7 Institute of Scrap Recycling 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 Remediation Coalition (FRRC) Susan Parker Bodine 

EPA-HQ-RCRA-2008-0329-1963-A2 25 U.S. Small Business Administration Office of Advocacy 

(SBA) 

Winslow Sargeant 
Page 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 Administration Office of Advocacy 

(SBA) 

Winslow Sargeant 

9B - Definitions (new suggestions) 

EPA-HQ-RCRA-2008-0329-1972-A2 16 Federal Recycling and Remediation Coalition (FRRC) Susan Parker Bodine 

EPA-HQ-RCRA-2008-0329-1972-A2 19 Federal Recycling and Remediation Coalition (FRRC) Susan Parker Bodine 
Page 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 discussed issues relating to the Clean Air Act 

Program (Docket: EPA-HQ-OAR-2003-0119. To the extent that the commenter 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 Act 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 Guidelines and other CISWI-related comments) 

EPA-HQ-RCRA-2008-0329-1886-A1 4 Wisconsin Electric Power Company (We Energies) Bruce W. Ramme 

EPA-HQ-RCRA-2008-0329-1886-A1 5 Wisconsin Electric Power Company (We Energies) Bruce W. Ramme 

EPA-HQ-RCRA-2008-0329-1891-A1 1 Richardson Smith Gardner and Associates Matt Lamb 

EPA-HQ-RCRA-2008-0329-1895-A1 1 Ash Grove Cement 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 Steelworkers (USW) Holly R. Hart 

EPA-HQ-RCRA-2008-0329-1911-A1 1 Ameren Corporation (AMEREN) Paul R. Pike 

EPA-HQ-RCRA-2008-0329-1911-A1 2 Ameren Corporation (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 Corporation (Calgon Carbon) Erika H. Frank 

EPA-HQ-RCRA-2008-0329-1916-A2 2 Calgon Carbon Corporation (Calgon Carbon) Erika H. Frank 

EPA-HQ-RCRA-2008-0329-1917-A1 6 ReCommunity, 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 Michaels 
Page 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 Resources (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 Chemistry Council (ACC) Patricia A. Haederle 

EPA-HQ-RCRA-2008-0329-1932-A1 12 American Chemistry 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 Waste Authority (DSWA) Angela D. Marconi 

EPA-HQ-RCRA-2008-0329-1936-A2 4 Delaware Solid Waste 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. Bessette 
Page 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 Management (WM) Kerry Kelly 

EPA-HQ-RCRA-2008-0329-1957-A2 9 Waste Management (WM) Kerry Kelly 

EPA-HQ-RCRA-2008-0329-1957-A2 10 Waste Management (WM) Kerry Kelly 

EPA-HQ-RCRA-2008-0329-1957-A2 11 Waste Management (WM) Kerry Kelly 

EPA-HQ-RCRA-2008-0329-1957-A2 12 Waste Management (WM) Kerry Kelly 

EPA-HQ-RCRA-2008-0329-1957-A2 13 Waste Management (WM) Kerry Kelly 

EPA-HQ-RCRA-2008-0329-1957-A2 14 Waste Management (WM) Kerry Kelly 

EPA-HQ-RCRA-2008-0329-1957-A2 15 Waste Management (WM) Kerry Kelly 

EPA-HQ-RCRA-2008-0329-1957-A2 19 Waste Management (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 America Inc. (Lafarge) Craig Campbell 

EPA-HQ-RCRA-2008-0329-1965-A1 2 Alyeska Pipeline Service Company Carl R. Rutz 

EPA-HQ-RCRA-2008-0329-1965-A1 3 Alyeska Pipeline Service Company Carl R. Rutz 

EPA-HQ-RCRA-2008-0329-1965-A1 4 Alyeska Pipeline Service Company Carl R. Rutz 

EPA-HQ-RCRA-2008-0329-1965-A1 5 Alyeska Pipeline Service Company Carl R. Rutz 

EPA-HQ-RCRA-2008-0329-1965-A1 6 Alyeska Pipeline Service Company Carl R. Rutz 

EPA-HQ-RCRA-2008-0329-1965-A1 8 Alyeska Pipeline Service Company Carl R. Rutz 

EPA-HQ-RCRA-2008-0329-1965-A1 10 Alyeska Pipeline 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 America Inc. (Lafarge) Michael L. Pelan 

EPA-HQ-RCRA-2008-0329-1968-A2 6 Lafarge North America Inc. (Lafarge) Michael L. Pelan 
Page 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 America Inc. (Lafarge) Michael L. Pelan 

EPA-HQ-RCRA-2008-0329-1968-A2 8 Lafarge North America Inc. (Lafarge) Michael L. Pelan 

EPA-HQ-RCRA-2008-0329-1968-A2 9 Lafarge North America Inc. (Lafarge) Michael L. Pelan 

EPA-HQ-RCRA-2008-0329-1971-A2 7 Maine Department of Environmental Protection (Maine DEP) Heather Parent 

EPA-HQ-RCRA-2008-0329-1972-A2 23 Federal Recycling and Remediation Coalition (FRRC) Susan Parker Bodine 

EPA-HQ-RCRA-2008-0329-1972-A2 27 Federal Recycling and Remediation Coalition (FRRC) Susan Parker Bodine 

EPA-HQ-RCRA-2008-0329-1972-A2 28 Federal Recycling and Remediation Coalition (FRRC) Susan Parker Bodine 

EPA-HQ-RCRA-2008-0329-1972-A2 29 Federal Recycling and Remediation Coalition (FRRC) Susan Parker Bodine 

EPA-HQ-RCRA-2008-0329-1972-A2 35 Federal Recycling and Remediation Coalition (FRRC) Susan Parker Bodine 

EPA-HQ-RCRA-2008-0329-1972-A2 42 Federal Recycling and Remediation Coalition (FRRC) Susan Parker Bodine 

EPA-HQ-RCRA-2008-0329-1972-A2 43 Federal Recycling and Remediation 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 America 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 Association 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 Forest Owners (NAFO) Christian Paul Huebner 
Page 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 Pipeline Service Company Carl R. Rutz 

EPA-HQ-RCRA-2008-0329-1965-A1 7 Alyeska Pipeline Service Company Carl R. Rutz 

EPA-HQ-RCRA-2008-0329-1966-A1 1 Packaging Corporation 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 America 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 Forest Owners (NAFO) Christian Paul Huebner