ENVIRONMENTAL PR OTECTION AGENCY [EPA-HQ-RCRA-2008-0329] [RIN 2050-AG44] Advanced Notice of Proposed Rulemaking – Identification of Non-Hazardous Materials That Are Solid Waste AGENCY: Environmental Protection Agency (EPA). ACTION: Advanced Notice of Pro posed Rulemaking (ANPRM). SUMMARY: The U.S. Environmental Protection Agency (EPA or Agency) is seeking comment on which non-hazardous materials are or are not solid waste under the Resource Conservation and Recovery Act, (RCRA), 42 USC 6901. The Agency is also seeking comment on a number of specific questions concerning the meaning of “solid waste” under RCRA, as it applies to non-hazardous wa ste programs. We are issuing this ANPRM to assist the Agency in developi ng certain standards unde r sections 112 and 129 of the Clean Air Act (CAA), 42 USC 7412 and 7429. The meaning of “solid waste” as defined under RCRA is of particular importa nce since CAA section 129 states that the term “solid waste” shall have the meaning “established by the Admi nistrator pursuant to [RCRA].” 42 USC 7429(g)(6). DATES: Comments must be received on or before [Insert date 30 days from the date of publication of this notice in FR ]

. ADDRESSES: Submit your comments, identifie d by Docket ID No. EPA-HQ-RCRA2008-0329, by one of the following methods:

• http://www.regulations.gov : Follow the on-line instructions for submitting

comments.2 • E-mail: Comments may be sent by electronic mail (e-mail) to: rcradocket@epa.gov , Attention Docket ID No.EPA- HQ-RCRA-2008-0329. In contrast to EPA's electronic public docket, EPA's e-mail system is not an ``anonymous access'' system. If you send an e-mail comment di rectly to the docket without going through EPA's electronic public docket, EPA's e-mail system automatically captures your e-mail address. E-mail addresses that are automatically captured by EPA's e-mail system are included as part of the commen t that is placed in the official public docket, and made available in EPA's electronic public docket. • Fax: Comments may be faxed to 2 02-566-9744, Attention Do cket ID No.EPAHQ-RCRA-2008-0329.• Mail: Advanced Notice of Proposed Rulemaking - Identification of NonHazardous Materials That Are Solid Waste, Environmental Protection Agency, Mail code: 2822T, 1200 Pennsylvania Ave., NW . Washington, DC 20460. Please include a total of two copies. Attention Docket ID No. EPA-HQ-RCRA-2008-0329. • Hand Delivery: Deliver two copies of your comments to the Advanced Notice of Proposed Rulemaking - Identification of Non-Hazardous Materials That Are Solid Waste, EPA/DC, EPA West, Room 3334, and 1301 Constitution Ave., N.W., Washington, D.C. 20460. Attention Do cket ID No. EPA-HQ-RCRA-2008-0329. Such deliveries are only accepted dur ing the docket's normal hours of operation (8:30 a.m. to 4:30 p.m., Monday through Friday, excluding le gal holidays), and special arrangements should be made for deliveries of boxed information.
Instructions: Direct your comments to Dock et ID No. EPA-HQ-RCRA-2008-0329. EPA's policy is that all comments received wi ll be included in the public docket without3 change and may be made available online at http://www.regulations.gov , including any personal information provided, unless the comme nt includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit informa tion that you consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov website is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through http://www.regulations.gov , your e-mail address will be automatically captured an d included as part of the comment that is placed in the public docket and made avai lable on the Internet. If you submit an electronic comment, EPA reco mmends that you include your name and other contact information in the body of your comment and wi th any disk or CD-ROM you submit. If EPA cannot read your comment due to tec hnical difficulties and cannot contact you for clarification, EPA may not be able to consider your comm ent. Electronic files should avoid the use of special characters, any form of encryption, and be fr ee of any defects or viruses. For additional information about EPA's public docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm . We also request that interested parties who would like information they previously submitted to EPA to be considered as part of this action, identify the relevant information by docket entry numbers and page numbers. Docket: All documents in the docket are listed in the www.regulations.gov index. Although listed in the index, some informati on is not publicly avai lable, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such4 as copyrighted material, will be publicly ava ilable only in hard copy. Publicly available docket materials are availabl e either electronically in www.regulations.gov or in hard copy at the OSWER Docket, EPA/DC, EP A West, Room 3334, 1301 Constitution Ave., N.W., Washington DC. The Pub lic Reading Room is open from 8:30 a.m. to 4:30 p.m. Monday through Friday, excluding legal holiday s. The telephone number for the Public Reading Room is (202) 566-1744, and the tele phone number for the OSWER Docket is 202-566-0270. FOR FURTHER INFORMATION CONTACT: For questions regarding the development of this ANPRM, contact Michael Galbraith, Office of Solid Waste (5302P), U.S. Environmental Protection Agency, Ariel Rios Building, 1200 Pennsylvania Avenue, N.W., Washington, D.C. 20460-0002, telephone (703) 605-0567, e-mail address: galbraith.michael@epa.gov. SUPPLEMENTARY INFORMATION: I. General Information A. Does this Action Apply to Me? Categories and entities potentially affected by this action include:5 

### Generators Users

Major Generator Category NAICS Major Boiler Type and Primary Industry Category NAICS

Iron and Steel Mills 331111 Industrial Boilers: Food Manufacturing 311, 312, Scrap Tires Pulp and Paper Mills 322, Passenger cars and trucks N/A Chemicals and Allied Products 325, Other rubber product manufacturing 326290 Petroleum Refining 324 Metals 331, 332 Logging 113310 Other Manufacturing 313, 339, 321, 333, 336, 511, 326, 316, 327 Sawmills and Wood Preservation 32111 Veneer, Plywood, and Engineered Wood Product Manufacturing 32121 Commercial Boilers: Pulp, Paper, and Paperboard Mills 3221 Office 813,541,921 Cattle Ranching and Farming 1121 Warehouse 421,422 Hog and Pig Farming 1122 Retail 441, 445-454 Poultry and Egg Production 1123 Education 611 Sheep and Goat Farming 1124 Public Assembly 624, Horses and Other Equine Production 112920 Lodging, Restaurant 721, 722 Crop Production 111 Health Care Facilities 621 Support Activities for Crop Production 11511 Other 922140, others Food Manufacturing 311 Beverage and Tobacco Product Manufacturing 312 Common Non- Manufacturing Boilers: Construction of Buildings 236 Agriculture (crop & livestock production) 111,112,115 Site Preparation Contractors 238910 All Mining 212,211 Landscaping Services 561730 Construction 235 Iron and Steel Mills. 331111 Fossil Fuel Electric Power Generation 221112 Other Boilers: Cement Manufacturing 327310 Electric Utility Boilers 221100 Bituminous Coal and Lignite Surface Mining 212111 Bituminous Coal 212112 Non HW Burning 3273106 Underground Mining Cement Kilns Anthracite Mining 212113 Sewage Treatment Facilities 221320 Solid Waste Landfill 562212 metal-casting industry 3115 Glass and Glass Product Manufacturing 3272 Packaging 32611 Plastic manufacturers 325211 Electrometallurgical Ferroalloy Product Manufacturing 331112 Recycling services for degreasing solvents manufacturing 325998 Solvent dyes manufacturing 325132 Solvents made in petroleum refineries; and 324110 Automotive repair and replacement shops. 811111

This table is not intended to be exhaustiv e, but rather provides a guide for readers regarding entities likely to be impacted by this action. This table lists examples of the types of entities of which EPA is aware that could potentially be affected by this action. Other types of entities not listed could also be affected. To determine whether your facility, company, business, organization, et c., is affected by th is action, you should examine the applicability criter ia in this rule. If you have any questions regarding the applicability of this action to a particular en tity, consult the person li sted in the preceding FOR FURTHER INFORMATION CONTACT section.
B. What Should I Consider as I Prepare My Comments for EPA?
1. Submitting CBI. Do not submit this information to EPA through www.regulations.gov or e-mail. Clearly mark th e part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk7 or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes inform ation claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.
2. Tips for Preparing Your Comments. When submitting comments, remember

to:

• Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number).

• Follow directions - The agency ma y ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.

• Explain why you agree or disagree, s uggest alternatives, and substitute language for your requested changes.

• Describe any assumptions and provide any technical information and/or data that you used.

• If you estimate potential costs or burd ens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

• Provide specific examples to illu strate your concerns, and suggest alternatives.

• Explain your views as clearly as possibl e, avoiding the use of profanity or personal threats.

• Make sure to submit your comments by the comment period deadline8 identified. II. Background The United States Court of Appeals for th e District of Columbia Circuit vacated and remanded two Agency rules promulgated under the CAA — The Commercial and Industrial Solid Waste Incineration definitions rule (“Definitions Rule”), issued under CAA section 129, and the Industrial Boilers Maximum Achievable Control Technology (MACT) standards rule (“Boilers Rule”), issued under CAA section 112. The court concluded that EPA erred by ex cluding units that combust solid waste for the purposes of energy recovery from the Definitions Rule and including such units in the Boilers Rule. In response to the court’s decision, EPA is preparing to establish new standards under CAA sections 112 and 129 for the vari ous units subject to each section. Congress added section 129 to the CAA in 1990 specifically to address emissions from solid waste combustion. CAA section 129 directs EPA to promulgate emission standards for “solid waste inci neration units.” 42 U.S.C. § 7429(a)(1). The term “solid waste incineration unit” is defined, in pert inent part, to mean “any facility which combusts any solid waste material from co mmercial or industrial establishments...” Id . at § 7429(g)(1). However, the CAA exclude s the following types of units from classification as solid wast e incineration units that are subject to the section 129 standards: (1) incinerators or other units required to have a permit under section 3005 of RCRA; (2) materials recovery facilities (incl uding primary and secondary smelters) which combust waste for the primary purpose of recovering metals; (3) qualifying small power production facilities, as defined in section 3(17)(C) of the Federal Power Act, or qualifying cogeneration f acilities, as defined in secti on 3(18)(B) of the Federal Power9 Act, which burn homogeneous waste (such as un its which burn tires or used oil, but not including refuse-derived fuel) for the produc tion of electric energy or in the case of qualifying cogeneration facilities which burn homogeneous waste for the production of electric energy or steam or forms of useful energy (such as heat) which are used for industrial, commercial, heati ng or cooling purposes, or (4 ) air curtain incinerators, provided that such incinerators only burn w ood wastes, yard wastes and clean lumber and that such air curtain incinerators comply with the opacity limitations to be established by the Administrator by rule. CAA section 129 also states that the term “solid waste” shall have the meaning “established by the Administ rator pursuant to the Solid Waste Disposal
Act” Id. at 7429(g)(6). 1 RCRA defines the term “solid waste” to mean “...any garbage, refuse, sludge from a waste treatment plant, water supply treatment pl ant, or air pollution control facility and other discarded mate rial including solid, liquid, semisolid, or contained gaseous material resulting fr om industrial, commercial, mining, and agricultural operations, and from community activities, but does not include solid or dissolved material in domestic sewage, or soli d or dissolved material s in irrigation return flows or industrial discharges which are poi nt sources subject to permits under section 402 of the Federal Water Pollution Control Act, as amended (86 Stat. 880), or source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954, as amended (68 Stat. 923).” Section 1004 (27). A. CISWI Rule/Boiler Rule EPA fulfilled its statutory obligation under CAA section 129 when it promulgated a final rule setting forth performance st andards and emission guidelines (EG) for

1 CAA section 129 refers to the Solid Waste Disposal Act (SWDA). However, this act, as amended is commonly referred to as RCRA. Thus, the term, " RCRA" is used in place of SWDA in this Notice.10 Commercial and Industrial Solid Waste Incineration Units. 65 FR 75338 (December 1, 2000). Under CAA section 129, the New Sour ce Performance Standards (NSPS) and EG adopted for CISWI units must reflect the ma ximum degree of reduction in emissions of air pollutants that the Administrator determin es is achievable, taking into consideration the cost of achieving such emission reduc tion, and any non-air qua lity health and environmental impacts and energy requirement s. This level of control is commonly referred to as MACT. The Administrator may also distinguish among classes, types (including mass-burn, refuse-derived fuel, modula r and other types of units), and sizes of units within a category in establishing such standards. Id. at 7429(a)(2). NSPS apply to new stationary sources, th at is, sources whose construction begins after the NSPS is proposed or sources that ar e reconstructed or modified on or after a specified date. The EG are similar to th e NSPS, except that they apply to existing sources; that is, sources whose construction begins on or before the date the EG are proposed, or sources that are reconstructed or modified before a specified date. Unlike NSPS, the EG are not enforceable until EPA a pproves a state plan or adopts a federal plan for implementing and enforcing them, and the state or federal plan becomes effective. The rule established emission limitations for new and existing CISWI units for the following pollutants (or surrogates): cad mium, carbon monoxide, dioxins/furans, hydrogen chloride, lead, mercury, oxides of n itrogen (NOx), particulate matter (PM), sulfur dioxide (SO 2 ), and opacity. In addition, the rule established certain monitoring and operator training and certific ation requirements. See 65 FR 75338 for a more detailed discussion of the CISWI Rule.11 The CISWI Rule was subject to judi cial challenge in Sierra Club v. EPA (No. 01- 1048) (D.C. Cir.) and a separate petition for reconsideration of the final rule. The petition argued that the final rule was procedurally defec tive because EPA had failed to provide adequate notice and an opportunity to comment on the definitions adopted in the final rule. Also, after promulgation of the CISWI Rule, the court issued its decision in Cement Kiln Recycling Coalition v. EPA , 255 F.3d 855 (D.C. Cir. 2001) (“Cement Kiln”). In this decision, the court rejected certain co mmon elements of EPA’s MACT methodology. As a result, EPA requested a vo luntary remand of the CISWI Rule, in order to address concerns related to the issu es that were raised by the court in Cement Kiln. The court granted the voluntary remand and remanded, without vacatur, the CISWI Rule back to EPA, thereby terminating the case (see Order dated September 6, 2001). Because the CISWI Rule was not vacated, it s requirements remain in effect. See Sierra Club. v. EPA, 374 F. Supp.2d 30, 32-33 (D.D.C. 2005). In addition to taking a voluntary remand of the CISWI Rule, EPA also gr anted an administrative petition for reconsideration on February 17, 2004 related to the definitions of “solid waste,” “commercial or industrial waste” and “commerci al and industrial so lid waste incineration (CISWI) unit” in the CISWI Rule. EPA responded to the petition for rec onsideration on September 22, 2005, by repromulgating the definitions of “solid wa ste,” “commercial or i ndustrial solid waste incineration unit” and “commercial or industr ial waste” (referred to as the “Definitions Rule”). See 70 FR 55568. In that rule, EPA distinguish ed solid waste incinerators from boilers/furnaces based on the function of the units. Solid waste incinerators included12 units designed and operated to discard ma terials through high temperature combustion, but excluded units designed and operated to recover energy for a useful purpose. The Definitions Rule was the subject of judicial challenge in NRDC v. EPA ( 489 F.3d 1250 (D.C. Cir. 2007)) where the court vaca ted the definitions of “commercial or industrial solid waste incinera tion unit” and “commercial or industrial waste.” The court observed that, although the functional distinc tion EPA drew between boilers/furnaces and incinerators “may well be reasonable,” the statute unambiguously re quires any unit that combusts “any solid waste material at all” – regardless of whether the material is being burned as a fuel – to be regulated as a “solid waste incineration unit.” Id. at 1260. The court also vacated and remanded the Boile rs Rule, concluding that EPA erred by excluding units that combust solid waste for the purposes of energy recovery from the CISWI Rule and including such units in the Boilers Rule. Therefore, the critical issu e in responding to the cour t's decision is for EPA to establish, under RCRA, which non- hazardous secondary materials 2 constitute “solid waste.” This is necessary because, under the court’s decision, any unit combusting any “solid waste” at all must be regulated as a “solid waste incinera tion unit,” regardless of the function of the combustion device. If a non-hazardous material is not a “solid waste” under RCRA and such material is burned for fu el value or used as an ingredient in a manufacturing process, then under the c ourt’s decision, the co mbustion unit would properly be regulated pursuant to CAA section 112. Alternativ ely, if such material is a “solid waste” under RCRA and is burned for fuel value or used as an ingredient in a

2 A secondary material is any material that is not the primary product of a manufacturing or commercial process, and can include post-consumer material, post-industrial material, and scrap. Many types of secondary materials have Btu or material value, and can be reclaimed or reused in industrial processes. For purposes of this notice, the term secondary materials include only non-hazardous secondary materials.13 manufacturing process and such ingredient is combusted, then the uni t must be regulated under CAA section 129.
B. Sections 112 and 129 of the CAA CAA section 112 requires EPA to promulgate regulations to c ontrol emissions of
186 3 hazardous air pollutants (HAP) from major sources 4 in each source category listed by EPA under section 112(c). The statute requires the regulations to reflect the maximum degree of reduction in emissions of HAP that is achievable taking into consideration the cost of achieving the emi ssion reduction, any non-air quality health and environmental impacts, and energy requirement s. As noted previously, this level of control is commonly re ferred to as MACT. For new sources, MACT standards cannot be less stringent than the emission control achieved in practice by the best-c ontrolled similar source (see CAA section 112(d)(3)). The MACT standard s for existing sources cannot be less stringent than the average emission limitation achieved by the best-performing 12 percent of existing sources for categories and subcategories with 30 or more sources, or the best-performing 5 sources for categories or subcateg ories with fewer than 30 sources ( Id ). This level of control is usually referred to as the MACT ‘‘floor,’’ the te rm used in the Legislative History. Like the CAA section 112 standards, the CAA section 129 standards are based on a MACT floor. Also, as with the section 112 standards, above-the-floor standards may be established where EPA determines it is “achievable” taking into account costs and

3 EPA has delisted 3 of the 190 HAP initially listed in section 112(b) (1): Methyl ethyl ketone, glycol ethers, and caprolactam. 4 A “major source” is any stationary source that emits or has the potential to em it considering controls, in the aggregate, 10 tons per year or more of any HAP or 25 tons per year or more of any combination of HAP. CAA section 112(a)(1).14 other factors. Although CAA section 129 “es tablishes emission requirements virtually identical to section [112’s] ,” Nat’l Lime Ass’n v. EPA, 233 F.3d at 631, the two sections differ in three primary respects. First, C AA section 112 requires that MACT standards be established for major sources of HAP emissi ons, but provides discretionary authority to establish MACT standards for area sources of HAP emissions. 5 On the other hand, the CAA section 129 MACT standards apply across the board to all solid waste incineration units in a given category re gardless of size. Second, C AA section 129 requires that emission standards be set for specific HAP and cer tain pollutants that ar e not classified as CAA section 112 HAP. 6 Specifically, CAA section 129 requires numeric emission limitations for the following nine pollutants: cadmium, carbon monoxide, dioxins/furans, hydrogen chloride, lead, mercury, NOx, particul ate matter (total and fine), opacity (as appropriate), and SO 2 . 7 The CAA section 129 pollutant s listed above represent the minimum that must be regulated; EPA has the discretion to establish standards for other pollutants as well. Third, CAA section 129 includes requirements for operator training, pre-construction site assessmen ts, and monitoring that are not included in CAA section 112. See CAA section 129 (a)(3), (c) and (d ). Rather, CAA section 112’s implicit authority and CAA sections 113 and 114’s expl icit authority is relied upon to include provisions as necessary to assure complia nce with and enforcement of the emission

5 An “area source” is any stationary source of HAP th at is not a major source. CAA section 112(a)(2). Area sources may be regulated under CAA section 112( d)(2) standards if the Admi nistrator finds that the sources “presen[t] a threat of adverse effects to human health or the environment (by such sources individually or in the aggregate) warranting regulation under this section.” Section 112(c)(3). Certain categories of area sources must be regulated in accordance with section 112 (c)(3) and (k)(3)(B). 6 This is in reference to the initial list of 190 HAPs provided by Congress. 7 Of these nine pollutants, cadmium, dioxins/furans, hydrogen chloride, lead, and mercury are also regulated HAP pursuant to CAA section 112, and particulate matter and carbon monoxide are commonly used as surrogate emission standards to control specific CAA section 112 HAP (e.g., CAA section 112 HAP metal and organic emissions).15 limitations. It is important to note that CAA section 129 (h)(2) specifies that no solid waste incineration unit subject to the performance standard s under CAA sections 111 and 129 shall be subject to the st andards under CAA section 112(d). III. Beneficial Use of Secondary Materials A. Introduction EPA strongly supports a sustainable materials management system that maximizes the usefulness of secondary mate rials in production, reduces or eliminates waste, conserves energy, and reduces harm ful air emissions of greenhouse gas (GHG). Such a system must ensure protection of human health and the environment, while employing an integrated management appr oach that includes emissions and source reduction and recycling, as well as energy capture and resour ce recovery from secondary materials. For example, within the context of RCRA, 8 the Agency seeks to help facilitate a sustainable management system through pr omotion of the use or reuse of various secondary materials, provided such reuse ac tivity is protective of human health and the environment. EPA seeks to accomplish this in conjunction with our state partners through research, analysis, communication, and outreach. To help put this discussion into cont ext, the Agency notes that non-hazardous secondary materials are widely us ed today as fuels or ingredient s in industrial processes. Projections indicate that this trend will continue with higher prices for energy and materials, advancing technology, and the pot ential for governments to impose costs for emitting GHGs.

8 RCRA Section 6901(c) – Materials: The Congress finds with respect to materials, that—(1) millions of tons of recoverable material which could be used are needlessly buried each year ;(2) methods are available to separate usable materials from solid waste; and (3 ) the recovery and conservation of such materials can reduce the dependence of the United States on foreign resources and reduce the deficit in its balance of payments.16 The nature of what constitutes a legiti mate fuel or ingredient reflects the availability of natural resources and tec hnology development. Typical renewable energy sources, such as wind and solar energy, are clearly a crucial part of the solution. However, the use of alternative fuels from a variety of non-traditiona l sources, including the use of energy-containing secondary materi als, should play a si gnificant role. The Agency suggests that the be neficial use of secondary materials should be strongly encouraged as an alternative to use of the world’s limited non-renewable virgin materials. 9 The use of non-hazardous secondary material s as alternative fuels and ingredients in manufacturing processes using combusti on has a long history, and is increasingly becoming an accepted characteristic of the modern industrial economy. This trend has been even more pronounced in the European Union (EU), where alternative industrial sources of fuel and ingredients are more aggressively promoted through economic and environmental policies. Clearly, under condi tions in the past, many secondary materials may have been managed as wastes—that is, they were discarded. However, as the cost of fossil fuel increases and technology advances , such materials become comparatively more valuable as an energy source, ingredient , or both. Furthermore, the use of some of these materials is likely to contribute to certain emission reductions. For example, reductions in GHG emissions and partic ulate matter have been identified. 10 There are several other policy considerati ons involved in the beneficial use of secondary materials that are germane and should be taken into consider ation in the public

9 The term “Virgin materials,” as used in this Noti ce means resources extracted from nature in their raw form, such as timber, metal ore, coal, petroleum, etc. 10 See the Materials Characterization Papers in the docket established for this action for examples of emission reductions.17 debate. First, the use of secondary materials could be one part of our effort to reduce the need for importing energy. Secondary ma terials generated in U.S. commerce are a “domestic” energy source that can be used/reuse d to help reduce the need to import fossil fuels. Second, using secondary materials for fuel or ingredient value has an additional benefit of reducing the environm ental impacts caused by the dis posal of such materials. For example, use of tires as a fuel source means that those tires are no longer accumulated in huge piles where there are know n incidents of them catching fire and serving as breeding grounds for disease carryi ng mosquitoes. Some solid waste that is landfilled creates methane gas, some of wh ich can be captured via gas collection and processing systems and used as fuel, although some escapes to the atmosphere and is a greenhouse gas. Significantly reducing la ndfilling through a combined strategy of recycling and energy capture 11 could help reduce the methane generation rate. The remainder of this section first pr esents an overview of the secondary materials and their contribution to improve d economic efficiency. Then we briefly summarize selected materials management progr ams and successes. Finally, we discuss known use patterns for selected secondary materials and briefly summarize some economic and environmental benefits derived from the use of such materials.
B. Overview of Secondary Materials and Th eir Contribution to Economic Efficiency

11 EPA supports the highest and best practical use of secondary materials in accordance with a material management hierarchy that generally follows an order of preference of : reducing, reusing, recycling, recovering energy, and disposing in an appropriate fa cility. Although this notice highlights the benefits of using secondary materials as fuels or ingredients, we acknowledge that there may be other uses of these secondary materials that are higher in the materials management hierarch y. For example, whereas burning used oil for energy recovery within the regulatory constraints certainly has its benefits, we believe that it may be more preferential to re-refine used oil (it takes 42 gallons of crude oil, but only one gallon of usedoil, to produce 2.5 quarts of new, high quality lubricating oil; re-refining used oil also takes only about onethird the energy of re-refining crude oil to lubricant quality).18 There exists a wide and dive rse range of secondary materi als used as fuels and/or ingredients, or otherwise bene ficially used. Although some times referred to as wastes, these secondary materials may, in most cases , be more appropriately defined as “byproducts,” 12 reflecting their inherent re source recovery value in the generation/production of heat, en ergy, and/or marketable pro ducts. This inherent value exists with or without processing, depe nding upon the material. These secondary materials commonly include, but are not limite d to, the following: scrap tires; scrap plastics; the biomass group (pulp and pape r residuals, forest derived biomass, 13 agricultural residuals, food scraps, animal manure, gase ous fuels); the construction and demolition material group (building related, disaster debris, and land clearing debris); spent solvents; coal refuse; waste water treatment sludge; used oil; blast furnace slag; cement kiln dust (CKD); coal combustion products (e.g., fly ash, bottom, ash, boiler slag); foundry sand; silica fume; and sec ondary glass material. These secondary materials can provide significant and widesp read environmental and economic benefits when legitimately used/reused as an effectiv e substitute for, or supplement to, primary materials. As primary materials become more a nd more costly, reflecting increased worldwide demand combined with resource scar city, the use of secondary materials is likely to become more economical. Manage rs of manufacturing or energy-production units that use secondary materi als as a substitute for prim ary fuels or ingredients are obviously doing so for their own interests, including short and/or long-term competitive advantage. In general, indus try will continue to use sec ondary materials so long as the

12 For purposes of this action, we define by-product as a secondary or incidental material derived from the primary use or production process that has valu e in the marketplace, or value to the user. 13 More commonly referred to as scrap wood materials.19 final price to the user is equivalent or less than the price for comparable primary material(s), and the product(s) derived from th ese materials is of e qual (or better) quality. Provided industry is able to continue to safely use secondary materials, economic efficiency is improved. This occurs becau se the use of these materials results in equivalent output at lower overall resource use (i.e., lower price), or in turn, more output could be generated using the same amount of resource inputs (i.e., the use of 100 percent virgin/primary materials would force reduced output to maintain the same cost of production). When this occurs, monetary sa vings resulting from reduced resource usage are, theoretically, applied to a higher and better use in the economy. This promotes economic growth derived from improved industrial efficiency. 14 While the issue raised in this ANPRM is whether specific sec ondary materials are properly considered legitimate products, or RCRA solid wastes, EP A notes that the regulatory status of the fuel or ingredient may, as mentioned above, potentially affect choices made by industrial concerns in selecting ra w materials. C. Materials Management Programs and Successes Similar to other Organization for Economic Co-operation and Development (OECD) nations, the U.S. is pursuing a cradle-to-cradle 15 approach to waste management that employs the concepts of life cycle assessment 16 and full cost accounting. 17 The life cycle approach has been advanced in the EU wh ere, for the past several years, the EU has

14 Opportunities for improved economic efficiency are recognized through the Action Statement of the U.S. Business Council For Sustainable Development : “Promoting Sustainable Development by Creating Value Through Action Establishing Networks and Partnerships, and Providing a Voice for Industry.” 15 This cradle-to-cradle approach seeks to create pr oduction techniques that are essentially waste free. 16 Note: The terms, “life cycle analysis” and “life cy cle assessment” are commonly used interchangeably. Life cycle assessment is a system-wide analytical technique for assessing the environmental (and sometimes economic) effects of a product, process, or activity across all life stages. 17 Full cost accounting is an accounting system that incorporates economic, en vironmental, health, and social costs of a product , action, or decision.20 been focused on developing a strategy desi gned to minimize and recycle secondary materials, 18 while recognizing the importance of full life cycle analysis within a comprehensive materials management program. Japan has gone even further, passing ambitious laws and establishing an effective initiative 19 focused on creating a “closed loop” economy. The U.S. life cycle materials management approach, as implemented through EPA, is focused on the three R’s: reduce, reuse, and recycle. This approach helps ensure more efficient resource and material use th rough the integration of both environmental and economic components in the life cycle system. In 2002, EPA initiated the Resource Conservation Challenge (RCC) . This program was designed to help implement the Agency’s approach to materials management. The RCC Program is currently focused on four specific material groups: municipal solid waste; green initiatives, such as electronics; industrial ma terials; and priority and toxic ch emicals. The Agency also has materials management programs focused specifically on used oil and scrap tires. 20 Other more broadly focused EPA programs includ e OSW’s Product Stewardship Program and the Comprehensive Procurement Guidelines. In addition, several states have also established life cycle approaches to mate rials management (e.g., California, Minnesota, Washington, and Vermont). The by-product synergies derived from the legitimate use of secondary materials under the guidance of federal and state program s is central to the concept of industrial

18 For example, The Closed Substance Cycle and Wast e Management Act of 1994 (Germany), the German Auto Recycling Law, Directive 2006 /66/EC of the European Parliament (EU battery recycling law). 19 The Japanese law Promotin g th e Utilization of Recyclable Resources, 1991, the Japanese Recycling Law, 2001 (the world’s first “take back” law), and The Ecofactory initiative (Ministry of International Trade and Industry). 20 See: http://www.epa.gov/waste/conser ve/materials/usedoil/index.htm , and, http://www.epa.gov/waste/conserve/materials/tires/index.htm21 ecology. 21 Progress in the field of Industrial Ecology and documented success in byproduct synergy programs confirm that EPA seek s to maintain and promote the beneficial use of non-hazardous secondary materials. 22 Furthermore, we believe that such programs make an important contribution in moving the country toward material sustainability, and energy self sufficiency, while maintaini ng protection to human health and the environment. Understanding and communicating the e nvironmental and economic tradeoffs associated with life cycle materials manage ment programs is critical to ensuring longterm success. It is also one of our mandates under RCRA Subtitle F – Federal Responsibilities, which states the “Administrator shall provide information on the technical and economic aspects of devel oping integrated res ource conservation or recovery systems...” (Sec.6003). Depending upon the material being assessed, the Agency may employ one or more of several di fferent life cycle analysis models, cost calculators, and economic asse ssment tools designed to evaluate the environmental and economic benefits associated with any mate rials management program. This rigorous analytical approach to the development of materials management programs ensures that we are not promoting economically or envi ronmentally inefficient programs. Our analyses to date indicate that all curr ent secondary materials management programs provide benefits to society.

21 Industrial ecology is an interdisciplinary framework for assessing materials generation and use as living systems interdependent with natu ral systems. Industrial ecology seeks to balance environmental and economic performance with local and global ecological constraints. 22 Successful examples in the U.S. include: The Mid- Atlantic By-Product Synergy (BPS) Project (under development), and company-specific programs such as Chaparral Steel and Dow Chemical by-product synergy programs. One of the most successful examples in the European Union is the National Industrial Symbiosis Programme – U K22 We believe that it is critical to interp ret which secondary materials are not “solid wastes” pursuant to RCRA to ensure the cont inued legitimate use of secondary materials in combustion processes. This, in turn, will maintain the continued environmental and economic benefits from these programs.
D. Secondary Materials Use and Benefits This part builds on the discussion in part “B” of this section and provides greater detail on some of the non-hazardous secondary materials that are commonly used by the industrial community. We su mmarize key information that is available on the known generation, use, and benefits of these secondary materials. The purpose of this part is to describe the Agency’s understa nding regarding the wide-scale acceptance, use, and value of these secondary materials in U.S. industr ial markets. More de tailed information on a wide array of secondary materi als potentially affected by this action is presented in the Materials Characterization Papers, which can be found in the Docket established for today’s action. The Materials Characterization Papers outline publicly and readily available information concerning material characteristi cs relevant to this ANPRM. Specifically, for each material group, the papers endeavor to: (a) provide a clear definition of the material; (b) identify annual quantities genera ted and used; (c) outline current combustion and non-combustion uses, along with current quan tities landfilled or otherwise stored; (d) discuss management and combustion proce sses utilized; and (e) summarize potential environmental and economic impacts from the use of each material. The available information across these components of each pa per and the individual materials is often limited or uncertain. Thus, these papers repres ent our initial effort to gather and present23 relevant data. The Agency seeks comment on additional data sources that may enhance its understanding and knowledge of these materials. Non-hazardous secondary materials are wide ly used as fuels and/or ingredients in virtually all types of boilers (e.g., industrial, commercial, institutional), cement kilns, lightweight aggregate kilns (LWAKs), and othe r industrial furnaces (e.g., glass furnaces). These facilities burn or otherwise use in the production process hundreds of millions of tons of secondary materials each year. The total number of facili ties using secondary materials each year as a substitute for pr imary fuels and/or ingredients is unknown, but believed to be significant (i.e., approximately 200,000 units 23 ). The manner in which non-hazardous s econdary materials are processed, the nature of the materials, and the ways in which they are used or recycled generally establishes whether such materials are wastes or “by-products.” Ba sed on our research for the Materials Characterization Papers, we have identified eight non-hazardous secondary material fuels or fuel groups and six non-hazardous ingred ients, or ingredient groups. The fuel source materials are: the biomass group (pulp and paper residuals, forest derived biomass, agricultural residues, food scraps, animal manure, gaseous fuels); construction and demolition materials (building related, disaster debris, and land clearing debris); scrap tires; scrap plastics; spent solvents; coal refuse; waste water treatment sludge, and used oil. The secondary material ingredients are: blast furnace slag; CKD; coal combustion product group (fly ash, bottom ash, and boiler slag); foundry sand; silica fume; and secondary glass material.

23 Identification of Non-Hazardous Mate rials That Are Solid Waste. EP A Exhibit 1: Preliminary Estimate of Total Nonhazardous Secondary Materials Used Annu ally in Boilers and Kilns. Sept. 24, 2008.24 Based on publicly available information, we believe that these materials account for the vast majority of all non-hazardous secondary materials used as fuels and/or ingredients in the U.S. However, the Ag ency solicits comment on whether there are other non-hazardous secondary materials that are al so used as a fuel or ingredient that we have not identified, either in th is notice or in the Materials Characterization Papers. If so, the Agency requests that commenters provide information on such materials, including the composition or characteristics of such mate rials, how much of the secondary material is produced and utilized, how it is utilized—that is, is it a fuel or an ingredient, and how is it generally handled. Without such detailed information, the Agency will not be able to consider it as we move forward in the rulemaking effort. The annual use patterns, quantities, and be nefits associated with some of these secondary materials are well established, while less is known about other secondary materials. Presented below are brief summa ries of the documente d usage, trends in usage, and benefits associated with some of these widely used secondary materials. As mentioned above, the Materials Characteriz ation Papers, available in the docket established for today’s action, present more de tailed information on the quantities and use patterns, characteristics, composition, management and benefits associated with all eight secondary fuel materials/groups and six sec ondary ingredient materials/groups we have identified. Biomass 24 - When used as a secondary material fuel, biomass consists primarily of pulp and paper mill residuals, forest deri ved biomass, agricultural residuals, food scraps, animal manure, and gaseous fuels. Sect ors that generate and/or use these valuable

24 Source : Materials Characterization Paper in Support of the Advanced Notice of Proposed Rulemaking: Identification of Non-Hazardous Materi als That Are Solid Waste - Biomass25 biomass commodities include: crop producti on; support activities for crop production; food manufacturing; beverage and tobacco product manufacturing; logging; pulp, paper, and paperboard mills; sawmills and wood pres ervation; veneer, plywood, and engineered wood product manufacturing; cattle ranching an d farming; hog and pig farming; poultry and egg production; sheep and goat farming; horses and other equine production; and, sewage treatment facilities. Timber harvesting and the manufacture of lumber generate large amounts of forest-derived biomass used as secondary material fuels. These woody materials may originate directly from the forest as loggi ng residues (e.g., tree limbs, tops, needles, leaves), or from timber processing mills (e.g., clean and unadulterated bark, sawdust, trim, screenings, tree harvesting residuals). Logging and other forest harvesting removal residues are estimated to range from 62 milli on tons per year (tpy) to 103 million tpy, with an estimated 42 to 93 million tpy availabl e for recovery and beneficial use. Total primary mill 25 residue production is estimated to range from 87 to 91 million tpy. Experts predict that by 2050, logging and other forest ha rvesting removal residues will increase by 23 million tpy and availability of secondary mill residues (i.e., residues such as board, trim and breakage from the manufact ure of reconstituted wood/panel products) will increase by 16 million tpy. Available information indicates that logging residues, although a good potential source for secondary material fuel, are not cu rrently collected for use as a fuel on any large scale. Primary mill residues, however, are highly valuable as feedstocks in

25 Lumber and veneer mills.26 combustion, as well as for non-combustion purposes. 26 Approximately 42 percent of all primary mill residues are used as a fuel, incl uding 76 percent of bark residues, 12 percent of coarse residues, and 56 percent of fine residues. These materials are burned in a variety of boilers, including Dutch ovens, fuel cell ovens, spreader stokers, suspensionfired boilers, and fluidized bed combustion boile rs. Forest-derived materials may also be co-fired with other fuels, primarily solid fu els such as coal. Logging and primary milling residues may be chipped or sorted before being used, but otherwise generally undergo minimal processing. The use of forest-deriv ed materials has been found to result in generally higher PM emissions th an natural gas or distillate oil, but lower PM emissions than coal or residual oil systems. Estimated NOx emissions associated with the use of wood are similar to those associated w ith distillate and lower than the NO x emissions for other conventional fuels, while wood combustion results in lower SO 2 emissions than most conventional fuels. The Biomass Ener gy Resource Center indicates that the net long-term effect of burning wood-based material s as a secondary material fuel is that no
new CO 2 is added to the atmosphere, assuming that the forests from which the wood came are sustainably managed. Finally, the us e of forest-derived materials results in reduced fuel costs to the user and provides environmental benefits associated with avoided virgin material extraction and, in some cases, avoided transportation. The forest products industry generates large quantities of secondary material biomass fuels in the form of pulp and pa per residues, including sludges and black liquor. 27 However, black liquors that are reclaimed in a pulping liquor recovery furnace and then reused in the pulping process are excluded from the definition of solid waste

26 Primary mill residues tend to be clean, uniform, co ncentrated, and with a low-moisture content. As a result, these materials generally require little processing. 27 See 40 CFR 261.4(a)(6).27 under Subtitle C of RCRA, unless speculativel y accumulated, as defined in 261.1(c), or reclaimed in another manner. Pulp and pa per mills produce the dry biomass equivalent of between 4.2 and 5.8 million tons of wa stewater treatment sludges. In 2002, approximately 22 percent of all pulp and paper mill sludges were used in hog fuel boilers as a supplementary or stand-alone fuel. An undetermined amount was used as a cement kiln feedstock and as a fuel pellet ingredie nt. Anaerobic sludge production also generates methane. Sludges typically undergo mechani cal dewatering before being combusted. The use of mill sludges in onsite boilers result s in reduced fuel costs for the facility, while providing environmental benefits a ssociated with avoided virgin material extraction and transportation. Agricultural residuals incl ude crop residues remaining in the fields after harvest (primary residues) and processing residues generated from the harvested portions of crops during food, feed, and fiber producti on (secondary residues). Current annual production of agricultural residues from major crops is estimated to be around 500 million dry tpy. These primary biomass crops include barley, canola, corn, cotton, dry beans, flax, oats, peanuts, peas, potatoes, rice, rye, safflower, sorghum, soybeans, sugarcane, sunflowers, and wheat. Anywhere from 113 million tpy to 173 million tpy is estimated to be available for removal from th e fields in a sustainable manner (i.e., while maintaining cropland fertility and quality). However, the total quantity of agricultural residues actually used for fuel on an annual basis is difficult to determine from the available literature. Total primary agricultu ral residue production fluctuates with the amount of U.S. land in crop production and th e relative proportion of crops on this land. Current trends suggest th at higher food prices will dr ive additional land into crop28 production. In 2007, we estimate that approximately 6.0 million tons of agricultural residues were burned, 92 percent of which [on a British thermal unit (Btu) basis] provided useful thermal output. The remaining 8 percent was used to produce electricity. Around 71 percent of total agricultural resi dues burned (Btu basis) were secondary residues used in the food processing industr y, mostly sugarcane bagasse at sugar mills. The remaining 29 percent was used in the Agriculture, Forestry, and Mining, and the Paper and Allied Products industries. An emerging market for corn stover and other agricultural residue is for us e as a heat and power source for the production of corn and cellulosic ethanol. Agricultura l residue is generally burned as fuel in fuel cells, horseshoe boilers, and spreader stoker boilers. Aside from occasionally drying, agricultural residues do not genera lly require processing prior to being utilized as a fuel. The use of agricultural residues as a substitute for coal in an exis ting power plant reduces
SO 2 , NO X, and other emissions and eliminates the environmental impacts associated with the extraction and processing of the traditional fuels. Food scraps are generated at all stag es of the food production system, including farming, storage, processing, w holesaling, retail, and consum ption. Food scraps, broadly defined, include both the portion of harvested cr ops and livestock that does not enter the retail market and the portion of food discarded by reta ilers and consumers. This action is concerned only with industrial food scra ps; food scraps generated by retailers and consumers are not considered because they enter the waste stream as municipal solid waste. The total quantity of industrial food scraps produced on an annual basis is not readily accessible from the available literatur e. Industrial food scraps are known to be burned in lodging and restaurant boilers. Ho wever, the annual quantities burned and the29 distribution of this use is unknow n. The use of food scraps with meaningful fuel value in lodging and restaurant boilers eliminates th e environmental impacts associated with the extraction and processing of the traditional fuels, and it eliminates emissions of the methane associated with food scrap disposal in landfills. Animal manure is the excrement of lives tock reared in agricultural operations. Animal manure may also include straw, sa wdust, and other residues used as animal bedding. Gaseous fuels may be derived from landfills (landfill gas) or from animal manure and solid biomass (biogas), such as crop silage. Biogas is generated via anaerobic digestion, a multi-stage process wh ereby bacteria convert carbohydrates, fats, and proteins to methane. Domestic livestoc k production generates ove r a billion tons of manure annually, which if used to produce biogas would yield approximately 19.4 million tons of methane. Anaerobic digesti on of current manure production managed in ponds, anaerobic lagoons, and holding tanks could yield a maximum of about 2.4 million tpy of methane. Current production, how ever, is about 0.07 million tons from 111 operating digesters. We estimate that about 35 million dry tons of current manure production could be used for bioenergy purposes once sustainabil ity concerns are met. Livestock production has become increasingly concentrated in re cent years, facilita ting the collection of manure for bioenergy purposes. Opportunities for utilizing animal manure for bioenergy production are likely to increase in the coming years with higher fossil fuel prices and improved bioenergy conversion technologies. Biogas produced on farms is typically used to heat water for purposes of cl eaning and sanitizing milking pipelines and equipment in dairy operations. In addition, we have identified an emerging market for30 animal manure for use in the direct producti on of heat and power. Biogas generated on farms is typically burned on-si te directly in boilers and, to a lesser extent, is burned in space heating, with little pro cessing (upgrading) necessary other than hydrogen sulfide and moisture removal. Carbon dioxide may also be removed for applications where high thermal values are needed. Biogas benefits include the use of methane, a GHG, thereby avoiding its release to the atmosphere and di splacement of fossil fuels, primarily natural gas. Furthermore, the use of biogas as a re placement for natural gas avoids the emissions associated with the extraction and processing of natural gas. Scrap tires 28 - Scrap tires are used tires that are recycled when they can no longer be used as tires. This may occu r because of normal tread wear, punctures, destruction in accidents, or any number of ot her reasons. Scrap ti res are generated from the replacement of tires on passenger and comme rcial vehicles. Consumers and industry in the U.S. generated 299.6 million tires in 2005; this represents approximately 4.9 million tons of tires, assuming an average of 33 pounds per tire. Approximately 52 percent of the total number of scrap tires generated in 2005 went for tire-derived fuel (TDF). 29 Although energy recovery is the most common use of scra p tires, there are many non-fuel uses for scrap tires, including : civil engineering (i.e., construction of landfills and roads); cut/punched/stamped into other products (i.e., floor mats); and, rubber modified asphalt. While some facilities are capable of burning whole tires, a large percentage of tires are sent to processors where they are shredded or chipped prior to being sent to plants for use as TDF. Facil ities that burn whole tire s often charge a tipping fee for acceptance of these tires, while chipped tires must be purchased. TDF is used in a

28 Source : Materials Characterization Paper in Support of the Advanced Notice of Proposed Rulemaking: Identification of Non-Hazardous Material s That Are Solid Waste - Scrap Tires 29 TDF has a heating value of around 13,000 to 16,000 Btu/lb.31 variety of units, including boilers and industrial furnaces, such as kilns. It can be used to supplement and/or replace a wide range of fuels including coal, coke, fuel oil, natural gas, and wood. The use of tires for fuel has in creased from 24.5 million tires in 1990 to 155.1 million tires in 2005. During this same period, the number of tires in stockpiles declined by nearly 82 percent, going from approxima tely one billion tires to just under 200 million, a significant environmental accomplishmen t. The majority of tires that have been removed from these piles have been used in industrial boilers and kilns for energy recovery. This trend is likely to increas e as the cost of conventional fossil fuels increases. Data compiled by the Greenhouse Gas Protocol suggest that the GHG emissions rate associated with the combustion of scra p tires is approximately 0.081 metric tons of
CO 2 equivalents (MTCO 2 E) per million Btu (MMBtu) of scrap tires combusted. By comparison, based on emissions and energy data compiled by the Agency, the GHG emissions rates for coal, natura l gas, distillate oil, and re sidual oil are approximately 0.094 MTCO 2 E per MMBtu, 0.053 MTCO 2 E per MMBtu, 0.073 MTCO 2 E per MMBtu, and 0.079, respectively. These estimates do not include the upstream emissions impacts from the extraction and transport of virgin materials. These impacts are estimated to range anywhere from 0.01 per MTCO 2 E per MMBtu for natural gas to 0.009 MTCO 2 E per MMBtu for residual fuel oil. The net TDF impact, therefore, may be derived by subtracting the extraction impact estimate fr om the TDF emissions impact. For example, if TDF is substituting for natural gas, the net TDF impact would be 0.071 MTCO 2 E per MMBtu (0.081–0.01 = 0.071). The 100 percent vi rgin material impact would be the summation of the emissions impact plus the extr action impact, for the corresponding fuel.32 Emissions test data compiled by EPA in 1997 suggest that substituting scrap tires for coal in electric utility boilers may lead to reductions in NO x and particulate matter emissions, 30 but show no clear pattern for SO x and zinc emissions. 31 Studies indicate that there is an increase in zinc emissions when TDF is used at industrial boilers and pulp and paper mills, while zinc emission data are inconclusive for cement kilns and utility boilers. Finally, as referenced above, the use of TD F as a replacement for traditional primary fuels eliminates the environmental impacts a ssociated with the extraction and processing of the traditional fuels. Used Oil 32 - Used oil is defined as petroleum-ba sed or synthetic oil that has been used and has been contaminated from use. To meet EPA's definition, contamination includes residues and contaminants genera ted from the handling, storing, use, and processing of oil. 33 Physical contaminants from us e include metal shavings, high water content, or dirt, while chemical contaminan ts from use include solvents, halogens, or lead. To meet EPA’s definition, used oil must have been refined from crude oil or made from synthetic materials; animal and vegetabl e oils are excluded from EPA’s definition of used oil. Generators of used oil incl ude businesses that handl e oil through commercial or industrial operations or from the maintenance of vehicles and equipment. The oil may

30 United States Environmental Protection Agency (EPA). 1997, “Air Emissions from Scrap Tire Combustion”. 31 See also the Nebraska Department of Enviro nmental Quality, Applicability Determination for Combusting Tire Derived Fuel in Humboldt Wedag Kiln (Kiln #2), indicates that emissions of SO 2 , NOx, and CO decreased while TDF was used. (see: http ://www.deq.state.ne.us/Press.nsf/pages/AGFactsheet1) 32 Source : Materials Characterization Paper in Support of the Advanced Notice of Proposed Rulemaking: Identification of Non-Hazardous Materi als That Are Solid Waste - Used Oil 33 Used oil processing is defined as a chemical or physical operation designed to produce from used oil, or to make used oil more amenable for production of, fuel oils, lubricants, or other used oil-derived products. Processing includes, but is not limited to: blending used oil with primary petroleum products, blending usedoils to meet the fuel specification, filtration, simple distillation, chemical or physical separation and rerefining.33 have been used as a lubricant, hydraulic fl uid, heat transfer fluid, buoyant, and for other similar purposes. Recent estimates indicate that approxim ately 1.35 billion gallons of used oil are collected each year. Depending upon the year, ou r estimates indicate that as much as 90 percent of all collected used oil is burned for energy recovery. Both on-specification and off-specification 34 used oil may be used as a source of fuel in combustion units. However, off-specification used oil may only be burned in the following types of boilers: industrial boilers locate d at facilities that are engage d in a manufacturing process where substances are transformed into new products; utility boilers used to produce electric power, steam, heated or cooled air or other ga ses or fluids for sale; used oil-fired space heaters provided that the burner meets the provisions of 40 CFR 279.23; and, hazardous waste incinerators subject to regulation under 40 CFR subpart O of parts 264 or 265. National information on the distribution be tween on-specification and off-specification used oil used as fuel is not readily available. However, asphalt plants appear to be the largest users of used oil, followed by space he aters, and industrial boilers. We estimatethat approximately 73 percent of all used oil generated and used each year is onspecification. The long-term trend in used oil generati on is undetermined. However, during the 1997-2005 time period, the recycling rate for used oil generated by service stations increased from 66 percent to almost 100 percent.

34 The Agency makes a distinction between on-specification and off-specification used oil. Only certain contaminants in used oil pose a significant threat to human health or the environment. As a result, EPA has established maximum concentration limits for these cons tituents of concern. These limits are set such that the emissions resulting from the burning of used oil containing these contaminants, at or below established “on-spec” limits, will pose no more thr eat to human health or the envir onment than the emissions resulting from the burning of virgin oil or diesel. See 68 FR 44662 (July 30, 2003). Also see Section V.A.4. for more discussion of used oil.34 The principal environmental benefits of burning used oil for energy recovery are associated with upstream production offsets and include substantial reductions of NO X , carbon monoxide (CO), and CO 2 emissions. In terms of co mbustion-specific emissions, use of used oil results in notably lower NO X emissions, in particular when compared to residual fuel oil. However, PM and lead emissions may be higher than for primary fuel oil, depending upon extent of processing. The be neficial use of used oil also helps avoid illegal dumping. . Coal Fly Ash 35 - Exhaust gases leaving the combus tion chamber of a power plant entrain particles during the coal combustion process. To prevent this fly ash from entering the atmosphere, power plants use va rious collection devices to remove it from the gases that are leaving the stack. Fly ash is the finest of coal ash particles. The coalfired power industry is the larges t generator of coal fly ash in the U.S. Other industries, such as commercial boilers, and mineral and grain processors that use coal as a fuel source, also produce coal fly ash. In 2006, the coal-fueled elec tric power industry generated approximately 72.4 million tons of fly ash. This figure was estimated at 70.8 million tons for 2004 and 71.7 million tons for 2007. 36 Electricity demand is projected to increase by about 40 percent by 2020. Because co al is expected to continue to be an important fuel source, it is likely that the quantity of coal fly ash generated will also remain significant. Coal fly ash can be added to the raw ma terial feed in clinker manufacturing to contribute specific required elements, such as silica, alumina, and calcium, in the final

35 Source (unless otherwise noted): Materials Characterizatio n Paper in Support of the Advanced Notice of Proposed Rulemaking: Identification of Non-Haza rdous Materials That Ar e Solid Waste - Coal Combustion Products - Includes Coal Fly Ash, Bottom Ash, and Boiler Slag 36 ACAA. 2004 and 2007 Coal Combustion Product (CCP) Production and Use Survey Results (Revised for 2007).35 cement composition. Coal fly ash with relati vely high unburned car bon content can also be re-burned in cement kilns for energy r ecovery at the same time as it provides ingredient value. The use of coal fly ash as an ingredient in cement kilns does not require processing. However, levels of key metals in coal fly ash must be carefully calibrated with other ingredients to ensu re that the final cement produc t has the correct mineral and metal content. In clinker manufacture, coal fly ash partially offsets the need for raw materials, such as silica, iron, and alumina sources. Thus, using fly ash in the cement kiln can reduce the unit consumption of raw feed stock materials, which results in reduced emissions of certain pollutants. 37 Furthermore, when fly ash with relatively high unburned carbon content is introduced to the ce ment kiln during clinker manufacture, the primary fuel supply may be reduced to accommodate the additional energy provided by the carbon in the fly ash. Cement Kiln Dust (CKD) 38 - Generated by the cement manufacturing industry, CKD is a fine-grained, solid, highly alkaline low organic content material removed from the cement kiln exhaust gas by scrubbers. Much of the material comprising CKD is incompletely reacted raw material, including a raw mix at various stages of burning, and particles of clinker. There is an estima ted 13 to 17 million short tons of CKD generated per year in the U.S. CKD can be directly reused in a closed-loop process back into the cement kiln as an ingredient for clinker manuf acture. The cement industry is estimated to recycle more than 75 percent of its CKD each y ear. Significant increases in U.S. clinker

37 For more detailed information on the benefits of using coal fly ash and other recovered mineral components in manufacturing processes please see: “Study on Increasing the Usage of Recovered Mineral Components in Federally Funded Projects Involving Procurement of Cement or Concrete to Address the Safe, Accountable, Flexible, Efficient Transportation Eq uity Act: A Legacy for Users.” June 23, 2008. (EPA530-R-08-007) 38 Source (unless otherwise noted): Materials Characterizati on Paper in Support of the Advanced Notice of Proposed Rulemaking: Identification of Non-Hazardous Materials That Are Solid Waste – Cement Kiln Dust (CKD).36 capacity are expected to materialize ove r the 2008 to 2012 peri od resulting in an anticipated increase in CKD production and usage. In clinker manufacture, CKD partially offsets the need for raw material fee d, such as limestone and natural constituents (rock). As a result, returning CKD to the cement kiln can reduce the unit consumption of virgin material feed stock in the kiln, which then reduces the costs of such materials and the overall emissions of certain pollutants, most notably CO 2 from cement manufacturing. Coal Refuse 39 - Coal refuse refers to any by- product of coal mining or coal cleaning operations. Coal refuse is ge nerally defined by a minimum ash content combined with a maximum heating value, measur ed on a dry basis. Coal refuse consists primarily of non-combustible rock with attached coal that could not be effectively separated in the era in which it was mined. Coal refuse includes mining rejects, mill rejects, and recovere d landfill ash. Coal mine rejects are generated by bituminous coal and lignite surface mining, bituminous coal underground mining, and anthracite mining. Coal mill rejects and recovered landfill ash ar e generated by fossil fuel electric power generation facilities. Specific data on the quantity of mining rejects generated is not available. However, we estimate that up to 1,145 million tons of coal refuse may have been generated 40 in 2007. While aggregate data are not available, we found that the generation rate of mill rejects at coal fired power plants averages about 350 lbs/hr. Generation of mining and mill rejects, as well as the availability of recoverable landfill ash, correlates with the producti on and use of coal. Coal production is projected to increase in the coming decades in respons e to increased demand for electricity.

39 Source (unless otherwise noted): Materials Characterizati on Paper in Support of the Advanced Notice of Proposed Rulemaking: Identification of Non-Hazardou s Materials That Are Solid Waste – Coal Refuse. 40 The term “generated” in this context refers to the quantity of coal mining rejects produced from the total quantity of U.S. coal mined in 2007. (Please see the co al refuse Materials Characterization Paper for a more detailed discussion.)37 Increasing coal use for electricity generation at existing plants and projected construction of new coal-fired plants is estimated to lead to coal production incr eases that average 1.1 percent per year from 2005 to 2015, with 1.8 percent annual growth projected over the 2015 to 2030 period. Circulating fluidized be d (CFB) combustion units and pulverized coal power plants are the only units that use any coal refuse. CFB is an integrated technology for reducing SO 2 and NO x emissions during the combustion of coal. In addition to reduced SO 2 and NO x emissions, use of coal refuse as a replacement for traditional primary fuel s eliminates the environmental impacts associated with the extraction and processi ng of traditional fuels, and reduces the environmental and esthetic impacts associat ed with the piles of coal refuse. The Agency seeks comment, with supporting data, on the secondary materials information provided in this ANPRM and in the Materials Characte rization Papers. We also request comment, with supporting data, on any unident ified non-hazardous secondary fuel and/or ingredient materials us ed in combustion units. IV. What is the History of the Definition of Solid Waste Rules? A. Statutory Definition of Solid Waste RCRA defines “solid waste” as “...any garbage, refuse, sludge from a waste treatment plant, water supply treatment plan t, or air pollution c ontrol facility and other discarded material ... resulting from industrial, commercial, mining, and agricultural operations, and from community activitie s...” (RCRA section 1004 (27) (emphasis added)). The key concept is that of “disca rd” and, in fact, this definition turns on the meaning of the phrase, “other discarded materi al,” since this term encompasses all other examples provided in the definition.38 B . Solid Waste Program, RCRA Subtitle D The regulations that pertain to non-hazardous solid waste (RCRA Subtitle D) contain five definitions of the term “solid waste.” (See 40 CFR 240.101(y); 40 CFR 243.101(y); 40 CFR 246.101(b); 40 CFR 257.2; and 40 CFR 258.2). These regulatory definitions largely mirror the statutory definiti on of solid waste with some clarifications applicable to the specific regulatory section. The RCRA st atutory definition of solid waste has also been repeated in the C AA emission guidelines for other solid waste incineration units (e.g., see 40 CFR 60.2977 and 60.3078). EPA has not focused on the specific paramete rs of the definition of solid waste as it applies to the non-hazardous solid wast e programs under RCRA Subtitle D primarily because while, under RCRA Subtitle D, EPA promulgates criteria for municipal solid waste landfills and approves state solid waste landfill permitting programs, it is the states that fully implement those programs. EPA does not have the same role in these programs as it does in the hazardous waste programs established under RCRA Subtitle C. As a result, EPA has not promulgated detailed regula tions of what is included in the definition of solid waste for the Subtitle D (non-haza rdous) programs. States have promulgated their own laws and regulations regardi ng what constitutes solid waste and have interpreted those laws and re gulations to determine what types of secondary materials management activities constitute discard (a nd therefore involve the management of a solid waste). However, EPA now needs to articulate which non- hazardous secondary materials constitute solid wastes under the RCRA so that EPA can establish appropriate standards under CAA sections 112 and 129 for units that com bust secondary materials for the purposes of energy recovery or when used as an ingredient.39 C . Hazardous Waste Program, RCRA Subtitle C The RCRA Subtitle C hazardous waste fe deral program has a long regulatory history in defining “solid waste” for purposes of hazardous waste regulations. However, the 40 CFR 261.2 definition of solid waste explic itly applies only to wastes that also are hazardous for purposes of the Subtitle C regulations (see 40 CFR 261.1(b)(1)). EPA emphasizes that it is not requesti ng comment on any of its Subtitle C regulations or on any of the issues involved in its hazardous waste regulations regarding whether secondary materials are hazardous wastes for purposes of its RCRA Subtitle C regulations. The Agency is not reopening its hazardous waste regulations in any way whatsoever; EPA does not intend to respond to any comment directed to its hazardous waste regulations. The following discussion provides the c ontext in which EPA’s hazardous waste regulations exclude certain materials that would otherwise be hazardous waste from the definition of solid waste. In 40 CFR 261.2, EP A defines solid waste for purpose of the hazardous waste regulations as “any discarded ma terial that is not excluded. . .” by other provisions of Part 261. For context, however, the Agency descri bes its hazardous waste regulations and the exclusions, themselves. First, a “discarded material” is defined in relevant part as a hazardous material which is abandoned, recycled , or considered inherently waste-like. A hazardous material is considered to be “ab andoned” if it is disposed of, burned or incinerated, or accumulated, stored, or treated before or in lieu of being disposed of, burned, or incinerated. A hazardous material is considered to a be a solid waste when recycled (or when accumulated, stored or treated prior to recycling) if it is: (a) used in a40 manner constituting disposal (i.e., placed on the land or used to produce products that are placed on the land); (b) burned for energy recovery or used to produce a fuel 41 ; (c) reclaimed; or (d) accumulated speculatively. While 40 CFR 261.2 sets out the basic regulatory definition of solid waste as it applies to hazardous waste, the regulations al so exclude a number of specific hazardous secondary materials from the 40 CFR 261.2 defini tion of solid waste, and therefore, from the hazardous waste regulations. In gene ral, these exclusions involve hazardous secondary materials that are products, co-pr oducts, or intermediates or other hazardous secondary materials that are reused/recycled/ret urned to the original process or hazardous secondary materials that meet fuel specifi cations. For example, hazardous secondary materials are not solid waste when used or reused as ingredients to make a product (provided the material is not reclaimed), used or reused as effective substitutes for commercial products, or are return ed to the original process without first being reclaimed (40 CFR 261.2(e)(1)). In a ddition, EPA has developed many case-specific solid waste exclusions (see 40 CFR 261.4(a)). For exampl e, hazardous secondary materials that are comparable fuels or comparable syngas fuel s are excluded even when recycled by being burned for energy recovery. (See 40 CFR 261.4( a)(16).) Also, EPA has recently finalized revisions to the de finition of solid waste specifying that hazardous secondary materials being reclaimed under the control of the generator and hazardous secondary materials being transferred for reclamati on are not solid wastes, provided certain restrictions and conditions are met. 42

41 Commercial chemical products listed in 40 CFR 261.33 are not solid wastes if they themselves are fuels. Also, all commercial chemical products that are fuels are not solid waste, regardless of whether they are listed as a hazardous waste (see 50 FR 14219, April 11, 1985). 42 See “Revisions to the Definition of Solid Waste,” Final Rule, October XX, 2008, XX FR at XX.41 D . Case Law on Defini tion of Solid Waste Partly because the interpretation of the de finition of solid waste is the foundation of the hazardous waste regulatory program, there has been a great deal of litigation over the meaning of “solid waste” under RCRA S ubtitle C. From these cases, a few key principles emerge which guide our thinking on the definition of solid waste. A more detailed discussion of thes e cases is provided in the Definition of Solid Waste Case Law support document contained in the admini strative record for this ANPRM. First, the ordinary plain-English meani ng of the term “discar d” controls. See American Mining Congress v. EPA , 824 F.2d 1177 (D.C. Cir. 1987) (“AMC I”). The ordinary plain-English meaning of the term discarded means “disposed of,” “thrown away,” or “abandoned.” The c ourt specifically rejected a more expansive meaning for discard that would encompass any materials “n o longer useful in their original capacity” even if they were not destined for disposal. 824 F.2d at 1185-87. Subsequent to AMC I, the court discusse d the meaning of discard in particular cases. In American Petroleum Institute v. EPA , 906 F.2d 729 (D.C. Cir. 1990) ("API I" ), the court rejected EPA's decision not to regu late recycled air pollution control equipment slag based on an Agency determination that waste “ceases to be a ‘solid waste’ when it arrives at a metals reclamation facility because at that point it is no longer ‘discarded material.’” 906 F.2d at 740. Instead, the ma terials were part of a mandatory waste treatment plan for hazardous wastes prescribed by EPA and continued to be wastes even if recycled. 906 F.2d at 741. Further, a materi al is a solid waste regardless of whether it “may” be reused at some time in the future. American Mining Congress v. EPA , 907 F.2d 1179 (D.C. Cir. 1990) ("AMC II").42 One of the more important holdings of a nu mber of court decisions is that simply because a waste has, or may have, value does not mean the material loses its status as a solid waste. See API I, 906 F.2d at 741 n.16; United States v. ILCO Inc. , 996 F.2d 1126, 1131-32 (11 th Cir. 1993); Owen Steel v. Browner , 37 F.3d 146, 150 (4 th Cir. 1994).
ILCO and Owen Steel , however, seem to recognize pr oducts made from wastes are, themselves, products and not wastes. Association of Battery Recyclers v. EPA , 208 F.3d 1047 (D.C. Cir. 2000) (“ABR”) reiterated the concepts discussed in the previous cases. The court overturned an EPA rule that violated the principles expr essed in AMC I because it allowed no storage on the ground whatsoever and would, therefore, result in regulating materials that were reclaimed within a continuous industrial proce ss. 203 F.3d at 1053-4. In this regard the court criticized all parties in the case - indus try as well as EPA - because they “presented this aspect of the case in broad abstra ction, providing little detail about the many processes throughout the industry that generate residual material of the sort EPA is attempting to regulate . . . “ 203 F.3d at 1056. American Petroleum Institute v. EPA , 216 F.3d 50, 55 (D.C. Cir. 2000) (“API II”), decided shortly after ABR and considered by the court at the same time, provides further guidance for defining solid waste, but in the context of two specific waste streams in the petroleum refining industry. The c ourt overturned EPA’s determination that certain recycled oil bearing wastewaters are wastes (216 F.3d at 55-58) and upheld conditions imposed by the Agency in excludi ng petrochemical recovered oil from the definition of solid waste (216 F.3d at 58-59). In the case of oil-bearing wastewaters, EPA had determined that the first phase of treat ment, primary treatment, results in a waste43 being created. 216 F.3d at 55. The court ove rturned this decision and remanded it to EPA for a better explanation, neither accepti ng EPA’s view nor the contrary industry view. The court noted that the ultimate dete rmination that had to be made was whether primary treatment is simply a step in the act of discarding? Or is it the last step in a production process before discard? 213 F.3d at 57. In particular, the court rejected EPA’s argument that primary treatment was re quired by regulation, instead stating that the Agency needed to “set forth why it ha s concluded that the compliance motivation predominates over the reclamation motivation” and “why that conclusi on, even if validly reached, compels the further conclusion that the wastewater has been discarded.” 213 F.3d at 58. The last time the court considered whether material is discarded was in Safe Food and Fertilizer v. EPA , 350 F.3d 1263 (D.C. Cir. 2003) (“Safe Food”). In that case, among other things, the court re jected the argument that, as a matter of plain meaning, recycled material destined for immediate re use within an ongoing industrial process is never considered "discarded," whereas material that is tran sferred to another firm or industry for subsequent recycling must al ways be solid wastes. 350 F.3d at 1268. Instead, the court evaluated “whe ther the agency's interpretati on of ... 'discarded' . . . is, reasonable and consistent with th e statutory purpose. . . ." Id . Thus, EPA has the discretion to determine if material is not a so lid waste, even if it is transferred between industries.
E . Regulatory Interpretations Regarding the Recycling of Hazardous Secondary Materials and the Concept of Legitimacy44 As over twenty-five years of experience in implementing the hazardous waste regulations has demonstrated, drawing the li ne between materials that are part of a manufacturing process or are more commodity-l ike rather than waste-like (and therefore not discarded) from those th at are discarded (and therefor e are being disposed) is a difficult one and depends on a number of f actors, including how the materials are managed. For example, it is clear that the distil lation of hazardous waste solvents or the neutralization of contaminated acids (while the hazardous s econdary material itself may be regulated under the RCRA hazardous wast e regulations) can produce products which are not considered wastes. Similarly, under 40 CFR 260.31(c), EPA may grant a variance from classifying as a solid waste those haza rdous secondary materi als that have been reclaimed, but must be reclaimed further. In order for such a variance to be granted, the resulting material must be commodity- like (even though it may not be a commercial product) based on a series of sp ecific factors. Under one su ch variance, World Resources Company (WRC) accepts shipment s of metal bearing sludges (principally sludges from electroplating operations, a listed hazardous waste under RCRA), and then dries and blends the sludges with other shipments to achi eve concentrates that meet the contractual specifications of its customers (smelters that recover metals contained in the concentrates). Under the variance, the in coming electroplating sl udges are regulated as hazardous waste until they are processed, but the resulting product is no longer a solid waste, and it can be shipped to smelters for further reclamation as a product in commerce and not as a waste. EPA is aware that seve ral authorized states have made comparable determinations, as part of the state authorized RCRA hazardous waste program.45 An important element under the RCRA Subtitle C definition of solid waste is the concept of legitimate recycling, including the legitimate use of hazardous secondary materials. Under RCRA Subtitle C, some hazardous secondary materials that would otherwise be subject to regulation under RCRA’s “cradle to grave” system are not considered solid wastes if they are “legitim ately recycled” or legitimately used as an ingredient or substitute for a commercial product. The principle reasoning behind this construct is that use or recycling of su ch materials often closely resembles normal industrial production, rather than waste mana gement. However, since there can be considerable economic incentive to manage recyclable materials outside of the RCRA hazardous waste regulatory system, there is a cl ear potential for and historical evidence of some handlers claiming they are recycling, when in fact they are conducting waste treatment and/or disposal in the guise of r ecycling. EPA considers such “sham” recycling to be, in fact, discard and materials be ing sham recycled to be solid wastes. To guard against hazardous secondary ma terials being discarded in the guise of recycling, EPA has long articulated the need to distinguish between “legitimate” (i.e., true) recycling and “sham” (i .e., fake) recycling, beginning with the preamble to the 1985 regulations that first establis hed the definition of solid wa ste under RCRA S ubtitle C (50 FR 638; January 4, 1985). A similar discussion that addressed legitimacy as it pertains to burning hazardous secondary materials for en ergy recovery (considered a form of recycling under RCRA Subtitle C) was presented in the January 9, 1988 proposed amendments to the definition of solid wast e (53 FR 522). On April 26, 1989, the Office of Solid Waste issued a memorandum that c onsolidated the various preamble and other statements concerning legitimate recycling into a list of questions to be considered in46 evaluating the legitimacy of a hazardous sec ondary materials recyc ling process (OSWER directive 9441.1989(19)). This memorandum (known to many as the “Lowrance Memo”) has been a primary source of info rmation for the regulated community and for overseeing agencies in distinguishing between legitimate and sham recycling. As discussed above, on October xx , 2008 [insert correct date when published] , EPA finalized several exclusions from th e definition of solid waste for hazardous secondary materials being reclaimed and a non-waste determination process for persons to receive a formal determination that thei r hazardous secondary materials are not solid wastes when legitimately reclaimed. As part of that final rule, EP A codified a legitimate recycling provision specifically as a condition of these ex clusions and the non-waste determination process. As discussed earlier, EPA emphasizes th at it is not requesting comment on any Subtitle C regulation or any of the issues involved in its hazardous waste regulations. EPA does not intend to respond to any comme nt directed to its hazardous waste regulations. However, because the concept of legitimacy is a useful one in determining when a secondary material is genuinely recycled and not discarded under the guise of recycling, the Agency is including the following discus sion to provide the cont ext in which EPA has integrated the concept of legitimacy into th e latest hazardous waste exclusions from the definition of solid waste. The legitimacy provision in the Oc tober 2008 final rule, which applies specifically to the hazardous s econdary materials excluded unde r the rule, has two parts. The first part includes two factors: 1) the hazardous secondary materials being recycled47 must provide a useful contri bution to the recycl ing process or to the product or intermediate of the recycling process, and 2) the product or intermediate produced by the recycling process must be valuable. These two legitimacy factors make up the core of legitimacy, and, therefore, a pr ocess that does not conform to them cannot be a legitimate recycling process, but would be considered sham recycling. The second part of the legitimacy provisi on consists of two factors that must be considered when determining if a particul ar hazardous secondary material recycling process is legitimate for the purposes of the exclusion. These two factors are: 1) the generator and the recycler should manage the hazardous secondary material as a valuable commodity, and 2) the product of the recy cling process does not contain significant concentrations of hazardous constituents that are not in analogous products. EPA believes these two factors are important in determining legitimacy, but has not made them factors that must be met because the Agen cy is aware of some situations in which a legitimate recycling process does not conform to one or both of these two factors, yet the recycling process would still be considered legitimate. To evaluate the extent to which these factors are met and in determining whet her a recycling process that does not meet one or both of these factors is still legitimat e, persons can consider the protectiveness of the storage methods, exposure from toxics in th e product, the bioavailability of the toxics in the product, and other re levant considerations. EPA stated in the preamble to the October 2008 final rule that, although the Agency was only codifying the legitimacy provision as part of the new hazardous secondary materials recycling exclusions and non-waste dete rmination process, it was stressing that EPA retains its long-standing policy that all recycling of hazardous48 secondary materials must be legitimate and that the four legitimacy factors codified at 40 CFR 260.43 are substantively the same as the ex isting legitimacy polic y, as stated in the 1989 Lowrance Memo and in various defini tions of the solid waste rulemakings. The same principle of “legitimacy” is likewise an important element in the recycling of non-hazardous secondary material s. That is, the concept of legitimate recycling is crucial to determining whethe r a non-hazardous secondary material being recycled is truly being recycled or is, in fact, being discarde d through sham recycling. In this notice, the Agency is addressing the same basic concept of legitimate recycling by discussing when a non-hazardous secondary material that is not discarded is legitimately recycled or is a legitimate ingredient in an industrial process. Obviously, a secondary material that is not discarded and is combuste d can only be a fuel or ingredient, and not a solid waste, if the material is being legitimately used as a fuel or ingredient. Consequently, the Agency is seeking co mment on the appropriate construct for determining when non-hazardous secondary mate rials are legitimately burned as fuel or used as a legitimate ingredient in an industrial process. This is explained in detail in the following Section V: Preliminary EPA Approach Used to Determine if Materials Are Considered Solid Wastes. V. Preliminary EPA Approach Used to Determine if Materials Are Considered Solid Wastes A. Materials That Are Not Solid Wastes EPA is providing advanced notice of its inte nt to develop a definition of the term “solid waste” under RCRA for non-hazardous seconda ry materials that are used as a fuel or ingredient in a manufacturing process. As noted previously, the purpose of this notice49 is to assist EPA in developing emissions standards under sections 112 and 129 of the CAA, because the CAA states that the te rm “solid waste” shall have the meaning “established by the Administrator pursuant to [RCRA].” 42 USC 7429(g)(6). The Agency is considering various usage of seconda ry materials (e.g., as fu els or ingredients) and whether these materials should be consid ered solid wastes under RCRA when used in combustion devices, such that units burni ng these materials w ould be subject to regulation under CAA section 129, rather than potentially subject to CAA section 112. EPA has identified several cases where we be lieve materials are not solid wastes when combusted. These include:

• Traditional fuels;

• Secondary materials used as legitimate “alternative” fuels th at have not been previously discarded;

• Secondary materials used as legitima te “alternative fuels” resulting from processing of discarded secondary materials;

• Secondary materials used as legitimate ingredients; and

• Hazardous secondary materials that may be excluded from the definition of solid waste under RCRA Subtitle C because they ar e more like commodities than wastes. 1. Traditional Fuels Fossil fuels (e.g., coal, oil, natural gas), and their de rivatives (e.g., petroleum coke, bituminous coke, coal tar oil, refinery gas, synthetic fuel, h eavy recycle, asphalts, blast furnace gas, recovered gaseous butane, coke oven gas), as well as cellulosic biomass (e.g., wood) are traditional fuels which have b een burned historically as fuels and have been managed as valuable produc ts. These traditional fuels are unused products that have50 not been discarded and therefore are not so lid wastes. (However, certain “alternative” fuels, such as coal refuse, have in some cases been clearly abandoned, and therefore discarded - see discussion of coal refuse in section VI.A.). EPA also believes that wood collected from forest fire clearance activities and trees and uncontaminated wood found in hurricane debris is not discarded if mana ged properly and burned as a legitimate fuel, and therefore is not a solid waste. We request comment on whether there are other traditional fuels that would fall within this grouping. It should be understood that cellulosic biomass, as described above, includes unadulterated or clean wood, but that othe r forms of wood, such as reconstituted wood/panel products (e.g., medium density fi berboard, particle board, and laminated lumber) or painted and chemically treated wood, would need to be evaluated as to whether they would qualify as a legitimate al ternative fuel pursuant to the criteria described in the following section. 2. Guiding Principles Used to Determine if Secondary Materials Used in Combustion Units are Solid Wastes For these various secondary materials that are used either as ingredients or alternative fuels, EPA is “looking at” the pr inciples expressed in the various court decisions on previous rulemakings. In addi tion, we are considering the overall principle in our hazardous waste regulations that materi als treated as a commodity, rather than as a waste, are not discarded and are not solid wastes so long as they are legitimately recycled. We are soliciting comments on th e appropriateness of the principles and on how best to structure the crit eria for when a non-hazardous sec ondary material is or is not a solid waste. To this end, the same seconda ry material could be a solid waste or not51 depending on how it has been handled and managed because the handling and management factors into whether or not the secondary material has been discarded. Key factors in determining if th ese alternative fuels or ingr edients are solid waste under RCRA are: 1) whether they have been discarded, which includes how they are managed and whether they are being used as legitimate fuels and ingredients; and 2) if they have been discarded, whether they have been proces sed to produce a fuel or ingredient product that would not be consider ed a solid waste. First, the ordinary plain-English meani ng of the term “discar d” controls. See American Mining Congress v. EPA , 824 F.2d 1177 (D.C. Cir. 1987) (“AMC I”). The ordinary plain-English meaning of the term discarded means “disposed of,” “thrown away,” or “abandoned.” 825 F.2d at 1190. Th e court specifically rejected a more expansive meaning for discard that would en compass any materials “no longer useful in their original capacity” even if they were not destined fo r disposal. 824 F.2d at 1185-87. The result of this analysis is that EP A may not regulate as "discarded" materials “...destined for beneficial reuse or recyc ling in a continuous process by the generating industry itself. 824 F.2d at 1190. Determining whether a secondary material is used in a continuous process is important because certain materials under c onsideration are produced and managed in a continuous process within an industry (e.g., baga sse and cement kiln dust that is recycled in cement kilns). In looking at the recently promulgated Subtitle C non-waste determination petition process under 40 CFR 260.34, to determine whether hazardous secondary materials are used in a conti nuous process, EPA woul d evaluate whether the hazardous secondary material is part of the continuous primary production process and is52 not waste treatment. If the hazardous secondary material is handled in a manner identical to virgin feedstock, then it would appear to be fully in tegrated into the production process. At the other end of the spectrum, however, h azardous secondary materials indisputably discarded prior to being reclai med are not a part of the continuous primary production process. See API I , ILCO and Owen Steel , cited previously. Moreover, hazardous secondary materials are likely discar ded in the case where industry may reuse materials in the future and it is not clear that reuse will occur. See AMC II , cited previously. By similar logic, EPA believe s that non-hazardous alternative fuels or ingredients that are produced and used as a legitimate fuel or ingredient in a continuous process would not be considered to have been discarded. Furthermore, even if the material is not us ed in a continuous process, if it is used as a legitimate fuel or ingredient, these sec ondary materials are likely not solid wastes if they were not previously discarded. See API II and Safe Food , previously cited. Many materials, such as coal fly ash and biomass are intended for legitimate reuse and therefore are not discarded. EPA believes these materials, if used as legitimate fuels or ingredients (as discussed in more detail below) would likel y not be solid wastes if they have not been previously discarded (however, as discussed later in this section, previously discarded materials that are processed into a legitimate fuel product or ingredient would also likely not be solid wastes). However, for alternative fuels or ingredie nts to not be considered discarded, and thus not solid wastes, they must be legitimate fuels or ingredients. Below we first discuss legitimacy criteria for alternative fuels, followed by a discussion of the legitimacy criteria for materials used as ingredients.53 a. Legitimate Alternative Fuels . Specifically, the Agen cy generally considers secondary materials to be a legitimate fuel if they are handled as valuable commodities, have meaningful heating value, and contain co ntaminants that are not significantly higher than traditional fuel products . If these criteria are not met, sham recycling may be indicated and the secondary material might be a solid waste. EPA is interested in receiving comments on these principles. Specifically:

• Handled as a Valuable Commodity. For hazardous secondary materials, EPA has previously said, with respect to whether so mething is managed as a valuable commodity, that where there is an analogous raw materi al, the hazardous secondary material should be managed, at a minimum, in a manner consistent with the management of the analogous raw material. 43 Where there is no analogous raw material, the hazardous secondary material should be contained. Hazar dous secondary materials that are released to the environment and are not recovered imme diately are considered to be discarded. We request comment on whether similar crit eria should be used to determine if nonhazardous secondary materials used as alternative fuels are being managed as valuable commodities and thus are not solid waste, or whether more tailored criteria are more appropriate for non-hazardous secondary materi als. For example, in situations where there is no analogous raw material, the Agency is interested in what type of containment would be necessary for non-hazardous sec ondary materials, particularly whether materials that are physically solid, su ch as tires, require containment.

• Meaningful Heating Value: EPA is seeking comment on how to define meaningful heating value for materials that are used as alternative fuels. Because of the wide variety of materials in question, and because of technology advances and the fact

43 See “Revisions to the Definition of Solid Waste,” Final Rule, October XX, 2008, XX FR at XX.54 that fuel values vary, EPA questions whether it is possible or appr opriate to establish a specific heating value cutoff for “legitimate” fu el. In the context of the hazardous waste regulations, EPA addressed the concept of wh ether a hazardous secondary material has an adequate, meaningful heating value in th e so-called “comparable fuels” rule (63 FR 33781) with a benchmark Btu content of 5,000 Bt u/lb (see section V.A.6 for more on the comparable fuels rule). 44 However, given improved combustion processes that have been developed that cost-effectively produ ce energy from lower rank materials (e.g., circulating fluidized bed combustion units), and given the fact that lower Btu content non-hazardous materials are frequently com busted for fuel value, EPA is requesting comment on whether a Btu content is needed, and if so whether a lower Btu content may be appropriate. Alternative fuel materials have a wide range of hea ting values that range from 2,800 Btu/lb (dry weight) for garden trimmings; to 3,800 Btu/lb for wood chips (45 percent moisture); to 4,000 to 5,000 Btu/lb for green sawdust; to 8000 Btu/lb mean heating value for coal refuse; and to 16,000 Btu/lb for pelletized rubber. (See http://msw.cecs.ucf.edu/EnergyProblem.ppt#263,3Table1 and http://www.umass.edu/umext/floriculture/fact _sheets/greenhouse_management/jb_fuels.h

tm ). We request comment on whether we s hould develop a specifi c minimum Btu value on an “as-fired” basis that would qualify a secondary material as having meaningful

44 In addition, EPA has previously stat ed that Subtitle C indust rial furnaces (i.e., cemen t kilns and industrial boilers) burning wastes with energy value greater than 5,000 Btu may generally be said to be burning for energy recovery, however, lower energy wastes could conceivably be burned for energy recovery due to the devices’ general efficiency of combustion. “Thus, the 5,000 Btu level is not an absolute measure of burning for energy recovery...” (see 62 FR 24251, May 2, 1997). EPA also clarified, in response to a law suit regarding the Toxics Release Inventory final rule (CKRC v. Browner , Case No.1:98CV00171 in D.C. Cir.) that the 5,000 Btu/lb number, while presump tive, was not a “bright line” and that valid energy recovery could be obtained from wastes rated less than 5,000 Btu/lb.55 heating content, or whether we should define meaningful heating valu e more qualitatively based on general principles.

• Presence of Non-fuel Contaminants: In the hazardous waste comparable fuels rule, EPA established numerical specifications for toxic or ganics, toxic metals, sulfur, nitrogen, halogens, and polychlorinated bi phenyls (PCBs). To address the possible presence of waste-like contaminants in non- hazardous secondary materials, EPA believes a qualitative approach is more appropriate and can be used to identify waste materials containing contaminants that are significantl y higher than those cont ained in traditional fuel products to the degree that sham recyc ling is indicated. For example, secondary materials that could contain contaminants that are significantly higher than those contained in traditional fuel products incl ude chromium-, copper-, and arsenic (CCA)- treated lumber, secondary mill residues (i.e., residues such as board, trim and breakage from the manufacture of rec onstituted wood/panel products), polyvinyl chloride (PVC) plastics which can contain 60 percent hal ogens (chlorine), lead-based painted wood, fluorinated plastics, and non-hazardous hal ogenated solvents. In addition, EPA would potentially consider asbestos -containing materials, includ ing asbestos-containing ceiling and floor tiles, as a solid waste when combus ted due to their relative contaminant levels, although it may be the case that other federa l laws, most notably the National Emission Standards for Asbestos (40 CFR Part 61, S ubpart M), prohibit the combustion of these materials. We request comme nt on whether a qualitative approach to defining fuels as solid waste because they are too contamin ated (indicating sham recycling) is an appropriate option. In any case, given the multi plicity of fuel materials, we believe that numerical specifications are li kely to be impractical.56 b. Legitimate Alternative Ingredients . For non-hazardous secondary materials to be used as legitimate ingredients, the Agency would use a similar legitimacy analysis as was developed in the hazardous waste pr ogram. Specifically, the Agency would generally consider secondary materials to be a legitimate ingredient if the secondary material is handled as a valuable commodit y, the secondary material provides a useful contribution, the recycling results in a valu able product, and the product does not contain contaminants that are significantly higher than traditional products. If these criteria are not met, sham recycling may be indicated and the secondary material may be a solid waste. For use as an ingredient, EPA w ould not be looking at fuel value since the secondary materials are being used as an ingr edient and not a fuel. Instead, the Agency would look at useful contribution and valuable product, as described below. The Agency is interested in receiving comments on these principles, including whether the following principles are reasonable for non-hazardous secondary materials used as ingredients:

• Handled as a Valuable Commodity. For hazardous secondary materials, EPA has previously said, with respect to whether a se condary material is managed as a valuable commodity, that where there is an anal ogous raw material, the hazardous secondary material should be managed, at a minimum, in a manner consistent with the management of the analogous raw material. Where ther e is no analogous raw material, the hazardous secondary material should be contained. Hazar dous secondary materials that are released to the environment and are not recovered immediately are discarded. We request comment on whether similar criteria shoul d be used to determine if non-hazardous secondary materials used as ingredients are being managed as valuable commodities and57 thus are not solid waste, or whether more tailored criteria are more appropriate for nonhazardous secondary materials.

• Useful Contribution: For hazardous secondary materials, EPA has previously stated that a secondary material must provi de a useful contribu tion to the recycling process or to the product of the recycling process. 45 The ways in which a secondary material can add value and usefully contri bute to a recycling pr ocess are: (i) the secondary material contributes valuable ingred ients to a product or intermediate; or (ii) replaces a catalyst or carrier in the recycling process; or (iii ) is the source of a valuable constituent recovered in the re cycling process; or (iv) is recovered or regenerated by the recycling process; or (v) is used as an eff ective substitute for a commercial product. We request comment on whether this description is a pplicable for non-hazardous secondary materials used as ingredient s in a combustion process.

• Valuable Product or Intermediate: Sim ilarly, for hazardous secondary materials, EPA has stated that the recycling pro cess must produce a valuable product or intermediate. 46 The Agency believes a product or interm ediate is valuable if it is (i) sold to a third party or (ii) used by the recycler or generator as an effective substitute for a commercial product or as an ingr edient or intermediate in an industrial process. The Agency believes this description is broad enough to incorporate both products that are valuable from a monetary standpoint and produc ts or intermediates that have intrinsic value to the generator or the recycler. We are seeking comment on whether this

45 See “Revisions to the Definition of Solid Waste,” Final Rule, October XX, 2008, XX FR at XX.

46 See “Revisions to the Definition of Solid Waste,” Final Rule, October XX, 2008, XX FR at XX.58 description of valuable produc t/intermediate is an appropriate way to consider this criterion in the context of non-hazardous sec ondary materials used as ingredients.

• Presence of Contaminants: As mentione d above under legitimate fuel criteria, EPA is suggesting a qualitative approach may be more appropriate to use in identifying waste materials containing contaminants thatare significantly higher than those contained in traditional products to the degree that sham recycling is indicated. In the context of hazardous secondary materials, EPA exp ects those making a legitimate recycling determination to look at the concentrations of hazardous constituents found in the product made from hazardous secondary materials and compare them to the concentrations of hazardous constituents in analogous products. 47 We request comment on whether a qualitative approach to defining ingredie nts as solid waste because they are too contaminated (indicating sham recycling) is the preferred option or whether numerical specifications is a better approach. In a ddition, the Agency is requesting comment on whether the contaminants evaluated should be the hazardous constituents listed in Appendix VIII to 40 CFR Part 261 or whether a different list of contaminants is more appropriate for non-hazardous secondary materials used as ingredients. c. Discarded Secondary Materials That Have Been Processed . In many cases, the secondary material may have been di scarded, but later processed to produce a legitimate fuel product or ingredie nt, ready for direct use in an industrial process. In such cases, the processed material that is extrac ted or reclaimed as a legitimate fuel or ingredient would not be a wast e, but rather a product of the processing activity. In general, the products from the recycling of so lid wastes are not themselves wastes - for

47 See “Revisions to the Definition of Solid Waste,” Final Rule, October XX, 2008, XX FR at XX.59 example, paper that is made from recycling used paper and then so ld in stores is a product, not a waste. EPA believes that if a secondary material is processed into a legitimate fuel or ingredient material, the processed materi al would not be a discarded material. Of course, these products still must qua lify as legitimate fuels or ingredients, as previously discussed. Otherwise, sham recy cling may be indicated and the materials may be a solid waste. For example, used oil th at is processed to produce “on-spec fuel” and that meets the standards of 40 CFR 279.11 would be considered a product, not a waste. See section V.A.4 for more di scussion of used oil. In the following sections, we discuss thr ee groupings (previously listed) where we believe secondary materials are not solid wa stes, but rather are non-discarded products that are legitimate fuels or ingredients when used in combustion units. We are soliciting comment on our interpretation of these material s as not being solid wastes under RCRA. 3. Secondary Materials Used as Legitimate “Alternative” Fuels That Have Not Been Previously Discarded As we discussed previously, EPA believe s that the question of what constitutes a legitimate “fuel” reflects the availability of fuel materials generall y, the demand for fuel, and technology developments. Thus, in additio n to traditional fuels, the Agency also believes that there is a category of secondary materials that are legitimate alternative fuels; that is, there are secondary materials th at may not have been traditionally used as fuels, but that are nonetheless legitimate fu els today because of changes in technology and in the energy market. In cases where thes e legitimate alternative fuels have not been discarded, EPA would not consider them to be solid wastes.60 Alternative fuels consisting of biomass represent a large percentage of the alternative fuels in use today. We generally believe that mu ch of the biomass currently used as alternative fuels are not solid waste si nce they have not been discarded in the first instance and are legitimate fuel products (i .e., they have been managed as valuable commodities, have meaningful heating value and do not contain contaminants that are significantly higher than those in traditional fu el products). Thus, when burned, it would not be considered “sham” combustion. See previous discussion in section V.A.2. Biomass can include a wide range of alternat ive fuels, and can be broken down into two different categories - cellulos ic biomass and non-cellulosic bi omass. Cellulosic biomass includes forest-derived biomass (e.g., gr een wood, forest thinnings, clean and unadulterated bark, sawdust, trim, and tree harvesting residuals from logging and sawmill materials), food scraps, and pulp and paper mill residuals (e.g., spent pulping liquors; hog fuel, such as clean and unadulterated bark, sa wdust, trim screenings; and residuals from tree harvesting), and agricultura l residues (e.g., straw, corn husks, peanut shells, and bagasse). Non-cellulosic biomass includes manures and gaseous fuels (e.g., from landfills and manures). EPA generally considers biomass as de scribed above, especially cellulosic biomass, to have comparable composition when compared to traditional fuel products due to the nature of the plants and animals (i .e., they would not be considered to have additional “contaminants”). Thus, if they are managed as valuable commodities and have meaningful heating value, then we do not be lieve that they should be considered solid wastes. We request comment on whether biomass as described above contains contaminants that are significantly higher when compared to traditional fuel products.61 We also request comment on the impact of a solid waste determination, one way or the other, on the inclusion of biomass materials in the many state-initiated renewable fuels specifications whereby such materials (e.g., manu res, forest thinnings) are required to be used in the electric generation portfolio within the state. EPA also believes that tires used as TDF, which include whole or shredded tires, that have not been previously discarded, ar e legitimate fuels that meet our previous described criteria (i.e., they are handled as valuable commodities, have meaningful heating value, and do not contain contaminan ts that are significantly higher when compared to traditional fuel products). EP A's 1997 study on “Air Emissions from Scrap Tire Combustion” 48 concluded that potential emissions from TDF are often less than and generally within the same range as, emissions from conventional fossil fuels. Thus, if the tires have not been abandoned and thrown awa y, we would not consider them to be solid wastes. For example, approximately 130 milli on tires per year are obtained from tire dealerships and used directly as a fuel. In many cases, these tires are collected pursuant to state tire programs and handled as valuab le products, and, therefore, they have not been abandoned, disposed of, or thrown away. 49 In other cases, th ey are transferred to brokers or directly to industri al operations through standard commercial transactions. In contrast, tires that have accumulated in tire piles over the years (i.e ., those tires in tire

48 This study was published by EPA’s Office of Research and Development and produced as part of EPA’s National Risk Management Research Laboratory strategic long-term research plan for the prevention and control of pollution to air, land, water, and subsurf ace resources; protection of water quality in public water systems; remediation of contaminated sites and groundwater; and prevention and control of indoor air pollution. 49 States typically regulate these programs under state so lid waste authorities. It is not the Agency’s intent to undercut state authorities in this area. We request comment on whether tires collected pursuant to state tire programs have been discarded. We also request comment on whether an EPA designation specifying that used tires, for example, managed pursuant to state collection programs are not solid wastes, would adversely impact a states ability to manage such programs . This similarly would apply to used oil as well.62 piles that have been clearly abandoned) have been discarded, and thus considered to be solid waste (although they may later be pro cessed into a legitimate fuel product). 50

Other non-traditional alternative fuels in use today that we are evaluating to determine whether they have not been dis carded, and are legitimate alternative fuels include construction and demolition materi als, scrap plastics, non-hazardous nonhalogenated solvents and lubricants, and wastewater treatment sludge. We request comment on whether these secondary materials are legitimate alternative fuels and thus would not be solid wastes if they have not been previously di scarded. Commenters should provide data and/or information suppor ting whether these sec ondary materials are legitimate and whether they are or are not considered to have been discarded.
Some secondary materials are questionable as to whether they ar e legitimate fuels because they lack adequate heating value, which could be the case for wet biomass that has insufficient as-fired heating content due to its moisture content. Another secondary material that may not be a legitimate fuel is biomass that has, for example, undergone chemical treatment such that the material ma y contain contaminants that are significantly higher than those in traditional fuel produc ts to the degree that sham recycling is indicated. Secondary materials that we think may contain contaminants that are significantly higher than those of traditiona l fuel products include PVC (which can contain 60 percent chlorine), halogenated plastics, chromated copper arsenate (CCA) lumber, creosote lumber, copper-based trea ted lumber, lead-bas ed treated lumber, secondary mill residues (i.e., residues such as board, trim and breakage from the

50 For example, as noted below, whole tires can be processed (shredded) into fuel products after they have been discarded.63 manufacture of reconstitute d wood/panel products), non-hazar dous halogenated solvents, and asbestos-containing material. 51 We request comment on whether these secondary materials contain contaminants that are significantly higher compared to traditional fuel products, and whether there are other seconda ry materials not lis ted that should be considered to have contaminant concentr ations that would result in them being disqualified as a legitimate fuel (i.e., a solid waste when burned).
We also request comment on whether ther e are other types of secondary materials that should be considered alternative fuels, assuming they have not been discarded and are legitimate (i.e., they meet the criteria disc ussed in section V.A.2). For example, as we discuss in more detail in section VI, biofuel production has increased dramatically in the past few years and is expected to continue increasing over the coming years. We later take specific comment on the extent to which biofuels are currently used in stationary combustion units, and the extent to which bypro ducts from the production of biofuels, as well as ingredients used to produce biofuels, such as fats, oils, and greases, are used directly in stationary com bustion units as alternative fu el sources. Commenters should explain the circumstances under which th ese secondary materi als would not be considered to have been discarded, and how th ese materials meet the criteria as legitimate fuels. See the Materials Characterization Papers in the docket established for this ANPRM for a complete description of the s econdary materials EPA is assessing as part of this effort.

51 As previously discussed, it may be the case that other federal laws, most notably the National Emission Standards for Asbestos (40 CFR Part 61, Subpart M), prohibit the combustion of asbestos-containing materials.64 4. Secondary Materials Used as Legitimate “Alternative Fuels” Resulting From the Processing of Discarded Secondary Materials EPA also believes that legitimate fuel products may be extracted, processed, or reclaimed from non-hazardous secondary material s that have been discarded in the first instance and that such products would genera lly not be considered solid waste. Once processed to make a legitimate fuel product, such a product would not be discarded and therefore would not be a solid waste, provided it met the ge neral principles previously discussed for being a legitimate fuel. (Not e: Until a legitimate product has been extracted, processed or reclaimed, the secondary material that has been discarded is a solid waste.) The principle behind this idea of processing a waste to produce a product is common to industrial processes. Due to the nature of some materials (e.g., low Btu value, the presence of contaminants, or the need for certain physical characteristics to a ddress handling issues associated with the combustion device), proc essing will be necessary for the secondary material to be used as a fuel. Such discar ded materials generally would be solid wastes until the point that a fuel product is produced; however, the fuel itself would not be a solid waste as long as it met the legitimacy factors. Secondary materials that can be processed into fuel include discarded biomass, coal fines, used oil, tires, and landfill ash. The degree of processing necessarily will vary depending on the specific material, but the objective remains the same – the product from the processing must be a legitimate fuel (i.e., a material with meaningful heating value, with contaminants that are not significantly higher than those of traditional fuel products, and managed as a valuable65 commodity). Below are some of examples of secondary materials that we believe may be processed to produce a le gitimate non-waste fuel.

• For biomass that has been previously di scarded and has high moisture content, dewatering/drying techniques can be used to effectively increase the Btu/lb and produce a legitimate non-waste fuel, pr ovided the biomass does not contain significant levels of contaminants and is handled as a valuable commodity.

• Wood with lead-based paint can be processed to remove the lead-based paint, leaving the underlying wood for use as a non- waste, traditional fuel, and the leadbased paint can then be safely disposed of or sent for lead recovery.

• Tires that cannot be handled whole by some combustion devices (whether discarded or not) can be processed by shredding and removing dirt or other contaminants to produce TDF. Turning scrap tires into TDF can involve two physical processing steps: chipping/shreddi ng and in some cases metal removal. TDF consists of chipped tires ranging in size from 1 to 4 inches; the amount of metal in TDF varies depending on how much of the tires have been processed. Some units, such as cement kilns use the meta l in the wire as a valuable ingredient in the manufacturing process, and therefor e do not require its removal. However, most other units benefit from TDF that has been processed to minimize the amount of metal and improve heating effici ency. At this point, EPA considers tire shredding/chipping alone (without metal recovery), as well as in combination with metal recovery, as legitimate pro cessing activities sufficient to convert a discarded material in to a fuel product.66 • Coal fines, biomass, and other materials can be mixed and processed into pellets (or other forms) that have the consiste ncy and handling characteristics of coal (e.g., K-Fuel, N-Viro). In all of the examples above, we, at this point, view the secondary material to have been sufficiently processed to produce a fu el that would not be a solid waste if it met the general principles described earlier—t hat is, the fuel product is a legitimate fuel and “sham” combustion (i.e., discard rather th an use) has not occurr ed. Of course, any waste generated in the “processing” of th ese materials would need to be managed properly. We seek comment on whether the processing described a bove is sufficient to convert discarded material into a fuel product. In addition to the examples above, we request comment on some additional operations that involve processing. Speci fically, logging and primary milling residues may be chipped or sorted before combusti on. Although we generally believe that this material would not be considered to ha ve been discarded, we request comment on whether any forest-derived biomass that was determined to have been discarded and was subsequently processed by chipping or sorti ng prior to combustion would be considered to have undergone adequate processing to c onvert the discarded material into a fuel product. Mined landfill power plant ash can also be pro cessed (e.g., crushed, screened, and/or separated into its fundamental com ponents through density separation techniques) into a fuel. We also request comment on whether mined landfill ash is adequately processed to convert it into a fuel product or ingredient (under the assumption that it meets our previously described legitimacy criteria).67 Used oil is a special case since it is sp ecifically addressed in the RCRA statute (RCRA section 3014). It is worth noting that the statute does not de fine used oil as a solid waste. Section 3014 provides that EPA is to make a determination whether used oil is a hazardous waste, but is silent on whether used oil per se is a solid waste. Thus, we must apply the previously descri bed criteria to determine if us ed oil is in fact discarded. Pursuant to RCRA section 3014, the Agency has promulgated standards for used oil management. The Standards for the Management of Used Oil in 40 CFR Part 279 set forth management requirements for used oil that include contaminant limits to identify when used oil is considered to be “on- specification” used oil as opposed to “offspecification,” and when it must be managed as a hazardous waste. Table 1 in section 279.11 provides contamin ant limits for “on-specification” used oil. On-specification used oil can only be burned for energy recovery, and once used oil is shown to meet the specification limits, the only requirement is maintenance of records of shipment to on-specification burners. No requirements or limitations are imposed on the management or burning of the on-speci fication used oil. Other uses of onspecification used oil would continue to cause that use to be subject to the used oil regulations. Management of used oil that does not meet the specification limits (referred to as off-spec used oil) is subject to the management controls, including recordkeeping, storage standards, and burning requirements. With one exception, off-spec used oil may only be burned in Subtitle C hazardous waste incinerators, or in boilers and industrial furnaces specified by the regulations (see 40 CFR 279.61). The exception is generators may burn off-spec used oil in used oil-fired sp ace heaters provided that the heater burns only used oil that the owner or operator ge nerates or used oil received from household68 do-it-yourself used oil generato rs, the heater is designed to have a maximum capacity of not more than 0.5 million Btu per hour, and the combustion gases from the heater are vented to the ambient air. There also is an upper total halogen lim it for used oil (known as the rebuttal presumption). If the used oil has halogens in excess of 1,000 ppm, the used oil is considered to have been mixed with haloge nated hazardous wastes, and must be managed as a hazardous waste unless a demonstration ca n be made that the used oil does not in fact contain hazardous waste. We generally consider off-specification us ed oil that is collected from repair shops to have been originally discarded since this used oil contains both fossil fuel and contaminants picked up during use as a lubri cant, and likely contains contaminants that are significantly higher than traditional fu els, and thus would not be considered a legitimate fuel per the criteria discussed in section V.A.2. However, if the fossil fuel component is extracted from the non-fuel cont aminants through processing to meet the on-specification levels in 279.11, the resultant fo ssil fuel is not signi ficantly different from traditional fossil fuels in every way and thus should be considered a product fuel, not a waste. We also consider used oil that is collected fr om repair shops that already meet the “on-spec” limits to be legi timate fuel products, not wastes. We also request comment on whether off- specification used oil managed pursuant to the 40 CFR 279 used oil management standards which are burned for energy recovery is considered to be discarded, and thus solid waste. Although off- specification used oil may contain contaminant levels th at are higher than traditiona l (virgin) fossil fuels, they still are managed within the constraints of the used oil management standards, and may69 only be burned in specific types of combusti on devices. Further, it is unclear whether off-specification used oil that generators ma y burn in used oil-fired space heaters would not be considered to be discarded. 5. Secondary Materials Used as Legitimate Ingredients For secondary materials used as ingredient s, we also must determine whether the alternative ingredients have been discarded, which incl udes assessing how they are managed, and whether they are being used as legitimate ingredients pursuant to the criteria described in section V.A.2. Secondary materials that the Agency is assessing as alternative ingredients include CKD, bottom ash, boiler slag, blast furnace slag, foundry sand, and secondary glass material. We re quest comment on whether these secondary materials are legitimate ingredients as previo usly described in section V.A.2 and thus would not be solid wastes if not previously discarded. Commenters should provide data and/or information supporting whether th ese secondary materials are legitimate ingredients and thus, whether th ey are or are not considered to have been discarded. For example, we believe that CKD is not a solid wa ste if it is recycled within the continuous clinker production process. We also believe that coal fly ash is handled as a commodity within continuous commerce when it is mark eted to cement kilns as an alternative ingredient. As a result, if it is determined to be a legitimate ingredient pursuant to the criteria outlined in section V. A.2, we would not consider it to be a solid waste.
If the alternative ingred ient was previously discarded, however, the Agency believes that such secondary materials are solid wastes, unless they were processed into a legitimate ingredient product. The Agency solicits comment on this situation (that is, the situation where a discarded material is recove red from the environment, and directly used70 as an ingredient) and, if comments are submitte d that argue that such secondary materials (once recovered from the environment) s hould not be considered solid waste, the commenters should provide the basis or ra tionale for such a position (including a demonstration of how the secondary material s meet the legitimacy criteria outlined in section V.A.2) in order for the Agency to ev aluate the arguments that are presented by the commenters. The Agency specifically requests comments on the extent to which secondary materials that have already been discarded (e.g., coal ash that has been landfilled) are later processed and used as i ngredients in combustion units. Commenters should provide a description of the types of processing that the secondary material undergoes. EPA is also solic iting comment on the level of processing that would be considered sufficient to transform a discarde d material into an ingredient product. 6. Hazardous Secondary Materials That Ma y Be Excluded From the Definition of Solid Waste under RCRA Subtitle C Because They Are More Like Commodities Than
Wastes Under the hazardous waste regulations, the Agency has evaluated a number of hazardous secondary materials that are recycl ed and determined that such materials, while they either met a listing description or exhibited one or more of the hazardous characteristics, were not “so lid wastes” for purposes of the Subtitle C hazardous waste regulations. Specifically, th e following materials may be burned under certain conditions and are not solid wastes, but only for purposes of the hazardous waste regulations--black liquor, spent sulfuric acid, and comparable fu els. EPA is interest ed in extending this determination so that these materials ar e not considered solid wastes under RCRA Subtitle D.71 The Agency believes that it has sufficien t information in the rulemaking records that covered the determinations fo r black liquor, spent sulfuric acid, 52 and comparable fuels 53 to conclude that the excl usions are broadly applicable to the definition of solid waste; however, it solicits comment on whether it needs to develop additional information and provide new arguments. EP A emphasizes that it is not requesting comment on the solid waste definition for purpos es of its hazardous waste regulation, but only on whether the exclusion conceptually applie s to the definition of solid waste that is applicable to non-hazardous Subtitle D wastes , when these secondary materials are used as a fuel or ingredients. EPA provides the following summaries of its regulations and solicits any views from the public on these materials. Specifi cally, a determination was made that black liquor reclaimed in a pulping liquor recovery furnace and then reused in the pulping process and spent sulfuric acid used to produce virgin sulfuric acid were not solid wastes under the hazardous waste regulations. Th e reason that these hazardous secondary materials were determined not to be solid wastes was because these hazardous secondary materials were determined to be an inte gral part of the manufacturing process

. With respect to comparable fuels, EPA determined that certain hazardous secondary materials that meet specific requirements to ensure th e material’s toxic cons tituents and physical properties are similar to commercial (benchma rk) fuels, are products, not solid wastes. See 63 FR 33781. The Agency has also recently finalized a rule that expands the Comparable Fuels Exclusion to encompass a new category of liquid hazardous secondary

52 See Definition of Solid Waste Final Rule, January 4, 1985 at 50 FR 641-642, covering both black liquor and spent sulfuric acid. 53 See “Expansion of the RCRA Comparable Fuels Excl usion (CFE)”, Final Rule, October XX, 2008, XX FR at XX.72 materials known as emission-comparable fuel (ECF). 54 By expanding the Comparable Fuels Exclusion, ECF will be handled as a va luable commodity. ECF is subject to the same regulations that currently apply to the Comparable Fuels Exclusion, with the exception of certain oxygenates and hydrocarbon s (constituents which contribute energy value to the fuel). The rule specifies conditions on burning ECF which assure that emissions from industrial boilers burning ECF are comparable to emissions from industrial boilers burni ng fuel oil. The Agency specifically states in the hazardous waste rules that such “solid waste” determinations are only with respect to the Subtitle C hazardous waste regulations (see 40 CFR 261.1(b)(1)). EPA, however, wi shes to obtain comment on whether to extend these exclusions beyond the hazardous wa ste regulations and apply them to these materials when they are used as a fuel or i ngredient, and they meet the general principles discussed in today’s notice. VI. Additional Areas for Comment The Agency is also interested in receivi ng comments on the following four issues. A. Fuels or Materials That Have Been Discarded That Are Generally Considered to be Solid Wastes The Agency considers materials that ha ve been previously discarded and not subsequently processed into legitimate fuel or ingredient products as solid wastes under RCRA. However, the question has been ra ised by certain industry groups and states 55 as

54 See “Expansion of the RCRA Comparable Fuels Excl usion (CFE)”, Final Rule, October XX, 2008, XX FR at XX.
55 For example, see the Hybrid Regulatory Approach pa per presented by the multi-industry coalition of stakeholders (PCA/CIBO/AF&PA/US WAG/RMA) in the docket established for this action entitled:73 to whether these discarded materials - on ce recovered from the environment – may no longer be considered solid wast e (assuming they are in fact va luable fuels or ingredients and otherwise meet the legitimacy criteria once recovered). Therefore, the Agency solicits comment on whether there are any circumstances under which these secondary materials should not be consider ed solid wastes under RCRA. EPA recognizes that waste can be burned for energy or material recovery, and such materials, once they have been discar ded, generally are consid ered “solid wastes” and units that burn these materials would be subject to the CAA section 129 incineration standards if they have not been processed into a legitimate ingredient or fuel. However, as discussed in section III of this preambl e, as prices for primary materials have increased, in many cases, the economics of usi ng secondary materials as a substitute for primary materials has shifted, changing how th e secondary materials are considered in commerce. In addition, new technologies can expand the universe of secondary materials that could be considered legitimate fuels. The Agency is therefore interested in taking comments on the situation where discarded materials can be directly used as a legitimate fuel or ingr edient (as defined in section V.A.2) without processing because th ey are indistinguishable in all relevant aspects from a fuel or ingredient product. (Note that the Agen cy is only requesting comment on these secondary materials at the point they have been removed from their “discard” environment and are being managed as a valuable commodity. Materials that have been disposed of in abandoned piles or landfills are clearly discarded while they remain in those environments and are subject to the appropriate fede ral, state and local
“Outline of Regulatory Approach to Determine Materials Considered Fuels – not Solid Wastes - under RCRA,” June 12, 2008. We have had verbal discussions with the states on this issue as well.74 regulations.) As an example, based on the results of EPA's 1997 study on “Air Emissions from Scrap Tire Combustion,” it was conclude d that potential emissions from TDF are often less than, but at leas t generally within the same range as, emissions from conventional fossil fuels, as long as combus tion occurs in a well-designed, operated, and well-maintained combustion device. Othe r data supports this conclusion. See background document titled “Materials Characte rization Paper; Scrap Tires,” for a more detailed discussion on comparing TDF emissions to traditional fossil fuel emissions.
Coal refuse (i.e., mining rejects) is anot her secondary material that we believe falls within this category. Some of these materials we re discarded by coal mining companies from the time mining first began in the Appalachians th rough the late 1970s. The materials had historically been piled through the Pennsylvania and West Virginia coal regions until laws were enacted in the late 1970s that required site reclamation. The advent of CFB combustion boilers, capable of efficiently burning fuels of lower calorific value, has resulted in the ability to use this material as a fuel (millions of tons of coal refuse have been burned as a fuel since th e advent of CFBs). See background document titled “Materials Characterization Paper; Coal Refuse,” for more details.
The Agency specifically solicits commen t on whether there are circumstances under which materials that have been dis carded and which are legitimate fuels or ingredients should or should not be consider ed a solid waste once they are removed or recovered from the “discard” environment and ma naged as a legitimate fuel or ingredient.
B. Other Approaches for Determining Whether Secondary Materials Are Fuels and Not Solid Wastes75 The Agency is also interested in recei ving comments on an approach, as presented to the Agency by industry representatives, fo r determining when secondary materials are fuels and thus, not solid waste, and how the process may be implemented. 56 Many aspects of the approach presented have been discussed throughout this ANPRM, with the common principle that certain secondary mate rials are not solid waste when burned for energy if they meet established criteria or are sp ecifically identified not to be solid waste. For example, industry representatives suggest that material should be evaluated, on a case-by-case basis, to identify which criteria have been satisfied and determine whether the material is legitimately ha ndled as a fuel. Criteria id entified by industry stakeholders may include: handling and storage of material s to minimize loss, use of materials within a reasonable period of time, material value (e.g., whether there is a market for the material as a fuel, internal or external to the company), material managed and treated as a commodity, and processing of material to enhanc e fuel value. Industry stakeholders also recommend that EPA should list by regulation sp ecific materials as fuels, rather than solid wastes. Thus, under the industry recomm ended approach, it would not be necessary to evaluate whether the criteria have been sati sfied in every instance. Specifically, listed materials that were recommended include: traditional/historical fuels (e.g., coal, fuel oil, pet coke, coal refuse, used oil regulated under 40 CFR Part 279, synfuel, TDF, biomass fuel, biofuel, and gas pipeline condensate), materials specifically excluded from RCRA Subtitle C that have beneficial fuel value, materials combusted for chemical recovery, materials that are modified or processed to produce a product of significant fuel or

56 See the Hybrid Regulatory Approach paper presen ted by the multi-industry coalition of stakeholders (PCA/CIBO/AF&PA/USWAG/RMA) in the docket esta blished for this action entitled: “Outline of Regulatory Approach to Determine Materials Consider ed Fuels – not Solid Wastes - under RCRA,” June 12, 2008.76 feedstock value, biomass materials from agricu ltural and forest reso urces, tires reclaimed via state programs, materials that had been discarded, but can be processed for use as a fuel or feedstock, and material s that a state approves as a fuel or determines can be beneficially reused. To implement the aforementioned concepts for determining when or which secondary materials are fuels, industry pres ented two methods, which were not meant to be mutually exclusive. One method implemen ts the criteria concep t, by which an owner or operator of a combustion device must determ ine that the material meets the criteria set forth and maintain records to demonstrate that these criteria are met. (Presumably, the owner or operator would be subject to poten tial enforcement action if EPA determined that the criteria were misapplied.) The ot her method implements an extension of the listed materials concept, by allowing an owner or operator to petition EPA or the state to specifically list a material (in addition to the pre-established list of materials). In a petition, the owner or operator would use the criteria as th e basis for proposing that EPA or the state list the material (although industry notes that not all criteria need to be satisfied to qualify as a fuel), or th e owner or operator could submit additional information to demonstrate the environmental eq uivalence of the materi al to other listed fuels. The Agency solicits comments on whethe r the rules should include a petition process that would allow a person to subm it a rulemaking petition and argue, on a caseby-case basis, that a secondary material is no t a solid waste. This petition process would address situations where a material would ot herwise be considered a solid waste under current regulations. As discussed in sect ion V.A.6, the Agency has excluded certain77 materials from being a solid waste under th e Subtitle C hazardous waste regulations. Should the Agency allow persons to petition the Agency to have a secondary material excluded from the definition of solid waste based on the legitimacy criteria discussed in section V.A.2? The Agency is interested in receiving comments on the validity and potential specific procedures of a case-by-case petition pr ocess by the owne r or operator of a combustion device, includ ing what criteria should be co nsidered in evaluating such petitions. In addition, we also request comment on the concept of establishing a list of materials that are fuels. For more information, see the multi-industry coalition’s paper in the docket established for this action entitled: “Ou tline of Regulatory Approach to Determine Materials Considered Fuels – not Solid Wastes- under RCRA,” June 12, 2008. The Agency also has received several papers fr om industry groups which we have reviewed and considered in drafting this ANPRM that are also available for viewing and comment in the docket. C. Materials for Which State Beneficial Use Determinations Have Been Made 57 States regulate the management of non-h azardous solid waste, typically including secondary industrial materials, but many have a process or promulgated regulations to determine when these materials are no longer wastes, because they can beneficially and safely be used as products in commerce. Th e Agency is also solic iting comments on state beneficial use determinations and how those determinations deal w ith solid wastes, and how those decisions should be considered by EP A in determining what is or is not a solid waste under RCRA, which in turn determ ines how it is regulated under the CAA

57 This applies to state beneficial use determinations for secondary materials used as fuels or ingredients in combustion units that are not determined to be “non-wastes” pursuant to this rulemaking effort.78 standards. Many state determinations addres sing a material’s bene ficial use and solid waste status are consistent w ith the principles explained in this ANPRM, but some state determinations (as previously discussed, both wastes and non-wastes may be used beneficially) may be inconsistent. In order for state programs to qua lify materials as not solid waste under federal law, under the terms suggested in this notice, secondary materials would need to be legitimate fuel s or ingredients and otherwise meet the conditions of the federal regulations. As we have noted previous ly, states are the lead Agencies for implementing the non-hazardous waste programs and, as such, we want to make sure that state programs are not adversely affected by a ny decisions that are made by EPA. We see a benefit to deferring to state decisions, which are able to consider site specific information. The Association of State and Territorial Solid Waste Management Officials (ASTSWMO) reports that they receive requests from the regulated community to consider nonhazardous, industrial secondary materials as not being solid wastes when they are beneficially used. Most stat es (30 of 34 reporting) indicated they had either formal or informal decision-making processes or benefici al use programs relating to the use of solid wastes. Materials are no longer subject to the state’s solid wast e regulations under the state rules when states determine that the secondary materials are no longer solid wastes when beneficially used. The Agency acknowledges state beneficial use determinations and seeks comment on whether to consider secondary material s that receive a state beneficial use determination for use as a fuel or as an ingred ient as not a solid wast e, should also not be considered a solid waste under federal law. Commenters who support such a position79 should provide the basis or rationale for this position. For example, would a determination be needed that shows the benefi cial use determination was in-line with the EPA’s principles as outlined in section V.A.2. (i.e., whether th ey were legitimate fuels or ingredients)? D. Biofuels Biofuels and byproducts from the producti on of biofuels ar e non-traditional alternative fuels being offered for stakeholder consideration. Biofuels can be generally described as a gas or liquid fuel made from biological materials, in cluding plants, animal manure, and other organic sources. Thus, biof uels produced from these materials such as ethanol and biodiesel ar e not considered to be solid wa stes themselves, but rather are viewed as legitimate fuel products. Biofuels production has increased dramatically in the past few years and is expected to continue increasing over the coming years. The Energy Policy Act of 2005 amended the CAA to esta blish a Renewable Fuel Standard (RFS) program which established a major new fede ral renewable fuel volume mandate. While market forces initially caused renewable fu el use to far exceed these mandates, this program provided certainty that at least a minimum amount of renewable fuel would be used in the U.S. transportation market, which in turn provided assurance for investment in production capacity. The Energy Indepe ndence and Security Act of 2007 (EISA) updated the RFS program to include a new de finition of renewable fuels that accounted for the fuel life-cycle emissions of GHG 58 and also increased the total renewable fuel volume mandate to 36 billion gallons per year by 2022; the statute also established four

58 A "renewable fuel" is defined in EISA as a fuel that is produced from renewable biomass and that is used to replace or reduce the quantity of fossil fuel present in transportation fuel. "R enewable biomass" is defined as 1) planted crops and crop residue, 2) plante d trees and tree residue, 3) animal waste material and animal byproducts, 4) slash and commercial thinnings, 5) biomass from the im mediate vicinity of buildings, 6) algae, and 7) separated yard waste or food waste, including recycled cooking and trap grease.80 specific categories of renewable fuels, each with a separate volume mandate. These categories are renewable fuel, advanced biof uel, biomass-based diesel, and cellulosic biofuel. Biofuels production can be viewed as in cluding both the feedstock materials that are used to produce biofuels, as well as th e byproducts generated from the production of biofuels. EPA considers these materials to be legitimate alternative fuels when they have meaningful heating value, do not contain cont aminants that are significantly higher than traditional fuels, and are handled as a valuable commodity. For example, a project completed by the University of Georgia (UGA) Engineering Outreach Service (EOS) demonstrated that biofuels processed from fa ts and grease (chicken fat, yellow grease, choice white grease, and beef tallow), either si ngly or blended with No. 2 fuel oil, are technically and economically viab le alternatives to No. 2 fu el oil in industrial boilers. 59 We request additional data and comment on th e extent to which fats, oils, and greases (FOGs) and related biomass materials that can be used as feedstocks to produce biofuels and that are not previously a ddressed in this ANPRM, are also used directly as fuels in stationary combustion sources. Further, th e Agency requests comment on the extent to which FOGs and biomass materials are proce ssed into biofuels for use in stationary combustion sources, such that their assessmen t as part of this rulemaking effort is warranted. For example, the U.S. Energy Information Administration estimated used cooking oil is produced at a rate of some 100 million gallons per day in the USA. 60 Literature suggests that biodiesel can be pr epared from waste cooking oil. Although there

59 FY 2005 FoodPAC Final Report; "Combustion of Poultry Fat for Plant Heat and Steam" University of Georgia. 60 Radich, A. Biodiesel performance, costs, and us e. US Energy Information Administration, 2006. http://www.eia.doe.gov/oiaf/analysispaper/biodiesel/index.html

.81 are instances where such oil is used as a fu el for engines with only minimal processing (such as filtering), more intensive processing (such as the addition of ethyl alcohol with sodium hydroxide as a catalyst for the transe sterification of vegetable oils and animal fats) is necessary to produce true biodiesel fuel. 61 Finally, we request comment on whether non-hazardous byproducts generated from the production of biofuels, such as dry distiller's grain from corn et hanol and lignin from cellulosi c ethanol, are being used as alternative fuels, which therefore should be assessed as part of this rulemaking effort. VII. Statutory and Executive Order Reviews Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), this action is a "significant regulatory action.” Accordingl y, EPA submitted this action to the Office of Management and Budget (OMB) for review under EO 12866 and any changes made in response to OMB recommendations have been documented in the docket for this action. Generally, because this action is ‘‘advanced ’’ in nature and does not, therefore, propose any requirements on any entities, the various administrative requirements EPA must address in the rulemaking process are no t applicable. When EP A issues a notice of proposed rulemaking, EPA will address those re quirements. EPA expects to prepare an Economic Assessment (EA) in support of the proposed action. We will submit this EA, along with the proposed rulemaking to OMB for review.

61 Energies 2008, 1 , 3-18; DOI: 10.3390/en1010003, "Waste Cooking Oil as an Alternate Feedstock for Biodiesel," www.mdpi.org/energies

.82 List of Subjects 40 CFR Part 257 Waste treatment and disposal.

Dated: ____________________________

____________________________ Stephen L. Johnson, Administrator.