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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 241 

[EPA-HQ-RCRA-2008-0329; FRL_XXXX-X]

RIN 2050-AG44

Identification of Non-Hazardous Secondary Materials That Are Solid Waste 

AGENCY: Environmental Protection Agency (EPA). 

ACTION: Proposed Rule.

_______________________________________________________________________ 

SUMMARY: On January 2, 2009, the Environmental Protection Agency (EPA or the 

Agency) issued an Advanced Notice of Proposed Rulemaking (ANPRM) to solicit comment on 

which non-hazardous secondary materials that are used as fuels or ingredients in combustion 

units are solid wastes under the Resource Conservation and Recovery Act (RCRA). The 

meaning of “solid waste” as defined under RCRA is of particular importance since it will 

determine whether a combustion unit is required to meet emissions standards for solid waste 

incineration units issued under section 129 of the Clean Air Act (CAA) or emissions standards 

for commercial, industrial, and institutional boilers issued under CAA section 112. CAA section 

129 states that the term “solid waste” shall have the meaning “established by the Administrator 

pursuant to [RCRA].” EPA is today proposing a definition of non-hazardous solid waste that 

would be used to identify whether non-hazardous secondary materials burned as fuels or used as 

ingredients in combustion units are solid waste. EPA is also proposing that non-hazardous 

secondary materials that have been discarded, and are therefore solid wastes, may be rendered 

products after they have been processed (altered chemically or physically) into a fuel or 

ingredient product. This proposed rule is necessary to identify units for the purpose of 
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2

developing certain standards under sections 112 and 129 of the CAA. In addition to today’s 

proposed rule, EPA is concurrently proposing air emission requirements under CAA section 112 

for industrial, commercial, and institutional boilers and process, as well as air emission 

requirements under CAA section 129 for commercial and industrial solid waste incineration 

units. 

DATES: Comments must be received on or before [INSERT DATE 45 DAYS AFTER 

PUBLICATION IN THE FEDERAL REGISTER]. Under the Paperwork Reduction Act, 

comments on the information collection provisions are best assured of having full effect if the 

Office of Management and Budget (OMB) receives a copy of your comments on or before 

[INSERT DATE 30 DAYS AFTER PUBLICATION IN THE FEDERAL REGISTER]. 

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-RCRA-2008-

0329, by one of the following methods: 

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

• Email: Comments may be sent by electronic mail (e-mail) to: rcra-docket@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 directly 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 comment that is placed in the official public docket, and made available in EPA's 

electronic public docket.

• Fax: Comments may be faxed to 202-566-9744, Attention Docket ID No. EPA-HQRCRA-2008-0329. 
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• Mail: Proposed Rulemaking - Identification of Non-Hazardous Secondary Materials That 

Are Solid Waste, Environmental Protection Agency, Mailcode: 2822T, 1200 

Pennsylvania Ave., NW., Washington, DC 20460. Please include a total of 2 copies. In 

addition, please mail a copy of your comments on the information collection provisions 

to the Office of Information and Regulatory Affairs, Office of Management and Budget 

(OMB), Attn: Desk Officer for EPA, 725 17th St. NW., Washington, DC 20503. 

• Hand Delivery: Deliver two copies of your comments to Proposed Rulemaking - 

Identification of Non-Hazardous Secondary Materials That Are Solid Waste, EPA/DC, 

EPA West, Room 3334, 1301 Constitution Ave., N.W., Washington, D.C. 20460. 

Attention Docket ID No. EPA-HQ-RCRA-2008-0329. Such deliveries are only accepted 

during the Docket’s normal hours of operation and special arrangements should be made 

for deliveries of boxed information. 

Instructions: Direct your comments to Docket ID No. EPA-HQ-RCRA-2008-0329. EPA's 

policy is that all comments received will be included in the public docket without change and 

may be made available online at www.regulations.gov, including any personal information 

provided, unless the comment includes information claimed to be Confidential Business 

Information (CBI) or other information whose disclosure is restricted by statute. Do not submit 

information that you consider to be CBI or otherwise protected through www.regulations.gov or 

e-mail. The 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 

www.regulations.gov, your e-mail address will be automatically captured and included as part of 

the comment that is placed in the public docket and made available on the Internet. If you 
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submit an electronic comment, EPA recommends that you include your name and other contact 

information in the body of your comment and with any disk or CD-ROM you submit. If EPA 

cannot read your comment due to technical difficulties and cannot contact you for clarification, 

EPA may not be able to consider your comment. Electronic files should avoid the use of special 

characters, any form of encryption, and be free 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. For additional instructions on submitting comments, 

go to the SUPPLEMENTARY INFORMATION section of this document. We also request 

that interested parties who would like information they previously submitted to EPA to be 

considered as part of this action, to 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 information is not publicly available, e.g., CBI or other information 

whose disclosure is restricted by statute. Certain other material, such as copyrighted material, 

will be publicly available only in hard copy. Publicly available docket materials are available 

either electronically in www.regulations.gov or in hard copy at the RCRA Docket, EPA/DC, 

EPA West, Room 3334, 1301 Constitution Ave., NW, Washington, DC. The Public Reading 

Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. 

The telephone number for the Public Reading Room is (202) 566-1744, and the telephone 

number for the RCRA Docket is (202) 566-0270. 

FOR FURTHER INFORMATION CONTACT: George Faison, Program Implementation 

and Information Division, Office of Resource Conservation and Recovery, 5303P, 

Environmental Protection Agency, Ariel Rios Building, 1200 Pennsylvania Avenue, N.W., 
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Washington, D.C. 20460-0002; telephone number: 703-305-7652; fax number: 703-308-0509;

email address: faison.george@epa.gov. 

SUPPLEMENTARY INFORMATION:

A. Does this Action Apply to Me? 

Categories and entities potentially affected by this action include: 

Generators Users

Major Generator 

Category 

NAICS* 

Major Boiler Type and 

Primary Industry 

Category 

NAICS* 

Iron and Steel Mills 331111 Industrial Boilers:

 Food Manufacturing 311, 312, 

 Pulp and Paper Mills 3221 

 Chemical Manufacturing 325 

Other Rubber Product 

Manufacturing 32629 Petroleum Refining 32411 

 Primary Metal 

Manufacturing 331 

 Fabricated Metal 

Manufacturing 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 493 

Hog and Pig Farming 1122 Retail 442-454 

Poultry and Egg 

Production 1123 Education 611 

Sheep and Goat Farming 1124 Social Assistance 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 & 111,112,115 
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livestock production) 

Site Preparation 

Contractors 238910 All Mining 212 

Landscaping Services 561730 Construction 236 

Iron and Steel Mills. 

331111 

Fossil Fuel Electric Power 

Generation 221112 Other Boilers:

Cement Manufacturing 327310 Electric Utility Boilers 2211 

Bituminous Coal and 

Lignite Surface Mining 212111

Bituminous Coal 

Underground Mining 212112

Non HW Burning Cement 

Kilns 327310 

Anthracite Mining 212113 

Sewage Treatment 

Facilities 221320

Solid Waste Colleciton 

and Solid Waste Landfill 562111, 562212 

Metal-casting industry 331522 

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 324110 

Automotive Repair and 

Replacement Shops 811111 

Recyclable Material 

Wholesalers 423930 

Engineered Wood Member 

Manufacturing 321213 

All Other Miscellaneous 

Chemical Product and 

Preparation Manufacturing 

325998 

* NAICS = North American Industrial Classification System 

This table is not intended to be exhaustive, 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 
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entities not listed could also be affected. To determine whether your facility, company, business, 

organization, etc., is affected by this action, you should examine the applicability criteria in this 

rule. If you have any questions regarding the applicability of this action to a particular entity, 

consult the person listed in the preceding section: FOR FURTHER INFORMATION 

CONTACT. 

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 the 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 disk or CD ROM the specific 

information that is claimed as CBI. In addition to one complete version of the comment that 

includes information 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 the 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 may 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, suggest alternatives, and substitute language 

for your requested changes. 
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• Describe any assumptions and provide any technical information and/or data that 

you used. 

• If you estimate potential costs or burdens, explain how you arrived at your 

estimate in sufficient detail to allow for it to be reproduced. 

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

• Explain your views as clearly as possible. 

• Make sure to submit your comments by the comment period deadline identified. 

3. Docket Copying Costs. Many documents are available only in the original and, 

therefore, must be photocopied. Patrons are allowed 100 free photocopies. Thereafter, they are 

charged 15 cents per page. When necessary, an invoice indicating how many copies were made, 

the cost of the order, and where to send a check will be issued to the patron. 

Documents also are available on microfilm. The EPA/DC staff assist patrons locate the 

needed documents and operate the microfilm machines. The billing fee for printing microfilm 

documents is the same as for photocopying documents. 

 Patrons who are outside of the metropolitan Washington, DC, area can request documents 

by telephone. The photocopying and microfilming fee is the same as for walk-in patrons. If an 

invoice is necessary, EPA/DC staff can mail one with the order. 

Preamble Outline 

I. Statutory Authority 

II. List of Abbreviations and Acronyms 

III. Introduction 

IV. Background 

A. What Is the History of CISWI, CISWI Definitions, and Boiler Rulemakings? 
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B. Why Is the Court’s Decision Affecting the CAA Rules Relevant to RCRA? 

C. What Do Sections 112 and 129 of the CAA Require? 

V. Use of Secondary Materials 

A. Introduction 

B. Secondary Materials Use and Benefits 

VI. History of the Definition of Solid Waste 

A. Statutory Definition of Solid Waste 

B. Case Law on Definition of Solid Waste 

C. The Concept of Legitimacy 

VII. ANPRM Discussion, Summary of the Proposed Approach, Comments Received on the 

ANPRM, and Rationale for and Detailed Description of the Proposed Rule 

A. Summary of the ANPRM Approach 

1. Traditional Fuels 

2. Guiding Principles Used To Determine if Secondary Materials Used 

in Combustion Units are Solid Wastes 

3. Secondary Materials Used as Legitimate “Alternative” Fuels That 

Have Not Been Previously Discarded 

4. Secondary Materials Used as Legitimate “Alternative” Fuels 

Resulting From the Processing of Discarded Secondary Materials 

5. Secondary Materials Used as Legitimate Ingredients 

6. Hazardous Secondary Materials That May Be Excluded From the 

Definition of Solid Waste Under RCRA Subtitle C Because They 

Are More Like Commodities Than Wastes 
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7. Additional Areas for Comment in the ANPRM 

a. Fuels or Materials That Have Been Discarded That Are 

Generally Considered to be Solid Wastes 

b. Other Approaches for Determining Whether Secondary 

Materials Are Fuels and Not Solid Wastes 

c. Materials for Which State Beneficial Use Determinations Have 

Been Made 

d. Biofuels 

B. Summary of the Proposed Approach 

1. Changes From the ANPRM Approach 

2. General Proposed Approach 

3. Legitimacy Criteria 

4. Traditional Fuels 

5. Circumstances Under Which a Non-Hazardous Secondary Material 

Would Not Be Considered a Solid Waste 

6. Petition Process 

C. What Were the Major Comments on the ANPRM? 

1. Comments from State Agencies 

2. Meaning of Discard 

3. General Approach 

4. Level of Processing Needed to Produce a Non-Waste Product From 

Discarded Waste Material 

5. Comments on Specific Materials Used as Fuels 
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a. Traditional Fuels 

b. Biomass 

c. Used Tires 

d. Used Oil 

e. Coal Refuse/Coal Combustion Residuals 

f. Sewage Sludge 

6. Comments on Specific Materials Used as Ingredients 

a. Cement Kiln Dust 

b. Coal Combustion Residuals 

c. Foundry Sand 

d. Blast Furnace Slag/Steel Slag 

7. Legitimacy Criteria 

a. General 

b. Fuels or Ingredients Being Managed as Valuable Commodities 

c. Fuels Must Have Meaningful Heating Value 

d. Fuel/Ingredient Contaminant Levels 

e. Ingredients Must Provide Useful Contribution 

f. Ingredients Must Produce a Valuable Product 

8. De Minimis Concept 

D. Rationale for, and Detailed Description of, Proposed Approach 

1. Non-Hazardous Secondary Materials Used as Fuel within the 

Control of the Generator 

a. Scope and Applicability 
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b. Restrictions and Requirements 

2. Non-Hazardous Secondary Materials Used as Fuel Outside the 

Control of the Generator 

3. Non-Hazardous Secondary Materials Used as Ingredients in 

Combustion Units 

4. Non-Hazardous Secondary Materials Processed Into Non-Waste 

Fuel/Ingredient Products 

a. Proposed Definition of Processing 

b. Rationale for Processing Discarded Material into Non-Waste 

Product 

c. Examples of Adequate Processing 

d. Examples of Minimal Processing That Would Not Meet 

Proposed Definition of Processing 

e. Alternative Approach for Addressing Non-Hazardous 

Secondary Materials That are Processed into Non-Waste Fuels 

or Ingredients 

5. Non-Waste Determination Process 

6. Legitimacy Criteria 

a. Legitimacy Criteria for Fuels 

b. Legitimacy Criteria for Ingredients 

E. Alternative Approach for Consideration 

F. Effect of Today’s Proposal on Other Programs 

1. Clean Air Act 
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a. CISWI 

b. Boiler MACT 

c. Other Solid Waste Incineration Units 

d. Utility Boilers 

2. Renewable Energy 

3. Subtitle C Hazardous Waste Program 

VIII. State Authority 

A. Applicability of State Solid Waste Definitions and Beneficial Use 

Determinations 

B. State Adoption of the Rulemaking 

IX. Cost and Benefits of the Proposed Rule 

X. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory Planning and Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation and Coordination with Indian Tribal 

Governments 

G. Executive Order 13045: Protection of Children from Environmental Health 

and Safety Risks 

H. Executive Order 13211: Actions that Significantly Affect Energy Supply, 

Distribution or Usage 
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I. National Technology Transfer Advancement Act 

J. Executive Order 12898: Federal Actions to Address Environmental Justice in 

Minority Populations and Low-Income Populations 

I. Statutory Authority 

The U.S. Environmental Protection Agency (EPA) is promulgating these regulations 

under the authority of sections 2002(a)(1) and 1004(27) of the Resource Conservation and 

Recovery Act (RCRA), as amended, 42 USC 6912(a)(1) and 6903(27). Section 129(a)(1)(D) 

of the CAA directs EPA to establish standards for Commercial and Industrial Solid Waste 

Incinerators (CISWI), which burn solid waste (section 129(g)(6) of the Clean Air Act (CAA), 

42 USC 7429). Section 129(g)(6) provides that the term, solid waste, is to be established by 

EPA under RCRA. Section 2002(a)(1) of RCRA authorizes the Agency to promulgate 

regulations as are necessary to carry out its functions under the Act. The statutory definition 

of “solid waste” is provided in RCRA section 1004(27). 

II. List of Abbreviations and Acronyms 

ANPRM Advanced Notice of Proposed Rulemaking 

ASME American Society of Mechanical Engineers 

Btu British Thermal Unit 

CAA Clean Air Act 

CAFO Concentrated Animal Feeding Operations 

CCA Chromated Copper Arsenate 

CCR Coal Combustion Residuals 

CFR Code of Federal Regulations 

CISWI Commercial and Industrial Solid Waste Incinerator 
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CKD Cement Kiln Dust 

CWA Clean Water Act 

DSE Domestic Sewage Exemption 

DSW Definition of Solid Waste 

EG Emission Guidelines 

EGU Electric Utility Steam Generating Unit 

EPA U.S. Environmental Protection Agency 

GACT Generally Available Control Technology 

GHG Greenhouse Gas 

HAP Hazardous Air Pollutant 

IWI Institutional Waste Incinerator 

LCA Life Cycle Analysis 

MACT Maximum Achievable Control Technology 

NESHAP National Emission Standards for Hazardous Air Pollutants 

NSPS New Source Performance Standards 

OSWI Other Solid Waste Incinerator 

PC Portland Cement 

PIC Product of Incomplete Combustion 

POTW Publicly Owned Treatment Works 

PVC Polyvinyl Chloride 

RCRA Resource Conservation and Recovery Act 

SWDA Solid Waste Disposal Act 

TDF Tire Derived Fuel 
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VSMWC Very Small Municipal Waste Combustor 

III. Introduction 

In 1990, Congress added section 129 to the CAA to address emissions from solid waste 

incinerators. CAA section 129 directs EPA to promulgate emission standards for categories of 

“solid waste incineration units.” 42 U.S.C. § 7429(a)(1). The term “solid waste incineration 

unit” is defined, in pertinent part, to mean “a distinct operating unit of any facility which 

combusts any solid waste material from commercial or industrial establishments...” Id. at § 

7429(g)(1). The CAA specifically excludes the following types of units from the definition of 

“solid waste incineration unit”: (1) incinerators or other units required to have a permit under 

section 3005 of RCRA; (2) material recovery facilities (including primary and secondary 

smelters) which combust waste for the primary purpose of recovering metals; (3) qualifying 

small power production facilities, as defined in section 3(17)(C) of the Federal Power Act, or 

qualifying cogeneration facilities, as defined in section 3(18)(B) of the Federal Power Act, which 

burn homogeneous waste (such as units which burn tires or used oil, but not including refusederived fuel) for the production of electric energy or in the case of qualifying cogeneration 

facilities which burn homogeneous waste for the production of electric energy or steam or forms 

of useful energy (such as heat) which are used for industrial, commercial, heating or cooling 

purposes, or (4) air curtain incinerators, provided that such incinerators only burn wood 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. Id.

CAA section 129 further states that the term “solid waste” shall have the meaning 

“established by the Administrator pursuant to the Solid Waste Disposal Act” Id. at 7429(g)(6). 

CAA section 129 refers to the Solid Waste Disposal Act (SWDA). However, this act, as 
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amended, is commonly referred to as RCRA. Thus, the term, "RCRA" is used in place of 

SWDA in this Notice. RCRA in turn defines the term “solid waste” to mean “...any garbage, 

refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control 

facility and other discarded material, including solid, liquid, semisolid, or contained gaseous 

material resulting from industrial, commercial, mining, and agricultural operations, and from 

community activities, . . . . .” Section 1004 (27). 

IV. Background 

The discussion below was previously included in the Advanced Notice of Proposed 

Rulemaking (ANPRM). However, because it is also pertinent to the development of today’s 

proposal, it also is included here for the benefit of the reader. The entire record for the ANPRM 

is included in the record for this rulemaking. To the extent there are any inconsistencies or 

differences between the ANPRM and this proposal, the statements in this proposal apply. 

A. What Is the History of CISWI, CISWI Definitions, and Boiler Rulemakings? 

 EPA promulgated a final rule setting forth performance emissions standards for 

Commercial and Industrial Solid Waste Incineration Units (referred to as the “CISWI Rule”). 65 

FR 75338 (December 1, 2000). Under CAA section 129, the emissions standards for new 

sources must be at least as stringent as the emissions control achieved in practice by the bestcontrolled similar source. For existing sources, the emissions standards must be at least as 

stringent as the average emissions limitation achieved by the best-performing 12 percent of units 

in the category. CAA § 129 (a)(2). This level of stringency is commonly referred to as the 

maximum achievable control technology (MACT) “floor.” EPA must also consider more 

stringent “beyond-the-floor” emissions controls, taking into account cost, energy, and non-air 

quality environmental impacts. The Administrator may also distinguish among classes, types 
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(including mass-burn, refuse-derived fuel, modular and other types of units), and sizes of units 

within a category in establishing such standards. Id. at 7429(a)(2).

The CISWI Rule established emission limitations for new and existing CISWI units for 

the following pollutants: cadmium, carbon monoxide, dioxins/furans, hydrogen chloride, lead, 

mercury, oxides of nitrogen (NOx), particulate matter (PM), sulfur dioxide (SO2), and opacity. 

In addition, the rule established certain monitoring and operator training and certification 

requirements. See 65 FR 75338 for a more detailed discussion of the CISWI Rule. 

 The CISWI Rule was challenged in Sierra Club v. EPA (No. 01-1048) (D.C. Cir.) and a 

separate petition for reconsideration of the final rule. After promulgation of the CISWI Rule, the 

D.C. Circuit issued its decision in a challenge to EPA’s MACT standards for the cement kiln 

industry. Cement Kiln Recycling Coalition v. EPA, 255 F.3d 855 (D.C. Cir. 2001) (“Cement 

Kiln”). As a result of the courts decision in Cement Kiln, EPA requested a voluntary remand of 

the CISWI Rule, in order to address concerns related to the issues that were raised by the court in 

Cement Kiln. The court granted EPA’s request for a voluntary remand and remanded, without 

vacatur, the CISWI Rule back to EPA. Because the CISWI Rule was not vacated, its 

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 granted an administrative 

petition for reconsideration on February 17, 2004 related to the definitions of “solid waste,” 

“commercial or industrial waste,” and “commercial and industrial solid waste incineration unit” 

in the CISWI Rule. 

 EPA responded to the petition for reconsideration on September 22, 2005, by repromulgating the definitions of “solid waste,” “commercial or industrial solid waste incineration 

unit,” and “commercial or industrial waste” (the “CISWI Definitions Rule”). See 70 FR 55568. 
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In the CISWI Definitions Rule, EPA defined “commercial and industrial solid waste incineration 

units” to include units designed and operated to discard materials through high temperature 

combustion, but to exclude units combusting solid waste if the units were designed or operated to 

recover energy. 

 The CISWI Definitions Rule was vacated by the D. C. Circuit in NRDC v. EPA (489 F.3d 

1250 (D.C. Cir. 2007)). The court stated that the statute unambiguously requires any unit that 

combusts “any solid waste material at all” – regardless of whether the material is being burned 

for energy recovery – to be regulated as a “solid waste incineration unit.” Id. at 1260. In the 

same decision, the court also vacated and remanded EPA’s emissions standards for commercial, 

industrial, and institutional major source boilers (the Boiler MACT Rule), concluding that the 

universe of sources subject to that rule would be much smaller if it did not include units that 

combust solid waste for the purposes of energy recovery. 

B. Why Is the Court’s Decision Affecting the CAA Rules Relevant to RCRA?

In responding to the court's vacatur and remand of the CISWI Definitions Rule and the 

Boiler MACT Rule, EPA must establish, under RCRA, which non-hazardous secondary 

materials1

 are “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 incineration unit,” 

regardless of the function of the combustion device. If a non-hazardous secondary material (also 

referred to as secondary materials in this notice) is not a “solid waste” under RCRA, then a unit 

combusting that material must be regulated pursuant to CAA section 112. Alternatively, if such 

material is a “solid waste” under RCRA, then a unit combusting that material must be regulated 

 

1

 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. 
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under CAA section 129. 

C. What Do CAA Sections 112 and 129 Require?

CAA section 112 requires EPA to promulgate regulations to control emissions of 1872

hazardous air pollutants (HAP) from major sources3

 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 

emission reduction, any non-air quality health and environmental impacts, and energy 

requirements. As noted previously, this level of stringency of control is commonly referred to as 

the MACT “floor.” 

For new sources, emissions standards must be at least as stringent as the emissions 

control achieved in practice by the best-controlled similar source (see CAA section 112(d)(3)), 

whereas for existing sources, the emissions standards must be at least as stringent as the average 

emissions 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 subcategories with fewer than 30 sources (Id). This level of stringency of control is 

usually referred to as the MACT ‘‘floor,’’ the term 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 other factors. 

Although CAA section 129 “establishes 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 

 

2

 EPA has delisted 3 of the 190 HAP initially listed in section 112(b)(1): Methyl ethyl ketone, glycol ethers, and 

caprolactam. 

3

 A “major source” is any stationary source that emits or has the potential to emit 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). 
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respects. First, CAA section 112 requires that MACT standards be established for major sources 

of HAP emissions, but provides discretionary authority to establish standards based on 

“generally available control technology” (GACT) for area sources of HAP emissions.4 On the 

other hand, under CAA section 129, EPA must issue MACT standards for all solid waste 

incineration units in a given category regardless of size. Second, CAA section 129 requires that 

numeric emission limitations must be established for the following nine pollutants, plus opacity 

(as appropriate): cadmium, carbon monoxide, dioxins/furans, hydrogen chloride, lead, mercury, 

NOx, particulate matter (total and fine), and SO2.

5

 These CAA section 129 represent the 

minimum that must be regulated; EPA has the discretion to establish standards for other 

pollutants as well. Third, CAA section 129 includes specific requirements for operator training, 

pre-construction site assessments, 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 explicit authority is relied upon to include provisions as necessary to 

assure compliance with and enforcement of the section 112 emission limitations. It is important 

to note that CAA section 129(h)(2) specifies that no solid waste incineration unit subject to the 

performance standards under CAA sections 111 and 129 shall be subject to the standards under 

CAA section 112(d). 

V. Use of Secondary Materials 

A. Introduction 

 

4

 An “area source” is any stationary source of HAP that is not a major source. CAA section 112(a)(2). Area sources 

may be regulated under CAA section 112(d)(2) standards if the Administrator finds that the sources “presen[t] a 

threat of adverse effects to human health or the environment (by such 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). 5

 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). 
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22

Similar to other industrialized nations, the U.S. is pursuing an approach to materials 

management that employs the concepts of life cycle assessment6 and full cost accounting.7 

Within the context of RCRA,8 this proposal aims to facilitate this approach, to the extent allowed 

by the statute, through the establishment of a regulatory framework that guides the beneficial use 

of various secondary materials, while ensuring that such use is protective of human health and 

the environment. Beyond this regulatory framework, EPA, in conjunction with the states, seeks 

to further facilitate this objective through research, analysis, incentives, communication, and 

outreach. The Agency recognizes that secondary materials are widely used today as raw 

materials, as products, and as fuels and/or ingredients in industrial processes. We expect these 

uses will continue and expand in future years as effective materials management becomes more 

critical to a sustainable society. The use of materials from a variety of non-traditional sources, 

including the use of energy-containing secondary materials, is expected to play an important role 

in future resource conservation efforts. 

The use of secondary materials as alternative fuels and/or ingredients in manufacturing 

processes using combustion not only recovers valuable resources, it is known to contribute to 

emission reductions. For example, reductions in greenhouse gas (GHG) emissions and 

particulate matter have been identified.9

 The use of secondary materials in industrial processes 

may also result in other benefits, including use as a fuel. These may include reduced fuel 

 

6

 The terms “life cycle analysis” and “life cycle 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. 

7

 Full cost accounting is an accounting system that incorporates economic, environmental, health, and social costs of 

a product, action, or decision. 

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. 

9 See the Materials Characterization Papers in the docket established for this action for examples of emission 

reductions. 
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23

imports, reducing negative environmental impacts caused by previous dumping (e.g., tires), and 

reduced methane gas generation from landfills. 

Secondary materials may, in most cases, be more appropriately defined as “byproducts,”10 reflecting their inherent resource recovery value in the generation and production of 

heat, energy, and/or marketable products. These secondary materials can provide micro (firm 

level) and macroeconomic benefits when legitimately used as an effective substitute for, or 

supplement to primary materials. Economic efficiency can be improved with the use of 

secondary materials, when substituted for increasingly scarce primary materials, because the use 

of such materials often results in an equivalent level of output at lower overall resource use, or in 

turn, more output could be generated using the same amount of resource inputs. When this 

occurs, monetary savings resulting from reduced resources would, theoretically, be applied to a 

higher and better use in the economy. This helps advance economic growth as a result of 

improved industrial efficiency,11 which, in turn, helps move the country toward material 

sustainability and energy self sufficiency, while protecting human health and the environment. 

B. Secondary Materials Use and Benefits 

A wide and diverse range of secondary materials are currently used as fuels and/or 

ingredients in manufacturing or service processes. Based on our research conducted in support 

of the January 2, 2009 ANPRM, we identified eight non-hazardous secondary material fuels or 

fuel groups and six non-hazardous ingredients, or ingredient groups. The eight fuel source 

materials were: the biomass group (pulp and paper residuals, forest derived biomass, agricultural 

residues, food scraps, animal manure, and gaseous fuels); construction and demolition materials 

 

10 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 value in the marketplace, or value to the user. 11 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.” 
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24

(building related, disaster debris, and land clearing debris); scrap tires; scrap plastics; spent 

solvents; coal refuse; waste water treatment sludge, and used oil. The six secondary material 

ingredients were: blast furnace slag; cement kiln dust (CKD); the coal combustion product 

group (fly ash, bottom ash, and boiler slag); foundry sand; silica fume; and secondary glass 

material. The ANPRM discussed and described these key secondary materials. In addition, we 

developed comprehensive Materials Characterization Papers for each of these fuel and ingredient 

materials. These papers were included in the docket for the ANPRM, which as we note above is 

incorporated into the docket for this proposed rule. 

Based on our review of the public comments submitted in response to the ANPRM, plus 

further research, we have identified two additional secondary materials not addressed in the 

ANPRM. These additional secondary materials are auto shredder residue and purification 

process byproducts We have prepared Materials Characterization Papers for these newly 

identified secondary materials, which are also included in the docket for today’s proposed rule. 

In addition, we have updated and revised the existing Materials Characterization Papers to 

incorporate commenter information, as appropriate, plus relevant information derived from the 

2008 combustion survey database (OMB Control Number 2060-0616). We believe that our 

newly defined list of secondary fuels and ingredients accounts for the vast majority of all 

secondary materials used in combustion processes in the U.S. However, as part of this proposal, 

we again solicit comment on these and any other non-hazardous secondary materials potentially 

used as fuels and/or ingredients. Comments containing detailed, quality controlled data are 

welcome and will be very useful as we move forward in this rulemaking effort. 

VI. History of the Definition of Solid Waste 

A. Statutory Definition of Solid Waste 
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RCRA defines “solid waste” as “...any garbage, refuse, sludge from a waste treatment 

plant, water supply treatment plant, or air pollution control facility and other discarded 

material... resulting from industrial, commercial, mining, and agricultural operations, and from 

community activities...” (RCRA section 1004 (27) (emphasis added)). The key concept is that of 

“discard” and, in fact, this definition turns on the meaning of the phrase, “other discarded 

material,” since this term encompasses all other examples provided in the definition. 

The ANPRM provides a complete discussion on the concept of discard, as well as a 

description of the solid waste program under RCRA subtitle D, and the hazardous waste program 

under RCRA subtitle C. We refer the reader to the ANPRM for a detailed discussion on these 

subjects regarding the definition of solid waste. The ANPRM also includes a detailed discussion 

on the case law on the definition of solid waste, which we repeat below, and on the concept of 

legitimacy, or legitimate recycling. That discussion is relevant to this proposal and is 

incorporated into this rulemaking. We are repeating parts of the discussion on legitimacy below 

to the extent it helps in understanding this proposal. 

B. Case Law on Definition of Solid Waste 

Partly because the interpretation of the definition 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 subtitle C. From these cases, a few key principles emerge which 

guide our thinking on the definition of solid waste. 

First, the ordinary plain-English meaning of the term, “discard” controls when 

determining whether a material is a solid waste. 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 D.C. Circuit in AMC I 
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26

specifically rejected a more expansive meaning for discard that would encompass any materials 

“no longer useful in their original capacity” even if they were not destined for disposal. 824 F.2d 

at 1185-87. The Court further held that the term “discarded materials” could not include 

materials “...destined for beneficial reuse or recycling in a continuous process by the generating 

industry itself. (824 F.2d at 1190). 

Subsequent to AMC I, the D.C. Circuit discussed the meaning of discard in particular 

cases. In American Petroleum Institute v. EPA, 906 F.2d 729 (D.C. Cir. 1990) ("API I"), the 

court rejected EPA's decision not to regulate recycled air 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 court held that the materials 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 material is a solid waste regardless of whether it “may” be reused at some time in 

the future. American Mining Congress v. EPA, 907 F.2d 1179 (D.C. Cir. 1990) ("AMC II"). 

One of the more important holdings of a number of court decisions is that simply because 

a waste has, or may have, value does not mean the 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 (11th Cir. 1993); 

Owen Steel v. Browner, 37 F.3d 146, 150 (4th Cir. 1994). ILCO and Owen Steel, however, 

recognize that products made from wastes are, themselves, products and not wastes. 

The D.C. Circuit’s decision in 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 

held that it had already resolved the issue presented in ABR in its opinion in AMC I, where it 

found that “...Congress unambiguously expressed its intent that ‘solid waste’ (and therefore 
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27

EPA’s regulatory authority) be limited to materials that are ‘discarded’ by virtue of being 

disposed of, abandoned, or thrown away” (208 F.2d at 1051). It repeated that materials reused 

within an ongoing industrial process are neither disposed of nor abandoned (208 F.3d at 1051–

52). The court also explained that the intervening API I and AMC II decisions had not narrowed 

the holding in AMC I (208 F.3d at 1054–1056). 

Notably, the Court in ABR did not hold that storage before reclamation automatically 

makes materials “discarded.” Rather, it held that “... at least some of the secondary material EPA 

seeks to regulate as solid waste (in the mineral processing rule) is destined for reuse as part of a 

continuous industrial process and thus is not abandoned or thrown away” (208 F.3d at 1056). In 

this regard, the court criticized all parties in the case - industry as well as EPA - because they 

“presented this aspect of the case in broad abstraction, providing little detail about the many 

processes throughout the industry that generate residual material of the sort EPA is attempting to 

regulate . . .. ” (Ibid). 

American Petroleum Institute v. EPA, 216 F.3d 50, 55 (D.C. Cir. 2000) (“API II”), 

decided shortly after ABR and considered by the court at the same time, provides further 

guidance for defining solid waste, but in the context of two specific waste streams in the 

petroleum refining industry. The court 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 excluding 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 

treatment, primary treatment, results in a waste being created. 216 F.3d at 55. The court 

overturned this decision and remanded it to EPA for a better explanation, neither accepting 

EPA’s view nor the contrary industry view. The court noted that the ultimate determination that 
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had to be made was whether primary treatment is simply a step in the act of discarding or 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 required by regulation, instead stating that the 

Agency needed to “set forth why it has concluded that the compliance motivation predominates 

over the reclamation motivation” and “why that conclusion, even if validly reached, compels the 

further conclusion that the wastewater has been discarded.” 213 F.3d at 58. 

The court also considered whether material is discarded 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 

rejected the argument that, as a matter of plain meaning, recycled material destined for 

immediate reuse within an ongoing industrial process is never considered "discarded," whereas 

material that is transferred to another firm or industry for subsequent recycling must always be 

solid wastes. 350 F.3d at 1268. Instead, the court evaluated “whether the agency's interpretation 

of ... 'discarded' . . . is, reasonable and consistent with the statutory purpose. . . ." Id. Thus, EPA 

has the discretion to determine that a material is not a solid waste, even if it is transferred 

between industries. 

We also note that the Ninth Circuit has specifically found that non-hazardous secondary 

materials may, under certain circumstances, be burned and not constitute a solid waste under 

RCRA. See Safe Air For Everyone v. Waynemeyer (“Safe Air”), 373 F.3d 1035 (9th Cir., 2004) 

(Kentucky bluegrass stubble may be burned to return nutrients to the soil and not be a solid 

waste). 

C. The Concept of Legitimacy 

 An important element under the RCRA subtitle C definition of solid waste (and an 

important element of today’s proposal) is the concept of legitimate use and recycling. Under 
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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 

“legitimately recycled” or legitimately used as an ingredient or substitute for a commercial 

product. The principal reasoning behind this construct is that use or recycling of such materials 

often closely resembles normal industrial production, rather than waste management. However, 

since there can be considerable economic incentive to manage recyclable materials outside of the 

RCRA hazardous waste regulatory system, there is a clear 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 recycling. EPA considers such “sham” recycling to be, in fact, 

discard and such secondary materials being sham recycled are solid wastes. 

 To guard against hazardous secondary materials being discarded in the guise of recycling, 

EPA has long articulated the need to distinguish between “legitimate” (i.e., true) recycling or 

other use and “sham” (i.e., fake) recycling; see the preamble to the 1985 hazardous waste 

regulations that established the definition of solid waste under RCRA subtitle C (50 FR 638; 

January 4, 1985). A similar discussion that addressed legitimacy as it pertains to burning 

hazardous secondary materials for energy recovery (considered a form of recycling under RCRA 

subtitle C) was presented in the January 9, 1988 proposed amendments to the definition of solid 

waste (53 FR 522). Then on April 26, 1989, the Office of Solid Waste12 issued a memorandum 

that consolidated the various preamble and other statements concerning legitimate recycling into 

a list of questions to be considered in evaluating the legitimacy of hazardous secondary materials 

recycling (OSWER directive 9441.1989(19)). This memorandum (known to many as the 

“Lowrance Memo,” a copy of which is included in the Docket to today’s preamble) has been a 

primary source of information for the regulated community and for overseeing agencies in 

 

12 On January 9, 2009, the Office of Solid Waste was renamed the Office of Resource Conservation and Recovery. 
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30

distinguishing between legitimate and sham recycling. 

On October 30, 2008, EPA finalized several exclusions from the definition of solid waste 

for hazardous secondary materials being reclaimed and a non-waste determination process for 

persons to receive a formal determination that their hazardous secondary materials are not solid 

wastes when legitimately reclaimed.13 In that action, EPA codified in 40 CFR 260.43 the 

requirement that materials be legitimately recycled as a condition for the exclusion for hazardous 

secondary materials that are legitimately reclaimed under the control of the generator (40 CFR 

261.2(a)(2)(ii) and 40 CFR 261.4(a)(23)) and as a condition of the exclusion for hazardous 

secondary materials that are transferred for the purpose of legitimate reclamation (40 CFR 

261.4(a)(24) and 40 CFR 261.4(a)(25)). As part of that final rule, EPA also codified a legitimate 

recycling provision specifically as a requirement or condition of these exclusions and the nonwaste determination process (40 CFR 260.34). 

Although this proposed rule does not address the Agency’s hazardous waste regulations, 

EPA believes the concept of legitimacy is an important one in determining when a secondary 

material is genuinely recycled and not discarded under the guise of recycling. Therefore, the 

Agency is including the following discussion in today’s preamble to provide the context in which 

EPA has integrated the concept of legitimacy into the recently promulgated hazardous waste 

exclusions from the definition of solid waste.14 

The legitimacy provision in the October 2008 final rule, which applies specifically to 

 

13 See 73 FR 64668 

14 The hazardous waste exclusions from the definition of solid waste became effective on December 29, 2008. On 

January 29, 2009, the Sierra Club submitted a petition under RCRA section 7004(a), 42 U.S.C. 6974(a), to the 

Administrator of EPA requesting that the Agency repeal the revisions to the definition of solid waste rule and stay 

the implementation of the rule. In addition, the Sierra Club and the American Petroleum Institute have filed 

petitions for judicial review of a rule with the United States Court Of Appeals for The District Of Columbia Circuit. 

One of the issues that EPA will consider is the definition of legitimate recycling. However, until that occurs, the 

final rule, including the definition of legitimate recycling remains in effect until and unless EPA goes through 

another rulemaking process (proposed and final) to repeal or amend it. 
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hazardous secondary materials excluded under the rule, has two parts. The first part includes two 

factors: 1) the hazardous secondary materials being recycled must provide a useful contribution 

to the recycling 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 process that does not 

conform to them cannot be a legitimate recycling process, but would be considered sham 

recycling. 

 The second part of the legitimacy provision consists of two factors that must be 

considered when determining if a particular 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 recycling 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 Agency is 

aware of situations where a legitimate recycling process exists, but may not conform to one or 

both of these two factors. In making a determination that a hazardous secondary material is 

legitimately recycled, persons must evaluate all factors and consider legitimacy as a whole. If, 

after careful evaluation of these other considerations, one or both of the non-mandatory factors 

are not met, then this fact may be an indication that the material is not legitimately recycled. To 

evaluate the extent to which these factors are met and in determining the legitimacy of a 

recycling process that does not meet one or both of these factors, persons can consider the 

protectiveness of the storage methods, exposure from toxics in the product, the bioavailability of 

the toxics in the product, and other relevant considerations. 
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 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 determination process, it was stressing that EPA retains its 

long-standing policy that all recycling of hazardous secondary materials must be legitimate and 

that the four legitimacy factors codified at 40 CFR 260.43 are substantively the same as the 

Agency’s long-standing legitimacy policy, as stated in the 1989 Lowrance Memo and in various 

definition of solid waste rulemakings. 

EPA believes the same principle of “legitimacy” is likewise an important element in the 

recycling of non-hazardous secondary materials. That is, the concept of legitimate recycling is 

crucial to determining whether a non-hazardous secondary material being recycled is truly being 

recycled or is, in fact, being discarded through sham recycling. In the January 2, 2009 ANPRM, 

the Agency sought comment on the appropriate construct for determining when such nonhazardous secondary materials are legitimately burned as a fuel or used as a legitimate ingredient 

in an industrial process that involved combustion (see Section V, 74 FR 53-9). A general 

discussion of the comments EPA received follows in Section VII.C.

VII. ANPRM Discussion, Summary of the Proposed Approach, Comments Received on the 

ANPRM, and Rationale for and Detailed Description of the Proposed Rule 

A. Summary of the ANPRM Approach 

In the ANPRM, the Agency considered various scenarios in evaluating the usage of 

secondary materials (e.g., as fuels or ingredients) and whether these materials should be 

considered solid wastes under RCRA when used in combustion devices, such that units burning 

these secondary materials would be subject to regulation under CAA section 129, rather than 

subject to CAA section 112. Specifically, the ANPRM identified several cases where such non-
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hazardous secondary materials are not solid wastes when combusted, and thus, subject to CAA 

section 112. These were: (1) traditional fuels, (2) secondary materials used as legitimate 

“alternative” fuels that have not been previously discarded, (3) secondary materials used as 

legitimate “alternative fuels” resulting from the processing of discarded secondary materials, (4) 

secondary materials used as legitimate ingredients, and (5) hazardous secondary materials that 

may be excluded from the definition of solid waste under RCRA subtitle C because they are 

more like commodities than wastes. All other cases where non-hazardous secondary materials 

are combusted would be considered “solid wastes” and subject to CAA section 129. 

1. Traditional Fuels 

The ANPRM categorized cellulosic biomass (e.g., wood) and fossil fuels (e.g., coal, oil, 

natural gas) and their derivatives (e.g., petroleum coke, bituminous coke, coal tar oil, refinery 

gas, synthetic fuel, heavy recycle, asphalts, blast furnace gas, recovered gaseous butane, coke 

oven gas) as traditional fuels that have been burned historically as fuels and have been managed 

as valuable products, and stated that they are considered unused products that have not been 

discarded and therefore are not solid wastes. The ANPRM further stated that wood collected 

from forest fire clearance activities and trees and uncontaminated wood found in disaster debris 

would not be discarded if managed properly and burned as a legitimate fuel, and therefore not a 

solid waste. 

2. Guiding Principles Used to Determine if Secondary Materials Used in Combustion Units 

are Solid Wastes 

The ANPRM explained key factors in determining if alternative fuels or ingredients are 

solid wastes under RCRA, including whether they have been discarded, and if they have been 

discarded, whether they have been processed to produce a fuel or ingredient product that would 
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not be considered a solid waste. The ANPRM further explained that the plain-English meaning 

of the term discard applies to the RCRA definition of solid waste. That is, a material is discarded 

if it is disposed of, thrown away, or abandoned. Moreover, the ANPRM stated the term 

“discarded materials” could not include materials “...destined for beneficial reuse or recycling in 

a continuous process by the generating industry itself,” and that determining whether a secondary 

material is used in a continuous process is important because certain materials under 

consideration are produced and managed in a continuous process within an industry (e.g., cement 

kiln dust that is recycled in cement kilns). The ANPRM went on to say that even if the 

secondary material is not used in a continuous process, if it is used as a legitimate fuel or 

ingredient, these secondary materials are not solid wastes if they were not previously discarded. 

For alternative fuels or ingredients not to be considered discarded, and thus not to be 

solid wastes, the ANPRM stated that they must be legitimate fuels or ingredients. It then 

described EPA’s criteria for determining if a secondary material is a legitimate fuel or ingredient. 

The Agency explained that it generally considers secondary materials to be legitimate non-waste 

fuels if they are handled as valuable commodities, have meaningful heating value, and contain 

contaminants that are not significantly higher in concentration than traditional fuel products. If 

these criteria are not met, sham recycling may be indicated and the secondary material might be 

a solid waste. Similarly, for non-hazardous secondary materials to be considered a non-waste 

ingredient, the ANPRM stated that it would generally consider secondary materials to be nonwaste ingredients if the secondary material is handled as a valuable commodity, the secondary 

material provides a useful contribution, the recycling results in a valuable product, and the 

product does not contain contaminants that are significantly higher in concentration than 

traditional products. 
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3. Secondary Materials Used as Legitimate “Alternative” Fuels That Have Not Been 

Previously Discarded 

For legitimate “alternative” fuels that have not been previously discarded, the ANPRM 

stated that the question of what constitutes a legitimate “fuel” reflects the availability of fuel 

materials generally, the demand for fuel, and technology developments. Thus, in addition to 

traditional fuels, the ANPRM stated that there is a category of secondary materials that are 

legitimate alternative fuels; that is, there are secondary materials that may not have been 

traditionally used as fuels, but that are nonetheless legitimate fuels today because of changes in 

technology and in the energy market. In cases where these legitimate alternative fuels have not 

been discarded, EPA said that it would not consider them to be solid wastes. We stated that 

much of the biomass currently used as alternative fuels are not solid waste since they have not 

been discarded in the first instance and are legitimate fuel products, noting that biomass can 

include a wide range of alternative fuels, and can be broken down into two different categories - 

cellulosic biomass and non-cellulosic biomass. Cellulosic biomass was described to include 

forest-derived biomass (e.g., green wood, forest thinnings, clean and unadulterated bark, 

sawdust, trim, and tree harvesting residuals from logging and sawmill materials), food scraps, 

pulp and paper mill wood residuals (e.g., hog fuel, such as clean and unadulterated bark, 

sawdust, trim screenings; and residuals from tree harvesting), and agricultural residues (e.g., 

straw, corn husks, peanut shells, and bagasse). Non-cellulosic biomass was described to include 

manures and gaseous fuels (e.g., from landfills and manures). 

The ANPRM stated that biomass, especially cellulosic biomass, has a comparable 

composition 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 
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valuable commodities and have meaningful heating value, they would not be considered solid 

wastes. 

The ANPRM also noted that tires used as tire-derived fuel (TDF), which include whole 

or shredded tires, that have not been previously discarded, are legitimate fuels if they meet the 

legitimacy criteria i.e., they are handled as valuable commodities, have meaningful heating 

value, and do not contain contaminants that are significantly higher in concentration when 

compared to traditional fuel products (see Materials Characterization Paper on Scrap Tires in the 

docket for today’s rule for a complete discussion on contaminants in TDF [EPA-HQ-RCRA2008-0329]) . We noted that in many cases, used tires that are collected pursuant to state tire 

oversight programs (e.g., used tires from tire dealerships that are sent to used tire processing 

facilities) are handled as valuable commodities, and, therefore, have not been abandoned, 

disposed of, or thrown away. We noted that because states typically regulate these programs 

under their state solid waste authorities, it is not the Agency’s intent to undercut the state’s 

authority in this area. We requested comment on whether tires collected pursuant to state tire 

oversight programs have been discarded, and also requested 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 state’s ability to manage such a 

program.15 

The ANPRM described other non-traditional alternative fuels in use today that we are 

evaluating to determine whether they have been discarded and whether they are legitimate 

 

15 EPA notes that it is considering a change regarding the issue of tires collected under state programs, which is 

discussed later in the preamble. In particular, the Agency proposes that tires collected under these recycling 

programs are discarded and are solid wastes. EPA proposes this formulation for tires, but is asking for further 

comment on the ANPRM formulation that secondary material collected and sent for legitimate use as fuels are not 

discarded and are not solid wastes. EPA may issue a final rule containing either set of provisions depending on 

information received in the comment period and other information available to the Agency. 
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alternative fuels (e.g., construction and demolition materials,16 scrap plastics, non-hazardous 

non-halogenated solvents and lubricants, and wastewater treatment sludge). The ANPRM then 

described secondary materials we considered to be questionable as to whether they are legitimate 

fuels because they lack adequate heating value (wet biomass), or because they may contain 

contaminants that are significantly higher17 in concentration than those in traditional fuel 

products to the degree that sham recycling is indicated. The materials that were described in the 

ANPRM that could fall into this category include polyvinyl chloride (PVC), halogenated 

plastics, chromated copper arsenate (CCA) lumber, creosote lumber, copper-based treated 

lumber, lead-based treated lumber, and secondary mill residues, such as board, trim and breakage 

from the manufacture of reconstituted wood/panel products. 

4. Secondary Materials Used as Legitimate “Alternative” Fuels Resulting From the 

Processing of Discarded Secondary Materials 

The ANPRM also stated that legitimate fuel products may be extracted, processed, or 

reclaimed from non-hazardous secondary materials that have been discarded in the first instance 

and that such products would generally not be considered solid waste. Once processed to make a 

legitimate non-waste fuel product, such a product would not be discarded and therefore would 

not be a solid waste, provided it met the general principles discussed in today’s preamble for 

being a legitimate fuel. However, until a legitimate product has been processed, the secondary 

 

16 EPA is completing a study evaluating the use of a mobile unit for the combustion of vegetative and construction 

and demolition debris generated from natural disasters. This study includes monitoring of the source and ambient 

emissions, and a screening risk assessment. Results are projected to be available later in 2010. EPA has found that 

extreme care needs to be taken to exclude specific materials in C&D debris, especially regulated-asbestos containing 

materials (RACM). Additionally, the wiring, plastics, and painted surfaces may contribute to emissions of concern 

and might not equate to traditional fuels. 

17 In determining whether the concentration of contaminants in secondary materials is “significantly higher,” the 

Agency stated in the ANPRM that it could use a qualitative evaluation of the potential human health and 

environmental risks posed. A contaminant concentration could be elevated without posing unacceptable risk, and 

therefore may not be considered “significant” for the purposes of determining whether the secondary material is a 

legitimate fuel. 
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38

material that has been discarded is a solid waste, and must comply with any federal, state or local 

regulations. In addition, any waste generated in the “processing” of these materials would need 

to be managed properly and comply with the appropriate requirements. The ANPRM described 

various secondary materials that can be processed into fuels, including discarded biomass (e.g., 

with dewatering/drying techniques to increase the Btu/lb, or stripping the paint off wood to 

produce clean biomass), coal fines, used oil, tires,18 landfill ash, and secondary materials that are 

mixed and processed into pellets (or other forms) that have the consistency and handling 

characteristics of coal (e.g., K-Fuel, N-Viro). The ANPRM stated that 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 present at significantly higher concentrations than those of 

traditional fuel products, and managed as a valuable commodity). 

Although the ANPRM stated that forest-derived biomass is not considered to have been 

discarded, we requested comment on whether any forest-derived biomass that was determined to 

have been discarded and was subsequently processed by chipping or sorting prior to use as a fuel 

through combustion would be considered to have undergone adequate processing to convert the 

discarded material into a fuel product. We also requested comment on whether mined landfill 

power plant residuals that is crushed, screened, and/or separated into its fundamental components 

through density separation is adequately processed to convert it into a fuel product or ingredient 

(under the assumption that it meets our previously described legitimacy criteria). 

With respect to used oil, the ANPRM stated that off-specification used oil that is 

 

18 Turning scrap tires into TDF can involve two physical processing steps: chipping/shredding and in some cases 

metal removal. The ANPRM stated that, at that point, the Agency’s view was that tire shredding/chipping alone 

(without metal recovery), as well as in combination with metal recovery, are legitimate processing activities 

sufficient to convert a discarded material into a fuel product. 
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39

collected from repair shops is generally thought to be originally discarded, but that on-spec used 

oil was considered to be a product fuel, not a waste. We also requested comment on whether offspecification used oil managed pursuant to the 40 CFR part 279 used oil management standards 

which are burned for energy recovery should be considered to be discarded, and thus whether 

such off-specification used oil should be considered a non-waste fuel. We stated that although 

off-specification used oil may contain contaminant levels that are higher in concentration than 

traditional (virgin) fossil fuels, they still are managed within the constraints of the used oil 

management standards, and may only be burned in specific types of combustion devices. 

5. Secondary Materials Used as Legitimate Ingredients 

For secondary materials used as ingredients, the ANPRM also stated we must determine 

whether alternative ingredients, such as CKD, bottom ash, boiler slag, blast furnace slag, foundry 

sand, and secondary glass material have been discarded, or whether they are being used as 

legitimate non-waste ingredients. For example, the ANPRM stated that coal fly ash is handled as 

a commodity within continuous commerce when it is marketed to cement kilns as an alternative 

ingredient, and would not be considered a waste if it met the legitimacy criteria. 

The ANPRM also stated that secondary materials used as ingredients that were 

previously discarded could be processed into legitimate non-waste ingredients. 

6. Hazardous Secondary Materials That May Be Excluded From the Definition of Solid 

Waste Under RCRA Subtitle C Because They Are More Like Commodities Than Wastes 

 In the ANPRM, the Agency explained that, under the hazardous waste regulations, EPA 

has evaluated a number of hazardous secondary materials that are legitimately used or recycled 

and determined that such materials, while they either met a listing description or exhibited one or 

more of the hazardous waste characteristics, were not “solid wastes” for purposes of the subtitle 
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40

C hazardous waste regulations. Specifically, black liquor, spent sulfuric acid, and comparable 

fuels may be burned under certain conditions and would not be solid wastes. The ANPRM 

discussed EPA’s interest in extending this determination so that these materials are not 

considered solid wastes under RCRA subtitle D as well. 

7. Additional Areas for Comment in the ANPRM 

a. Fuels or Materials That Have Been Discarded That Are Generally Considered to be 

Solid Wastes 

The ANPRM explained that secondary materials that have been previously discarded and 

not subsequently processed into legitimate fuels or ingredients are considered solid wastes under 

RCRA. However, the Agency requested comment as to whether these discarded materials - once 

recovered from the discard environment – should no longer be considered solid waste (assuming 

they are in fact valuable fuels or ingredients and otherwise meet the legitimacy criteria once 

recovered). EPA recognized that waste can be burned for energy or material recovery. Such 

materials, once they have been discarded, generally are considered “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 non-waste ingredient or fuel. However, the ANPRM 

explained that as prices for primary materials have increased, in many cases, the economics of 

using secondary materials as a substitute for primary materials has shifted, changing how the 

secondary materials are considered in commerce. In addition, new technologies can expand the 

universe of secondary materials that could be considered legitimate fuels. 

The ANPRM therefore requested comment on those situations where discarded materials 

(e.g., used tires and coal refuse) can be directly used as a legitimate fuel or ingredient without 

processing because they are indistinguishable in all relevant aspects from a fuel or ingredient 
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41

product. (Note that the Agency only requested comment on these secondary materials at the 

point they have been removed from their “discard” environment and managed as valuable 

commodities. Materials that have been disposed of in abandoned piles or landfills are clearly 

discarded while they remain in those environments and are subject to appropriate federal, state 

and local regulations.) 

b. Other Approaches for Determining Whether Secondary Materials Are Fuels and Not 

Solid Wastes 

The ANPRM requested comment on an approach, as presented to the Agency by industry 

representatives, for determining when non-hazardous secondary materials are fuels and thus, not 

solid waste, and how the process may be implemented.19 Industry representatives suggested that 

non-hazardous secondary materials should be evaluated, on a case-by-case basis, to identify 

which criteria have been satisfied and determine whether the material is legitimately handled as a 

fuel. Criteria identified by industry stakeholders include: handling and storage of materials to 

minimize loss, use of materials within a reasonable period of time, material value (e.g., whether 

there is a market for the material as a fuel, internal or external to the company), material 

managed and treated as a commodity, and processing of material to enhance fuel value. Under 

the industry recommended approach, the secondary material would not necessarily have to 

satisfy all criteria. To implement the aforementioned concepts for determining when or which 

secondary materials are fuels, the ANPRM described two methods presented by industry, which 

were not meant to be mutually exclusive. One method is self-implementing, by which an owner 

or operator of a combustion device must determine that the secondary material meets the criteria 

set forth and maintain records to demonstrate that these criteria are met. The other method is not 

 

19 A copy of this industry-recommended approach entitled, “Outline of Regulatory Approach to Determine Materials 

Considered Fuels – not Solid Wastes – under RCRA,” is included in the docket to today’s proposed rule. 
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42

self-implementing, but would allow an owner or operator to petition EPA or the state to 

specifically list a secondary material as a legitimate non-waste fuel (in addition to a preestablished list of materials). In the petition, the owner or operator would use the criteria as the 

basis for proposing that EPA or the state list the secondary material, or the owner or operator 

could submit additional information to demonstrate the environmental equivalence of the 

material to other listed fuels. 

c. Materials for Which State Beneficial Use Determinations Have Been Made 

The ANPRM explained that states regulate the management of non-hazardous solid 

waste, including secondary industrial materials, and that many states 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. Materials are no longer subject to 

the state’s solid waste regulations under the state rules when the state determines that the 

secondary materials are no longer solid wastes when beneficially used. The ANPRM further 

explained that the states are the lead Agencies for implementing the non-hazardous waste 

programs and, as such, the Agency wanted to make sure that state programs are not adversely 

affected by any decisions that are made by EPA, noting that we see a benefit to deferring to state 

decisions, which are able to consider site-specific information. As a result, the Agency requested 

comments on whether to consider secondary materials that receive a state beneficial use 

determination for use as a fuel or as an ingredient as not a solid waste, also not be considered a 

solid waste under federal law. 

d. Biofuels 

Biofuels can be generally described as a gas or liquid fuel made from biological materials, 

including plants, animal manure, and other organic sources. The ANPRM noted that biofuel 
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43

production has increased dramatically in the past few years and is expected to continue 

increasing over the coming years, and stated that biofuels produced from secondary materials, 

such as ethanol and biodiesel, are not considered to be solid wastes themselves, but rather are 

viewed as legitimate fuel products. Secondary materials associated with biofuel production can 

be viewed to include both the feedstock materials that are used to produce biofuels, as well as the 

byproducts generated from the production of biofuels. The ANPRM stated that these materials 

are considered legitimate alternative fuels when they have meaningful heating value, do not 

contain contaminants that are significantly higher in concentration than traditional fuels, and are 

handled as a valuable commodity.

B. Summary of the Proposed Approach 

1. Changes From the ANPRM Approach 

While many of the concepts and provisions that were discussed in the ANPRM are 

included in this proposal, including discard and the legitimacy criteria, the basic framework is 

different based partly on the approach taken in the Definition of Solid Waste (DSW) final rule 

promulgated on October 30, 2008 (see 73 FR 64668) under subtitle C of RCRA, based partly on 

the comments received (see section VII.C for the comments and EPA’s response), as well as on 

our interpretation of whether these secondary materials are considered to be discarded (see 

section VII.C.2 for the comments and EPA’s response). 

 The ANPRM indicated that there may be a number of secondary materials that would not 

be considered discarded even if the original generator sent them to another entity outside of its 

control. For example, used tires collected from automobiles at tire dealerships and managed 

pursuant to state tire collection programs were not viewed as solid wastes in the ANPRM. 

Comments received from the states suggested that non-hazardous secondary material fuels that 
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44

are transferred to a third party have entered what is traditionally considered to be the “waste 

stream” (and have been regulated by the states as wastes) and therefore should appropriately be 

considered wastes (e.g., scrap tires) unless/until they are processed into non-waste fuel products. 

As discussed below, this proposal assumes that non-hazardous secondary materials that are used 

as fuels and are managed outside the control of the generator are solid wastes unless they are 

processed into non-waste fuel products. (Note: The same non-hazardous secondary material that 

is burned for energy recovery under the control of the generator and meets the legitimacy criteria 

would not be considered a solid waste since the non-hazardous secondary material would not be 

considered discarded.) 

 We are also proposing, as discussed below, a non-waste determination petition process. 

That process will allow those persons who burn non-hazardous secondary material fuels that are 

not managed within the control of the generator (that this proposal would consider to be solid 

wastes), to petition EPA for a determination that such non-hazardous secondary materials are not 

discarded and therefore, are not solid wastes (assuming these materials have met the applicable 

legitimacy criteria). While the Agency recognizes that a petition process can be resource 

intensive, we also believe it necessary and appropriate to provide an opportunity for persons to 

demonstrate to EPA that their non-hazardous secondary material fuels would not be considered 

“discarded” under RCRA and therefore, not solid waste. 

 Furthermore, some other important changes were made between the ANPRM and this 

proposal based on comments received and further investigation. One of the differences is the 

classification of “clean” biomass and on-specification used oil as a traditional fuel (see section 

VII.C.5.b.). In addition, EPA has decided not to address hazardous secondary materials that 

have been excluded from the definition of solid waste under subtitle C of RCRA in this 
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45

rulemaking proceeding. Those materials are not non-hazardous secondary materials which are 

the only materials addressed in this rulemaking. Instead, facilities combusting hazardous 

secondary materials should refer to EPA’s Subtitle C hazardous waste regulations to determine 

whether the materials they are combusting are solid wastes. Each of these changes is discussed 

in detail in the referenced sections. 

2. General Proposed Approach 

This proposal maintains the same general principles for determining whether a nonhazardous secondary material is or is not a solid waste as expressed in the ANPRM. Under the 

proposed rule, the following are not solid wastes: non-hazardous secondary materials used as 

fuels that remain within and are combusted within the control of the generator and that meet the 

legitimacy criteria; non-hazardous secondary materials that meet the legitimacy criteria and are 

used as ingredients in a manufacturing process; materials that meet the legitimacy criteria and 

have been sufficiently processed into a fuel or ingredient from discarded non-hazardous 

secondary materials that have been discarded; and non-hazardous secondary materials used as a 

fuel that does not remain within the control of the generator for which EPA grants a facility’s 

petition for a “non-solid waste” determination.

 The term “discarded” is intended to encompass material handling and management 

scenarios that meet the plain meaning of discard (abandoned, disposed of, or thrown away). For 

example, a secondary material that is thrown away and disposed of in a landfill is considered to 

have been discarded in the first instance. Materials that have been discarded in the first instance 

are solid waste even if they satisfy the legitimacy criteria (unless they are processed into a 

legitimate non-waste product) since both wastes and non-wastes may be legitimately recycled. 

3. Legitimacy Criteria 
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This proposal also maintains the same general principles as described in the ANPRM for 

determining whether a non-hazardous secondary material is or is not a legitimate fuel or 

ingredient. Secondary materials used in a combustion unit that are not a legitimate fuel or 

ingredient would be considered sham recycling and thus, a solid waste. For legitimate fuels, 

non-hazardous secondary materials must be handled as a valuable commodity, have meaningful 

heating value, be used as a fuel in a combustion unit that recovers energy, and not contain 

contaminants that are significantly higher in concentration than traditional fuel products. For 

legitimate ingredients, the non-hazardous secondary material must be handled as a valuable 

commodity, provide a useful contribution, result in a valuable product or intermediate, and the 

product must not contain contaminants that are significantly higher in concentration than 

analogous products. 

4. Traditional Fuels 

This proposal recognizes that traditional fuels are not solid wastes when burned in a 

combustion unit. Traditional fuels are those fuels that have been historically managed as 

valuable fuel products rather than being managed as waste materials. Traditional fuels include 

fossil fuels (e.g., coal, oil, including used oil meeting on-specification levels, natural gas) and 

their derivatives (e.g., petroleum coke, bituminous coke, coal tar oil, refinery gas, synthetic fuel, 

heavy recycle, asphalts, blast furnace gas, recovered gaseous butane, and coke oven gas). Clean 

cellulosic biomass materials are also traditional fuels rather than wastes when burned as a fuel. 

“Clean” material is defined as those non-hazardous secondary materials that have not been 

altered (either chemically or through some type of production process), such that it contains 

contaminants at concentrations normally associated with virgin biomass materials. Clean 

cellulosic biomass includes forest-derived biomass (e.g., green wood, forest thinnings, clean and 
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47

unadulterated bark, sawdust, trim, and tree harvesting residuals from logging and sawmill 

materials), corn stover and other biomass crops used specifically for energy production (e.g., 

energy cane, other fast growing grasses), bagasse20 and other crop residues (e.g., peanut shells), 

wood collected from forest fire clearance activities, trees and clean wood found in disaster 

debris, and clean biomass from land clearing operations. 

We request comment on whether other fuels in use today also should be classified as 

traditional fuels, and also whether other types of cellulosic biomass should be designated as 

clean biomass, and thus a traditional fuel. In identifying other secondary materials as a 

traditional fuel, commenters will need to explain why such materials should be considered a 

traditional fuel—that is, an explanation of how the materials have historically been managed as a 

valuable fuel product and not a waste. 

EPA acknowledges that changes in technology and in the energy market over time may 

result in additional secondary materials being economically viable to be used as “traditional” 

fuels. It also may not always be clear whether a fuel material is a traditional fuel. We agree with 

commenters to the ANPRM that this rulemaking should be flexible to account for increasing use 

and changes in commodities, technologies, markets, and fuel prices. We, therefore, request 

comment on whether we should provide a petition process that would allow a facility or person 

to request that EPA determine whether the fuel that they burn qualifies as a traditional fuel. If 

we adopt such a petition process, it would be implemented through the same process as the nonwaste determination petition process discussed in section VII.D.5. 

5. Circumstances Under Which a Non-Hazardous Secondary Material Would Not Be 

 

20 Bagasse is the matted cellulose fiber residue from sugar cane that has been processed in a 

sugar mill. For more information on bagasse, see the Materials Characterization Paper on BiomassAgricultural Residues and Food Scraps, which is located in the docket of today’s proposed rule.
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Considered a Solid Waste

Non-hazardous secondary materials used as fuels in combustion units would be 

considered solid wastes unless: 1) the non-hazardous secondary materials (not otherwise 

discarded) remain under the control of the generator as discussed in section VII.D.1, and meet 

the legitimacy criteria; or 2) they are legitimate non-waste fuels that meet the legitimacy criteria 

and are produced from the processing of discarded non-hazardous secondary materials as 

discussed in section VII.D.4. Non-hazardous secondary materials used as a fuel in combustion 

units that are transferred to a third party are considered solid wastes unless a non-waste 

determination has been granted pursuant to the proposed petition process (discussed below). 

Non-hazardous secondary materials used as ingredients that are combusted in combustion 

units would not be considered solid waste if they have not been discarded in the first instance 

and if they are legitimate ingredients, irrespective of whether they have been transferred to a 

third party. We are not proposing to differentiate ingredients that are used within the control of 

the generator from those that are not since we believe the use of non-hazardous secondary 

materials as ingredients is considered to be more integral or akin to use in a commercial 

manufacturing process and thus these non-hazardous secondary materials would not be 

considered discarded provided they satisfy the legitimacy criteria. 

Except for the petition process, the proposed criteria are designed to be selfimplementing in nature, not requiring Agency action. As such, we are proposing that it will be 

the facility’s (i.e., the facility that burns the material) responsibility to determine if the secondary 

material satisfies the proposed criteria that identifies which material is a solid waste when burned 

in a combustion unit. 

6. Petition Process 
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EPA is also proposing to establish a non-waste determination petition process for 

secondary materials used as fuels outside the control of the generator. The petition process 

provides persons with an administrative process for a formal determination that their nonhazardous secondary material fuel is indistinguishable in all relevant aspects from a fuel, and 

thus is not discarded and therefore not a solid waste. The determination will be based on 

whether the non-hazardous secondary material has been discarded, is a legitimate fuel and the 

following criteria: (1) whether market participants handle the non-hazardous secondary material 

as a fuel rather than a solid waste; (2) whether the chemical and physical identity of the nonhazardous secondary material is comparable to commercial fuels; (3) whether the non-hazardous 

secondary material will be used in a reasonable time frame given the state of the market; (4) 

whether the constituents in the non-hazardous secondary material will not be released to the air, 

water, or land from the point of generation to the combustion of the secondary material at 

significantly higher levels from either a statistical or from a health and environmental risk 

perspective than would otherwise be released; and (5) other relevant factors. For further 

information regarding the non-waste determination petition process, see section VII.D.5.

C. What Were the Major Comments on the ANPRM? 

1. Comments from State Agencies 

 EPA received comments from several states and state organizations in response to the 

ANPRM. Comments received expressed a range of viewpoints representing states with differing 

solid waste management programs and authorities. Consequently, it was not surprising that the 

comments received often articulated competing suggestions and recommendations based upon 

different state programs and experiences. 

Comment: 
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Some states did not want EPA to define what is or is not a waste at the federal level if it 

impacts or limits the scope of what states currently regulate per their solid waste management 

authority. Some states noted a potential problem related to existing “stringency provisions” in 

some state laws. For example, if a solid waste determination is made at the federal level, it could 

be argued that the state is less stringent through their issued exemptions and the state rule must 

be rescinded. Conversely, some states argued they cannot, by state statute, be more stringent 

than the Federal regulations, and even if they don’t have this statutory limitation, they may feel 

pressure to not be more restrictive than the federal definition. Many states said we should defer 

the determination of whether those non-hazardous secondary materials used as fuels or 

ingredients are solid wastes to the states and urged flexibility in how each state could incorporate 

any new regulations into its existing solid waste management programs. 

 EPA’s Response: 

The Clean Air Act states that the term “solid waste” shall have the meaning established 

by the Administrator pursuant to the Solid Waste Disposal Act (section 129(g)(6)). Accordingly, 

EPA must define which non-hazardous secondary materials used as fuels or ingredients in 

combustion units are solid waste at the national level in order to identify the universe of sources 

subject to the boilers emissions standards to be issued under CAA section 112 and the CISWI 

emissions standards to be issued under CAA section 129. See section VIII of today’s proposal 

for a discussion on the applicability of state solid waste definitions and beneficial use 

determinations, as well as a discussion on state adoption of this rulemaking. 

Comment: 

Many states argued that they had long-standing “waste” management programs 

regulating non-hazardous secondary materials, that no one had questioned the legitimacy of their 
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regulatory programs in the past, and that it was inappropriate and contrary to the intent of RCRA 

for EPA to exclude this material, which had been considered “waste” for many decades, from 

regulation under RCRA. 

On the other hand, other states were concerned a federal designation that some of these 

non-hazardous secondary materials are “wastes” would disrupt existing recycling markets by 

creating a deterrent from using these non-hazardous secondary materials as fuels or ingredients. 

These states emphasized the importance of promoting beneficial use of non-hazardous secondary 

materials and were concerned that regulation of certain materials (especially used tires) under 

CAA section 129 would create negative incentives to their beneficial use and consequently could 

have negative environmental impacts. 

Many states explained that they manage/regulate many of these secondary materials as 

solid waste (e.g., tires), but determine they are not wastes (via beneficial use determinations) 

when after analysis the state has determined they are going to a legitimate use (e.g., as a fuel). 

These states recommended that these materials remain a solid waste until they are approved for, 

procured and delivered to the potential end user in order to retain their ability to regulate the 

management of these secondary materials, usually under its solid waste management authority.21 

For example, some states recommended that EPA exclude whole tires from the definition of 

solid waste at the point of combustion.22 

 EPA’s Response: 

In developing this proposed rule, EPA attempted to balance and address the concerns 

 

21 Many states regulate used tires under separate statutory authority (i.e., statutory authority outside of their solid 

waste management statutory authority), while some states regulate used tires pursuant to both their solid waste 

management authority, as well as separate tire statutory authority. 

22 Subsequent to the closing of the comment period, the Environmental Council of States (ECOS) approved 

Resolution 09-7, entitled “Meaning of ‘Solid Waste’ under the Resource Conservation and Recovery Act (RCRA) as 

it Applies to Non-Hazardous Waste Programs.” This resolution also urges EPA to exclude whole tires from the 

definition of solid waste for the purposes of combustion. Resolution 09-7 can be found on the ECOS website at 

www.ecos.org/files/3832_file_Resolution_09_7_Defn_of_Solid_Waste.doc (located on November 12, 2009). 
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raised by the states regarding potential impacts on their existing solid waste programs in 

determining which non-hazardous secondary materials are solid wastes when combusted, while 

at the same time, recognizing that the proposed rule needed to be based on whether these 

secondary materials are considered to have been managed in a way that meets the plain meaning 

of discard, as defined in AMC I. We believe we have addressed that balance, considering the 

statutory limitations, but also understand that today’s proposal could impact existing state solid 

waste management programs, as well as states’ beneficial use programs, and specifically request 

comment on how today’s proposal impacts or could impact such state programs. 

 Comment: 

Some state commenters suggested that the Agency address CAA section 129 

implementation issues by subcategorizing energy recovery units that burn waste materials and 

regulate this combustion similarly to the CAA section 112 requirements.23 

EPA’s Response: 

This comment relates to EPA’s regulation of solid waste incineration units under section 129 and 

is not relevant to this action, which simply proposes to define “solid waste” under RCRA for 

non-hazardous secondary materials. 

2. Meaning of Discard 

As discussed in Section VI, RCRA defines “solid waste” as “...any garbage, refuse, 

sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility 

and other discarded material... resulting from industrial, commercial, mining, and agricultural 

operations, and from community activities...” (RCRA section 1004 (27) (emphasis added)). 

The ANPRM provided a thorough discussion on the definition of solid waste, including a 

 

23Id. ECOS Resolution 09-7 presents this position as an alternative to excluding whole tires from the definition of 

solid waste for the purposes of combustion. 
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summary of relevant case law. See also Section VI.B in today’s preamble. Further, the ANPRM 

highlighted the importance of the concept of “discard,” noting that the definition of solid waste 

turns on the meaning of the phrase, “other discarded material,” as this term encompasses all 

other examples provided in the definition. 

Comment: 

Several comments stressed that the Agency use the plain meaning of discard (i.e., 

disposed of, abandoned, or thrown away) in defining the term “solid waste” for the purpose of 

establishing the appropriate standards for combustion units under CAA sections 112 and 129. 

 EPA’s Response: 

EPA agrees with the premise of using the “plain meaning” of discard, as this position is 

consistent with case law on the issue (for a more detailed discussion, please refer to the ANPRM 

and section VI.B of today’s preamble). 

Comment: 

Some commenters noted that the same rationale and principles related to “discarded 

materials” should apply whether these materials are regulated under RCRA subtitles C or D, as 

the principles related to “discarded materials” are the same. Other commenters argued that the 

subtitle C approach should not be used for non-hazardous secondary materials since these 

materials pose less risk relative to hazardous wastes. 

EPA’s Response: 

EPA believes it is appropriate to use the same general framework that has been used to 

define solid waste for purposes of RCRA subtitles C and D (albeit tailored to specifically address 

non-hazardous secondary materials used as fuels or ingredients in combustion units), noting that 

the same statutory definition of solid waste applies to both RCRA subtitles D and C. However, 
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EPA is not proposing in today’s action any revisions to its hazardous waste regulations. 

Comment: 

Some commenters argued that any secondary materials that are beneficially reused or 

recycled are not waste, regardless of whether or not the reuse or recycling is conducted in the 

same or different location or industry (on-site and off-site). 

EPA’s Response: 

The Agency does not agree with this assertion, as this position is not consistent with case 

law. Again, the question of whether a material is or is not a solid waste depends on the issue of 

discard. In Safe Food and Fertilizer v. EPA, 350 F. 3d 1263, the court rejected the argument 

that, as a matter of plain meaning, recycled material destined for immediate reuse within an 

ongoing industrial process is never considered “discarded,” whereas material that is transferred 

to another firm or industry for subsequent recycling must always be solid wastes. 350 F. 3d at 

1268. Instead, the court evaluated “whether the Agency’s interpretation of ... “discarded”...is, 

reasonable and consistent with the statutory purpose.” Id. Thus, EPA has some discretion to 

determine if non-hazardous secondary materials are not a solid waste if it is managed within the 

control of the generator, as well as if it is transferred outside the control of the generator. As 

previously described, this proposal states that non-hazardous secondary materials used as a fuel 

in combustion units that remain under the control of the generator and meet the legitimacy 

criteria are not solid waste, but that non-hazardous secondary materials that are transferred to a 

third party and combusted are considered solid wastes, unless a petition for a non-waste 

determination has been granted. Ingredients, on the other hand, are determined not to be solid 

waste even if they are managed outside the control of the generator as long as they meet the 

legitimacy criteria. See section VII.D.6 for a discussion on EPA’s rationale for these 
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55

determinations. 

Comment: 

One commenter noted that EPA’s hazardous waste regulations under subtitle C provide 

that hazardous secondary materials “burned to recover energy” or “used to produce a fuel” are 

“discarded” and, therefore, are solid wastes. 40 C.F.R. § 261.2(c)(2). The commenter went on 

to point out that under the ANPRM approach, EPA is interpreting the definition of solid waste to 

mean that burning of non-hazardous secondary material, under appropriate conditions, is not 

“discard” under RCRA. According to the comment, the ANPRM is inconsistent with the 

interpretation in 40 C.F.R. § 261.2. Regardless of whether EPA believes that it can issue 

separate definitions of solid waste for hazardous waste and non-hazardous waste, the commenter 

suggests “discarded” cannot be read both to include materials that are “burned to recover energy” 

or “used to produce a fuel” and to exclude such materials. 

EPA’s Response: 

EPA disagrees with this comment and believes the regulations are not inconsistent. The 

hazardous waste definition may be considered a “presumption” that secondary materials burned 

for energy recovery, or used to produce a fuel, are solid wastes. EPA has, through rulemaking, 

excluded from the definition of solid waste a number of materials burned for energy recovery 

under certain conditions. See 40 C.F.R. §§ 261.2(c)(2)(A)(ii) (off specification commercial 

chemicals otherwise listed as hazardous wastes); 261.4(a)(6)(“black liquor” in pulping 

processes); 261.4(a)(7) (spent sulfuric acid); and 261.4(a)(16) (comparable fuels). In addition, 

EPA has excluded materials used to produce fuels. See, 40 C.F.R. §§ 261.4(a)(12) (oil bearing 

hazardous secondary material inserted into the petroleum refining process), and 261.4(a)(18) 

(petrochemical recovered oil inserted into the refining process). 
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Regardless of the appropriateness of these exclusions, or whether the Agency may 

appropriately exclude any secondary materials from the solid waste definition, consistency 

between the regulations for hazardous and non-hazardous secondary materials is not an issue. 

This proposed rule, which identifies certain secondary materials burned for energy recovery as 

not being solid wastes, is comparable to the conditional exclusions for the definition of solid 

waste in the hazardous waste regulations. Conditions apply to all of the secondary materials 

being considered for determinations as to whether they are solid wastes. The legitimacy criteria 

apply to all of the secondary materials. 

 It is reasonable and within EPA’s discretion to determine that non-hazardous secondary 

materials may be burned as products and are not wastes. Today’s proposal acknowledges the 

difficulty that the combustion of secondary materials is commonly associated with disposal. 

However, this view does not take into account that the secondary material may often be used to 

produce a safe fuel product that is a valuable commodity and is sold in the marketplace no 

differently from traditional fuels. This position seems like a common sense interpretation of the 

term, “solid waste,” under RCRA. 

Another difficulty the Agency faces is the misconception that secondary material that is 

burned, either for destruction or energy recovery, by definition has high levels of contaminants. 

The manner in which the secondary material is managed is a key factor that determines discard. 

Contaminant levels are part of that consideration. If a material has high levels of contaminants, 

it would be considered sham recycling, which is one type of way a material can be “discarded.” 

Hazardous secondary materials – those that would be hazardous wastes under RCRA 

subtitle C, if discarded – are more likely to contain high levels of contaminants. Thus, EPA 

could reasonably presume that burning such secondary materials, even if burned for energy 
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57

recovery, is likely a waste activity. This was the Agency’s rationale for issuing the subtitle C 

rule at 40 C.F.R. § 261.2(c)(2) that states burning for energy recovery is a waste disposal 

activity. In EPA’s rule establishing the comparable fuels exclusion from the definition of solid 

waste for hazardous secondary materials, the Agency stated that these hazardous secondary 

materials (comparable fuels) are lower in hazardous contaminants than the normal hazardous 

wastes and that burning of the comparable fuels “does not present the element of discarding 

hazardous constituents through combustion that underlies the typical classification of hazardous 

waste-derived fuels as a solid waste. 50 Fed. Reg. at 629-630 (Jan. 4, 1985).” 63 FR at 33783 

(1998). We may, after looking at certain secondary materials, decide that they are not in fact 

solid wastes and are being burned as valuable commodities to recover energy. This 

interpretation, however, is consistent with today’s proposal, which also evaluates whether 

materials burned for energy recovery are wastes or non-wastes. 

Moreover, the case law supports the conclusion that materials burned for energy recovery 

or used to produce fuels may or may not be solid wastes. American Mining Congress v. EPA, 

824 F.2d 1177 (D.C. Cir. 1987) (‘‘AMC I’’), held that the term ‘‘discarded materials’’ could not 

include materials ‘‘* * * destined for beneficial reuse or recycling in a continuous process by the 

generating industry itself. 824 F.2d at 1190. The provision under consideration in this case dealt 

specifically with material “reclaimed” in a continuous process. That is, material is regenerated 

from a secondary material in a continuous process. However, it is highly likely the courts would 

apply this same reasoning to secondary materials that are otherwise reused or recycled in a 

continuous industrial process, such as material used, or combusted, to recover energy. Accord, 

Association of Battery Recyclers v. EPA, 208 F.3d 1047 (D.C. Cir. 2000) (“ABR”). 

It is also worth noting that the Ninth Circuit has specifically found that non-hazardous 
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58

secondary materials may, under certain circumstances, be burned and not constitute solid waste 

under RCRA. See Safe Air For Everyone v. Waynemeyer (“Safe Air”), 373 F.3d 1035 (9th Cir., 

2004) (Kentucky bluegrass stubble may be burned to return nutrients to the soil and not be a 

solid waste). This activity is not waste treatment even in the absence of energy recovery. We 

believe, therefore, that burning material for another useful purpose (e.g., energy recovery) does 

not necessarily constitute a disposal activity. 

With respect to materials used to produce fuels, in American Petroleum Institute v. EPA, 

216 F.3d 50 (D.C. Cir. 2000) (“API II”), the court 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 excluding petrochemical recovered oil from the definition of solid waste (216 

F.3d at 58-59). Both of these materials are returned to the petroleum refinery process and used 

to produce fuel. The court in this case was clearly considering the conditions under which two 

types of material may be excluded from the definition of solid waste. For purposes of the issue 

of concern in today’s proposal, this decision supports EPA’s discretion to determine whether or 

not a secondary material used as a fuel product is a solid waste or not, in light of factors relevant 

to determining whether the material is discarded. Therefore, EPA is not prevented from 

exercising its discretion to decide that issue either way. 

3. General Approach 

EPA received several comments on the general approach outlined in the ANPRM for 

determining which non-hazardous secondary materials used as fuels or ingredients in combustion 

units are or are not solid wastes. Most commenters supported the general regulatory structure 

that included: (1) a recognition that certain materials are inherently fuel products, (2) a selfimplementing approach for identifying those non-hazardous secondary materials that are not 
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59

considered solid waste pursuant to general criteria and (3) a petition process for receiving a nonwaste determination from the Agency.24

Comments: 

Several commenters discussed whether to include a list of wastes and/or a list of nonwastes in the regulations. One commenter recommended that a list of secondary materials that 

are considered wastes be identified, rather than a list of secondary materials that are not 

considered wastes, while other commenters urged for the inclusion of a list of secondary 

materials that are not considered wastes when burned as a fuel. If EPA included a list of 

secondary materials that are not considered wastes when burned as a fuel in its regulations, one 

commenter also suggested that the Agency additionally include a list of secondary materials that 

are considered wastes in order to remove any uncertainty. Those commenters who urged that the 

regulations include a list of secondary materials not considered a waste when used as a fuel or 

ingredient also cautioned that such a list should not be all-inclusive in order to account for 

changes in technology and new secondary materials and processes that are not yet developed. 

EPA’s Response: 

In recognition of changes in economies, technologies, markets and material processes, 

EPA is not proposing to list specific non-hazardous secondary materials as either wastes or nonwastes in regulatory language, but is rather specifying the criteria to be used to determine if these 

secondary materials are or are not solid wastes. We believe that there could be instances where 

 

24 On August 18, 2009, EPA received a letter signed by nearly one hundred community groups and citizens that 

urged for an expansive definition of solid waste for the purposes of combustion and argued against the general 

approach of the ANPRM. A copy of this letter has been placed in the docket for today’s proposed rule. While the 

stated intent of the signatories is not to focus on the ANPRM, the letter does highlight stakeholder concerns 

regarding the relative differences between CAA sections 112 and 129 and argues against an overly narrow definition 

of solid waste. Partially in response to these comments and others, we are considering and taking comment on an 

alternative approach to that proposed and described in section VII.D. This alternative approach would require, with 

certain exceptions, that non-hazardous secondary materials that are burned as a fuel or used as an ingredient in the 

combustion process be considered a solid waste subject to CAA section 129 standards. For more information on the 

alternative approach, see section VII.E of this proposed rulemaking. 
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determinations of whether a particular non-hazardous secondary material meets the various 

criteria will have to be based on site-specific information; a national designation that in all 

circumstances, a particular non-hazardous secondary material is or is not a waste may not be 

possible. However, it is EPA’s goal in this proposal, as well as in the pending final rule 

preamble, to indicate, as clearly as possible, which non-hazardous secondary materials used as 

fuels or ingredients in combustion units are or are not considered solid waste based on this 

criteria. As several commenters also noted, any approach must be flexible enough to account for 

changing technologies and new secondary materials that could, in the future, be viable fuels or 

ingredients. The proposed approach allows for these changes, not by codifying a list of specific 

non-hazardous secondary materials that are or not waste, but rather by adopting a selfimplementing approach that can consider site-specific information, if necessary. 

Comment: 

A few commenters noted a preference for categorical determinations that certain 

secondary materials were products, not wastes (e.g., traditional fuels) along with clear criteria for 

solid waste determinations for secondary materials not falling into one of these categories (i.e. a 

petition process for non-waste determinations). 

EPA’s Response: 

EPA partially agrees with this approach. The proposed rule discusses traditional fuels as 

a category of fuel products that are not secondary materials and therefore, are not solid waste. 

With respect to non-hazardous secondary materials, although this proposal does not list 

types/categories of such secondary materials that are or are not solid waste in regulatory text (as 

discussed above), we are proposing self-implementing regulatory criteria to be used by the 

regulated universe to determine whether the non-hazardous secondary material would or would 
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not be a solid waste. The regulatory criteria are based on four categories of non-hazardous 

secondary materials that are managed under various scenarios, including: (1) non-hazardous 

secondary materials used as a fuel in a combustion unit that remains within the control of the 

generator and that meets the legitimacy criteria; (2) non-hazardous secondary materials used as 

an ingredient in a combustion unit and that meets the legitimacy criteria; (3) fuel or ingredient 

products that are processed from discarded non-hazardous secondary materials and that are used 

as fuels or ingredients in a combustion unit, and that meet the legitimacy criteria; and (4) EPA 

has granted a non-waste determination for non-hazardous secondary material fuels managed 

outside the control of the generator. 

More detailed information on these categories and their respective criteria can be found 

in section VII.D. of this proposal. 

Comment: 

Some commenters suggested that a petition process for a waste determination should not 

be mandatory. Proponents of this position urged that any regulatory construct for demonstrating 

that non-hazardous secondary materials qualify as alternative fuels should be self-implementing 

and not involve the need for individual regulatory determinations. 

EPA’s Response: 

The non-waste petition process that applies to non-hazardous secondary material fuels 

managed outside the control of the generator is not mandatory; however, we note that the 

assumption in this proposed rule is that these materials would be a solid waste, unless they are 

granted a non-waste determination by EPA. Also, as explained above, we are proposing a selfimplementing approach for all the other non-hazardous secondary material management 

categories that can consider site-specific information, if necessary (i.e., facilities will make a 
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62

self-determination of whether the non-hazardous secondary material in question meets the 

regulatory criteria). We again note it is EPA’s intention to indicate in the preamble, as clearly as 

possible, which non-hazardous materials used as fuels or ingredients in combustion units are or 

are not considered solid waste based on the criteria laid out in regulatory text. The Agency 

expects this self-implementing approach will govern for the majority of situations. 

4. Level of Processing Needed to Produce a Non-Waste Product From Discarded Waste 

Material 

In the ANPRM, we stated that if a non-hazardous secondary material is processed into a 

legitimate fuel or ingredient product, then the processed material would not be a discarded 

material. We listed various non-hazardous secondary materials we believed to have undergone 

adequate processing (e.g., tire-derived fuel), and requested comment on whether some of the 

materials, such as mined landfilled ash, should be considered to have undergone adequate 

processing, such that it would be rendered a non-waste. 

Comments: 

Most commenters generally agreed with the concept, but had differing views on what 

level of “processing” would render a discarded material a legitimate non-waste product fuel or 

ingredient product. Their views ranged from not requiring any processing, to specifying a 

minimum level of processing if processing criteria are retained. These commenters argued that 

any management activity associated with recovering the non-hazardous secondary material 

would be sufficient. Commenters who indicated that the non-hazardous secondary material 

should not be required to “undergo processing” before it is considered a non-waste fuel or 

ingredient argued that as long as these secondary materials meet the legitimacy criteria, they 

should not be viewed as a solid waste once recovered from the discard environment; these 
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commenters provided examples of non-hazardous secondary materials, such as whole tires, 

biomass, and coal fly ash. Also, some commenters stated that the act of recovering or 

“extracting” the material from the “discard environment” should constitute the requisite degree 

of processing needed. Commenters who argued that no minimum level of processing be 

specified supported their position by noting that procedures for recovering solid waste vary 

widely and that the amount of processing required would be dependent on the application for 

which the non-hazardous secondary material is being prepared. 

EPA’s Response: 

 We disagree with the commenters who generally argued that no level of processing or 

even a minimum level of processing should be sufficient to produce a non-waste fuel or 

ingredient. We likewise disagree with those commenters who argued that the act of recovering 

or “extracting” secondary material from the discard environment should be sufficient to be 

considered processing. Rather, the Agency believes that sufficient processing of the secondary 

material (e.g., changing the mass, chemical make-up, or removing particular components from 

the secondary material) must be undertaken to transform a waste-derived fuel or waste-derived 

ingredient into a fuel or ingredient product. Thus, our position on this issue has changed from 

that discussed in the ANPRM, as explained below. For example, the Agency no longer believes 

that simply cutting or sizing a material is sufficient processing to produce a product fuel or 

ingredient. 

Under the proposed rule, processing “means any operations that transform discarded nonhazardous secondary material into a new fuel or new ingredient product. Minimal operations, 

such as operations that result only in modifying the size of the material by shredding, do not 

constitute processing for purposes of this definition. Processing includes, but is not limited to, 
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64

operations that: remove or destroy contaminants; significantly improve the fuel characteristics of 

the material, e.g., sizing or drying the material in combination with other operations; chemically 

improve the as-fired energy content; and improve the ingredient characteristics..” See the 

proposed definition in §241.2. 

We believe the proposed definition is specific enough to describe the general level of 

processing that would be needed, but flexible enough to apply broadly to the wide range of nonhazardous secondary materials that are currently under consideration, or that could be under 

consideration in the future as technologies change. We believe that discarded non-hazardous 

secondary materials must be sufficiently processed in order to render a secondary material into a 

non-waste product. Without sufficient processing, the non-hazardous secondary material that is 

produced would remain a waste-derived fuel or waste-derived ingredient, and if burned in a 

combustion unit, would be subject to the CAA section 129 requirements. The Agency 

specifically requests comment on these points. 

 See section VII.D.4 for a discussion of the processing of discarded non-hazardous 

secondary materials into non-waste fuel or ingredient products. That section describes EPA’s 

rationale for why this processed material is no longer considered a solid waste, as well as 

examples of processing that EPA believes does or does not meet the requisite level to render a 

discarded secondary material into a non-waste product. 

5. Comments on Specific Materials Used as Fuels 

 In the ANPRM, we listed a number of non-hazardous secondary materials, as well as 

traditional fuels, that we believe are currently being used as fuels and ingredients. We solicited 

comment on additional information, including: the composition or characteristics of nonhazardous secondary materials; how much of the non-hazardous secondary material is produced 
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and utilized; how it is utilized (i.e. as a fuel or an ingredient); and how it is generally handled. 

The majority of comments submitted for fuels were in regard to traditional fuels and the 

following non-hazardous secondary materials-- biomass, used tires, used oil, coal refuse, and 

sewage sludge. 

a. Traditional Fuels. The ANRPM described traditional fuels to include: coal, oil, 

natural gas, and their derivatives (e.g., petroleum coke, bituminous coke, coal tar oil, refinery 

gas, synthetic fuel, heavy recycle, asphalts, blast furnace gas, recovered gaseous butane, and 

coke oven gas), as well as cellulosic biomass (e.g., wood). We requested comment on whether 

there are other fuels that should be considered as traditional fuels and would fall within this 

grouping. 

Comments: 

A few commenters suggested that bagasse should be included in the traditional fuel group 

because it is a valuable co-product which is fed directly from the mill to the boilers and has 

historically been the source of electrical power in communities located near the sugar cane mills. 

In addition, cellulosic biomass crops similar to bagasse (e.g., energy cane and other fast growing 

grasses) grown specifically for fuel production, agricultural seeds, woody biomass, and wood 

collected from forest fire clearance activities, land clearing biomass, trees, unadulterated wood 

from pallets, and uncontaminated wood from disaster debris were suggested as materials that 

should qualify as traditional fuels. Last, several commenters argued that used oil, on-spec and 

off-spec, should be listed as traditional fuels. Since neither type of used oil is discarded, the 

presumption is that it is recycled. 

EPA’s Response: 

We agree with commenters that many of the materials mentioned in the comments should 
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66

be classified as traditional fuels, which are not solid waste. However, to further add clarity, we 

are proposing that in order to qualify as a traditional fuel, cellulosic biomass must be “clean”—

that is, must not be altered (either chemically or through some type of production process), such 

that it contains contaminants not normally associated with virgin biomass materials, to ensure 

that the material being burned does not introduce contaminants not normally associated with 

virgin biomass materials (we describe what we consider to be clean biomass in section 

VII.C.5.b). We believe clean biomass to include, but not necessarily be limited to: forestderived biomass (e.g., green wood; forest thinnings; clean and unadulterated bark; sawdust; trim; 

and tree harvesting residuals from logging and sawmill materials); corn stover and other biomass 

crops used specifically for energy production (e.g., energy cane, other fast growing grasses); 

bagasse and other crop residues (e.g., peanut shells, agricultural seeds); wood collected from 

forest fire clearance activities; trees and clean wood found in disaster debris; clean biomass from 

land clearing operations; and clean construction wood. 

In regard to used oil, for the reasons discussed later in section VII.D.4, we are including 

on-spec used oil in the list of traditional fuels because we believe it meets our view of what is a 

traditional fuel (i.e., fuels that have been historically managed as valuable fuel products rather 

than being managed as waste materials). However, off-spec used oil will be considered a solid 

waste, unless it is processed into a legitimate non-waste fuel, such as on-spec oil. 

b. Biomass. Biomass includes a wide range of secondary materials which can be 

divided into two categories, cellulosic and non-cellulosic, as stated in the ANPRM.25 While the 

ANPRM indicated that much of the biomass currently used as fuels are not solid waste since they 

have not been discarded in the first instance and are legitimate fuel products, we specifically 

 

25 In the ANPRM, we did not distinguish between “clean” cellulosic biomass and that which is not. Therefore, the 

comments discussed in this section are only in reference to cellulosic biomass that does not meet the definition of 

“clean.” 
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requested comment on whether some biomass contains contaminants that are significantly higher 

in concentration when compared to traditional fuel products. 

Comments: Cellulosic Biomass

For the cellulosic biomass category, several commenters argued that resinated wood 

products (e.g., board trim, sander dust, panel trim) used to manufacture particleboard, medium 

density fiberboard, and hardboard are not discarded and are typically used on-site to either make 

composites or are used as fuel. One commenter stated that “[i]t is also important to note the 

quantity of formaldehyde actually present in these resonated wood fuels. It is minute. As the 

resins cure, virtually all of the formaldehyde in the adhesive is cross linked into polymers and no 

longer exists as formaldehyde. Current extraction tests on the highest formaldehyde content 

products show levels to be less than 0.02%, using the standard industry extraction test for 

formaldehyde from composites, EN 1203.” Commenters also point out that formaldehyde is a 

common product of incomplete combustion, suggesting that trace amounts of formaldehyde 

would be present in the emissions irrespective of whether trace amounts are present in the 

residuals. One commenter noted that incomplete combustion of virtually all organic materials 

produces carbon monoxide and formaldehyde. Commenters also stated that California rules on 

product emissions will shortly push those numbers below 0.01%, and cite several studies that 

indicate emissions from burning resinated wood residuals are not significantly different than 

burning wood absent the resinated materials.26 Specific to panel trim, one commenter argued that 

emissions are not expected to be any different from those generated from unadulterated wood 

 

26 See U.S. EPA, “Wood Products in the Waste Stream: Characterization and Combustion Emissions, Vol. 1,” 

November 1996. See also National Council for Air and Stream Improvement, Inc. Technical Bulletin (TB) 906, 

“Alternative Fuels Used in the Forest Products Industry: Their Composition and Impact on Emissions.” September 

2005. 
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and traditional fuels like coal and oil that contain concentrations of Part 261, Appendix VIII 

constituents that are orders of magnitude higher than in panel trim. 

One commenter discussed the use of pulp and paper sludges as fuel. This commenter 

states that because these residuals are primarily composed of biomass, emissions from burning 

these materials are essentially the same as the emissions from burning other biomass fuels, such 

as bark or wood. The commenter cited a report that found that the burning of kraft pulp mill 

wastewater treatment residuals in bark boilers at levels below about 10 to 15 percent of total heat 

input is not expected to lead to an increase in any of the criteria or criteria-related pollutants, 

such as NOx, SO2, or VOC.27 Further, the commenter states that a comparison of emission data 

for forty-eight organic compounds when burning wood residue and wood residue in combination 

with bleached kraft mill wastewater treatment residuals (around 12 percent of total heat input) in 

four wood-fired boilers showed no discernible differences in emissions of these organics when 

the residuals were co-fired. A similar comparison was conducted for metals, showing no 

discernable impact when burning these sludges. 

Another commenter stated that treated wood (e.g., pentachlorophenol, copper-based 

compounds, borate based compounds) also should be considered a fuel because it is not 

discarded and can be safely burned in boilers. In addition, commenters stated that creosote 

treated wood is a coal derivative and burning creosote would likely result in emissions no greater 

than burning coal. Creosote is a distilled and homogenous product that should burn more 

thoroughly than coal and is not burned in its pure form. Commenters also noted that creosote 

treated wood is a combination of two materials we listed as traditional fuels. For these reasons, 

 

27 National Council for Air and Stream Improvement, Inc. Technical Bulletin (TB) 906, “Alternative Fuels Used in 

the Forest Products Industry: Their Composition and Impact on Emissions.” September 2005. 
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it should qualify as a fuel. However, the same commenter noted that they would not be opposed 

to EPA requiring CCA lumber to be removed from the fuel stream. 

EPA’s Response: Cellulosic Biomass

We agree that certain biomass (cellulosic biomass that is “clean” and non-cellulosic 

biomass) materials can be legitimate fuels. We also generally agree with commenters that 

cellulosic biomass, such as secondary mill residues (i.e., residues such as sanderdust, board, trim 

and breakage from the manufacture of reconstituted wood/panel products) and pulp and paper 

mill residuals (i.e., primary and secondary wastewater treatment sludges)28 are legitimate fuels. 

 Regarding resinated wood products, we acknowledge that we have limited compositional 

data on these materials. As noted above, we did receive comments on the ANPRM concerning 

the contaminant data of these materials, specifically in regard to formaldehyde and emissions 

comparisons relative to burning wood that do not contain these resinated materials. Although 

emissions comparisons are not a direct indicator of whether these fuels satisfy the legitimacy 

criteria, we recognize that such data can be useful as an indicator of the contaminant levels in the 

secondary material fuels relative to traditional fuels. Based upon what data we do have 

regarding these materials, as well as comments received on the ANPRM, we believe that 

resinated wood products should be classified as non-wastes for the purposes of this proposed 

rule, if they are used as fuels within the control of the generator. However, given the general 

lack of data, we are requesting comment both on the contaminant levels of these materials, as 

well as the appropriateness of categorizing them as non-wastes.29 

 

28 Primary sludges consist of wood fiber and inorganic materials and secondary sludges are primarily microbial 

biomass. 

29 It is worth noting that, in response to a request from EPA’s Office of Air and Radiation (OAR), EPA’s National 

Center for Environmental Assessment (NCEA) initiated an update of the formaldehyde IRIS assessment to address 

significant new scientific information that had become available on formaldehyde. EPA anticipates deriving an 

inhalation reference concentration (RfC) and reexamining the inhalation cancer assessment as part of this update. 

The draft assessment has been reviewed by scientists and managers within NCEA and across EPA. EPA will release 
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70

We also acknowledge having limited data on pulp and paper sludges that are used as fuel. 

As noted above, we did receive comments on the ANPRM about contaminants associated with 

these materials. Similar to resinated wood residuals, based on the limited data we have, we 

believe it is appropriate to consider pulp and paper sludges that are used as fuels within the 

control of the generator to be non-waste. However, given the limited data we have, we are 

requesting comment both on the contaminant levels of these materials, as well as the 

appropriateness of categorizing them as non-wastes. 

Although limited information was submitted in regard to painted wood or 

pentachlorophenol, copper-based and borate-based compound treated wood materials and their 

contaminant concentrations, we believe these secondary materials contain elevated levels of 

contaminants relative to traditional fuels, and thus do not meet legitimacy criteria and should be 

considered solid waste if burned in a combustion unit. (It should also be noted that to the extent 

that any of these treated wood materials are identified as a hazardous waste, it would not be 

eligible to be burned in a non-hazardous waste combustion unit.) In regard to creosote treated 

lumber, we believe there is still a fair amount of uncertainty associated with the level of 

contaminants (e.g., levels of polycyclic aromatic hydrocarbons present in creosote) in 

comparison to traditional fuels. We, therefore, are requesting that commenters provide 

additional data on contaminant levels associated with these non-hazardous secondary materials 

relative to traditional fuels that are in use today as fuels. 

Comments: Non-cellulosic Biomass

 

a draft for public comment and independent expert scientific peer review, with a National Academy of Sciences 

(NAS) panel review expected to commence in late April 2010, which will coincide with a formal public comment 

process through the Federal Register. 
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71

One commenter stated that animal manure should not be categorically excluded from the 

definition of solid waste because it is inherently waste-like, is discarded, and does not meet the 

legitimacy criteria for “handled as a valuable commodity.” The commenter stated that 

concentrated Animal Feeding Operation (CAFO) wastes are known to contain heavy metals, 

halogens, dioxins, etc. Manure from CAFOs are discarded in two ways after it is collected: 

some manure is recycled for land application (e.g., “used in a manner constituting disposal”) and 

excess manure is simply disposed. 

The same commenter acknowledged that manure can be recycled for use as bioenergy, 

but cautioned that it should not automatically be exempt from the definition of solid waste. In 

support of its position that manure recycled into bioenergy and used as fuel is still a solid waste, 

the commenter cites the regulations at 40 CFR §261.2(e)(2)(ii), which lists materials burned for 

energy recovery, used to produce a fuel, or contained fuels among materials that are solid wastes, 

even if recycling of those materials involves use, reuse, or return to the original process. Overall, 

the commenter is concerned with the large volumes of animal waste currently being produced at 

animal feeding operations and the lack of oversight at recycling facilities to ensure that recovery 

is immediate and happens without releasing any pollutants into the environment. Based on the 

commenter’s observations, current regulations (i.e. the 2008 CAFO NPDES Rule) still are not 

sufficient to assure that CAFO operations will meet the two benchmarks of immediacy and 

environmental care that define a “valuable commodity.” They conclude that for manure to be 

excluded from the definition of solid waste, it should have to meet numerous qualifying 

conditions to show that the wastes are being recycled. 

EPA’s Response: Non-cellulosic Biomass 
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Because the focus of this rulemaking is to determine which non-hazardous secondary 

materials are or are not solid waste when burned as a fuel or ingredient in combustion units (not 

when utilized for other purposes such as land application), we are not making solid waste 

determinations that necessarily cover all possible non-hazardous secondary material end uses. In 

fact, beneficial use determinations are generally made by the states for these other end uses, and 

EPA will continue to look to the states to make such determinations. 

With respect to whether manure is a legitimate non-waste fuel, we have limited data on 

contaminant concentrations and Btu value. Therefore, we are requesting that commenters 

provide additional data on the extent to which manures (including materials, such as chicken 

litter) are currently used as fuels, as well as data to support whether these materials meet our 

legitimacy criteria, including the contaminant levels and heating content. In addition, we 

recognize that animal manure, as generated, is typically not handled as a valuable commodity at 

the point of generation, but remains in feedlots or other areas with the potential for contaminants 

to be released to the environment. Therefore, we also request data or information on how animal 

manure is handled as a valuable commodity from its point of generation to the point it is used as 

a fuel, such that it meets the legitimacy criteria and should be considered a non-waste. Given the 

lack of data regarding contaminant concentrations of manure, as well as our understanding that 

manure is generally not handled as a valuable commodity, we believe that manure should be 

classified as a solid waste for the purposes of this proposal, since these materials would not pass 

the legitimacy criteria. 

With respect to the recycling of manure into biofuel, we believe that biofuels that are 

produced from anaerobic digesters primarily consist of methane gas, and thus, would be 

considered a legitimate fuel that has been processed from a non-hazardous secondary material. 
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73

We again acknowledge, however, that we have limited data (contaminant concentrations and Btu 

value) on biofuels that are produced from animal manures, and are requesting that commenters 

provide additional data on the extent to which manures are currently processed into biofuels, as 

well as data to support whether these materials meet our legitimacy criteria, including 

contaminant levels and heating content. 

c. Used Tires. We discussed in the ANPRM that tires used as legitimate alternative 

fuels can be categorized as a non-waste fuel if they have not been previously discarded (i.e., if 

the used tires have not been abandoned and thrown away). The ANPRM further stated that used 

tires collected and managed pursuant to a state tire oversight program, are not considered to be 

discarded. The ANPRM also explained that discarded used tires that have been processed to 

make a legitimate fuel product (such as TDF) would not be a solid waste. Furthermore, we 

requested comment on whether used tires that fall within the category of secondary materials that 

are discarded, but can be directly used as a legitimate fuel or ingredient without processing 

because they are indistinguishable in all relevant aspects from a fuel or ingredient product (e g., 

whole tires) should not be considered a solid waste. 

Comments: 

Other than the states,30 commenters generally agreed with the approach outlined in the 

ANPRM. Commenters did not agree, however, that whole tires taken from waste tire piles, but 

not processed, should be considered solid wastes. Several commenters responded that tires 

should be excluded from the definition of solid waste irrespective of where they are generated, 

including from waste tire piles. Along the same lines, some commenters argued that regardless 

of the source, scrap tires are indistinguishable from one another in terms of fuel/Btu value and air 

emissions and that the only distinction is whether they have been previously discarded. Others 

 

30 For a discussion of state comments regarding used tires, see section VII.C.1., “Comments from State Agencies.” 
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74

stated that extraction and reclamation from a waste tire pile should be sufficient processing to 

classify a tire as a legitimate non-waste fuel.

EPA’s Response: 

As discussed in section VII.D.2, we now believe that whole used tires (even if collected 

from tire dealerships and automotive shops and overseen by a state tire collection oversight 

program) are initially abandoned and thus meet the plain meaning of discard. As a result, whole 

used tires that are not processed into a legitimate fuel or ingredient (e.g., shredded/chipped with 

steel belts removed) would be considered a solid waste. We acknowledge that whole tires can be 

legitimately burned as fuel, but because they have been discarded, whole tires would be 

considered solid wastes and subject to the CAA section 129 requirements unless processed into a 

non-waste fuel product. See section VII.D.2 for a more detailed discussion on why we now 

consider whole used tired to have been discarded by the original owner. 

We are also proposing a process by which a facility or person can apply for a non-waste 

determination for secondary materials that are not managed within the control of the generator. 

As outlined in section VII.D.5, the purpose of the petition process is to recognize that some nonhazardous secondary materials may remain outside the control of the generator and not be 

processed into a fuel product, but still be a legitimate non-waste fuel product. As part of this 

petition, the facility must demonstrate that the secondary material has not been discarded in the 

first instance.31 

We also are requesting comment on whether discarded materials, such as used tires that 

have been abandoned and disposed of in waste tire piles and have not been processed (as defined 

 

31 The petition process for a non-waste determination would also require the petitioner to describe how the nonhazardous secondary material satisfies the criteria outlined in the petition process, which includes whether it meets 

the legitimacy criteria. 
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75

in this proposal), should not be considered solid wastes if they meet the legitimacy criteria and 

are indistinguishable in all relevant aspects from a product or intermediate. 

d. Used Oil. As indicated in the ANPRM, we consider off-specification (or “off-spec”) 

used oil that is collected from repair shops to have been discarded. Used oil that meets the onspecification (or “on-spec”) levels and properties of 40 CFR 279.11 is considered be a legitimate 

non-waste fuel product. We requested comment on whether off-spec used oil managed pursuant 

to the 40 CFR part 279 used oil management standards and which is burned for energy recovery 

in certain types of combustion devices32 should be considered a legitimate non-waste fuel. 

Comments: 

Most commenters believe that off-spec (and on-spec) used oil should not be classified as 

a solid waste. Various reasons were provided in support. Specifically, one commenter reasoned 

that off-spec used oil should not be treated as a solid waste if it has been delivered to a legitimate 

recycler for processing. Designation as a solid waste would lead to costly burning in hazardous 

waste incinerators, burning in uncontrolled space heaters, and more undesirable disposal 

methods. Many commenters also referred to Congress’ intent to manage used oil differently and 

EPA’s regulatory structure for the management of used oil as evidence that used oil should not 

be classified as a solid waste. They added that used oil is typically neither disposed of, thrown 

away, nor abandoned, but is collected and contained. Used oil is a valuable product that is 

subject to EPA’s recycling presumption. Btu content is not necessarily lower than on-spec used 

oil or virgin fuel, and contaminants, such as water, flashpoint, and metals can be effectively 

addressed. In a similar, but slightly different view, a number of commenters argued that on-spec 

 

32 Devises include industrial boilers located at facilities that are engaged 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 gases or fluids for sale, used oil fired space heaters provided 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 and 265. 
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76

and off-spec used oil should be included in the list of traditional fuels. Since neither is 

discarded, the presumption is that it is recycled. Only one commenter thought that off-spec used 

oil should continue to be considered a solid waste within the RCRA framework. 

EPA’s Response: 

We agree with the commenters who said that on-spec used oil should not be classified as 

a solid waste. Based upon how we define traditional fuels (i.e. fuels that have been historically 

managed as valuable fuel products rather than being managed as waste materials), we believe 

that on-spec used oil should be considered a traditional fuel. In accordance with 40 CFR part 

279, once used oil is determined to be on-spec, it is no longer regulated under the used oil 

management standards.33 Used oil that has been determined to be on-spec has verified that it 

contains contaminants at levels below the maximum concentration limits established in the 

standards, such that the emissions resulting from the burning of on-spec used oil will not pose an 

increased threat to human health or the environment than the emissions resulting from the 

burning of virgin oil or diesel. This is because the contaminants of concern (i.e., those for which 

maximum concentration levels have been set) present in on-spec used oil are either at the same 

concentration or a lower concentration than virgin refined fuel oil.34 

This approach is supported by Safe Food and Fertilizer v. EPA, 350 F.3d 1263 (D.C. Cir. 

2003). The decision upheld an EPA rule that excluded from the definition of solid waste certain 

recycled materials used to make zinc fertilizers (and the fertilizers themselves) as long as they 

were not speculatively accumulated, met certain handling, storage and reporting conditions, and 

were “identical” to fertilizers made from raw materials, i.e., they had concentration levels for 

 

33 Once used oil is claimed to be on-spec and the marketer complies with the requirements for analysis and record 

retention, notification, and record tracking shipment to on-specification burners, it is no longer subject to other 

management standards. We note that today’s proposed rule does not change any of the regulations in place that 

regulate on-spec used oil. 

34 See Used Oil Final Rule, 50 FR 49181 (November 29, 1985).
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77

certain chemicals that fall below specified thresholds. 350 F.3d at 1265. We believe on-spec 

used oil satisfies these criteria. 

In regard to off-spec used oil, we disagree that it should not be classified as a solid waste. 

The used oil regulations are structured such that off-spec used oil is managed within the 

constraints of the used oil management standards until it is processed into on-spec used oil or it 

is properly disposed of. It may only be burned in specific types of combustion devices.35 

Although off-spec used oil may be managed within the control of the generator, it contains 

contaminants that are significantly higher in concentration than traditional fuels, and thus would 

not be considered a legitimate non-waste fuel per the legitimacy criteria. Therefore, today’s 

proposed rule considers off-spec used oil as a solid waste subject to the CAA section 129 

requirements, as wells as state, and local requirements, unless it is processed to meet the on-spec 

used oil limits specified in 40 CFR §279.11. 

It also should be noted that off-spec used oil may be burned in used oil-fired space 

heaters pursuant to 40 CFR part 279, provided: 1) the heater burns only used oil that the owner 

or operator generates or used oil received from household do-it-yourself used oil generators; 2) 

the heater is designed to have a maximum capacity of not more than 0.5 million Btu per hour; 

and 3) the combustion gases from the heater are vented to the ambient air. The RCRA used oil 

regulations base this provision on a finding that uncontrolled emissions from these sources do 

not pose a significant threat to human health and the environment.36 However, consistent with 

our determination that off-spec used oil be considered a solid waste when burned as a fuel, we 

believe that off-spec used oil managed within the control of the generator would not qualify for 

 

35 These devices, listed in 40 CFR §279.61, were determined to not pose significant health risks when burning offspec used oil because they typically are equipped with particulate control equipment (as required by CAA permits). 

Nonindustrial boilers (e.g., those located in apartment and office buildings, schools, and hospitals), on the other 

hand, were found to pose significant risk when off-spec used oil is burned because they are typically very small and 

may not achieve complete combustion and do not have any emission control equipment. 

36 Used Oil Final Rule, 50 FR 49194 (November 29, 1985). 
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78

the generator controlled exclusion when burned in a used oil fired-space heater, since 

contaminants are likely present at significantly higher levels than traditional fuels. Therefore, we 

are proposing that off-spec used oil combusted at a unit that is within the control of the generator 

would be solid waste. We request comment on this approach, as well as any supporting 

information. 

e. Coal Refuse/Coal Combustion Residuals. The ANPRM identified coal refuse (i.e., 

mining rejects and recovered landfilled ash) as a solid waste because it has been discarded and 

has not been subsequently processed for use as a fuel. We solicited comment on whether there 

are circumstances under which these materials have been discarded, but not processed, and can 

be considered as non-waste fuels once they are removed or recovered from the “discard” 

environment and managed as legitimate fuels. 

Comments: 

Several commenters responded that coal refuse should not be classified as a solid waste. 

One commenter argued that there is no basis for continuing to classify an alternative fuel or 

ingredient as a solid waste merely because it does not have to undergo some type of processing 

before being used. The same commenter also indicated that the recovery of ash and mill rejects 

from disposal sites all involve some degree of processing. The materials have to be excavated, 

stored, and transported to their designated uses where they are also often subject to the same 

types of processing activities that are associated with the mining and management of virgin coal 

(i.e., screening, sizing, and chemical analysis to identify Btu, ash characteristics and sulfur 

content). Given the significant costs associated with the extraction of these materials, including 

excavation and handling, as well as the nearly identical nature of these materials to traditional 

fuels and ingredients, the extraction operations themselves constitute the requisite degree of 
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processing necessary to be viewed as a non-waste. One commenter stated that they were aware 

of one electric utility that in the past recovered high-carbon content ash from a disposal facility 

that it owns, and used the ash as a fuel source by supplementing the coal used in one of their 

utility boilers. The same company today takes high-carbon fly and bottom ash directly from 

several existing boiler units and burns it at their power generating station. This commenter noted 

that there are at least four patented processes for removing unwanted carbon from fly ash that 

allow the processed ash to produce both technically compliant fly ash for use in concrete and a 

separate carbon stream that can be re-introduced into the boiler for its fuel value. 

One commenter contended that coal refuse is a solid waste due to its toxicity levels in 

comparison to normal coal. Specifically, waste coals can have up to four times more mercury 

and chromium, and three times more lead than other coals. 

EPA’s Response: 

 As discussed in the Material Characterization Paper developed for this rulemaking, large 

volumes of coal refuse piles were accumulated at mining sites from the time mining first began 

in the Appalachians through the late 1970s. Beginning in the late 1970s, laws were enacted that, 

for the first time, required stabilization and reclamation of mining sites, including coal refuse 

disposal piles and fills. Current mining operations continue to generate the material, though 

likely at lower rates than in previous decades.

For purposes of this proposal, we are therefore differentiating between coal refuse that 

was generated in the past and placed into "legacy" piles, and the current generation of coal 

refuse. Legacy piles of coal refuse would clearly be considered to be disposed of and 

abandoned, thus meeting the definition of a solid waste material. We would not consider 
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currently generated coal refuse to be abandoned or disposed of and, therefore, would not be 

considered a solid waste. 

With regard to coal refuse from legacy piles, the processing of coal refuse for use as a 

fuel or ingredient involves separation through the use of screens or grizzlies, blending, crushing, 

and some drying. Although we understand that virgin coal is similarly processed, we believe 

that such operations would constitute “minimal processing” and would not meet the processing 

definition as proposed. See section VII.D.4 for a discussion of what does and does not constitute 

“processing” as defined in this proposal. Therefore, because coal refuse from legacy piles has 

been discarded and does not undergo a sufficient level of processing, it is considered a solid 

waste and would be subject to the CAA 129 requirements if burned in a combustion unit. 

We note that one commenter contended that coal refuse contained elevated levels of 

mercury, chromium, and lead when compared to other coals. We recognize that available data 

show that coal refuse generally has higher metals concentrations than non-refuse coal 

concentrations. Although coal refuse can contain metals concentrations that are higher than 

found in virgin coal, data also show that emissions levels from some facilities burning coal 

refuse (namely those equipped with circulating fluidized beds (CFBs)) are lower than most 

existing pulverized coal utility boilers.37 For the purposes of this proposal, however, it is not 

necessary to discuss whether coal refuse from legacy piles satisfies the contaminant requirement 

of the legitimacy criteria, given that we believe that such coal refuse is a solid waste because it is 

discarded and is not sufficiently processed into a fuel product. 

 

37 CFBs ability to achieve lower emissions levels is due to several factors: (1) CFB boilers are often newer than 

many existing pulverized coal utility boilers and may be equipped with better particulate matter (PM) controls; (2) 

CFBs utilize lower operating temperatures, which result in lower metal and NOx emissions; and (3) CFB boilers 

often add limestone to their feed to control SO2 emissions, which results in greater metal fixation to the ash. 
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We are also differentiating between mined landfilled ash, which generally refers to 

landfilled coal ash, from coal refuse, which we generally characterize as coal mining rejects that 

have been placed in waste piles (known as gob or culm, for example).38 Coal combustion 

residuals (CCRs) that have been discarded in the first instance (e.g., coal ash mined from 

landfills) would be considered solid waste unless they are processed into legitimate non-waste 

fuel products. It appears that the patented processes described by the commenter that separates 

carbon from the fly ash to produce a fuel would satisfy the processing requirement included in 

this proposal. However, until the Agency has additional information, we are not in a position to 

indicate that such processing is sufficient to produce a non-waste fuel. Therefore, we are 

requesting that commenters provide additional information explaining how this processing is 

conducted, and the extent to which these high carbon fuels are produced nationwide. With 

respect to high-carbon fly and bottom ash taken directly from existing boiler units and burned at 

power generating stations, we believe that such secondary materials are not discarded and would 

not be considered a solid waste if it was managed within the control of the generator and satisfies 

the fuel legitimacy criteria. 

Regarding the commenter that indicated coal fly ash and mill rejects are often subjected 

to the same types of processing activities that are associated with the mining and management of 

virgin coal (i.e., screening, sizing, and chemical analysis to identify Btu, ash characteristics and 

sulfur content), we believe that screening, sizing, and chemical analysis constitutes a minimal 

level of processing, and would not satisfy the processing requirement of this proposal. Although 

we recognize that sizing of materials is an important processing step for fuels in order to improve 

combustion efficiency, we believe this represents an inadequate level of processing to change a 

discarded material into a product fuel and, therefore, these materials would be considered solid 

 

38 The ANPRM included landfill ash in its description of coal refuse. 
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82

wastes under today’s proposal. However, we request that commenters provide additional 

information on the extent to which CCRs are recovered from the discard environment (e.g., 

landfills) and used as fuels. We also request that commenters provide more detailed information 

on how these secondary materials are processed, and whether these materials might satisfy the 

legitimacy criteria for fuels. 

f. Sewage Sludge. Sewage sludge or “wastewater treatment sludge” as referred to in the 

ANPRM, was one of several non-hazardous secondary materials that we solicited comment as to 

whether it is a legitimate alternative fuel and thus would not be solid waste if it has not been 

previously discarded. 

Comments: 

All commenters who addressed this issue argued that sewage sludge should not be 

classified as a solid waste. One commenter specifically pointed to the RCRA statutory definition 

of solid waste, stating that Congress expressly exempts solid and dissolved materials in domestic 

sewage processed at Publicly Owned Treatment Works (POTWs). Rather, sewage sludge should 

be regulated comprehensively under the Clean Water Act (CWA), or to the extent necessary to 

meet CAA obligations, EPA should regulate the combustion of POTW sewage sludge under 

CAA section 112. Additionally, it was put forth that if the Agency disagreed with the assertion 

that the RCRA statute requires the Agency to exempt sewage sludge from the definition of solid 

waste, that the Agency provide a regulatory exclusion for sewage sludge burned in incinerators 

in order to preserve the current framework for regulating sewage sludge managed under section 

405 of the CWA to avoid redundancy. This commenter was also concerned about the 

implications a determination that sewage sludge is solid waste when incinerated would have on 

how states regulate sewage sludge managed for different purposes (e.g., land application). 
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Two commenters stated that sewage sludge meets all three legitimacy criteria for fuels. It 

is handled as a valuable commodity by virtue of it being continuously dewatered and directly 

injected into the incinerator; it is not diverted or stored and every effort is made to maximize the 

quantity of sludge to be combusted. One commenter stated these materials have meaningful 

heating value, given that it recovers a net energy value of 4,300,000 Btus/hour of useable thermal 

energy from its combustion. Also, the CWA section 405 regulations provide risk-based limits 

for contaminants when incinerated, such that as long as the contaminant level is below the limits, 

it does not pose a significant health risk. 

EPA’s Response: 

We agree with commenters that the RCRA statutory definition of solid waste excludes 

the solid or dissolved material in domestic sewage. This is evidenced by the RCRA hazardous 

waste regulations that extend this exclusion to mixtures of hazardous waste with domestic 

sewage, provided that the mixture occurs in a pipeline en route to a POTW. See 40 CFR 

261.4(a)(1). However, we do not agree with the commenters that the Domestic Sewage 

Exemption (DSE) applies to the sludge generated from the treatment process and thus, sewage 

sludge is a solid waste if it is discarded.39 We believe that sewage sludge burned without energy 

recovery (i.e., burned for destruction) in an incinerator is discarded, and thus a solid waste. 

Further, the Agency is not proposing to provide a regulatory solid waste exclusion for sewage 

sludge burned in incinerators that would preserve the current framework for regulating sewage 

sludge managed under section 405 of the CWA to avoid redundancy. However, we request 

comment on whether such an approach is within our discretion. Regarding the commenter’s 

 

39 EPA has long viewed sewage sludge generated from POTWs as a solid waste, beginning with the 1980 

Identification and Listing of Hazardous Waste rulemaking. In this final rule, EPA stated that the DSE is “only 

applicable to non-domestic wastes that mix with sanitary waste in a sewer system leading to a POTW.” See 45 FR 

33097 (May 19, 1980). In the same rule, EPA further said it decided not to exclude sewage sludge from regulation 

under RCRA, since the statutory expressions regarding the definitions of “solid waste” and “sludge” was clear. (See 

45 FR 33101). 
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concerns about possible impacts on how states regulate sewage sludge managed for different 

purposes (e.g., land application), as discussed in more detail in Section VIII, through this 

rulemaking, EPA is articulating the narrow definition of which non-hazardous secondary 

materials are or are not solid waste when used as fuel for energy recovery or as ingredients in 

combustion units. We are not making solid waste determinations that cover other possible 

secondary material end uses. In EPA’s view, these regulations should have no affect on state 

programs that choose to regulate this material in different ways and under different authorities. 

Two commenters indicated that many POTWs recover energy in the form of usable heat 

from the incineration of sewage sludge via waste heat boilers. Although waste heat boilers are 

useful devices for providing energy in the form of steam for secondary processes, the Agency 

does not regard them as legitimate energy recovery devices because they receive their energy 

input from the combustion of off-gases via a separate combustion chamber. Under the RCRA 

program, a legitimate energy recovery device is one that meets the definition of a boiler or an 

industrial furnace (see 40 CFR §260.10). Among other criteria, a boiler’s combustion chamber 

and primary energy recovery section(s) must be of integral design, unless it falls under the 

process heater or fluidized bed combustion exemption. Thus, a combustion chamber that is 

connected by a duct to a waste heat boiler (or recuperator/heat exchanger) does not qualify as a 

legitimate energy recovery device. The CAA program views waste heat recovery units (i.e., 

external to the combustion chamber) similarly. Waste heat recovery units are designed to cool 

the exhaust gas stream, and/or to recover, indirectly, the useful heat remaining in the exhaust gas 

from a combustion unit that has some other primary purpose (such as an institutional waste 

incinerator). The presence of a waste heat recovery unit on the exhaust gas does not change the 

fact that the unit combusting the secondary material is primarily an incineration unit burning 
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waste for disposal purposes. See Other Solid Waste Incinerators (OSWI) final rule at 70 FR 

74870 at 74876, (December 16, 2005). 

The Agency also notes that data generally shows that municipal sewage sludge contains 

metals that are typically higher in concentrations when compared to traditional fuels (e.g., coal 

and fuel oil). See the table below for a comparison of the concentration of certain toxics of 

municipal wastewater treatment sludges to coal. 

Comparison of Toxics of Municipal Wastewater Treatment Sludges to Traditional Fuels40

Sewage Sludge 

Element 

40-City Study 

(mg/kg dry weight) 

National Sewage Sludge Study 

(mg/kg dry weight) 

Coal 

(mg/kg) 

Arsenic 9.9 6.7 10 

Cadmium 69 6.9 0.5 

Chromium 429 119 20 

Copper 602 741 Not available 

Lead 369 134.4 40 

Mercury 2.8 5.2 0.1 

Molybdenum 17.7 9.2 Not available 

Nickel 135.1 42.7 20 

Selenium 7.3 5.2 1 

Zinc 1,594 1,202 Not available 

Sewage sludge findings in this table are for final sludge which is defined as the liquid, solid, or semi-solid residue 

generated during the treatment of domestic sewage in a treatment works, receiving secondary treatment or better, and 

which may include sewage sludge processed to meet the land application standards.

As such, the Agency does not believe that sewage sludge would meet the legitimacy 

criteria for contaminants. Therefore, the Agency is proposing that sewage sludge, generated 

from POTWs and when combusted, be classified as a solid waste, and subject to the CAA 

Section 129 requirements. 

6. Comments on Specific Materials Used as Ingredients 

The ANPRM identified a number of non-hazardous secondary materials that we believe 

are currently being used as ingredients in combustion processes (i.e., blast furnace slag; CKD; 

 

40 More information on the composition of municipal wastewater treatment sludges can be found in the Materials 

Characterization Paper on Wastewater Treatment Sludge, which has been placed in the docket for today’s proposed 

rule. 
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86

coal combustion residual group (fly ash, bottom ash, and boiler slag); foundry sand; silica fume; 

and secondary glass material). The ANPRM solicited comment on whether or not these nonhazardous secondary materials are legitimate ingredients per the legitimacy criteria, and 

requested additional data and/or information supporting whether these secondary materials are 

legitimate ingredients. The majority of comments submitted were in regard to: CKD, CCRs, 

foundry sand, and blast furnace slag/steel slag. 

a. Cement Kiln Dust. For CKD, the ANPRM indicated that CKD is not a solid waste if 

it is recycled within the continuous clinker production process. 

 Comments: 

One commenter responded that they strongly support this view, but that other CKD which 

may be available could be useful if industry could find a means to incorporate this viable ingredient 

into the process. Thus, they believe that any EPA interpretation regarding the use of CKD must 

allow for access of the material irrespective of where the ingredient is maintained prior to use. 

EPA’s Response: 

As explained in section VII.D.3, we are proposing that non-hazardous secondary materials 

used as ingredients in combustion units that are not discarded in the first instance would not be 

considered a solid waste provided they satisfy the legitimacy criteria for ingredients (discussed in 

section VII.D.6.b). This proposal does not assume that ingredients used in combustion units that are 

not managed within the control of the generator are discarded materials (as is the case for nonhazardous secondary material fuels) since we believe that non-hazardous secondary materials used as 

ingredients in manufacturing processes, such as cement kilns are commodities managed within 

continuous commerce and are used as an integral part of the manufacturing process. That is, 

secondary materials that are directly used (or in the case of previously used materials, reused), 

function as raw materials in normal manufacturing operations or as products in normal commercial 
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87

applications, and thus, EPA has interpreted the definition of solid waste as excluding secondary 

materials recycled in ways that most closely resemble normal production processes. 

With respect to the comment that our interpretation regarding the use of CKD must allow 

for access of the material irrespective of where the ingredient is maintained prior to use, it is not 

clear what point the commenter is making. To the extent that the CKD has not been discarded in 

the first place, we are proposing that the use of CKD in a cement kiln would not be considered a 

solid waste whether it remains under the control of the generator or is transferred to another 

person, so long as it meets the legitimacy criteria. However, if CKD has been discarded, its use 

as an ingredient in the cement kiln would be considered combustion of a solid waste, (and the 

cement kiln would be subject to the CAA section 129 requirements), unless it has been processed 

(as defined in section VII.D.4) to produce a non-waste ingredient. 

b. Coal Combustion Residuals. The ANPRM identified what was considered to 

comprise the CCR group: fly ash, bottom ash, and boiler slag. Similar to CKD, it was stated that 

coal fly ash that is handled as a commodity within continuous commerce when it is marketed to 

cement kilns as an alternative ingredient is not discarded. Under the ANPRM approach, if the 

CCR product was previously discarded, such non-hazardous secondary materials would be solid 

wastes, unless they were processed into a legitimate ingredient product. However, we solicited 

comment on the situation where a discarded material is recovered from the environment and 

directly used as an ingredient (i.e. without processing). Additionally, we solicited comment on 

the extent to which non-hazardous secondary materials that have already been discarded (e.g., 

coal fly ash that has been landfilled) are later processed and used as ingredients in combustion 

units, as well as requested descriptions of the types of processing that these secondary materials 

undergo. 

 Comments: 
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Several commenters believe CCRs can be either legitimate fuels or ingredients when used 

in a combustion unit. One commenter stated that there are a number of cement kilns that use or 

have used high carbon fly ash as a fuel and ingredient. As an ingredient, the constituents within 

the fly ash are similar to those required from natural materials (such as shale, marl or limestone) 

in that they contain fractions of silica, iron and aluminum needed in the kiln. As a fuel, the 

relatively high carbon content imparts energy through its combustion, reducing the need for 

some portion of fossil or other fuels for the kiln. 

EPA’s Response: 

As discussed above (and as further discussed in Section VII.D.6.b), we are proposing that 

non-hazardous secondary materials used as ingredients in combustion units that are not discarded in 

the first instance would not be considered a solid waste provided they satisfy the legitimacy criteria 

for ingredients. Commenters point out that CCRs can serve both as ingredients, as well as fuel 

supplements. This raises the question of whether these types of secondary materials should be 

treated like non-hazardous secondary materials used as fuels (where we assume they are discarded if 

they are managed outside the control of the generator), as opposed to ingredients (in which case they 

are not solid waste even if they are managed outside the control of the generator provided they satisfy 

the legitimacy criteria and have not been discarded in the first instance). It also raises the question as 

to whether these materials should be required to satisfy the legitimacy criteria for fuels or for 

ingredients, or both. We do not believe it would be appropriate to require these types of secondary 

materials to satisfy the criteria of both fuels and ingredients. As a result, we are proposing that the 

decision to treat them as fuels or ingredients should be based on the primary purpose of using the 

non-hazardous secondary material in the cement kiln. With respect to CCRs, we believe the primary 

purpose of their use is as an ingredient; thus, provided the CCRs satisfy the legitimacy criteria for 
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ingredients and are not discarded in the first instance, they would not be considered solid waste.41 

However, we specifically solicit comment on this point, and in particular, whether the use of CCRs is 

primarily used for their ingredient value as opposed for their fuel value. 

Comment: 

With respect to the extent that CCRs have been discarded, but are later processed, one 

commenter noted that there are at least four patented processes for removing unwanted carbon 

from fly ash that would allow the processed ash to produce both technically compliant fly ash for 

use in concrete and a separate carbon stream that can be re-introduced into the boiler for fuel 

value. Another commenter stated that coal fly ash (and mill rejects) recovered from disposal 

sites all involve some degree of processing, in that the materials have to be excavated, stored, 

and transported to their designated uses. The materials are also often subject to the same types of 

processing activities that are associated with the mining and management of virgin coal (i.e., 

screening, sizing, and chemical analysis to identify Btu, ash characteristics and sulfur content). 

Finally, one commenter disagreed with our position on CCRs. The commenter believes that 

CCRs are wastes due to their high concentration of contaminants, predominantly mercury. 

EPA’s Response: 

In regard to when a discarded material is recovered from the environment and directly 

used as a fuel or ingredient, we are proposing that the secondary material is a solid waste, unless 

it undergoes a sufficient level of processing to produce a legitimate fuel product or ingredient. 

As discussed in detail in section VII.D.4, when a non-hazardous secondary material has been 

discarded, unless sufficient processing occurs to change the material to produce a legitimate fuel 

product or ingredient, it would remain a solid waste under this proposal. However, we are also 

 

41 We note that used tires provide both fuel value and ingredient value in cement kilns. In this instance, however, 

we believe the primary purpose of using tires in a cement kiln is to recover their energy value, and therefore believe 

tires should satisfy the fuel criteria in determining whether the materials are discarded and legitimate. 
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requesting comment on whether such non-hazardous secondary materials that have been 

discarded and shown to be a legitimate fuel or ingredient product, should nevertheless be 

considered a legitimate non-waste fuel or ingredient, even if the non-hazardous secondary 

material does not undergo processing at all or an adequate amount of processing. 

As previously described for processed CCR’s that are used as fuels, it appears that the 

patented processes described by the commenter that separates carbon from the fly ash to produce 

technically compliant fly ash for use in concrete would satisfy the processing requirement 

included in this proposal; however, we are requesting that commenters provide additional 

information explaining how this processing is conducted, and whether this type of fly ash is used 

as an ingredient in the clinker production process. 

Regarding the commenter that indicated that coal fly ash and mill rejects are often subject 

to the same types of processing activities that are associated with the mining and management of 

virgin coal (i.e., screening, sizing, and chemical analysis to identify Btu, ash characteristics and 

sulfur content), we do not believe that screening, sizing, and chemical analysis by itself is a 

sufficient level of processing that would render a discarded material into a non-waste ingredient 

product. As we noted previously in Section VII.C.5.e., while we recognize that screening, 

sizing, and chemical analysis can be important for producing traditional fuels, we also are 

proposing that such processing is not sufficient to change a waste-derived fuel into a product 

fuel. Thus, such secondary materials that undergo such minimal processing are still considered 

waste-derived fuels because such processing of CCRs, even with screening and chemical 

analyses, would not be sufficient to produce a non-waste ingredient. However, we request that 

commenters provide additional information as to the extent to which CCRs are recovered from 

the discard environment (e.g., landfills) and used as ingredients in cement kilns, and if so, we 
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request commenters provide more detailed information on the extent to which these CCRs are 

processed, and thus, might satisfy our proposed definition of processing in section VII.D.4. 

In addressing the commenter who argued that CCRs are solid wastes due to their high 

concentration of contaminants, we begin by noting that the chemical properties of CCRs are 

influenced to a great extent by those of the coal burned, the type of combustion unit, and the air 

pollution controls applied.42 We are also aware that fly ash may contain various levels of metals, 

such as vanadium, zinc, copper, chromium, nickel, lead, arsenic, and mercury.43 However, in a 

recent Report to Congress that addressed the use of these secondary materials as ingredients in 

cement and concrete applications, the overall conclusion reached with respect to the perceived 

safety health risk barriers was a positive one, in that the risk analyses did not identify significant 

risks to human health and the environment associated with these uses.44 

The Report to Congress also identifies several industry stakeholders and state agencies 

that have recognized that regulatory programs for the control of mercury and NOx in electric 

utility air emissions (and the necessary new emission control technologies and configurations 

necessary to achieve emissions reductions) can potentially result in increased carbon levels in 

coal fly ash that impact the ability to use the ash as a supplementary cementitious material.45 

Consequently, EPA is studying the possible effects of new air emission control technologies and 

 

42 For more information on the different types, or ranks, of coal, please refer to the Materials Characterization Paper 

on Coal Combustion Products – Coal Fly Ash, Bottom Ash, and Boiler Slag, which is located in the docket of 

today’s proposed rule. 

43 Listed by relative frequency. See “Technical Background Document for the Report to Congress on Removing 

Wastes from Fossil Fuel Combustion: Waste Characterization.” U.S.EPA. March 15, 1999. 

44 “Study on Increasing the Usage of Recovered Mineral Components in Federally Funded Projects Involving 

Procurement of Cement or Concrete to Address the Safe, Accountable, Flexible, Efficient Transportation Equity 

Act: A Legacy for Users. Report to Congress.” June, 3, 2008. EPA530-R-08-007. When analyzing perceived 

safety and health risk barriers associated with the beneficial use of recovered mineral components (including CCRs 

et al), this study concluded that “Findings from [several cited] analyses did not identify significant risks to human 

health and the environment associated with the beneficial uses of concern. In addition, [EPA] identified no 

documents providing evidence of damage to human health and the environment from these beneficial uses. Our 

overall conclusions from these efforts, therefore, are that encapsulated applications, including cement and concrete 

uses, appear to present minimal risk.” Id. at 4-11. 45 Id at 4-4. 
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configurations on the composition of CCRs and publishing its findings in a series of reports.46 

Thus, we request comment on whether advanced emission control technologies, such as carbon 

control technologies for mercury and NOx, are resulting or will result in increased levels of 

contaminants in coal ash to the extent that coal ash would not satisfy our legitimacy criteria. 

c. Foundry Sand. Similar to the previously discussed ingredients, we requested data 

and/or information supporting whether foundry sand is discarded and if not discarded, whether it 

meets the legitimacy criteria. 

 Comment: 

One commenter responded and stated that foundry sand meets all four legitimacy criteria 

for ingredients. The commenter offered several examples of applications for foundry sand in 

support of why it should not be a solid waste; however, very little information was provided in 

the context of utilizing foundry sand as an ingredient in a combustion process. 

EPA’s Response: 

Since this proposal is limited to those situations where the non-hazardous secondary 

material is used as a fuel or ingredient in a combustion process, examples of using foundry sand 

in other applications is not directly relevant. However, as previously explained, we are proposing 

that non-hazardous secondary materials used as ingredients in combustion units that are not discarded 

in the first instance would not be considered a solid waste provided they satisfy the legitimacy 

criteria for ingredients (discussed in section VII.D.6.b). 

 

46 A series of reports have been and are being developed by U.S. EPA’s Office of Research Development. To date, 

three documents have been finalized, including: (1) “Characterization of Mercury-Enriched Coal Combustion 

Residuals from Electric Utilities Using Enhanced Sorbents for Mercury Control.” EPA-600/R-06/008. Feb. 2006; 

(2) “Characterization of Coal Combustion Residuals from Electric Utilities Using Wet Scrubbers for Multi-Pollutant 

Control.” EPA-600/R-08/077. July 2008; and (3) “Characterization of Coal Combustion Residuals from Electric 

Utilities Using Multi-Pollutant Control Technology – Leaching and Characterization Data.” EPA-600/R-09/151. 

December 2009. 
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d. Blast Furnace Slag/Steel Slag. The ANPRM also requested data and/or information 

regarding blast furnace slag and steel slag and their use as legitimate ingredients and thus, 

whether they are or are not considered solid waste. 

Comments: 

Two commenters responded that steelmaking slag and mill scale should be excluded from 

the definition of solid waste because they meet all four legitimacy criteria for ingredients. With 

respect to our solicitation for comment on when a material is previously discarded and has been 

processed into a legitimate ingredient product, one commenter responded that current practice to 

obtain these materials requires the procurement of a mining license and operating practices that 

are similar to processing of natural aggregates (though drilling and blasting practices are not 

required for recovery). In particular, iron and steel slag aggregates are removed by ripping and 

digging, followed by magnetic separation, crushing, further magnetic separation and finally sized 

by screening. They are then loaded and weighed in customer trucks subject to quality assurance 

and quality control for comparable virgin aggregate intended for the same use. 

EPA’s Response: 

As with the previous ingredients, we are proposing that blast furnace and steel slag used 

as ingredients in combustion units that are not discarded in the first instance would not be considered 

a solid waste provided they satisfy the legitimacy criteria for ingredients. If these materials, as 

described by the commenter, are considered to have been discarded in the first instance, then they 

would have to be sufficiently processed into ingredient products that satisfy the legitimacy criteria in 

order to be classified as a non-waste ingredient. Based on the processing operations described 

above, it appears that blast furnace and steel slag undergo sufficient processing; however, before 

the Agency concludes this to be the case, we request that commenters provide more detailed 

information regarding the level of processing that occurs. 
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7. Legitimacy Criteria 

The ANPRM discussed the following legitimacy criteria specific to fuel products that are 

used in combustion processes: (1) handled as valuable commodities; (2) have meaningful 

heating value; (3) and contain contaminants that are not significantly higher in concentration 

than traditional fuel products. Likewise, for ingredients, the ANPRM listed the following 

criteria: (1) handled as a valuable commodity; (2) the non-hazardous secondary material 

provides a useful contribution; (3) the recycling results in a valuable product; and (4) the product 

does not contain contaminants that are significantly higher in concentration than traditional 

products. We requested comment on the criteria themselves and whether they are reasonable for 

non-hazardous secondary materials. 

a. General 

Comments: Application of Legitimacy Criteria

Commenters provided various viewpoints on the appropriateness of the legitimacy 

criteria for non-hazardous secondary materials that are used as fuels or ingredients. Several 

commenters disagreed with the application of the same subtitle C legitimacy definition for 

determining whether non-hazardous secondary materials are solid waste under RCRA subtitle D 

because non-hazardous secondary materials do not pose the same hazards. However, many of 

the commenters agreed with the application of the subtitle C legitimacy principles, but also 

argued that the criteria must be flexible to account for increasing use and changes in 

commodities, technologies, markets, and fuel prices and should not be more onerous than the 

legitimacy test codified at 40 CFR §260.43. Commenters also requested clarification as to 

whether all criteria need to be met, but urged EPA to recognize that legitimate uses are possible 

even if not all criteria are met. 
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 EPA’s Response: Application of Legitimacy Criteria

First, we would note that there are two questions that the Agency needs to answer: (1) 

whether or not the non-hazardous secondary material is a fuel product or ingredient product, or 

whether the material has been discarded and is therefore a solid waste, which includes wastederived fuels or ingredients and (2) whether the non-hazardous secondary material is being 

legitimately and beneficially used or recycled. 

With respect to the legitimacy question, EPA believes it important and crucial to develop 

a set of legitimacy criteria to make sure that the fuel product and ingredient product are being 

legitimately and beneficially used and not simply being discarded via sham recycling. The 

definition of legitimate recycling developed for subtitle C hazardous secondary materials 

carefully considered the history surrounding the uses of materials, as well as the applicable case 

law with respect to the meaning of discard. Likewise, those same principles are pertinent to how 

a non-hazardous secondary material is determined not to be a solid waste. Therefore, we are 

proposing to codify general legitimacy criteria that use the same basic framework that has been 

established for the subtitle C hazardous waste regulations, but that are also tailored specifically 

for application to non-hazardous secondary materials that are used as fuels or ingredients in 

combustion units. See 40 CFR §241.3(d) for the proposed regulatory text of the legitimacy 

criteria and, for comparison see 40 CFR §260.43 in final regulations for the DSW hazardous 

waste legitimacy provisions. The rationale for the non-hazardous secondary materials legitimacy 

provisions (including comparisons to the DSW legitimacy provision) is discussed in section 

VII.D.6. 

Commenters also suggested that the legitimacy criteria must be flexible to account for 

increasing use and changes in commodities, technologies, markets, and fuel prices and should 
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not be more onerous than the legitimacy definition codified at 40 CFR §260.43. We agree with 

these commenters and have proposed qualitative criteria that we believe provide the flexibility 

needed in evaluating these secondary materials that will accommodate such changes. The 

legitimacy criteria are structured to distinguish between legitimate reuse/recycling and disposal 

(i.e., sham recycling), while at the same time not impose restrictions on the types of nonhazardous secondary materials that may be of value in the future. For a detailed discussion of 

the proposed legitimacy criteria, see section VII.D.6. 

In regard to the commenters who requested clarification on whether all criteria need to be 

met, we believe that each of the criteria is important and addresses certain issues that need to be 

assessed. Therefore, each criterion must be met in order for the non-hazardous secondary 

material to be considered to be a legitimate non-waste fuel or ingredient. Thus, today’s proposal 

requires that in evaluating the legitimacy criteria, the owner/operator of the combustion unit must 

assure that the non-hazardous secondary material meets all of the criteria.47 See section VII.D.6. 

for additional discussion. 

 Comment: Ingredients (General)

We also received one general comment regarding the legitimacy criteria for ingredients. 

The commenter argued that the determination is not applicable for any material that is within a 

process and is being recycled in that process, and should not have to be justified as a secondary 

material, since closed-loop systems do not manage solid waste. 

 

47 In EPA’s final definition of solid waste rule regarding hazardous secondary materials, EPA codified a “legitimate 

recycling provision.” See 40 CFR 260.43. This legitimacy provision has two parts. The first part includes two 

factors that must be considered and met, which are considered the core of the legitimacy factors. The second part of 

the legitimacy provision consists of two factors that must be considered, but need not be met because the Agency is 

aware of situations where a legitimate recycling process exists, but may not conform to one or both of these factors. 

For further discussion of the legitimacy factors in the hazardous waste rules, see section VII.C.7 of this preamble 

and the final definition of solid waste rule (October 30, 2008 beginning on 73 FR 64700). Thus, the application of 

the legitimacy provision proposed in this rule is different than that promulgated in the final definition of solid waste 

rule in that all of the criteria to be considered in today’s proposed rule must both be considered and met. 
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EPA’s Response: Ingredients (General)

We generally agree with the commenter. That is, to the extent that the non-hazardous 

secondary material has not been discarded in the first instance, which we presume it would not 

be as part of a closed-loop system, and such secondary material meets the legitimacy criteria, it 

would not be considered a solid waste when combusted. Thus, as an example, where CKD is 

recycled back into the cement kiln, and meets the legitimacy criteria, it is not solid waste. 

b. Fuels or Ingredients Being Managed as Valuable Commodities 

Comments: 

For this criterion, most commenters generally agreed with the Agency that such nonhazardous secondary materials should be managed as a valuable commodity, but argued that a 

specified containment system should not be a mandatory part of the criteria. One commenter 

suggested that rather than focus on containment, the focus should be on whether the nonhazardous secondary material has value for future use. Another commenter suggested that a 

more appropriate requirement is that the non-hazardous secondary material should be stored in a 

manner that preserves their economic value and avoids damaging releases to the environment. 

Another commenter thought that EPA should look to state requirements for containment, 

handling, and storage. Similarly, another commenter suggested that EPA should recognize that 

if a non-hazardous secondary material is managed pursuant to federal requirements that also 

apply to raw materials (e.g., coal refuse compared to coal), the criteria are satisfied. Lastly, one 

commenter argued that the concept of “speculative accumulation” of one year can prevent 

accumulation of enough non-hazardous secondary materials to make recovery economical and 

thus, is not an appropriate criterion to conclude that a non-hazardous secondary material isn’t 

being reused and is a solid waste. 
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EPA’s Response: 

We generally agree with those commenters who argued that a specific containment 

system should not be required and, therefore, are proposing a qualitative approach in line with 

the same principle as the commenter who suggested that non-hazardous secondary materials 

should be stored in a manner that preserves their economic value, while preventing damaging 

releases to the environment. We also are proposing to incorporate the concept that nonhazardous secondary materials be “contained” in the same manner as its analogous fuel or raw 

ingredient. Thus, we are proposing that where there is an analogous fuel or ingredient, the nonhazardous secondary material used would be required to be managed in a manner consistent with 

the management of the analogous fuel or ingredient or otherwise must be adequately contained 

so as to prevent releases to the environment. As explained in section VII.D.6, an “analogous 

ingredient or fuel ” is an ingredient or fuel for which the non-hazardous secondary material 

substitutes and which serves the same function and has similar physical and chemical properties 

as the non-hazardous secondary material. Where there is no analogous fuel or ingredient, the 

non-hazardous secondary material must be adequately contained so as to prevent damaging 

releases to the environment. “Adequately contained” is when a non-hazardous secondary 

material is stored in a manner that adequately prevents releases to the environment considering 

the nature and toxicity of the non-hazardous secondary material. In regard to the comment on 

speculative accumulation, we are not proposing a specific timeframe, because states already 

require varied timeframes and we will leave this up to the state’s discretion. 

 c. Fuels Must Have Meaningful Heating Value. The ANPRM discussed the meaningful 

heating value criterion for legitimate alternative fuel, and outlined a qualitative approach rather 

than a "bright-line" cutoff for heating value. The ANPRM requested comment as to whether it 
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was possible or appropriate to establish a specific heating value cutoff. 

Comments: 

Several commenters favored the ANPRM approach, while others recommended either a 

lower Btu benchmark or replacing the Btu benchmark with a case-by-case analysis. No 

commenters recommended deleting the criterion. Commenters emphasized that innovations and 

advancements in technology can efficiently produce energy from non-hazardous secondary 

materials with lower heating value content. 

EPA’s Response: 

 We are proposing a qualitative approach for a meaningful heating value criterion as 

outlined in the ANPRM. The proposed regulatory text specifies that “the material must have a 

meaningful heating value and be used as a fuel in a combustion unit that recovers energy”. See 

proposed 241.3(d)(1)(ii). We are clarifying in this proposal, that non-hazardous secondary 

materials with a heating value of greater than 5,000 Btu/lb, as fired, would be considered to 

satisfy the criterion. However, non-hazardous secondary materials with a heating value lower 

than 5,000 Btu/lb, as fired, may also be considered to have a meaningful heating value if the unit 

can cost-effectively recover meaningful energy. See section VII.D.6.a.for an explanation of the 

factors that may be considered in determining whether an energy recovery unit can costeffectively recover energy from a non-hazardous secondary material. Also, as outlined in the 

same section, this criterion is an appropriate factor, since it expresses the principle that nonhazardous secondary materials used as a fuel with a meaningful heating value provides a useful 

contribution to the manufacturing process. The Agency believes a 5,000 Btu/lb benchmark, as 

fired, identifying when a non-hazardous secondary material, by definition, provides fuel value is 

appropriate since it is consistent with determinations expressed in previous RCRA and CAA 
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rulemakings, including the RCRA comparable fuels rule (63 FR 33781), the RCRA subtitle C 

boilers and industrial furnaces rule (48 FR 11157-59), and the CAA NESHAP for Hazardous 

Waste Combustors NODA (62 FR 24251). 

We request comment on whether it would be appropriate to also identify a lower Btu/lb 

threshold, below which non-hazardous secondary materials would not be considered to have 

meaningful heating value and thus, would be a solid waste by definition. 

d. Fuel/Ingredient Contaminant Levels. To address the possible presence of waste-like 

contaminants in non-hazardous secondary materials, the ANPRM stated that such secondary 

materials used as fuels should not contain contaminants that are significantly higher than those 

contained in traditional fuels. For ingredients, the ANPRM stated that products that use nonhazardous secondary materials as ingredients in combustion units should not contain 

contaminants that are significantly higher in concentration than the product produced without the 

non-hazardous secondary material. For both ingredients and fuels, the ANPRM suggested that a 

qualitative approach may be more appropriate to use than numerical specifications. In addition, 

we requested 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 would be more appropriate. 

Comments: 

Commenters were evenly divided on whether the presence of contaminants was an 

appropriate legitimacy criterion. For commenters favoring the criterion, most believed that a 

qualitative approach was preferable; stating that little risk exists for environmental exposure and 

numerical specifications may be impractical due to the multiplicity of fuels or ingredients. 

However, a minority of commenters favored a quantitative approach. For commenters 
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recommending that the presence of contaminants not be included as a criterion, most emphasized 

that emissions will be controlled under either CAA sections112 or 129. They stated that 

comparative contaminant concentrations are inappropriate, and that the Agency should recognize 

the lower risks posed by non-hazardous secondary materials. One commenter stated that the 

amount of contamination acceptable in an alternative fuel depends on how much is fired with the 

main boiler fuel, the type of contaminant (organic vs. inorganic), and the emission controls used. 

 Specifically with respect to the use of ingredients in combustion units, one commenter 

agreed that the assessment should involve the final recycled product and not the ingredient itself. 

However, another commenter countered that the assessment should be a comparison of post 

combustion emission levels, not the product made with non-hazardous secondary materials to 

those in a product made with virgin materials. This commenter reasoned that combustion will 

destroy many of the substances that EPA considers possible contaminants and basically 

eliminates any environmental concern. Another commenter recommended an analysis of 

appropriate total constituent concentrations, leachable constituent concentrations, and a 

comparison to traditional ingredients (as outlined in the Solid Waste RCRA subtitle D 

groundwater protection constituent list). 

 EPA’s Response: 

Based on our assessment of all of the comments, we believe it appropriate to include 

contaminant levels as a legitimacy criterion. Thus, we do not agree with those commenters’ that 

assert that contaminant comparisons are not appropriate to require as part of the legitimacy 

criteria. The Agency believes the criterion is necessary because non-hazardous secondary 

materials can contain contaminants that are significantly higher in concentration than those 

contained in traditional fuel products or ingredients, which would suggest that these 
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contaminants are being combusted as a means of discarding them, and thus the non-hazardous 

secondary material should be classified as a solid waste. In some cases, this can also be an 

indicator of sham recycling. For example, non-hazardous secondary materials that may contain 

significantly higher concentrations of contaminants include chromium-, copper-, and arsenic 

(CCA)-treated lumber, polyvinyl chloride (PVC) plastics which can contain up to 60 percent 

halogens (chlorine), lead-based painted wood, and fluorinated plastics. Also, we disagree with 

the commenter who argued that any assessment should only include a comparison of postcombustion emission levels because the combustion unit will destroy many of the substances that 

EPA considers possible contaminants (and thereby eliminate any environmental concern). The 

Agency believes that this post-combustion assessment of contaminants further supports the 

principle that contaminant levels (before and after combustion) are important indicators of 

legitimacy. 

Despite the preference for a quantitative approach by some commenters for this criterion, 

we continue to believe that a qualitative approach for addressing contaminant levels is 

appropriate for the same reasons we discussed in the ANPRM. In the ANPRM, we referred to 

our view that the complexities of defining “significant” via a bright-line quantitative test for all 

industries, and all recycling processes, and all recycled hazardous secondary materials would be 

too great for the Agency to design as a simple and straightforward system to be used in making 

such determinations. We continue to believe that this would be the case. 

Thus, for fuels, we are proposing that the assessment of contaminant levels can be 

performed by a direct comparison and, if needed, a separate qualitative assessment. We are 

proposing assessments that include whether non-hazardous secondary materials used as fuels in 

combustion units have contaminants that are significantly higher in concentration than traditional 
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fuel products by 1) a direct comparison of contaminant levels in the fuels themselves (materials 

with contaminants that are not significantly higher than the traditional fuels would pass the 

criteria) and by 2) if it does not pass the first criteria, perform a qualitative assessment of 

contaminant levels. Such assessments should consider the type of contaminant, the toxicity of 

the contaminant, and the potential impact on releases to the environment during handling and 

combustion. In the comparisons, the range of these types of contaminant levels need to be 

included since they can vary similar to how the contaminant levels can vary in traditional fuels. 

For ingredients, we continue to believe that the contaminant assessment should be based 

on a comparison between the product made with the non-hazardous secondary material 

ingredient and the product made with traditional ingredients. As with fuels, we believe this can 

either be made by a direct comparison of contaminant levels in the products themselves, or by 

evaluating the non-hazardous secondary material qualitatively in determining whether the 

products contain significantly higher concentrations of contaminants, which may consider 

whether differences in contaminant concentrations are significant from a risk perspective. See 

section VII.D.6.b for further detail. 

e. Ingredients Must Provide Useful Contribution. The ANPRM cited (from the October 

2008 DSW Final Rule for hazardous waste) five ways48 in which a secondary material can add 

value and usefully contribute to a recycling process and solicited comment on whether they are 

appropriate for non-hazardous secondary materials. 

Comment: 

 

48 The five ways include: (i) the secondary material contributes valuable ingredients to a product or intermediate; or 

(ii) replaces a catalyst or carrier in the recycling process; or (iii) is the source of a valuable constituent recovered in 

the recycling process; or (iv) is recovered or regenerated by the recycling process; or (v) is used as an effective 

substitute for a commercial product. 
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Only one commenter responded and indicated that the five criteria are too narrow and 

should be broadened to apply to the non-hazardous secondary material uses (i.e., processes not 

considered recycling) since using the criteria for hazardous waste as a model is too limiting. 

EPA’s Response: 

After review of the comment, we understand that there is some interest in broadening 

those criteria for non-hazardous secondary material use, but the commenter did not provide any 

information to merit the development of a separate or additional criteria for non-hazardous 

secondary material use to describe how they can “add value and usefully contribute to a 

recycling process” (or broaden to non-recycling uses as suggested by the commenter). However, 

the Agency solicits comments on this point; in particular, what the separate criteria would be and 

how a non-hazardous secondary material would or can “add value and usefully contribute to a 

recycling process.” 

f. Ingredients Must Produce a Valuable Product. For this criterion to be met, the 

ANPRM indicated that a product or intermediate 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 

ingredient or intermediate in an industrial process. We then requested comment on whether this 

description of valuable product/intermediate is an appropriate way to consider this criterion in 

the context of non-hazardous secondary materials used as ingredients. 

Comments: 

One commenter responded that they support this criterion, but caution that it be broad 

enough so that it addresses the value obtained by both its use on-site and off-site by a third party. 

The commenter also suggested that the provision be interpreted broadly to also include 
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traditional recycling markets and the products generally in which such secondary materials are 

utilized. 

EPA’s Response: 

We believe that the criteria described in the ANPRM are broad enough to address the 

value obtained by both its use on-site and off-site by a third party. With regard to interpreting 

the criterion broadly enough to include traditional recycling markets and the products in which 

the secondary materials are utilized, we do not agree that it would be appropriate. Specifically, 

this rule is addressing a particular issue within the context of RCRA—that is, which nonhazardous secondary materials are or are not solid wastes when used in a combustion unit. We 

have tailored the legitimacy criteria to apply specifically to the use of these non-hazardous 

secondary materials as fuels or ingredients in combustion units only. An assessment of uses 

beyond those in combustion units is beyond the scope of this rulemaking. 

8. De Minimis Concept 

 Although we did not discuss the concept of de minimis in the ANPRM, commenters 

argued strongly that EPA allow for de minimis amounts of solid waste to be burned without 

being subject to the CAA 129 requirements. 

 Comments: 

Several commenters believe that any regulatory construct should include a de minimis 

exemption that excludes from the definition of solid waste for purposes of CAA section 129, 

those materials (i.e., solid waste) that, when combusted, result in de minimis emissions. An 

example provided by the commenters of a waste material is boiler chemical cleaning waste, 

which consists primarily of water, but also includes metal deposits from the boiler tubes, as well 

as spent solvent. Another example is oily rags which are generated in small quantities during 
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routine maintenance activities. Air emissions associated with these practices is a small fraction 

compared to the emissions generated from fossil fuel combustion. Commenters also cited 

several court decisions that held that EPA retains the legal authority to promulgate de minimis 

exceptions for regulatory schemes. 

 EPA’s Response: 

We note that this proposal is only identifying non-hazardous secondary materials that are 

or are not discarded. Additionally, RCRA does not provide authority for this type of de minimis 

provision. Further, the issue of whether the burning of de minimis amounts of solid waste (i.e., 

because it results in de minimis emissions) can be exempted from CAA 129 regulation is outside 

the scope of this rulemaking. In the court cases cited by the commenters, de minimis exceptions 

were in the context of the CAA and its regulatory scheme. Therefore, these issues are more 

appropriately addressed in rulemakings that specifically subject sources that burn solid waste to 

the CAA 129 requirements. 

D. Rationale For, and Detailed Description of, Proposed Approach 

Under this proposal, non-hazardous secondary materials used as fuels in combustion units 

would be considered solid waste unless: 1) the non-hazardous secondary materials remain under 

the control of the generator as discussed in section VII .D.1, and are legitimate fuels; or 2) they 

are legitimate fuels that are produced from the processing of discarded non-hazardous secondary 

materials as discussed in section VII.D.4. Non-hazardous secondary materials used as a fuel in 

combustion units that are transferred to a third party (and not considered to be managed within 

the control of the generator) are considered solid wastes unless a non-waste determination has 
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been made pursuant to the proposed petition process (discussed below in section VII.D.5). 49

Non-hazardous secondary materials used as ingredients in combustion units would not be 

considered solid waste if they have not been discarded in the first instance and if they are 

legitimate ingredients, irrespective of whether they have been transferred to a third party outside 

the control of the generator. Non-hazardous secondary materials that have been discarded may 

be processed into a non-waste ingredient that meets the legitimacy requirements as discussed in 

VII.D.4. 

The ANPRM also discussed another possible exclusion from being a solid waste—that is, 

hazardous secondary materials that are excluded from the definition of solid waste under RCRA 

subtitle C when combusted. However, EPA has concluded that it does not need to include this 

exclusion since these materials have already been excluded from the definition of solid waste as 

hazardous secondary materials and, therefore, are not subject to this rule, which deals with the 

definition of solid waste for non-hazardous secondary materials used in combustion units. As 

noted in the ANPRM, under the hazardous waste regulations, the Agency has evaluated a 

number of hazardous secondary materials that are recycled and determined that such materials, 

while they either met a listing description or exhibited one or more of the hazardous waste 

characteristics, were not “solid wastes” for purposes of the RCRA Subtitle C hazardous waste 

regulations when they were combusted. Specifically, the following materials may be burned 

under certain conditions and are not defined as solid wastes for purposes of the hazardous waste 

regulations--black liquor, spent sulfuric acid, comparable fuels and commercial chemical 

 

49 As we noted earlier in the preamble, traditional fuels also are not considered solid wastes when burned in a 

combustion unit. Therefore, we will not discuss the use of traditional fuels further since we believe it is understood 

that they are legitimate products and not wastes. 
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products that are themselves fuels.50 These secondary materials are not solid wastes provided 

they are handled under the applicable conditions of the exclusions specified under the RCRA 

subtitle C hazardous waste regulations, and are not considered solid wastes for purposes of CAA 

section 129. The rules covering the determinations for black liquor, spent sulfuric acid,51

comparable fuels,52 and commercial chemical products that are themselves fuels53 are not being 

reopened in this proceeding and EPA is no longer requesting comment on those solid waste 

definitions for purposes of this rule. 

Except for the petition process, the proposed criteria are designed to be self implementing 

in nature, i.e. they do not require prior Agency approval. 

1. Non-Hazardous Secondary Materials Used as Fuel within the Control of the Generator 

 We are proposing to use the general framework finalized in the Definition of Solid Waste 

Rule to determine circumstances under which non-hazardous secondary materials remaining 

under the control of the generator that are used as fuels in combustion units are not considered to 

have been discarded. 

 a. Scope and Applicability. EPA is proposing that non-hazardous secondary materials 

used as fuels in combustion units that remain within the control of the generator and that meet 

the legitimacy criteria specified in section VII.D.6 would not be solid waste. Non-hazardous 

secondary materials that remain within the control of the generator and meet these criteria are 

 

50 Black liquor is burned in a pulping liquor recovery furnace and then reused in the pulping process, while spent 

sulfuric acid is used to produce virgin sulfuric acid; in both these instances, these hazardous secondary materials are 

considered to be an integral part of the manufacturing process. With respect to comparable fuel, these hazardous 

secondary materials are considered a legitimate non-waste fuel because they meet the chemical and physical 

specifications of a traditional benchmark fuel. Commercial chemical products that are themselves fuels, such as offspecification fuels, including gasoline, jet fuel, kerosene, diesel, etc., are not solid wastes when burned as fuels if 

that is their intended purpose (40 CFR 261.2(c)(2)(ii)). 

51 See Definition of Solid Waste Final Rule, January 4, 1985 at 50 FR 641-642, covering both black liquor and spent 

sulfuric acid. 

52 See “RCRA Comparable Fuels Exclusion ” Final Rule, June 19, 1998, 63 FR 33782. 53 See 50 FR 614 "Amendments to the Definition of Solid Waste" (Final Rule), January 4, 1985 at 50 FR 618, 629. 

See also Hazardous Waste Management System; Definition of Solid Waste; Corrections, April 11, 1985 at 50 FR 

14219. 
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referred to as legitimate (non-waste) fuel products. The proposed conditions that must be 

satisfied to qualify as “under the control of the generator” are found in proposed 40 CFR Part 

241.3. Nevertheless, EPA is seeking comment on whether such secondary materials should be 

considered solid wastes and thus, be subject to the CAA section 129 requirements if combusted. 

 There are two scenarios where non-hazardous secondary materials used as fuels can be 

demonstrated to remain within the control of the generator. As such, the proposal consists of two 

parts in determining whether these secondary materials qualify for being “under the control of 

the generator.” The first part applies to non-hazardous secondary material generated and used as 

fuels at the generating facility. For purposes of this proposed criteria, “generating facility” 

means all contiguous property owned, leased, or otherwise controlled by the secondary material 

generator, and “secondary material generator” means any person whose act or process produces 

non-hazardous secondary materials at the generating facility. A facility that collects nonhazardous secondary materials from other persons (for example, used tires collected through a 

collection program) is not the secondary material generator of those materials. This is consistent 

with the approach taken in the DSW final rule, which specified that a facility that collects 

hazardous secondary materials from other persons (for example, when mercury-containing 

equipment is collected through a special collection program), would not be considered the 

hazardous secondary material generator for purposes of eligibility for the generator-controlled 

exclusion. See 73 FR at 64715. 

If a generator hires or contracts with a different company to use the non-hazardous 

secondary materials at the generator’s facility as fuel, either temporarily or permanently, these 

materials remain under the control of the generator. However, generators sometimes contract 

with a second company to collect non-hazardous secondary materials at the generating facility 
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and such materials are subsequently used as fuels in a combustion unit at another facility. In that 

situation, if the facility that burns the non-hazardous secondary material is not “within the 

control of the generator” as defined below in the second part of the definition, then the nonhazardous secondary material fuel would be considered a solid waste unless a non-waste 

determination has been granted pursuant to the petition process. 

 The second part of the proposed definition applies to non-hazardous secondary material 

generated and used as fuels at a different facility that is controlled by the generator (or if a person 

as defined in proposed §241.2 controls both the generator and the facility using the fuel in a 

combustion unit). For purposes of this proposed criteria, “control” means the power to direct the 

policies of the facility, whether by ownership of stock, voting rights, or otherwise, except that 

contractors who operate facilities on behalf of a different person as defined in proposed §241.2 

shall not be deemed to “control” such facilities. Thus, when a contractor operates two facilities, 

each of which is owned by a different company, non-hazardous secondary materials generated at 

the first facility and used as a fuel at the second facility is not considered “under the control of 

the generator.” 

We note that the DSW final rule includes a third part of the definition that applies to 

hazardous secondary materials that are generated pursuant to a written contract between a tolling 

contractor and a toll manufacturer and legitimately reclaimed by the tolling contractor. For 

purposes of that exclusion, a tolling contractor is a person who arranges for the production of a 

product or intermediate made from specified raw or virgin materials through a written contract 

with a toll manufacturer. The toll manufacturer is the person who produces the product or 

intermediate made from the specified raw or virgin materials pursuant to a written contract with 

a tolling contractor. We view this as a very specific type of arrangement where, for example, a 
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111

chemical manufacturer outsources a step in the manufacturing process to another company 

(typically a "batch" manufacturer), and then the batch manufacturer sends both the product and 

the residuals back to the main company (and the residuals are then reclaimed by the main 

company). Although there are two companies, there is only one manufacturing operation, and 

the main company keeps control over (and liability for) everything through the tolling contract. 

We do not believe that tolling contracts are relevant to non-hazardous secondary 

materials used as fuels in combustion units as we are unaware of these types of contractual 

arrangements where both products and secondary material fuel are sent to what we are calling 

tolling contractors. As a result, we are not including this type of arrangement under the proposed 

definition for non-hazardous secondary material fuels that remain under the control of the 

generator. However, the Agency requests comments on whether to include this option in the 

final rule; those persons who provide comments supporting the addition of this option to the final 

rule should provide specific instances or examples of where non-hazardous secondary materials 

are managed under tolling arrangements and the frequency that such arrangements are used, and 

how these arrangements remain “under the control of the generator.” 

b. Restrictions and Requirements 

Legitimate Use. Under this proposed rule, non-hazardous secondary materials used as fuels in 

combustion units that remain under the control of the generator must meet the legitimacy criteria 

proposed in §241.3(d). To satisfy the legitimacy criteria, the non-hazardous secondary material 

(non-waste) fuel must be handled as a valuable commodity, have meaningful heating value and 

be used as a fuel in a combustion unit that recovers energy, and does not contain contaminants 

that are significantly higher in concentration than traditional fuel products. The details of the 

legitimacy criteria are discussed in Section VII.D.6. of this proposal. 
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Notification. We are not proposing to require facilities that use non-hazardous secondary 

material fuels within the control of the generator to notify EPA as part of this proposal. We 

believe this would be duplicative of the CAA 112 regulatory notification and record keeping 

requirements being proposed for boilers and process heaters today. That proposal would require 

specific notifications from sources subject to the standards including notifications of compliance 

status, test results and descriptions of applicable air pollution control devices. In addition, for 

sources that have made a non-waste self-determination under §241.3, the proposal for boilers and 

process heaters requires that records be maintained which document how the fuel meets 

legitimacy criteria and the definition of processing as appropriate. However, we solicit comment 

on this and specifically request comment on whether the Agency should require, at least initially, 

if not on a periodic basis, notification and recordkeeping under RCRA by those persons who 

both generate or combust non-hazardous secondary materials that are not solid wastes.

2. Non-Hazardous Secondary Materials Used as Fuel Outside the Control of the Generator 

 Non-hazardous secondary materials used as a fuel in combustion units that are not 

considered to be managed within the control of the generator would be considered solid wastes 

unless they have been processed into a legitimate non-waste fuel product (discussed in section 

VII.D.4. below) or unless a non a non-waste determination has been made pursuant to the 

proposed petition process (discussed in section VII.D.5. below). 

This proposed approach differs from the ANPRM approach, which specified that nonhazardous secondary materials, such as used tires collected at tire dealerships and transferred to a 

third party would not be considered discarded if, for example, they were managed pursuant to 

state tire collection programs. As previously discussed, comments received from the states 

suggested that non-hazardous secondary material fuels that are transferred to a third party have 
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entered what is traditionally considered to be the “waste stream” (and have been regulated by the 

states as wastes) and therefore should appropriately be considered to be solid wastes (e.g., scrap 

tires) unless/until they are processed into non-waste fuel products. However, the Agency seeks 

comment on whether the approach described in the ANPRM would be more appropriate. In 

submitting comments supporting a broader approach, we request that commenters provide the 

basis for why such secondary materials have not been discarded. 

When non-hazardous secondary material fuels are transferred to another party, we 

generally believe that the material is discarded since the generator has relinquished control of the 

secondary material and the entity receiving such materials may not have the same incentives to 

manage them as a useful product, which results in the materials being discarded. (Note: As 

indicated above, the Agency is proposing a petition process to allow any person to demonstrate 

that non-hazardous secondary material fuels transferred to another party outside the control of 

the generator have not been discarded, and thus, are not a solid waste. See section VII.D.5. 

below for details on the petition process.) 

This lack of incentive to manage as a useful product has been well-documented in the 

context of hazardous secondary material recycling as evidenced by the results of the 

environmental problems study performed in support of the DSW final rule.54 (This scenario does 

not apply to transfers taking place under the transfer-based exclusion for hazardous secondary 

materials that are generated and then transferred to another company for the purpose of 

reclamation.) However, this finding also holds true for non-hazardous secondary materials that 

are used as fuel. 

 

54 U.S. EPA An Assessment of Environmental Problems Associated With Recycling of Hazardous Secondary 

Materials (Docket # EPA-HQ-RCRA-2002-0031-0355), January 2007. 
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For example, the over-accumulation of scrap tires is well known and has resulted in 

massive piles of discarded tires that have contributed to the overall solid waste management 

problem due to the threat of fires, such as the Rhinehart Tire Fire Dump,55 and because they 

provide an ideal breeding ground for mosquitoes and rodents. It is estimated that 275 million 

tires remained in stockpiles across the United States in 2003 and that approximately 290 million 

new scrap tires are generated each year.56 Other non-hazardous secondary materials destined for 

use as a fuel that were accumulated, but then discarded have similarly contributed to the overall 

solid waste management problem.57 

As discussed in the DSW final rule,58 this pattern of discard at off-site, third party 

reclaimers appears to be a result of inherent differences between commercial recycling and 

normal manufacturing. As opposed to manufacturing, where the cost of raw materials or 

intermediates (or inputs) is greater than zero and revenue is generated primarily from the sale of 

the output, secondary materials recycling, including when used as a fuel, can involve generating 

revenue primarily from receipt of the secondary materials. Recyclers of secondary materials in 

this situation may thus respond differently than traditional manufacturers to economic forces and 

incentives, accumulating more inputs (secondary materials) than can be processed and generating 

stockpiles with sometimes little incentive to perform actual recycling. 

However, this pattern of discard does not hold true for materials that are more 

commodity-like than waste like, such as traditional fuels and non-hazardous secondary materials 

 

55 See 51 FR 21054, June 10, 1986. 

56 U.S. EPA Scrap Tire Clean-Up Handbook: A Resource for Solid Waste Managers Across the United States EPA905-B-06-001, January 2006. 

57 U.S EPA Description of Non-Hazardous Secondary Material Events that Resulted in Adverse Environmental 

Impacts (Docket # EPA-HQ-2008-0329), September 2009. 58 U.S. EPA A Study of the Potential Effects of Market Forces on the Management of Hazardous Secondary 

Materials Intended for Recycling (Docket # EPA-HQ-RCRA-2002-0031-0358), November 2006. While the study 

focuses on hazardous secondary materials, the underlying economic theory would apply equally to non-hazardous 

secondary materials. 
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used as ingredients in manufacturing processes that utilize combustion systems. As previously 

discussed, traditional fuels have been burned historically as fuels and have been managed as 

valuable products, are considered unused products and therefore are not solid wastes. Also see 

discussion in section VIII.D.6.b below that explains EPA’s rationale as to why ingredients that 

are not managed within the control of the generator are determined not to be discarded. 

In some cases, a non-hazardous secondary material may be transferred to another entity 

to be burned for energy and still more closely resemble a product than a waste, despite the fact it 

is neither a traditional fuel nor has it been processed into a legitimate fuel. In such cases, the 

Agency has included a petition process where a person may petition EPA for a case-specific 

determination that the non-hazardous secondary materials are not discarded and therefore not 

solid wastes. See section VIII.D.5. for a more detailed discussion of the petition process. 

In the proposed regulatory language, EPA is not specifying whether particular materials 

are or are not solid wastes. However, as discussed previously, whole tires that originate from tire 

dealerships and automotive shops (that are overseen by state tire collection oversight programs) 

would be considered to be discarded unless and until they are processed into TDF that has 

removed the steel belts and wire, or a case-specific non-waste determination petition is granted. 

EPA believes tires that are collected from tire dealerships and automotive shops, especially if 

overseen by a state tire collection oversight program that collects fees and regulates the process 

under state “waste” authorities, generally meet the plain meaning of discard; such materials can 

be considered as having been “discarded” by the original owner of the tire. 

This is further supported by the fact that many state agencies regulate tires as wastes, 

either pursuant to their solid waste authority or pursuant to statutory authority that specifically 

addresses the management of used tires (some use both authorities). The level of regulation 
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ranges from state to state, but many states directly regulate used tires, for example, with storage 

requirements, such as speculative accumulation and fire suppression requirements, up until their 

final use as a fuel in combustion units. In addition, many states subsidize certain end-use 

applications, suggesting that used tires, even if managed pursuant to state oversight programs, 

are discarded materials once they are generated at tire collection points, such as tire dealerships. 

3. Non-Hazardous Secondary Materials Used as Ingredients in Combustion Units. 

Non-hazardous secondary materials used as ingredients in combustion units would not be 

solid wastes provided they satisfy the legitimacy criteria discussed in section VIII.D.6.b below. 

We are not differentiating between ingredients that are used within the control of the generator 

from those that are not since we believe that the use of non-hazardous secondary materials as 

ingredients is considered to be more integral or akin to use in a commercial manufacturing 

process and thus, these non-hazardous secondary materials should not be considered discarded 

provided they satisfy the legitimacy criteria. 

 4. Non-Hazardous Secondary Materials Processed Into Non-Waste Fuel/Ingredient 

Products. 

 EPA is proposing that legitimate fuel or ingredient products that result from the 

processing of discarded non-hazardous secondary materials are not solid wastes. Of course, the 

legitimacy criteria specified in section VII.D.6. below must be met. Because the fuel/ingredient 

products meeting these legitimacy criteria are, in effect, reclaimed products from a recycling 

process, EPA considers such materials to be new products that have not been discarded and 

therefore are not solid wastes. Until the non-hazardous secondary materials have been processed 

into a non-waste fuel or ingredient product meeting the legitimacy criteria, the discarded nonhazardous secondary material are considered solid wastes and would be subject to all appropriate 
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federal, state and local requirements. 

 Similar to the proposed approach for non-hazardous secondary materials that are used as 

fuels within the control of the generator, we are not proposing to require facilities that combust 

non-hazardous secondary materials that have been processed into non-waste fuel/ingredient 

products to notify EPA as part of this proposal. We believe this would be duplicative to the 

CAA 112 regulatory notification and record keeping requirements being proposed for boilers and 

process heaters today. That proposal would require specific notifications from sources subject to 

the standards including notifications of compliance status, test results and descriptions of 

applicable air pollution control devices. In addition, for sources that have made a non-waste 

determination under 40 CFR 241.3, the proposal for boilers and process heaters requires that 

records be maintained which document how the fuel meets legitimacy criteria and the definition 

of processing as appropriate. However, we solicit comment on this and specifically request 

comment on whether the Agency should require, at least initially, if not on a periodic basis, 

notification and recordkeeping under RCRA by those persons who both generate or combust 

non-hazardous secondary materials that are not solid wastes. 

 a. Proposed Definition of Processing. The proposed definition of processing means any 

operations that transform discarded non-hazardous secondary material into a new fuel or new 

ingredient product. Minimal operations, such as operations that result only in modifying the size 

of the material by shredding, do not constitute processing for purposes of this definition. 

Processing includes, but is not limited to, operations that: remove or destroy contaminants; 

significantly improve the fuel characteristics of the material, e.g., sizing or drying the material in 

combination with other operations; chemically improve the as-fired energy content; and improve 

the ingredient characteristics. While today's rule proposes a definition of operations that 
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constitute processing, the level of processing that is necessary to render a discarded nonhazardous secondary material into a non-waste product is dependant on the material. We note, 

however, that discarded non-hazardous secondary materials that are not processed or minimally 

processed (as discussed above i.e., processed in a manner that does not meet our definition of 

processing) would be considered a waste-derived fuel or ingredient, and thus a solid waste, no 

matter how legitimate their use is as a fuel or ingredient. In addition, non-hazardous secondary 

materials that are processed and used as fuels or ingredients in combustion units, but do not meet 

the legitimacy criteria, would be considered to be sham use and thus a solid waste. The Agency 

seeks comment on the proposed definition of processing, including whether such definition 

provides sufficient clarity that it can be implemented under the self-implementing provision in 

today’s proposed rule (this approach is discussed further in this section). 

 b. Rationale for Processing Discarded Material Into Non-Waste Products. Today’s 

proposed rule identifies circumstances where materials that have been discarded in the first 

instance, and are thus solid wastes, can be rendered into new non-waste products through 

legitimate processing consistent with the definition outlined above. The basic principle that must 

be satisfied is that the discarded material must undergo sufficient processing that produces either 

a new fuel or ingredient product. The new product must have properties that provide the end 

user the assurance that the material consistently satisfies the fuel/ingredient product criteria 

based on the type of combustion unit the secondary material is used in (e.g., as a fuel in a boiler 

or as an ingredient in a cement kiln). 

The principle that products can be produced from a waste is common to industrial 

processes and commercial recycling markets. Newspaper and aluminum cans discarded by 

consumers are then collected, sorted and processed into new recycled paper and aluminum 
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products that are not considered solid waste. Collected plastic is generally sent to a reclaimer, 

who will sort, grind, and clean the plastic. The cleaned and sorted plastic is sent to a 

manufacturer who will use it as feedstock. These are clear examples where discarded materials 

are processed into legitimate non-waste products. 

 Recycled fuel products are no different from recycled paper and aluminum cans with 

respect to discard. If non-hazardous secondary materials that are discarded by being abandoned, 

disposed of or thrown away, but are later collected, segregated, and processed into a 

homogenous fuel product that is marketed and sold as a valuable commodity and are no different 

that traditional fuels used today, then they should no longer be considered solid waste, just as 

recycled paper is not a solid waste. 

There are other examples beyond consumer recycled materials where discarded 

materials are processed into new products. These examples include specific exclusions from the 

hazardous waste regulations, which provide insight into how secondary materials can be 

processed into valuable products. For instance, discarded spent solvents are commonly recycled 

via distillation into legitimate, newly usable solvents. These regenerated solvents are clearly 

considered to be products, not wastes. See 50 FR 634, January 4, 1985. Scrap metal that has 

been discarded is another example of a non-hazardous secondary material that is processed into 

a non-waste. (EPA specifically exempted scrap metal that has been processed from the 

definition of solid waste (see 261.4(a)(13).) For scrap metal to be considered “processed,” it 

must have been “manually or physically altered to either separate it into distinct materials to 

enhance the economic value or improve the handling of these materials. Processed scrap metal 

includes...scrap metal which has been baled, shredded, chopped crushed, flattened, cut, melted, 

or separated by metal type (i.e. sorted). . .” (see 40 CFR 261.1(c)(10)). We believe this is a 
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good example of where the level of processing necessary to convert a waste material to a nonwaste material is dependent on the material itself. 

 Off-spec used oil is another example of a secondary material which we believe is 

discarded, but can be processed into a non-waste product (see section VII.C.5.d.). Once used oil 

is determined to be on-spec, we do not view it to be a solid waste since it is no longer regulated 

under the used oil management standards of 40 CFR part 279 and can be managed as a 

traditional fuel.59 

 One of the difficulties the Agency faces with determining whether non-waste fuels can 

be processed from discarded materials is that the combustion of materials is commonly 

associated with disposal, whether it is waste disposal in incinerators or waste disposal in energy 

recovery devices (e.g., municipal waste combustors that recover energy by producing 

electricity). Therefore, many equate the burning of any secondary material to discard, as some 

commenters have argued. This approach does not take into account that the secondary material 

has in fact been produced in a process that uses the discarded material as a feed stream to 

produce a safe fuel product that is a valuable commodity and sold in the marketplace no 

differently than traditional fuels. We view such an approach being a common sense interpretation 

of the statutory definition of solid waste under RCRA. Again, fuel produced from discarded 

non-hazardous secondary materials should not be considered solid waste just as recycled 

newspapers are not considered solid waste, since the material has been processed or 

“manufactured” into a new fuel product. The use of these energy containing secondary materials 

can be an effective substitute for traditional fuels. Such materials can provide economic 

efficiencies due to lower overall resource use, while still protecting human health and the 

 

59 Once used oil is claimed to be on-spec and the marketer complies with the requirements for analysis and record 

retention, notification, and record tracking shipment to on-specification burners, it is no longer subject to the 

management standards. 
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environment. 

Another difficulty the Agency faces is the misconception that discarded material that is 

burned, either for destruction or energy recovery, by definition has high levels of contaminants. 

We do not believe this is the case for many of the non-hazardous secondary materials we are 

assessing. The manner in which the secondary material is managed is a key factor that 

determines discard (abandoned, disposed of, or thrown away); contaminant levels are part of 

that consideration, such that if a secondary material has high levels of contaminants, it would be 

considered sham recycling, which is one type of way a material can be “disposed of.” Clean 

materials can be discarded just like contaminated materials can. This, combined with the 

perception that combustion of secondary materials is equated to discard, results in the 

perception that there needs to be a very high threshold with respect to the level of processing 

that must take place to render a discarded material into a non-waste product. We believe, 

however, that a strict, but appropriate level of processing is necessary which is reflected in the 

processing definition outlined in today’s proposed rule. We also note that in order for any 

secondary material to be considered a non-waste fuel, it cannot contain contaminants that are 

significantly higher than traditional fuels in use today. 

To put this into context, we believe it would help to include examples of processing of 

discarded non-hazardous secondary materials – those which we believe are clearly adequate 

processing to render the material into a non-waste fuel or ingredient product in accordance with 

the definition of processing in §241.2 and those that do not. 

 c. Examples of Adequate Processing. 

 Examples of non-hazardous secondary materials that have been discarded, but can be 

processed into a non-waste fuel or ingredient product include, but are not limited to, used tires, 
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solid waste processed in gasifiers to produce synthesis gas, off-spec used oil (discussed above), 

sewage sludge processed into pellets, painted wood, and coal fines and biomasss processed into 

pellets with the impurities removed. Each of these are described in more detail below. 

Used Tires. EPA views used tire processers as facilities that take solid waste that can 

produce valuable non-waste products. Used tires undergo various processing steps to meet 

certain specifications that are necessary for a particular end use, whether it be for use as TDF, or 

for use in other non-combustion applications, such as ground rubber applications (e.g., for use in 

sidewalks).60 Used tire processors typically enter into contracts with the end users of these tire 

derived products that specify that the processed tires meet certain specifications (i.e. size of tire 

pieces, wire content) to ensure the material consistently meets the needs of that particular end 

use. This is common for TDF. 

 Used tires are often processed by shredding and removing dirt or other contaminants to 

produce TDF. Processing scrap tires into TDF can involve two physical processing steps: 

chipping/shredding (usually ranging in size from 1 to 4 inches) and (in some cases) metal 

removal, with the amount of metal in TDF varying depending on how much of the tires have 

been processed. For some units, such as cement kilns, metal in the wire can be used in the 

manufacturing process.61 However, most other units benefit from TDF that has been processed 

to minimize the amount of metal and improve heating efficiency. 

 EPA considers used tires that have been shredded/chipped into TDF and with the metal 

belts or wire removed, to meet the definition of processing discussed above. Thus, used tires that 

 

60 As discussed previously, today’s proposal only addresses non-hazardous secondary materials that are used in 

combustion process, and not in other applications. 

61 We note that most cement kilns use whole tires as fuels, as opposed to TDF chips, because their process does not 

require the TDF to be in the form of small chips to use it as a fuel, and does not require removal of the metal (since 

they use the metal as an ingredient). Under today’s proposal, cement kilns that burn whole tires would be subject to 

the CAA section 129 requirements, unless the tires were processed to produce TDF or a non-waste determination 

was issued by EPA regarding the burning of whole tires. 
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have been shredded/chipped without the removal of the metal belts or wire would not be 

considered to have been sufficiently processed, and any TDF that is generated in such a fashion 

would be considered a waste-derived fuel. Removing the metal belts or wire will help reduce 

metal contaminants in the emissions and ash, and may improve the burning characteristics for 

some uses of the TDF. As is the case for all types of solid fuel, proper characterization of the 

size and composition of TDF are important factors that combustion unit operators assess to 

determine if TDF is a suitable fuel for their specific combustion unit design.62 For example, 

ASTM Standard 6700-01, describes standard practices for using TDF as fuels, and also specifies 

sampling and analysis methods and procedures that apply to TDF that cover composition, and 

fuel characterization analyses. The standards also address the size of the tire pieces and metal 

content in order to optimize combustion. The standards for metals range from wire free, to 

relatively wire free to no wire removed. To meet the processing definition for combusting scrap 

tires, those materials should have the metal belts or wire removed consistent with the ASTM 

standard for relatively wire free. However, as noted in footnote 60, certain types of combustion 

units, such as cement kilns also use the wire in the tire as an ingredient to producing cement 

clinker. Therefore, we are soliciting comment on whether to adopt an additional definition for 

processing that would not require the metal belts or wire to be removed for those combustion 

units, such as cement kilns where the metals serve a useful purpose in the process of making 

clinker. 

Syngas Produced from Gasification of Solid Waste. Although not specifically discussed 

in the ANPRM, synthesis gas (or syngas as it is commonly referred) produced from the 

 

62 With regard to the legitimacy criteria discussed in Section VII.B.3, the heating value of scrap tires (12,000 Btu/lb 

to 16,000 Btu/lb) is the highest of all secondary materials, except used oil (17,800 Btu/lb), and higher than typical 

coal values. Contaminants of potential concern have been measured for both materials: mercury is below detectable 

levels for TDF, and average 0.11 ppm for coal; barium is also below detectable levels in TDF; cadmium, chromium, 

lead and manganese levels are comparable; zinc is present in higher concentrations in TDF than coal. 
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gasification of solid waste is a material that can also meet the requirements of a fuel product 

produced from processing discarded non-hazardous secondary materials, provided the syngas has 

been adequately processed to remove contaminants. 

 A variety of solid waste streams are available for conversion to energy, including 

conversion through gasification technologies. Gasification is a chemical production process that 

converts carbonaceous material into a synthesis gas that can be used for energy production (or as 

a building block for other chemical manufacturing processes). In general, gasification systems 

are designed to react carbon-containing materials and steam at high temperatures to produce a 

synthesis gas composed mainly of carbon monoxide and hydrogen. 

 Gasification systems include two basic components. The first is the reactor or gasifier and 

the second is a gas cleanup or polishing system used to remove various contaminants from the 

raw (un-polished) synthesis gas. At a minimum, syngas cleanup generally includes removal of 

sulfur and metals. These two components work together producing a synthesis gas that can be 

used as a fuel in a combustion turbine. 

 Other Non-Hazardous Secondary Materials That are Processed. Sewage sludge can be 

processed into fuel pellets by biosolid drying that destroys pathogens and bacteria. Specifically, 

raw sewage sludge is moved to digesters where microbes decompose the organic solids. The 

resulting biosludge is pressed with wide fabric belts into sheets and water is removed. This 

sludge cake is then baked in “tumble-drying” ovens that destroy the pathogens and bacteria, 

removing any remaining water, and rotate the sludge into the final pelletized product. 

 Although we consider this to meet our definition of processing, the fuel pellets would still 

have to meet the legitimacy criteria to be considered a non-waste fuel. As discussed in section 

VII.C.5.f., we generally believe sewage sludge itself has contaminant levels that are higher than 
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traditional fuels in use today, and thus would not satisfy the contaminant part of the legitimacy 

criteria. 

 Wood with lead-based paint that is shaved to remove the lead-based paint is another 

example of processing a discarded non-hazardous secondary material to produce a legitimate 

product; in this case, the underlying wood can be used as a non-waste, traditional fuel, and the 

lead-based paint can be safely disposed of or sent for lead recovery. 

 Coal fines, biomass, and other materials can be mixed and processed into pellets (or other 

forms) that have the consistency and handling characteristics of coal. For example, the K-Fuel 

process employs heat and pressure to transform coal into a cleaner, more efficient fuel by 

removing water and polluting impurities, thus increasing combustion efficiency. When applied 

to different lower-rank sub-bituminous and lignite coals, the K-Fuel process removes, on 

average, almost 70 percent of the coal's elemental mercury.63

 In the examples above, we view the non-hazardous secondary materials to have been 

sufficiently processed to produce a fuel product that would not be a solid waste if it met the 

legitimacy criteria specified in section VII.D.6; however, as noted previously, the non-hazardous 

secondary materials would be considered solid wastes prior to processing and would be subject 

to appropriate federal, state, and local requirements. 

 d. Examples of Minimal Processing That Would Not Meet Proposed Definition of 

Processing. 

 Sewage sludge, and other non-hazardous secondary materials that have a high moisture 

content can be dewatered to effectively increase the Btu/lb of the material prior to burning as a 

fuel. We do not consider dewatering, by itself, to meet our definition of adequate or sufficient 

processing. For example, dewatering sewage sludge would likely be required processing as part 

 

63 Evergreen Energy Company Website. http://www.evgenergy.com/k_fuel.php 
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126

of normal waste management activities (e.g., prior to landfilling, or prior to burning the sludge 

for disposal in an incinerator). As such, we do not view this to be sufficient processing to 

convert discarded materials into non-waste fuel products. 

 Whole tires that are, for example, removed from waste tire piles or collected and 

managed pursuant to state tire collection programs, that are marketed to cement kilns or other 

industrial furnaces and used as fuels absent processing into what we consider processed TDF 

would be another example of insufficient processing to produce a non-waste fuel. However, we 

are also requesting comment on whether discarded materials that have been collected and that 

otherwise have not been processed (as defined in this proposal), should not be considered solid 

wastes if they are indistinguishable in all relevant aspects from a product (again, of course they 

must be legitimate), and such whole tires are marketed to cement kilns or other industrial 

furnaces and are used as fuels. For example, if a discarded non-hazardous secondary material 

that has not been processed based on our proposed definition can be shown to be no different 

than other non-waste fuels in use today, could that secondary material be considered a non-waste 

fuel/ingredient product even though it was discarded in the first instance? Commenters should 

provide the rationale supporting this approach. 

 e. Alternative Approach for Addressing Non-Hazardous Secondary Materials That are 

Processed into Non-Waste Fuels or Ingredients 

 As proposed, this particular provision is self-implementing, where each person would 

make the determination whether or not the non-hazardous secondary material has been 

“sufficiently processed” to produce a non-waste fuel or ingredient. The Agency believes that 

such an approach is appropriate considering the large number of non-hazardous secondary 

materials that are generated that may be processed into a non-waste fuel or ingredient. However, 
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there is also the question of whether the definition of processing is sufficiently clear so that the 

regulated community can appropriately apply the definition. Therefore, the Agency is also 

considering and requests comment on whether this particular provision should be addressed 

through the non-waste determination process under §241.3(c) (rather than as a self-implementing 

provision), such that the Agency would consider and evaluate each type of processing activity on 

a case-by-case basis and approve it before the processed fuel or ingredient would be considered a 

non-waste fuel or ingredient. We also request comment on whether the Agency should 

promulgate a general rulemaking provision, similar to 40 CFR 260.20,64 that would allow EPA 

to evaluate various processing activities generally, as opposed to on a site-by-site basis, such that 

the Agency would identify in the regulations which processing activities would produce a nonwaste fuel or ingredient. While such an approach would put a much greater burden on EPA, it 

would also provide greater certainty to the regulated community as to which non-hazardous 

secondary materials have been sufficiently processed to produce a non-waste fuel or ingredient. 

5. Non-Waste Determination Process 

This proposal would establish a non-waste determination process that provides persons 

with an administrative process for receiving a formal determination from EPA that nonhazardous secondary material fuel that has not been managed within the control of the generator 

has not been discarded, and is indistinguishable in all relevant aspects from a fuel product, and 

thus, is not a solid waste when used as a fuel in a combustion unit. For example, a facility that is 

not affiliated with the generator of the non-hazardous secondary material fuel (and thus is 

“outside the control of the generator”) can petition EPA to determine that the secondary material 

they burn as fuel is not a solid waste because the material has not been discarded and is 

 

64 40 CFR 260.20 allows any person to petition the Administrator of EPA to modify or revoke any provision of the 

hazardous waste rules. A similar “general rulemaking authority” could also be promulgated under RCRA subtitle D. 
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indistinguishable in all relevant aspects from a fuel. 

This proposed process would be voluntary. The non-waste determination process would 

require the petitioner to request such a case-specific non-waste determination from EPA. Any 

petition that is submitted to EPA that requests that the non-hazardous secondary material be 

considered a non-waste fuel would need to demonstrate that the material has not been discarded 

in the first instance, as well as describe how the non-hazardous secondary material satisfies the 

five proposed criteria outlined in §241.3(c). 

To demonstrate that the non-hazardous secondary material used a fuel has not been 

discarded in the first instance, the petitioner would need to demonstrate that the non-hazardous 

secondary material was not initially abandoned or thrown away by the generator of the material. 

It may not always be clear whether secondary materials would be considered to be discarded in 

the first instance. For example, secondary material retrieved from a landfill or tires retrieved 

from waste tire piles would be considered materials that are discarded in the first instance. We 

may not, however, consider used tires collected from tire dealerships and managed pursuant to 

state tire collection programs to be discarded in the first instance, depending on how they are 

managed. 

After demonstrating that the material has not been discarded in the first instance, the 

petitioner must then demonstrate that the material is indistinguishable in all relevant aspects from 

a fuel product by showing that it satisfies the following five criteria: (1) whether market 

participants handle the non-hazardous secondary material as a fuel rather than a waste; (2) 

whether the chemical and physical identify of the non-hazardous secondary material is 

comparable to a commercial fuel; (3) whether the capacity of the market would use the nonhazardous secondary material in a reasonable timeframe; (4) whether the constituents in the non-
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hazardous secondary material are not released to the air, water or land from the point of 

generation to the combustion of the secondary material at significantly higher levels from either 

a statistical or from a health and environmental risk perspective than would otherwise be 

released; and (5) other relevant factors. 

Specifically, the first criterion for a non-waste determination is whether market 

participants handle the non-hazardous secondary material as a fuel rather than a solid waste. 

This would include consideration of likely markets for the non-hazardous secondary materials 

used as fuels (e.g., based on the current positive value of the secondary material, stability of 

demand, and any contractual arrangements). This evaluation of market participation is a key 

from a fuel products standpoint rather than as negatively-valued wastes. 

The second criterion for a non-waste determination is the chemical and physical identity 

of the non-hazardous secondary material and whether it is comparable to commercial fuels. This 

“identity principle” is a key factor that the Court of Appeals for the D.C. Circuit cited in Safe 

Foods in determining whether a material is indistinguishable from a product. It is important to 

note that the identity of a material can be comparable to a fuel product without being identical. 

However, to qualify for a non-waste determination, any differences between the non-hazardous 

secondary material in question and the commercial fuel should not be significant from a health 

and environmental risk perspective. 

The third criterion for making a non-waste determination is the capacity of the market to 

use the non-hazardous secondary material as a fuel in combustion units in a reasonable time 

frame and ensure that it will not be abandoned. For the non-waste determination, a person will 

need to provide sufficient information about the non-hazardous secondary material and the 

market demand for it to demonstrate that such non-hazardous secondary materials will in fact be 
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used as a fuel in combustion units in a reasonable time frame. EPA is not proposing to explicitly 

define “reasonable time frame” because such time frames could vary according to the nonhazardous secondary material and industry involved, and therefore determining this time frame 

should be made on a case-specific basis. However, the Agency solicits comments on whether it 

should propose a specific timeframe as part of this criterion. 

The fourth criterion for a non-waste determination is whether the constituents in the nonhazardous secondary material fuels are not released to the air, water, or land water at 

significantly higher concentrations from a health and environmental risk perspective than would 

otherwise be released. The process that the Agency would be considering would encompass the 

point of generation of the material, management and storage prior to use through combustion and 

the end use of the secondary material. The Agency believes that to the extent the constituents are 

an extension of the original secondary material, their release to the environment is a possible 

indicator of risk and discard. The Agency recognizes that combustion using traditional fuels also 

result in a certain level of release and, in evaluating this criterion, would not deny a non-waste 

determination if the increase in release is not significant from either a statistical or a health and 

environmental risk perspective. However, when relatively high levels of the constituents in the 

non-hazardous secondary material are released to the environment in looking from the point of 

generation of the secondary material to its combustion, then that may be an indication that the 

non-hazardous secondary material is not being handled as a commercial fuel. 

The fifth and final criterion for a non-waste determination includes any other relevant 

factors that demonstrate that the non-hazardous secondary material is not a solid waste. This 

catch-all criterion is intended to allow the person to provide any case-specific information 

considered important and relevant in making the case that its non-hazardous secondary material 
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used as a fuel in a combustion unit is not a solid waste. 

Any non-hazardous secondary material used as a fuel must also satisfy our proposed 

legitimacy criteria in order to be considered a non-waste fuel. In order for a non-waste 

determination to be granted, the applicant must also therefore show that the material satisfies the 

proposed legitimacy criteria. We note that there is overlap between the legitimacy criteria and 

the five petition criteria discussed above. Thus, the same rationale used to demonstrate that the 

non-hazardous secondary material does not contain contaminants that are significantly higher 

than traditional fuels in combination with the argument that such secondary material contains 

meaningful heating value can be used to satisfy petition criterion number 2 above. Similarly, the 

rationale used to demonstrate that the secondary material does not contain contaminants that are 

significantly higher than traditional fuels can be used as the rationale for petition criterion 

number 4 above. 

 Non-Waste Determination Process. EPA is proposing that the process for the non-waste 

determination be similar to that for the solid waste variances found in §260.33, except that such 

requests can only be addressed by EPA. In order to obtain a non-waste determination, a facility 

that manages non-hazardous secondary materials that would otherwise be regulated must apply 

to the Regional Administrator per the procedures described in proposed §241.3(c). The 

application must address the relevant criteria discussed above. The Regional Administrator for 

the EPA Region where the facility combusting the material will evaluate the application and 

issue a draft notice tentatively granting or denying the application. Notification of this tentative 

decision will be provided by newspaper advertisement or radio broadcast in the locality where 

the recycler is located. The Regional Administrator will accept comment on the tentative 

decision for at least 30 days, and may also hold a public hearing upon request or at his discretion. 
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132

The Regional Administrator will issue a final decision after receipt of comments and after the 

hearing (if any). 

 The Agency recognizes that many states have programs in place to make such 

determinations under state statute, and EPA would support the states to also make such 

determinations—that is, allow the states to act on behalf of EPA in making such case-specific 

determinations. Therefore, we are specifically soliciting comment as to whether the Agency can 

(and if so) should allow a state, for example, under a state’s beneficial use program, to also make 

case-specific determinations without EPA’s approval. We note that under the Revisions to the 

Definition of Solid Waste Rule (70 FR 64668), a non-waste determination may be granted by the 

state if the state is either authorized for this provision or if the following conditions are met: (1) 

the state determines the hazardous secondary material meets the applicable criteria for the nonwaste determination; (2) the state requests that EPA review its determination; and (3) EPA 

approves the state determination. Should EPA allow this type of non-waste determination 

process in determining whether or not such non-hazardous secondary material is or is not a solid 

waste? 

 We note that states may submit these determinations on behalf of the petitioner for EPA 

to evaluate under the proposed non-waste determination criteria in proposed §241.3(c)(1). If 

EPA determines through the petition process that the secondary material in the state 

determinations are not solid waste, then they would not be subject to the CAA section 129 

standards, but instead would be subject to the CAA section 112 standards. Conversely, EPA 

may make a non-waste determination for non-hazardous secondary materials under the Federal 

regulations that still remains subject to the state solid waste regulations. 

After a formal non-waste determination has been granted, if a change occurs that affects 
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how a non-hazardous secondary material meets the relevant criteria contained in proposed 

§241.3(c)(1), persons must re-apply to the Regional Administrator for a formal determination 

that the non-hazardous secondary material continues to meet the relevant criteria and is not 

discarded and therefore, not a solid waste. 

6. Legitimacy Criteria 

a. Legitimacy Criteria for Fuels. This notice is proposing that non-hazardous secondary 

materials used as fuels in combustion units must meet the legitimacy criteria specified in 

proposed §241.3(d)(1) in order to be considered a non-waste fuel.65 To meet the fuel legitimacy 

criteria, the non-hazardous secondary material must be handled as a valuable commodity, have a 

meaningful heating value and be used as a fuel in a combustion unit that recovers energy, and not 

contain contaminants that are significantly higher in concentration than traditional fuel products. 

These criteria are discussed below. 

 Manage as a Valuable Commodity. We are proposing to require that non-hazardous 

secondary materials used as fuels be managed as valuable commodities, including being stored 

for a reasonable time frame. See proposed 241.3(d)(1)(i). Where there is an analogous fuel, the 

secondary material used as a fuel must be managed in a manner consistent with the management 

of the analogous fuel or otherwise be adequately contained so as to prevent releases to the 

environment. Where there is no analogous fuel, the secondary material must be adequately 

contained so as to prevent releases to the environment. An “analogous fuel” is a traditional fuel 

for which the non-hazardous secondary material substitutes and which serves the same function 

and has similar physical and chemical properties as the non-hazardous secondary material. 

 With respect to how long a non-hazardous secondary material can be stored before the 

 

65 We note, however, that non-hazardous secondary materials that satisfy the legitimacy criteria would still be 

considered a solid waste if they were discarded (abandoned, disposed of, or thrown away), unless they were 

processed into legitimate non-waste fuel products. 
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material is not considered to be “managed as a valuable commodity,” we are not specifying a 

specific timeframe, but requiring that the non-hazardous secondary material be stored for a 

reasonable time frame. EPA is not proposing to specifically define “reasonable time frame” 

because such timeframes could vary according to the non-hazardous secondary material and 

industry involved. An approach that is too rigid could stand in the way of recycling material that 

would otherwise be landfilled or abandoned. On the other hand, the Agency also recognizes that 

with this flexibility, also comes the potential for non-hazardous secondary materials to be overaccumulated, which has been demonstrated to be a problem with hazardous secondary materials. 

Thus, we think “reasonable time frame” is flexible enough to allow accumulation to be costeffective, but at the same time, allows for enforcement of over-accumulation. Nevertheless, the 

Agency solicits comment on whether it should define a specific timeframe as part of this 

criterion, such as adopting the speculative accumulation provision (see 40 CFR 261.1(c)(8)) that 

is defined in the hazardous waste regulations for determining how much secondary material 

must be recycled within a specific timeframe before the material is considered to have been 

discarded. 

 We are proposing that this legitimacy factor apply to both the nonhazardous secondary 

materials burned under the generator-controlled exclusion, as well as to materials that have been 

processed into a product fuel. For the generator-controlled provision, the non-hazardous 

secondary material must be managed as a valuable commodity upon generation through its end 

use as a fuel. For non-hazardous secondary materials that are processed to produce a fuel 

product, the processed material must be managed as a valuable product from the point that it is 

first produced through its end use. As noted previously, before the fuel product is produced, the 

non-hazardous secondary materials are solid wastes. 
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This criterion requires that the non-hazardous secondary material be managed 

appropriately before its end use as a fuel. In EPA’s view, a company will value non-hazardous 

secondary materials used as fuels that provide an important contribution and, therefore, will 

manage those secondary materials in a manner consistent with how it manages traditional fuels. 

If, on the other hand, a company does not manage the non-hazardous secondary material as it 

would a traditional fuel, that behavior may indicate that the non-hazardous secondary material is 

being discarded. 

 This factor addresses the management of non-hazardous secondary materials used as 

fuels in two distinct situations. The first situation is when the non-hazardous secondary material 

is analogous to a traditional fuel that otherwise could be burned. In this case, the non-hazardous 

secondary material must be managed prior to use as a fuel similarly to the way traditional fuels 

are managed or otherwise must be adequately contained so as to prevent releases to the 

environment. The second situation the factor addresses is the case where there is no analogous 

traditional fuel that otherwise could be burned. This could be either because the process is 

designed around a particular non-hazardous secondary material fuel, or because physical or 

chemical differences between the secondary material and the traditional fuel are too significant 

for them to be considered “analogous.” 

Non-hazardous secondary materials that have significantly different physical or chemical 

properties when compared to traditional fuels would not be considered analogous even if they 

serve the same function because it may not be appropriate to manage them in the same way. In 

this situation, the non-hazardous secondary material would have to be adequately contained so as 

to prevent releases to the environment for this factor to be met. A non-hazardous secondary 

material is “adequately contained” if it is stored in a manner that adequately prevents hazards to 
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the environment, considering the nature and toxicity of the secondary material. We note that this 

definition of “contained” differs slightly from the description used in the DSW final rule 

preamble, which defined “contained” to mean placing the material in a unit that controls the 

movement of that material out of the unit.66 We believe this slightly revised definition is 

appropriate because of the wide range of non-hazardous secondary materials that are used as 

fuels, some of which may not need to be “contained” in a dedicated storage unit. At the same 

time, some non-hazardous secondary materials may pose different waste management issues than 

hazardous wastes. 

The definition of legitimacy in the DSW final rule required that this factor be considered, 

but not necessarily met. Under that rule, the Agency was aware of situations in which the 

contained factor is not met, but the secondary material is still being managed as a valuable 

commodity. One example given was a hazardous secondary material that is a powder-like 

material that is shipped in a woven super sack and stored in an indoor containment area that has 

an analogous raw material that is shipped and stored in drums. A strict reading of this factor may 

determine that the hazardous secondary material is not being managed in a manner consistent 

with the analogous secondary material even if the differences in management are not actually 

impacting the likelihood of a release. 

 This proposal includes a requirement for analogous raw materials to “...be managed in a 

manner consistent with the analogous fuel or otherwise be adequately contained to prevent 

releases to the environment” (§241.3(d)(1)(i)(B)). This is similar to the DSW final rule 

provision, but is also different in that the requirement in today’s proposal has to be met (not just 

considered) and the proposal’s standard is more flexible than the DSW provision. Thus, today’s 

 

66 See October 30, 2008; 73 FR 64681 
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proposal would require that this factor be met (not optional) because we believe that in all 

situations where the factors in §241.3(d)(1)(i) are not met, the material would be discarded. This 

approach is simpler, but functionally equivalent to the DSW final rule approach. 

Meaningful Heating Value and Use as a Fuel. We are proposing that non-hazardous 

secondary materials have a meaningful heating value and be used as a fuel in a combustion unit 

that recovers energy. See proposed §241.3(d)(1)(ii). We are proposing the requirement for the 

non-hazardous secondary material to be used as a fuel in a combustion unit that recovers energy 

for two reasons. First, we want to be clear that non-hazardous secondary materials having a 

meaningful heating value, but that are not burned in a combustion device specifically for energy 

recovery (e.g., are burned in an incinerator) are solid wastes.67 We recognize that incinerators 

and similar type units may accept non-hazardous secondary materials with a meaningful heating 

value and use that fuel value to limit the other types of fuels it needs to burn. However, the 

intent of an incinerator, and similar type units, is to destroy wastes, and not to recover materials 

or energy recovery. Therefore, non-hazardous secondary materials burned in a device that does 

not recover energy would not be considered to meet the legitimacy criteria and thus, would be 

considered solid wastes. Second, since these provisions are intended to apply only to nonhazardous secondary materials that have a specific end use (in this case, use as a fuel in an 

energy recovery device), we believe it appropriate to highlight that point by adding that 

restriction directly to this legitimacy criteria. 

With respect to the requirement that the non-hazardous secondary material have a 

meaningful heating value, in the context of the hazardous waste regulations, EPA addressed this 

concept—that is, whether a hazardous secondary material has an adequate, meaningful heating 

 

67 We note that incinerators that burn waste for purposes of destruction that have a waste heat recovery boiler would 

not be considered a combustion unit that satisfies this legitimacy criterion. 
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value, in the so-called “comparable fuels” rule (63 FR 33781) by defining it with a benchmark 

Btu content of 5,000 Btu/lb. EPA has also previously stated that industrial furnaces (i.e., cement 

kilns and industrial boilers) burning hazardous wastes with an energy value greater than 5,000 

Btu/lb may generally be said to be burning for energy recovery; however, we have also indicated 

that hazardous wastes with a lower Btu content could conceivably be burned for energy recovery 

due to the devices’ 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). 

We believe these same concepts also apply to determining whether non-hazardous 

secondary materials have a meaningful heating value since traditional fuels have a range of 

heating values in general from 4,000 to 23,000 Btu/lb, and since we recognize that new 

technologies may be developed in the future that can cost-effectively produce energy from 

secondary materials with lower energy content. As a result, for purposes of meeting the 

legitimacy criteria for fuels, we would consider non-hazardous secondary materials with an 

energy value greater than 5,000 Btu/lb, as-fired, to have a meaningful heating value, and satisfy 

this legitimacy criterion. Facilities with energy recovery units that use non-hazardous secondary 

materials as fuels with an energy content lower than 5,000 Btu/lb, as fired, may also be able to 

demonstrate that a meaningful heating value is derived from the non-hazardous secondary 

material if the energy recovery unit can cost-effectively recover meaningful energy from the 

non-hazardous secondary materials used as fuels. Factors that may be important in determining 

whether an energy recovery unit can cost-effectively recover energy from the non-hazardous 

secondary material include, but are not limited to, whether the facility encounters a cost savings 

due to not having to purchase significant amounts of traditional fuels they otherwise would need, 

whether they are purchasing the non-hazardous secondary material to use as a fuel, whether the 
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secondary material they are burning can self-sustain combustion, and whether their operation 

produces energy that is sold for a profit (e.g., a utility boiler that is dedicated to burning a 

specific type of non-hazardous secondary material that is below 5,000 Btu/lb could show that 

their operation produces electricity that is sold for a profit). 

However, the Agency requests comment on whether it should promulgate a bright-line 

test for determining what is considered a meaningful heating value in an effort to provide greater 

certainty to both the regulated community and regulatory officials. For example, the Agency 

could establish 5,000 Btu/lb or some other value as the bright-line test. Commenters that suggest 

that the Agency establish a bright-line test should indicate what value the Agency should select 

and the basis or rationale for selecting that value. We also request comment on whether we 

should attempt to identify a Btu/lb cutoff below which the Agency would assume that the nonhazardous secondary material is burned for destruction as opposed to energy recovery. Under 

this approach, non-hazardous secondary materials between this lower level and 5,000 Btu/lb 

(assuming there is a difference) could pass this criterion provided the facility demonstrates the 

energy recovery unit can cost-effectively recover meaningful energy from the non-hazardous 

secondary materials used as fuels. 

EPA views this proposed legitimacy criterion to encompass the useful contribution and 

valuable product legitimacy factors used to evaluate hazardous secondary materials in the DSW 

final rule. In that rule, with respect to useful contribution, EPA said that legitimate recycling 

must involve a hazardous secondary material that provides a useful contribution to the recycling 

process or to a product of the recycling process. See §260.43(b)(1)). This factor expresses the 

principle that the non-hazardous secondary materials should contribute value to the 

manufacturing process - legitimate use is not occurring if the secondary materials being used do 
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not add anything to the process. This factor is intended to prevent the practice of using secondary 

materials in a manufacturing operation simply as a means of disposing or discarding them. We 

believe that non-hazardous secondary materials that are used as a fuel in a combustion unit that 

have meaningful heating value are providing a useful contribution. 

With respect to the other mandatory legitimacy factor, the DSW final rule stated the 

recycling process must produce a valuable product or intermediate. The product or intermediate 

is valuable if it is (i) sold to a third party or (ii) used by the recycler or the generator as an 

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

process.” See §260.43(b)(2). This factor expresses the principle that the secondary material 

should be a material of value, as demonstrated by someone purchasing the material, or using it as 

an effective substitute for a commercial product that it would otherwise have to buy or obtain for 

its industrial process. We believe non-hazardous secondary materials that have meaningful 

heating value that are used as fuels in combustion units are valuable products since they would 

be replacing traditional fuels that otherwise would have to be burned. 

Contaminant Levels. We are proposing that the non-hazardous secondary materials used 

as fuels in combustion units not contain contaminants that are significantly higher in 

concentration than traditional fuel products. See proposed §241.3(d)(1)(iii). The term 

“contaminants” refers to constituents in non-hazardous secondary materials that may be of 

concern when burned as a fuel, including those contaminants that could generate products of 

incomplete combustion (PICs). 

The assessment of whether non-hazardous secondary materials used as fuels in 

combustion units have contaminants that are significantly higher in concentration than traditional 

fuel products can either be made by a direct comparison of contaminant levels in the fuels 
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themselves (i.e., if the contaminants in the non-hazardous secondary material are generally 

equivalent to or lower than those in traditional fuels, then it would satisfy the criteria), or by 

evaluating the non-hazardous secondary material qualitatively in determining whether such 

secondary materials contain significantly higher concentrations of contaminants that may be a 

concern when burned as a fuel. Under the first option, we request comment on whether the 

contaminant comparisons should be based upon normalizing the contaminant levels on a “per 

Btu” basis. 

EPA continues to believe that a qualitative approach of determining whether nonhazardous secondary materials have significantly higher contaminant levels is appropriate. The 

number of traditional fuels that are in use today, combined with the number of non-hazardous 

secondary materials that are used in their place, would make the development of numerical 

specifications impracticable for combustion technologies and fuels in use today. We also note 

that as fuels and combustion technologies change, the impact that fuels have on emissions could 

also change. That is, even if the Agency could establish a bright-line contaminant cut-off for the 

combustion technologies and fuels in use today (for reference see the criteria in the hazardous 

waste regulations for comparable fuels at 40 CFR 261.38), such numerical bright-line 

contaminant cut-off levels may quickly be outdated for future fuels and combustion 

technologies. However, the Agency solicits comment on this approach, and whether it would be 

more appropriate for the Agency to establish a direct bright-line test with specified levels, 

especially considering the self-implementing nature of the rules, as well as to provide greater 

certainty to the regulated community as to what will be considered a “reasonable timeframe” 

from the Agency’s perspective. Commenters that suggest that the Agency establish numerical 

cut-offs should indicate what the levels should be, and the basis or rationale for such an 
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approach. 

As discussed in the ANPRM, in determining whether the concentration of contaminants 

in non-hazardous secondary materials is “significantly higher,” we believe that a qualitative 

evaluation of the potential human health and environmental risks posed may be appropriate in 

instances where contaminants in such secondary materials are present at slightly higher 

concentrations relative to traditional fuels. A contaminant concentration could be elevated 

without posing an unacceptable risk, and therefore may not be considered “significant” for the 

purposes of determining whether the non-hazardous secondary material is legitimately being 

burned as a fuel in combustion units. Since these requirements are self implementing in nature 

(i.e., they do not need up front approval from the regulatory agency), facilities that elect to 

satisfy this criterion by qualitatively comparing risk levels may decide to keep supporting 

documentation on-site in the event they are inspected by regulatory officials. Such information 

may include an evaluation of the significance of the levels of contaminants in the secondary 

material, taking into consideration several variables, such as the type of secondary material, how 

it is used and by whom, and whether or not elevated contaminant levels impact the use of the 

material. 

 However, the Agency requests comment as to whether the rules should require the 

owner/operator of the combustion unit to keep such documentation, including the basis for 

indicating that the contaminant levels are not “significantly higher” or would not pose an 

unacceptable risk when burned as a fuel. 

We are proposing that this legitimacy criterion addressing contaminant levels in nonhazardous secondary materials used as fuels be one that must be met, as opposed to one that must 

only be considered. The proposed legitimacy criterion for contaminants is tailored specifically to 
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the use of these non-hazardous secondary materials as fuels in combustion units (e.g., 

contaminants refer to constituents that may be of a concern when burned as a fuel). As a result, 

we do not believe there are case-specific situations where these criteria could not be met, but the 

secondary material would still be considered legitimately used as a fuel. We are therefore 

proposing that this legitimacy criterion be met for the secondary material to be considered a 

legitimate fuel. 

b. Legitimacy Criteria for Ingredients. Today’s notice is proposing that non-hazardous 

secondary materials used as ingredients in combustion units meet the legitimacy criteria 

specified in proposed 40 CFR §241.3(d)(2). An ingredient used in a combustion unit must be 

managed as a valuable commodity, provide a useful contribution, be used to produce a valuable 

product or intermediate, and the product must not contain contaminants that are significantly 

higher in concentration than traditional products. These criteria are discussed below. 

 Managed as Valuable Commodities. We are proposing to require that non-hazardous 

secondary materials used as ingredients in combustion units be managed as valuable 

commodities and be stored for a reasonable timeframe. See proposed 241.3(d)(2)(i). Where 

there is an analogous ingredient, the non-hazardous secondary material used as an ingredient 

must be managed in a manner consistent with the management of the analogous ingredient, or 

otherwise be adequately contained so as to prevent releases to the environment. Where there is 

no analogous ingredient, the non-hazardous secondary material must be adequately contained so 

as to prevent releases to the environment. An “analogous ingredient,” is a manufacturing process 

ingredient for which the secondary material substitutes and which serves the same function and 

has similar physical and chemical properties as the non-hazardous secondary material. 

We are proposing the same storage time and containment requirements that were 
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discussed earlier for the legitimacy criteria for fuels, and are also proposing that this criterion be 

met. Consistent with the legitimacy criteria for fuels, this criterion addresses the management of 

non-hazardous secondary materials used as ingredients in two distinct situations. The first 

situation is when the non-hazardous secondary material is analogous to an ingredient that 

otherwise would be used in the production process. In this case, the non-hazardous secondary 

material should be managed prior to use as an ingredient similarly to the way analogous 

ingredients are managed in the course of normal manufacturing, or otherwise be adequately 

contained. 

The second situation this criterion addresses is the case where there is no analogous 

ingredient that otherwise would be used in the production process. This could be either because 

the process is designed around a particular non-hazardous secondary material, or because 

physical or chemical differences between the non-hazardous secondary material and the 

ingredient are too significant for them to be considered “analogous.” See Managed as a 

Valuable Commodity under the legitimacy criteria for fuels for additional discussion of this 

criterion. 

 Useful Contribution. We are proposing that the non-hazardous secondary materials used 

as ingredients in combustion units provide a useful contribution to the production/manufacturing 

process. See proposed 241.3(d)(2)(ii). A non-hazardous secondary material used as an 

ingredient in combustion systems provides a useful contribution if it contributes valuable 

ingredients to the production/manufacturing process or to the product or intermediate of the 

production/manufacturing process. This criterion is an essential element in the determination of 

legitimate use as an ingredient because legitimate use is not occurring if the non-hazardous 

secondary materials being added do not add anything to the process. This criterion is intended to 
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prevent the practice of adding non-hazardous secondary materials to a manufacturing operation 

simply as a means of disposing of them, which EPA would consider sham recycling. 

 The ANPRM listed five ways in which a non-hazardous secondary material can add 

value and usefully contribute to a recycling process: (i) the secondary material contributes 

valuable ingredients to a product or intermediate; or (ii) replaces a catalyst or carrier in the 

recycling process; or (iii) is the source of a valuable constituent recovered in the recycling 

process; or (iv) is recovered or regenerated by the recycling process; or (v) is used as an effective 

substitute for a commercial product. Since today’s proposal addresses non-hazardous secondary 

materials that are used as ingredients in combustion units, we believe that only items (i) and (v) 

are specifically relevant to our assessment of whether these non-hazardous secondary materials 

provide a useful contribution in combustion scenarios. We request comment, however, on 

whether this is accurate, and whether the secondary materials we are assessing as ingredients can 

provide useful contribution in other ways. 

For purposes of satisfying this proposed criterion, not every constituent or component of 

the non-hazardous secondary material has to make a contribution to the 

production/manufacturing activity. That is, non-hazardous secondary materials used as 

ingredients may contain some constituents that are needed in the manufacturing process, such as, 

for example, zinc in non-hazardous secondary materials that are used to produce zinc-containing 

micronutrient fertilizers, and satisfy this criterion (although we would also note that the 

constituents not directly contributing to the manufacturing process could still result in the 

material failing the contaminant part of the legitimacy criteria). 

 Valuable Product. We are proposing that the non-hazardous secondary materials used as 

ingredients in combustion units must be used to produce a valuable product or intermediate. See 
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proposed 241.3(d)(2)(iii). The product or intermediate is valuable if it is (i) sold to a third party 

or (ii) used as an effective substitute for a commercial product or as an ingredient or intermediate 

in an industrial process. 

 This criterion expresses the principle that the product or intermediate of the 

manufacturing/production process should be a material of value, either to a third party who buys 

it from the manufacturer, or to the same manufacturer that subsequently uses it as a substitute for 

another material that it would otherwise have to buy or obtain for its industrial process. This 

criterion is an essential element of the concept of legitimate use of secondary materials as 

ingredients because legitimate use cannot be occurring if the product or intermediate is not of use 

to anyone and, therefore, has no real value. This criterion is intended to prevent the practice of 

running a non-hazardous secondary material through an industrial process to make something 

just for the purpose of avoiding the costs of disposal. Such a practice would be sham recycling. 

 One way that the use of the non-hazardous secondary material as an ingredient in the 

production/manufacturing process that involves a combustion unit can be shown to produce a 

valuable product would be to have documentation on the sale of the product to a third party. 

Such documentation could be in the form of receipts or contracts and agreements that establish 

the terms of the sale or transaction. This transaction could include money changing hands or, in 

other circumstances, may involve trade or barter. A manufacturer that has not yet arranged for 

the sale of its product to a third party could establish value by demonstrating that it can replace 

another product or intermediate that is available in the marketplace. 

 Production/manufacturing processes that use non-hazardous secondary materials as 

ingredients in combustion systems may produce outputs that are not sold to another party, but are 

instead used by the same manufacturer. These products or intermediates may be used as a 
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feedstock in a manufacturing process, but have no established monetary value in the 

marketplace. Such products or intermediates would be considered to have intrinsic value, though 

demonstrating intrinsic value may be less straightforward than demonstrating value for products 

that are sold in the marketplace. Demonstrations of intrinsic value could involve showing that the 

product or intermediate of the production/manufacturing process replaces another material that 

would otherwise have to be purchased or could involve a showing that the non-hazardous 

secondary material meets specific product specifications or specific industry standards. Another 

approach could be to compare the non-hazardous secondary material’s physical and chemical 

properties or efficacy for certain uses with those of comparable products or intermediates made 

from raw materials. 

 Some production/manufacturing processes that use non-hazardous secondary materials as 

ingredients in combustion systems may consist of multiple steps that may occur at separate 

facilities. In some cases, each processing step will yield a valuable product or intermediate. 

When each step in the process yields a valuable product or intermediate that is salable or usable 

in that form, the activity would conform to this criterion. 

Contaminant Levels. We are proposing that the products resulting from the use of nonhazardous secondary materials as ingredients in combustion units must not contain contaminants 

that are significantly higher in concentration than traditional products that are manufactured 

without these non-hazardous secondary material ingredients. See proposed §241.3(d)(2)(iv). 

The term “contaminants” refers to constituents in non-hazardous secondary materials that may be 

of a concern with respect to the product that is produced (e.g., clinker). 

The assessment of whether products produced from the use of non-hazardous secondary 

material ingredients in combustion units that have contaminants that are significantly higher in 
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concentration than the same product that is produced without the use of non-hazardous 

secondary material ingredients (i.e., traditional ingredients) can either be made by a comparison 

of contaminant levels in the ingredients themselves to traditional ingredients they are replacing, 

or by comparing the contaminant levels in the product itself with and without use of the nonhazardous secondary material ingredient. 

In determining whether the concentration of contaminants is “significantly higher,” we 

believe that a qualitative evaluation of the potential human health and environmental risks posed 

could be used in instances where contaminants in the product are present at slightly higher 

concentrations relative to the product that is produced without use of the non-hazardous 

secondary material ingredient. A contaminant concentration could be slightly elevated without 

posing an unacceptable risk, and therefore may not be considered “significant” for purposes of 

determining whether the non-hazardous secondary material is legitimately being used as an 

ingredient in a combustion unit. Since these requirements are self implementing in nature (i.e., 

they do not need up front approval from the regulatory agency), facilities that satisfy this 

criterion by qualitatively comparing risk levels may decide to keep supporting documentation 

on-site in the event they are inspected by regulatory officials. Such information may include 

evaluation of the significance of the levels of contaminants in the ingredient taking into 

consideration several variables, such as the type of ingredient, how it is used and by whom, and 

whether or not elevated contaminant levels impact the use of the ingredient. However, the 

Agency requests comment as to whether the rules should require the owner/operator of the 

combustion unit to keep such documentation, including the basis for indicating that the 

contaminant levels are not “significantly higher” and would not pose an unacceptable risk when 

burned. 
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Similar to fuels, we are proposing that the legitimacy criterion addressing contaminant 

levels in non-hazardous secondary materials used as an ingredient in combustion systems be one 

that must be met, as opposed to one that must only be considered. As we noted in the legitimacy 

criteria for fuels, this criterion is tailored specifically to the use of these non-hazardous 

secondary materials in combustion units, and thus, we do not believe that there are case-specific 

situations where this criterion could not be met, but the material would still be considered 

legitimately used as an ingredient. 

Alternative Approach for Consideration 

In addition to the proposed approach described in Section VII.D., the Agency is 

identifying an alternative approach for consideration and comment. Under this alternative, 

traditional fuels that we have identified earlier, which includes clean biomass, and that have been 

burned historically as fuels and managed as valuable products (as discussed in section VII.C.5.) 

would not be solid wastes. In addition, non-hazardous secondary materials used as fuels or 

ingredients are excluded from the definition of solid waste if they both remain within the control 

of the generator and meet the legitimacy criteria. 

In contrast to the proposed approach described above, all other non-hazardous secondary 

materials that are burned as a fuel or used as an ingredient in the combustion process are solid 

wastes subject to the CAA section 129 standards. Also, all materials that result from processing 

of discarded non-hazardous secondary materials would be solid wastes. As with the proposed 

approach, wastes include those secondary materials used as a fuel or ingredient not passing the 

legitimacy criteria, and those secondary materials used as a fuel that are managed outside the 

control of the generator. This solid waste designation would include materials, such as 

secondary wood products combusted on-site, coal refuse, and tires processed into TDF, and on-
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spec used oil (for the purposes of this alternative approach only), and all secondary materials 

used as ingredients managed outside the control of the generator in combustion units. No 

petition process would be offered under this alternative. 

We request comment on all aspects of this alternative. Comments are specifically 

requested related to the potential impact this alternative may have on traditional non-combustion 

recycling activities and potential changes in the quantity of non-hazardous secondary materials 

that may be landfilled. 

This alternative approach is in response to comments received. Some commenters have 

generally argued that any secondary material combusted for energy recovery is a solid waste and 

must be regulated under CAA section 129. Thus, only traditional fuels and clean biomass may 

be burned under CAA section 112.68 

This alternative approach is also based on the views expressed by commenters that, as 

more non-hazardous secondary materials would be subject to CAA section 129 standards when 

combusted, this option would help promote traditional recycling, while ensuring more stringent 

emissions standards under CAA section 129 for those sources that elect to continue to burn these 

secondary materials. Depending upon local disposal and virgin material costs, increased 

recycling may occur as a result of market adjustments in response to higher materials 

management costs. In addition, the CAA requires that all section 129 standards: 1) be reviewed 

after promulgation to ensure adequate protection69; 2) establish monitoring of actual emissions; 

3) include requirements for operator training and certification; 4) prohibit the operation of 

 

68 While the Agency believes that such an approach raises legal concerns as to definition of discard, as we have 

discussed previously and is further discussed in this section of the preamble, the Agency solicits comment on 

whether the Agency has the authority to regulate all non-hazardous secondary materials that are burned in 

combustion units either as a fuel or ingredient. In providing comments on this approach, we specifically request that 

commenters provide the basis for taking such a position, in light of the existing case law on the issue of “discard.” 69 Section 112 has a periodic review provision as well. 
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sources by people who have not met appropriate training requirements; and 5), establish siting 

requirements for any new facilities. 

EPA believes that an approach in which all secondary materials burned for energy 

recovery or as an ingredient is considered discarded may not be legally acceptable in that it 

provides too broad a definition of solid waste. EPA’s concern is based on case law holding that, 

the RCRA definition of solid waste does not extend to secondary material beneficially reused in 

a continuous industrial process has not been discarded and is not a solid waste. See “AMC I,” 

824 F.2d 1177 at 1190 in which the court stated that the term “discarded materials” could not 

include materials “...destined for beneficial reuse or recycling in a continuous process by the 

generating industry itself. Accord, Association of Battery Recyclers v. EPA, 208 F.3d 1047 

(D.C. Cir. 2000) (“ABR”). The provisions under consideration in AMC I and ABR dealt 

specifically with material “reclaimed” in a continuous process. That is, material is regenerated 

from a secondary material in a continuous process. However, it is highly likely the courts would 

apply this same reasoning to secondary materials that are otherwise reused or recycled in a 

continuous industrial process, such as material used, or combusted, to recover energy or as an 

ingredient. Thus, EPA is hesitant to define all reused or recycled secondary materials as solid 

waste under RCRA. For purposes of this rule, EPA could not make such materials subject to 

Clean Air Act section 129 requirements because CAA section 129 only applies to materials that 

are solid wastes under RCRA. 

EPA’s objective in this alternative approach is to define solid waste at or near the legal 

limits of the term – thereby providing that wastes are as broad a group of materials as the law 

allows, without making the definition too broad. Ideally, this would mean that only secondary 

materials recycled or reused within a continuous industrial process would be excluded from the 
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definition of solid waste. This is different from the proposed approach, in which EPA has 

chosen to exercise its discretion to conclude that certain materials are not wastes even though the 

courts have not expressed any views that the materials are outside of the Agency’s jurisdiction to 

cover as wastes. 

EPA wishes to clarify, however, 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 (11th Cir. 1993); Owen Steel v. Browner, 37 

F.3d 146, 150 (4th Cir. 1994). Wastes may be used beneficially. Even assuming beneficial reuse 

takes place, therefore, a material once discarded cannot cease to be a waste solely by being 

beneficially reused. In the case of this rule, beneficial resuse would be, for example, use as a 

fuel – as opposed to incineration, where the material is combusted primarily to be destroyed. 

It is also important to note that a secondary material could still be a waste even if it is 

recycled on site or under the control of the generator. See “API II,” 216 F.3d at 55-58, where 

the D.C. Circuit overturned EPA’s determination that certain recycled oil bearing wastewaters 

are wastes. The court overturned this decision and remanded it to EPA for a better explanation. 

Importantly for the rule we are considering today, the court neither accepted EPA’s view nor the 

contrary industry view, noting that the relevant determination that had to be made was whether 

primary treatment of wastewater is simply a step in the act of discarding or the last step in a 

production process before discard. 213 F.3d at 57. The court rejected both EPA’s and industry’s 

views because they were only stated in broad generalities. Relevant for today’s alternative 

approach, we note that oil bearing wastewaters discussed in API II were in fact recycled on-site, 

but that the court could not determine whether they were wastes or not. Clearly, the issue was 
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not whether the recycling occurred on site, or even under the control of the generator. Rather, 

the relevant determination is whether the material is discarded or not. 

To remedy the “on-site” problem raised by API II, EPA for this proposed rule also 

requires that for the material not to be a waste it must be a legitimate fuel or ingredient. This 

means, to summarize the legitimacy criteria very generally, if used as a fuel, it is handled as 

though it is a valuable product (loss must be minimal), it is a true fuel with legitimate heating 

value, and the material does not have excessive amounts of contaminants that have no fuel value. 

In particular, if there are excessive contaminants, that would be an indication that the material is 

really a waste and it is being combusted to destroy the waste materials. If the material is used as 

an ingredient, under the proposed rule it must be managed as a valuable commodity, must 

provide a useful contribution to the production or manufacturing process, must be used to 

produce a valuable product or intermediate, and cannot result in products that contain 

contaminants that are significantly higher in concentrations than found in traditional products. 

For details on the legitimacy requirement, see section VII.D.6, above. In fact, as noted below, 

EPA has determined, for purposes of this alternative approach, that [see wood residuals and pulp 

and paper sludge below], even though they are recycled on-site or under the control of the 

generator, they are still considered solid wastes. 

The key point regarding the legal basis of this alternative approach is that EPA is 

accounting for the likelihood that material recycled within a continuous industrial process by 

being burned for energy recovery or as an ingredient is not a solid waste. The alternative 

approach, accordingly, requires that the secondary material material is both recycled under the 

control of the generator and complies with the legitimacy criteria to ensure that it is in fact not 

handled as a waste and is a truly beneficial fuel or ingredient product. An example of a material 
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burned for energy recovery under the control of the generator and meeting the legitimacy 

requirements is on-spec used oil generated on-site and combusted in an industrial boiler. 

Other examples, such as pulp and paper sludge and wood manufacturing residuals burned 

on-site for energy recovery, the Agency may reach a different conclusion. Specifically, 

commenters to the ANPRM indicated that these materials are primarily composed of biomass 

and that emissions from burning these materials are essentially the same as emissions from 

burning other biomass fuels, such as bark or unadulterated wood (see section VII.C.5.). For 

purposes of the primary proposal, EPA has determined that wood residuals and pulp and paper 

sludge are not wastes based on limited contaminant data collected to date and the on-site use of 

the secondary material. However, for this alternative approach, EPA has decided that as a 

matter of policy the Agency wishes to develop as broad a definition of solid waste as is legally 

possible. 

This alternative acknowledges that for some categories of secondary materials, it is 

difficult to determine whether those materials may or may not be discarded. The D.C. Circuit 

has also acknowledged the ambiguity of the term “solid waste” under RCRA as applied to 

particular situations. Specifically, the court stated that “[the] term may be ambiguous as applied 

to some situations, but not as applied to others.” ABR at 1056. Thus, there could be some 

secondary materials that are clearly legitimately recycled within a continuous industrial process 

and others that are less clear. EPA believes that wood residuals and pulp and paper sludges are 

just the kinds of materials that present this kind of ambiguity. 

Pulp and paper sludge are used on-site by generators to fuel their boilers and are treated 

like valuable commodities. However, there appear to be questions with respect to contaminants 

that give EPA pause as to whether they are primarily waste treatment activities involved with 
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these materials - - specifically, levels of chlorine in pulp and paper sludge and formaldehyde in 

wood residuals. 

Accordingly, EPA believes that with respect to contaminant levels the wood residuals 

and pulp and paper sludge present a situation in which reasonable persons can disagree as to 

whether they are discarded materials or not. EPA has decided that it could consider the 

secondary materials to be wastes or non-wastes and wishes to obtain comments and views from 

the public to allow the Agency to make a more definitive decision in the final rule. 

EPA believes that its formulation that secondary material recycled or reused legitimately 

under the control of the generator will cover all, or almost all, secondary material recycled or 

reused in a continuous industrial process. The Agency requests comment on the adequacy of this 

formulation and any data commenters may have indicating particular secondary materials that 

will fall within or without this formulation and whether those materials are discarded or not. 

Comments are specifically requested related to the potential impact this alternative may 

have on traditional non-combustion recycling activities and potential changes in the quantity of 

non-hazardous secondary materials that may be landfilled. In addition, we request comment as 

to whether this alternative approach should include a petition process that provides persons with 

an administrative process for a formal determination that their non-hazardous secondary material 

fuel or ingredient is indistinguishable in all relevant aspects from a fuel or ingredient, and thus is 

not discarded and not a solid waste. 

F. Effect of Today’s Proposal on Other Programs

The construct of this proposed rule for determining when non-hazardous secondary 

materials are legitimately burned as non-waste fuels or ingredients has applicability to the 

universe of facilities subject to CAA sections 112 and 129, as well as other rules and agency 
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regulatory programs. 

1. Clean Air Act

a. CISWI. As discussed in Section IV. the CISWI rule was promulgated in December 

2000 setting forth performance standards and emission guidelines for CISWI Units under CAA 

section 129. After a judicial challenge and voluntary remand of the rule, EPA responded to a 

petition for reconsideration by re-promulgating the definitions of “solid waste,” “commercial or 

industrial solid waste incineration unit,” and “commercial or industrial waste” in the CISWI 

Definitions Rule. The CISWI Definitions Rule was the subject of another judicial challenge 

where the Court observed that the statute unambiguously requires 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.”

As further discussed in Section IV, the CAA section 129 definition of solid waste 

incineration unit also states that the term “solid waste” will have the meaning established by the 

Administrator of EPA under RCRA. Today’s proposed rule establishes under RCRA which nonhazardous secondary materials constitute “solid waste,” and, the established definition has been 

used by EPA in proposing which universe of facilities are subject to the CAA section 129 

requirements. That is, any unit combusting “solid waste” will be regulated as a “solid waste 

incineration unit” under CAA section 129. If a non-hazardous secondary material is not a “solid 

waste” under RCRA and such material is burned as a legitimate fuel or used as a legitimate 

ingredient in a manufacturing process, the combustion unit would be regulated pursuant to CAA 

section 112 (by statute, a source cannot be regulated under both CAA sections 112 and 129). We 

note that in addition to today’s proposed rule, EPA is concurrently proposing air emission 

requirements under section 112 for combustion units that burn non-waste materials (i.e., boilers), 
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as well as air emission requirements under section 129 for other combustion units that burn solid 

waste. 

b. Boiler MACT. On September 13, 2004, the Agency promulgated MACT standards for 

industrial, commercial, and institutional boilers and process heaters (Boilers MACT) as subpart 

DDDDD of 40 CFR part 63 pursuant to CAA section 112(d). As discussed in Section IV., on 

June 8, 2007, the Court of Appeals for the D.C. Circuit issued a decision vacating the rule in its 

entirety and remanding the Boiler MACT, indicating that EPA erred in including units that 

combust solid waste for energy recovery in the Boilers MACT Rule. 

c. Other Solid Waste Incineration Units. On December 16, 2005, EPA promulgated new 

source performance standards and emission guidelines to reduce emissions of air pollutants from 

other solid waste incineration (OSWI) units (70 FR 74870). The final OSWI rules regulate two 

subcategories of incinerators: (1) very small municipal waste combustor (VSMWC) units, and 

(2) institutional waste incineration (IWI) units. The rules establish emission limits for nine air 

pollutants from these two types of incinerators under CAA section 129. 

Based on the ruling by the D.C. Court of Appeals for the D.C. Circuit, the statute 

unambiguously requires 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” EPA is reevaluating whether some of the categories of units for which EPA did not issue 

standards or guidelines in the 2005 rules are, in fact, solid waste incineration units and, as such, 

must be regulated under CAA section 129. Categories of sources potentially affected by the nonhazardous secondary materials being considered under today’s proposed rule and by future 

action regarding the OSWI rules include sewage sludge incineration units, pathological waste 

incinerators (includes animal crematories and units on farms), agricultural residue and animal 
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manure incinerators, and other types of VSMWC units and IWI units that were excluded from 

regulation under the 2005 OSWI rule. 

d. Utility Boilers. Electric Utility Steam Generating Units (EGUs) are located at electric 

power generating stations and may burn both fossil and non-fossil fuels. Fossil fuel-fired EGUs 

are currently covered under CAA section 111 at 40 CFR part 60, subpart Da, whereas non-fossil 

fuel-fired EGUs are covered at 40 CFR part 60 subpart Db. Coal- and oil-fired EGUs will also 

be covered under the CAA section 112 rulemaking under development. EPA is aware that units 

currently covered under 40 CFR part 60, subpart Da, and that will be covered under the CAA 

section 112 rulemaking, while nominally classified as burning “fossil fuel,” also co-fire 

relatively small amounts of a number of non-fossil compounds, some of which are among the 

non-hazardous secondary materials being considered under today’s action. As discussed above, 

if such secondary materials are determined to be solid wastes, the EGUs will be subject to CAA 

section 129 (and continue to be regulated under 40 CFR part 60, subpart Da, as there is no 

statutory restriction against coverage under both CAA sections 111 and 129). Conversely, if the 

fuel is determined to be non-waste secondary materials, the EGUs which combust them would be 

regulated under the CAA section 112 rulemaking. 

2. Renewable Energy 

This proposal may impact how some non-hazardous secondary materials could be used to 

help supply renewable energy to the U.S. and through state programs. Congress has passed 

several laws in the past four years that support the development and use of renewable sources of 

energy, both for power generation and for the production of transportation fuels. Qualified 

sources would include wind, solar, and geothermal power, but could also include power 

generated by the combustion of biogenic materials, which may include some non-hazardous 
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secondary materials burned for energy recovery. Biogenic materials are materials that result 

from the activity of living organisms and a number of non-hazardous secondary materials are 

partially or completely biogenic. 

 The urgency for establishing national legislation mandating the use of renewable energy 

sources comes in part from an increasing international concern over climate change. Releases of 

CO2 from human activity, particularly from power generation and use, are expected to cause or 

contribute to an increase in the global temperature if they are not reduced. Thus, the increased 

use of any source of energy that could result in the reduction of greenhouse gas emissions is 

desirable from a national and international perspective. Some non-hazardous secondary 

materials, such as woody biomass, that contain recoverable energy would be considered biogenic 

in origin. The amount of this energy considered renewable in secondary materials could be set at 

the level of energy in the source that is biogenic in origin. 

Energy from biogenic sources is generally preferable to fossil fuels. It is in the national 

interest, therefore, to assess such regulatory requirements against the urgency of reducing 

greenhouse gas emissions and mitigating the effects of global warming. 

In addition to these federal programs that may be impacted, Renewable Portfolio 

Standards (RPS) currently provide states with a mechanism to increase renewable energy 

generation using renewable energy sources (including biofuels) and a cost-effective, marketbased approach. An RPS requires electric utilities and other retail electric providers to supply a 

specified minimum amount of customer load with electricity from eligible renewable energy 

sources. The goal of an RPS is to stimulate market and technology development so that, 

ultimately, renewable energy will be economically competitive with conventional forms of 

electric power. States create RPS programs because of the energy, environmental, and economic 
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benefits of renewable energy and sometimes other clean energy approaches, such as energy 

efficiency and combined heat and power. Today's proposed rule determining which nonhazardous secondary materials constitute solid waste may impact the requirements for secondary 

materials that may be burned for energy generation under the RPS program. 

3. Subtitle C Hazardous Waste Program

The result of this rulemaking effort will have no affect on the subtitle C Hazardous Waste 

Program. The RCRA subtitle C hazardous waste federal program has a long regulatory history in 

defining ‘‘solid waste’’ for purposes of the hazardous waste regulations. However, the 40 CFR 

261.2 definition of solid waste explicitly applies only to wastes that also are hazardous for 

purposes of the subtitle C regulations (see 40 CFR 261.1(b)(1)). CAA section 129 also 

specifically excludes subtitle C units from coverage under that section. EPA emphasizes that it 

is not modifying or reopening its hazardous waste regulations; EPA does not intend to respond to 

any comments directed to those regulations. 

RCRA section 7003 gives EPA the authority to compel actions to abate conditions that 

may present an “imminent and substantial endangerment” involving both solid and hazardous 

wastes. EPA uses this authority on a case-by-case basis. The Agency can determine in a specific 

factual context whether a secondary material which causes an endangerment is discarded. RCRA 

Sections 3007 and 3008 establish EPA’s inspection and Federal enforcement authority to address 

violations of the Subtitle C hazardous waste regulations. Nothing in this proposed rule shall 

impact EPA’s ability to act pursuant to RCRA sections 3007, 3008 and 7003. The proposed rule 

also does not limit or otherwise affect EPA's ability to pursue potentially responsible persons 

under section 107 of CERCLA for releases or threatened releases of hazardous substances. 

VIII. State Authority 
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Subtitle D of RCRA establishes a framework for state, federal, and local government 

cooperation in controlling the management of non-hazardous solid waste. The federal role in 

this arrangement is to establish the overall regulatory direction, by providing minimum 

nationwide standards for protecting human health and the environment, and to provide technical 

assistance to states for planning and developing their own solid waste management practices. 

The actual planning and direct implementation of solid waste programs under RCRA subtitle D, 

however, remains largely a state and local function, and states have authority to devise programs 

to deal with state specific conditions and needs. 

EPA has not promulgated detailed regulations of what is included in the definition of 

solid waste for the RCRA subtitle D (non-hazardous) programs. States have promulgated their 

own laws and regulations as to what constitutes solid waste and have interpreted those laws and 

regulations to determine what types of non-hazardous secondary material activities involve the 

management of a solid waste. Many states have a process or promulgated regulations to 

determine when these materials are wastes, and when they can be used beneficially and safely in 

products in commerce. 

Through this rulemaking, EPA is articulating the narrow definition of which nonhazardous secondary materials are or are not solid waste when used as fuel for energy recovery 

or as ingredients in combustion units. We are not making solid waste determinations that cover 

other possible secondary material end uses. 

A. Applicability of State Solid Waste Definitions and Beneficial Use Determinations

CAA Section 129 states that the term ‘‘solid waste’’ shall have the meaning ‘‘established 

by the Administrator pursuant to the Solid Waste Disposal Act’’ Id. at 7429(g)(6). Accordingly, 

the state’s definitions of solid waste would not be applicable in determining whether the section 
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129 standards apply. Specifically, state determinations regarding a material’s beneficial use that 

may exempt that non-hazardous secondary material from the state solid waste standards would 

not necessarily impact the status of that secondary material under EPA’s solid waste definition as 

it relates to which combustion units are subject to the CAA section 129 standards, except perhaps 

as discussed in section VII.D.5, where we discuss a state’s ability to submit, on behalf of the 

petitioner, a petition for EPA to evaluate under the proposed non-waste determination criteria.70 

Likewise, non-hazardous secondary materials that are exempted from being a solid waste by 

EPA’s proposed rule, if finalized, would be exempt from the CAA section 129 standards, even 

though the state standards may define the non-hazardous secondary material as a solid waste. 

The language in CAA section 129, however, may be interpreted to provide the 

Administrator with flexibility in determining the meaning of solid waste under that section. 

EPA is requesting comment on an option where, to determine applicability of the CAA section 

129 requirements, the Agency would rely on a determination through a state’s beneficial use 

program that certain secondary materials are or are not solid waste. Such state programs are 

meant to encourage the use of non-hazardous secondary materials, provided that the uses 

maintain the specified state’s acceptable level of risk, protect human health and the environment, 

and are managed in accordance with the conditions of the determination. Generally, for 

secondary materials to be beneficially used and thus no longer a solid waste, it would have 

chemical and physical properties similar to the raw material it is replacing or, when incorporated 

into another product, its use would be beneficial to the final product. Relying on these 

beneficial use determinations would recognize state interests in defining solid waste in the 

 

70 If EPA determines through the petition process that the secondary materials in the state determinations are not 

solid waste per 40 CFR 241.3(c), then the units that burn such materials would not be subject to the CAA section 

129 requirements. 
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context of their own solid waste program, as well as help to mitigate potential inconsistencies 

between federal and state solid waste determinations. 

Consideration of this option, however, where the Agency could rely on determinations by 

a state's beneficial use program in deciding whether certain materials are solid wastes when used 

as fuels or ingredients in combustion units, must take into account the current legal rationale for 

defining solid waste under EPA authority. Specifically, the courts have held that a secondary 

material that has been discarded is a solid waste regardless of whether it may be reused at some 

time in the future and simply because a waste has, or may have, beneficial value does not mean 

the secondary material loses its status as a solid waste. 

See the ANPRM for this rulemaking for the complete discussion of case law pertaining to 

the solid waste definition (74 FR 51). 

B. State Adoption of the Rulemaking 

 No federal approval procedures for state adoption of today's proposed rule are included in 

today’s proposal under RCRA subtitle D. Although EPA does promulgate criteria for solid 

waste landfills and approves state municipal solid waste landfill permitting programs, RCRA 

does not provide EPA any additional authority to approve state programs beyond municipal solid 

waste. While states are not required to adopt today’s rule, some states incorporate federal 

regulations by reference or have specific state statutory requirements that their state program can 

be no more stringent than the federal regulations. In those cases, EPA anticipates that the 

changes in today’s rule will be adopted by these states, consistent with state laws and state 

administrative procedures.

IX. Costs and Benefits of the Proposed Rule 

 The value of any regulatory action is traditionally measured by the net change in social 
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welfare that it generates. This action alone does not directly invoke any costs71 or benefits. This 

proposal is being developed and published in conjunction with the upcoming Boiler MACT and 

CISWI proposed rules72. Costs to the regulated community and corresponding benefits to human 

health and the environment fall under the jurisdiction of these rules. As such, the Agency has 

not prepared a separate economic assessment in support of this proposal. The costs and benefits 

indirectly associated with this action are the corresponding impacts assessed in the regulatory 

impact analyses prepared in support of the CAA proposed rules. These independent regulatory 

impact analyses measure, among other factors, the estimated net change in social welfare 

associated with these actions. In the development of these analyses, EPA worked to ensure that 

the methodologies and data applied in these assessments captured appropriate RCRA related 

costs (e.g., secondary material diversions). These assessments were designed to adhere to

Agency and the Office of Management and Budget (OMB) guidelines and procedures. The 

Agency has also prepared a general executive summary document that addresses overall impacts 

of this rulemaking package. These documents are available in the docket established for today’s 

action. The reader is encouraged to review and comment on all aspects of these documents. 

X. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory Planning and Review 

 Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), this action is a 

"significant regulatory action.” Pursuant to the terms of Executive Order 12866, the Agency, in 

conjunction with the Office of Management and Budget (OMB) has determined that this 

 

71 Excluding minor administrative burden /cost (e.g. rule familiarization) and management, voluntary petition costs. 72 National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and 

Institutional Boilers; National Emission Standards for Hazardous Air Pollutants for 

Industrial/Commercial/Institutional Boilers and Process Heaters; and, Standards of Performance for New Stationary 

Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration 

(CISWI) Units. 
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proposed rule is a significant regulatory action because it contains novel policy issues, as defined 

under part 3(f)(4) of the Order. Accordingly, EPA submitted this action to OMB for review 

under EO 12866. Any changes made in response to OMB recommendations have been 

documented in the docket for this action. 

B. Paperwork Reduction Act 

 The information collection requirements in this proposed rule have been submitted for 

approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act, 

44 U.S.C. 3501 et seq. The Information Collection Request (ICR) document prepared by EPA 

has been assigned EPA ICR number 2382.01. 

 This proposal establishes a voluntary non-waste determination petition process for 

materials identified as solid wastes. Facilities claiming this non-hazardous solid waste exclusion 

are required to seek approval from the Agency through the submission of a petition prior to 

operating under this exclusion. Sufficient information about the secondary material and the 

market demand for this material will be necessary to demonstrate that the non-hazardous 

secondary material will in fact be used as a fuel or ingredient in the combustion process. 

Specifically, the petition will need to contain information to assess the following criteria: (1) 

whether market participants handle the non-hazardous secondary material as a fuel rather than a 

waste; (2) whether the chemical and physical identify of the non-hazardous secondary material is 

comparable to a commercial fuel; (3) whether the capacity of the market would use the nonhazardous secondary material in a reasonable timeframe; (4) whether the constituents in the nonhazardous secondary material are not discarded to the air, water or land from the point of 

generation through combustion of the secondary material at significantly higher levels from 

either a statistical or from a health and environmental risk perspective than would otherwise be 
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released; and (5) other relevant factors. 

 The facility-level burden associated with this voluntary petition option is uncertain. 

However, we estimate an average total one-time burden of approximately 700 hours per facility, 

with a total cost per facility of approximately $71,400. The total number of facilities likely to 

take advantage of this option is undetermined, but we would expect that only a limited number of 

facilities may submit such a petition. The Agency requests comment on the number of petitions 

that are likely to be submitted to EPA for consideration. Burden is defined at 5 CFR 1320.3(b). 

An agency may not conduct or sponsor, and a person is not required to respond to a 

collection of information unless it displays a currently valid OMB control number. The OMB 

control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9. 

 To comment on the Agency's need for this information, the accuracy of the provided 

burden estimates, and any suggested methods for minimizing respondent burden, EPA has 

established a public docket for this rule, which includes this ICR, under Docket ID number EPAHQ-RCRA-2008-0329. Submit any comments related to the ICR to EPA and OMB. See the 

ADDRESSES section at the beginning of this notice for where to submit comments to EPA. 

Send comments to OMB at the Office of Information and Regulatory Affairs, Office of 

Management and Budget, 725 17th Street, NW, Washington, DC 20503, Attention: Desk Office 

for EPA. Since OMB is required to make a decision concerning the ICR between 30 and 60 days 

after [Insert date of publication in the Federal Register.], a comment to OMB is best assured 

of having its full effect if OMB receives it by [Insert date 30 days after publication in the 

Federal Register.]. The final rule will respond to any OMB or public comments on the 

information collection requirements contained in this proposal. 

C. Regulatory Flexibility Act 
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 The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a 

regulatory flexibility analysis of any rule subject to notice and comment rulemaking 

requirements under the Administrative Procedure Act or any other statute unless the agency 

certifies that the rule will not have a significant economic impact on a substantial number of 

small entities. Small entities include small businesses, small organizations, and small 

governmental jurisdictions. 

For purposes of assessing the impacts of today's rule on small entities, small entity is 

defined as: (1) a small business, as defined by the Small Business Administration’s (SBA) 

regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a 

city, county, town, school district or special district with a population of less than 50,000; and (3) 

a small organization that is any not-for-profit enterprise which is independently owned and 

operated and is not dominant in its field. 

 After considering the economic impacts of today’s proposed rule on small entities, I 

certify that this action will not have a significant economic impact on a substantial number of 

small entities. No small entities are directly regulated by this proposed rule (see discussion 

above under costs and benefits). Small entities potentially affected indirectly by this action 

include: major source industrial, commercial, and institutional boilers and process heaters, area 

source industrial, commercial, and institutional boilers and commercial and industrial solid waste 

incineration units. We estimate that these units operate in approximately 50 different industry 

categories based on the NAICS three digit sector code level. These sectors include: crop 

production; forestry and logging; support activities for agriculture and forestry; oil and gas 

extraction; mining (except oil and gas); utilities; heavy and civil engineering construction; food 

manufacturing; beverage and tobacco product manufacturing; textile mills and textile product 
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mills; wood product manufacturing; paper manufacturing; petroleum and coal products 

manufacturing; chemical manufacturing; plastics and rubber products manufacturing; 

nonmetallic mineral product manufacturing; primary metal manufacturing; fabricated metal 

product manufacturing; machinery manufacturing; computer and electronic product 

manufacturing; transportation equipment manufacturing; furniture and related product 

manufacturing; merchant wholesalers; motor vehicle and parts dealers; air, rail, and pipeline 

transportation; warehousing and storage; waste management and remediation services; 

educational services; hospitals; accommodation; repair and maintenance; and public 

administration. Any potential impacts to small entities under these and any other potentially 

affected sectors are addressed in the regulatory flexibility analysis prepared in support of the 

CAA proposed rules that are linked to this action.73 

 We have determined that, because no small entities are directly impacted by this 

proposed action, there will not be a significant economic impact on a substantial number of small 

entities. This determination is based on the findings, as discussed above. 

 Although this proposed rule will not have a significant economic impact on a substantial 

number of small entities, EPA nonetheless has tried to reduce the (indirect) impact of this rule on 

small entities through the careful and targeted identification of solid waste materials. We 

continue to be interested in the potential impacts of the proposed rule on small entities and 

welcome comments on issues related to such impacts. 

 

73 National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and 

Institutional Boilers; National Emission Standards for Hazardous Air Pollutants for 

Industrial/Commercial/Institutional Boilers and Process Heaters; and, Standards of Performance for New Stationary 

Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration 

(CISWI) Units. 
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D. Unfunded Mandates Reform Act

 This proposed rule does not contain a Federal mandate that may result in expenditures of 

$100 million or more for State, local, and tribal governments, in the aggregate, or the private sector 

in any one year. Because this action is linked to the CAA rules (see footnote under section C), this 

rule alone will not result in significant economic impacts on States, local and tribal governments, 

in the aggregate, or the private sector in any one year. Thus, this rule is not subject to the 

requirements of sections 202 or 205 of UMRA. 

 This proposed rule is also not subject to the requirements of section 203 of UMRA because it 

contains no regulatory requirements that might significantly or uniquely affect small governments. 

As described above, this action alone does not result in unique effects, or significant economic 

impacts.

E. Executive Order 13132: Federalism 

 This action does not have federalism implications. It will not have substantial direct 

effects on the States, on the relationship between the national government and the States, or on 

the distribution of power and responsibilities among the various levels of government, as 

specified in Executive Order 13132. This action, independent of the CAA rules, as proposed 

(see footnote 81), will not result in substantial direct effects on the states. Furthermore, this 

action will not preempt state laws related to the affected materials. States will remain free to 

manage these materials as appropriate under their Subtitle D programs. Thus, Executive Order 

13132 does not apply to this action. 

 Although we believe that this action, as proposed, will not result in substantial direct 

effects on the states, we are sensitive to the perceptions States may have of this action in regard 

to their solid waste management programs. On January 2, 2009 we published an ANPRM 
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(Identification of Non-Hazardous Materials That Are Solid Waste) that presented the Agency’s 

anticipated approach for this action. We received numerous comments on this ANPRM, many of 

which came from States. Furthermore, we have reached out to the States with various 

informational conference calls throughout the development of this proposal. . 

 In the spirit of Executive Order 13132, and consistent with EPA policy to promote 

communications between EPA and State and local governments, EPA specifically solicits 

comment on this proposed action from State and local officials. 

F. Executive Order 13175: Consultation and Coordination with Indian Tribal 

Governments 

Subject to the Executive Order 13175 (65 FR 67249, November 9, 2000) EPA may not 

issue a regulation that has tribal implications, that imposes substantial direct compliance costs, 

and that is not required by statute, unless the Federal government provides the funds necessary to 

pay the direct compliance costs incurred by tribal governments, or EPA consults with tribal 

officials early in the process of developing the proposed regulation and develops a tribal 

summary impact statement. 

EPA has concluded that this action may have tribal implications. However, it will neither 

impose substantial direct compliance costs on tribal governments, nor preempt Tribal law. The 

proposed rule may have minor tribal implications to the extent that entities generating or burning 

solid wastes on tribal lands could be affected. 

EPA consulted with tribal officials early in the process of developing this regulation to 

permit them to have meaningful and timely input into its development. EPA specifically solicits 

additional comment on this proposed action from tribal officials. 

G. Executive Order 13045: Protection of Children from Environmental Health and Safety 
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Risks 

 This action is not subject to EO 13045 (62 FR 19885, April 23, 1997) because it 

is not economically significant as defined in EO 12866, and because the Agency does not 

believe the environmental health or safety risks addressed by this action present a 

disproportionate risk to children. This action’s health and risk assessments related to this 

action are contained in the support documents prepared for the CAA section 129 CISWI 

and section 112 boiler MACT proposed rules. 

H. Executive Order 13211: Actions that Significantly Affect Energy Supply, Distribution 

or Usage 

 This action is not a “significant energy action” as defined in Executive Order 13211 (66 

FR 28355 (May 22, 2001)), because it is not likely to have a significant adverse effect on the 

supply, distribution, or use of energy. This action, independent of the CAA rules, as proposed, is 

not expected to directly affect energy use or use patterns. Energy impacts resulting for the CAA 

(see rule identification in footnote 72) application of this action are assessed and discussed in the 

preambles and supporting materials for those rules. 

I. National Technology Transfer Advancement Act 

 Section 12(d) of the National Technology Transfer and Advancement Act of 1995 

(“NTTAA”), Public Law No. 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary 

consensus standards in its regulatory activities unless to do so would be inconsistent with 

applicable law or otherwise impractical. Voluntary consensus standards are technical standards 

(e.g., materials specifications, test methods, sampling procedures, and business practices) that are 

developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide 
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Congress, through OMB, explanations when the Agency decides not to use available and 

applicable voluntary consensus standards. 

This proposed rulemaking does not involve technical standards. Therefore, EPA is not 

considering the use of any voluntary consensus standards. 

J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority 

Populations and Low-Income Populations 

Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive 

policy on environmental justice. Its main provision directs federal agencies, to the greatest 

extent practicable and permitted by law, to make environmental justice part of their mission by 

identifying and addressing, as appropriate, disproportionately high and adverse human health or 

environmental effects of their programs, policies, and activities on minority populations and lowincome populations in the United States. 

EPA is evaluating the question of whether this proposed rule will or will not have 

disproportionately high and adverse human health or environmental effects on minority or lowincome populations. We have completed preliminary environmental justice analyses in 

conjunction with the Boiler MACT and CISWI proposed rules (see section IV.A.). Refer to 

those proposed rules and the supporting materials in their dockets for details on those 

environmental justice analyses (Docket # to be determined.). An overview statement of the 

environmental justice analyses for both this proposal and the Boiler MACT and CISWI proposed 

rules, will be also available in the docket for today’s rule ( (Docket ID No: EPA-HQ-RCRA2008-0329-[ # to be determined]). 

EPA is committed to addressing environmental justice concerns and has assumed a 

leadership role in environmental justice initiatives to enhance environmental quality for all 
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citizens of the United States. The Agency’s goals are to ensure that no segment of the population, 

regardless of race, color, national origin, income, or net worth bears disproportionately high and 

adverse human health and environmental impacts as a result of EPA’s policies, programs, and 

activities. Our goal is to ensure that all citizens live in clean and sustainable communities. In 

response to Executive Order 12898, and to the concerns voiced by many groups outside the 

Agency, EPA’s Office of Solid Waste and Emergency Response (OSWER) formed an 

Environmental Justice Task Force to analyze the array of environmental justice issues specific to 

waste programs and to develop an overall strategy to identify and address these issues (OSWER 

Directive No. 9200.3–17). 

The Environmental Justice analysis in today’s proposal includes two main parts: 1) 

demographic analysis and environmental impacts; and 2) outreach. 

Demographics Analysis and Environmental Impacts. 

 For this proposal, the demographic analysis focuses on the management of secondary 

materials that have been proposed to be solid waste under this proposed rule (versus the 

emissions from the combustion of the non-hazardous secondary materials which will be covered 

in the Boiler MACT and CISWI proposed rules). Specifically, the analysis focuses on the 

populations around the facilities accepting non-hazardous secondary materials that under the 

proposal would be considered to be solid waste. These wastes would be diverted from units 

previously combusting materials in accordance with the CAA section 112 standards for nonwastes according to today’s proposed rulemaking. The analysis includes a demographic 

evaluation (focusing on the presence of low-income and minority populations) and possible 

impacts associated with solid waste being sent to municipal waste combustors and landfills 

(which are projected to receive the majority of the diverted materials as assessed by the impacts 
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of the CISWI and Boiler MACT proposed rules using the least cost approach). The analysis also 

covers additional diversion implications. The assessment includes impacts on the abatement of 

scrap tire piles, stockpiling of secondary materials, and the disposal of used oil not in compliance 

with applicable standards. 

The impacts of the new proposed emissions standards are included in the Boiler MACT 

and CISWI proposed rules. The analysis in those proposals includes the following efforts: 

identification of sources, identification of demographic characteristics near sources, evaluation of 

area wide air quality, estimation of Boiler MACT/CISWI emission reductions of HAPs from the 

proposed standards and work practices. 

Outreach.

The outreach aspect of the environmental justice analysis will help stakeholders 

participate in the rulemaking process and build a dialog during the comment period for the 

proposed rule. The first step in the outreach process took place at the EPA Community 

Engagement in Rulemaking Roundtable Discussion in New Orleans, LA on January 28, 2010. 

This discussion was held concurrently with the National Environmental Justice Advisory 

Council public meeting. At the roundtable meeting, the basics of the advanced notice of 

proposed rulemaking were discussed, including how it interacts with EPA’s upcoming CAA 

section 112 and section 129 rulemakings, and provided an educational forum to bring together 

EPA technical experts, community leaders, nonprofit groups, and others to discuss key themes of 

the proposed rulemaking. Based on the results of the roundtable meeting, the Agency developed 

an approach for public participation and outreach during the comment period for the proposal 

(including planned forums to discuss the proposed rules and/or learn more about environmental 

impacts of the rule). The activities associated with the outreach are posted at 
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http://www.epa.gov/waste/nonhaz/definition.htm.

List of Subjects

40 CFR Part 241 

Air pollution control, waste treatment and disposal 

Dated: 

_____________________________________________ 

Lisa P. Jackson, 

Administrator. 

For the reasons stated in the preamble, title 40, chapter I of the Code of Federal 

Regulations, is proposed to be amended as follows: 

1. The authority citation for part 241 reads as follows: 

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

2. Part 241 is added as follows: 

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

 

SUBPART A -- General 

Sec. 

241.1 Purpose 

241.2 Definitions 

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

When Used as Fuels or Ingredients In Combustion Units 

Sec. 

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

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

SUBPART A -- General 

241.1 Purpose 

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

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

and Recovery Act and section 129 of the Clean Air Act. 

241.2 Definitions 

 For the purposes of this subpart: 

Contaminants means constituents in non-hazardous secondary materials that may be of human 

health or environmental concern when burned as a fuel or used as an ingredient, including those 

contaminants that could generate products of incomplete combustion (PICs). 
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Contained means the non-hazardous secondary material is stored in a manner that both 

adequately prevents releases or other hazards to human health and the environment considering 

the nature and toxicity of the material. 

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

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

person as defined in this section shall not be deemed to ‘‘control’’ such facilities. 

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

non-hazardous secondary material generator owner /operator. 

Intermediate product means a finished product traded usually among producers or suppliers 

rather than end users. 

Non-hazardous secondary material means a secondary material that, when discarded, would not 

be identified as a hazardous waste under part 261 of this chapter. 

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

[including government corporation], partnership, association, State, municipality, commission, 

political subdivision of a state, or any interstate body. 

 Processing means any operations that transform discarded non-hazardous secondary material 
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into a new fuel or new ingredient product. Minimal operations, such as operations that result 

only in modifying the size of the material by shredding, do not constitute processing for purposes 

of this definition. Processing includes, but is not limited to, operations that: remove or destroy 

contaminants; significantly improve the fuel characteristics of the material, e.g., sizing or drying 

the material in combination with other operations; chemically improve the as-fired energy 

content; and improve the ingredient characteristics. 

 

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

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

chemical products or manufacturing chemical intermediates, post-industrial material, and scrap. 

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

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

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

burned in combustion units at different facilities, if the facility combusting the material is 

controlled by the generator; or if both the generating facility and the facility combusting the 

material are under control of the same person as defined in §241.2. 

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

Wastes When Used as Fuels or Ingredients in Combustion Units 

§241.3 Standards and Procedures for Identification of Non-Hazardous Secondary 
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Materials that are Solid Wastes When Used as Fuels or Ingredients in Combustion Units. 

 (a) Except as provided in paragraph (b) of this section, non-hazardous secondary 

materials that are combusted are solid wastes, unless a petition is submitted to, and a 

determination granted by, the Regional Administrator pursuant to paragraph (c) of this section. 

The criteria to be addressed in the petition, as well as the process for making the non-waste 

determination, are specified in paragraph (c) of this section. 

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

combusted: 

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

within the control of the generator (as defined in 241.2) and that meets the legitimacy criteria 

specified in paragraph (d)(1) of this section. 

 (2) Non-hazardous secondary materials used as an ingredient in a combustion unit and 

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

 (3) Fuel or ingredient products that have undergone processing (as defined in 241.2) 

from discarded non-hazardous secondary materials and that are used as fuels or ingredients in a 

combustion unit, and that meet the legitimacy criteria specified in paragraph (d)(1), with respect 

to fuels, and paragraph (d)(2), with respect to ingredients, of this section. 

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

secondary material used as a fuel is not discarded and therefore not a solid waste when 

combusted. The criteria and process for making such non-waste determinations includes the 

following: 

(1) Submittal of an application to the Regional Administrator for the EPA Region where 
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the facility combusting the non-hazardous secondary material is located by an applicant for a 

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

third party, has not been discarded and is indistinguishable in all relevant aspects from a product 

fuel. The determination will be based on whether the non-hazardous secondary material has 

been discarded, is a legitimate fuel as specified in paragraph (d)(1) and on the following criteria: 

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

rather than a solid waste; 

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

is comparable to commercial fuels; 

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

frame given the state of the market; 

(iv) Whether the constituents in the non-hazardous secondary material are not released to 

the air, water or land from the point of generation to the combustion of the secondary 

material at significantly higher levels from either a statistical or from a health and 

environmental risk perspective than would otherwise be released; and 

(v) Other relevant factors. 

(2) The Regional Administrator will evaluate the application based on the following 

procedures: 

(i) The applicant must apply to the Regional Administrator for the non-waste 

determination addressing the relevant criteria in paragraphs (c)(1)(i) - (v) of this section. 

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

tentatively granting or denying the application. Notification of this tentative decision will be 

published in a newspaper advertisement or radio broadcast in the locality where the facility 
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combusting the non-hazardous secondary material is located. 

(iii) The Regional Administrator will accept comment on the tentative decision for at 

least 30 days, and may also hold a public hearing upon request or at his discretion. The 

Regional Administrator will issue a final decision after receipt of comments and after the hearing 

(if any). 

(iv) If a change occurs that affects how a non-hazardous secondary material meets the 

relevant criteria contained in paragraphs (1) (i)-(v) of this section after a formal non-waste 

determination has been granted, the owner or operator must re-apply to the Regional 

Administrator for a formal determination that the non-hazardous secondary material continues to 

meet the relevant criteria and is not discarded and is thus not a solid waste. 

(d) As specified in paragraphs (b)(1), (b)(2), and (b)(3), non-hazardous secondary 

materials used as a fuel in a combustion unit that recovers energy and that remains within the 

control of the generator, non-hazardous secondary materials used as an ingredient in a 

combustion unit, and fuel or ingredient products that are processed from discarded nonhazardous secondary materials that are used as fuels or ingredients in a combustion unit, must 

meet the following appropriate legitimacy criteria. 

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

combustion units include the following: 

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

based on the following factors: 

(A) The storage of the non-hazardous secondary material prior to use must not exceed 

 reasonable time frames; 

(B) Where there is an analogous fuel, the non-hazardous secondary material must be 
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managed in a manner consistent with the analogous fuel or otherwise be adequately contained to 

prevent releases to the environment; 

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

adequately contained so as to prevent releases to the environment; 

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

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

(iii) The non-hazardous secondary material cannot contain contaminants that are 

significantly higher in concentration than traditional fuel products. 

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

combustion units include the following: 

(i) The non-hazardous secondary material used as an ingredient must be managed as a 

valuable commodity based on the following factors: 

(A) The storage of the non-hazardous secondary material prior to use must not exceed 

reasonable time frames; 

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

be managed in a manner consistent with the analogous ingredient or otherwise be adequately 

contained to prevent releases to the environment; 

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

adequately contained to prevent releases to the environment; 

(ii) The non-hazardous secondary material used as an ingredient must provide a useful 

contribution to the production or manufacturing process. The secondary material provides a 

useful contribution if it contributes a valuable ingredient to the product or intermediate or is an 

effective substitute for a commercial product. 
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 (iii) The non-hazardous secondary material used as an ingredient must be used to 

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

(A) The material is sold to a third party, or 

(B) The material is used as an effective substitute for a commercial product or as an 

ingredient or intermediate in an industrial process. 

(iv) The non-hazardous secondary material used as an ingredient cannot result in 

products that contain contaminants that are significantly higher in concentration than found in 

traditional products that are manufactured without the non-hazardous secondary material 

ingredients it is replacing.