draft/deliberative – do not distribute, cite or quote

1 ENVIRONMENTAL PR OTECTION AGENCY 40 CFR Part 241 [EPA-HQ-RCRA-2008-0329; FRL _XXXX-X ] RIN 2050-AG44 Identification of Non-Hazardous Seconda ry 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 Propos ed 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 C onservation and Recovery Act (RCRA). The meaning of “solid waste” as defined under RCR A is of particular importance since it will determine whether a combustion un it is required to meet emissions standards for solid waste incineration units issued under se ction 129 of the Clean Air Act (CAA) or emissions standards for commercial, industrial, and institutional boilers i ssued under CAA section 112. CAA section 129 states that the term “solid waste” shall ha ve 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 whethe r non-hazardous secondary material s burned as fuels or used as ingredients in combustion units are solid wast e. EPA is also pr oposing that non-hazardous secondary materials that have been discarded, and are therefore solid wastes, may be rendered products after they have been processed (alter ed chemically or physically) into a fuel or ingredient product. This proposed rule is necessary to identify units for the purpose ofdraft/deliberative – do not distribute, cite or quote

2 developing certain standards under s ections 112 and 129 of the CAA. I n addition to today’s proposed rule, EPA is concurrently proposing air emission requirements under CAA section 112 for industrial, commercial, and institutional boi lers and process, as well as air emission requirements under CAA section 129 for commerci al and industrial so lid 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 ar e best assured of having full effect if the Office of Management and Budget (OMB) recei ves a copy of your comments on or before [INSERT DATE 30 DAYS AFTER PUBLIC ATION 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 w ithout going through EP A's electronic public docket, EPA's e-mail system automatically captures your e-mail address. E-mail addresses that are automatically captured by EP A'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.draft/deliberative – do not distribute, cite or quote

3 • Mail: Proposed Rulemaking - Identification of Non-Hazardous Secondary Materials That Are Solid Waste, Environmental Pr otection 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 comment s on the information collection provisions to the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Attn: Desk Officer for EP A, 725 17th St. NW., Washington, DC 20503.

• Hand Delivery: Deliver two copies of your comments to Proposed Rulemaking - Identification of Non-Hazardous Secondary Ma terials That Are Solid Waste, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., N.W., Wash ington, D.C. 20460. Attention Docket ID No. EPA-HQ-RCRA-2008- 0329. Such deliveries are only accepted during the Docket’s normal hours of operati on 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 in cluded 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 informa tion claimed to be Confidential Business Information (CBI) or other information whose disc losure 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 inform ation 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 automatica lly captured and included as part of the comment that is placed in the public doc ket and made available on the Internet. If youdraft/deliberative – do not distribute, cite or quote

4 submit an electronic comment, EPA recommends th at 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 a void the use of special characters, any form of encryption, and be free of any defects or viru ses. For additional information about EPA’s public docket, vi sit 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 informa tion they previously submitted to EPA to be considered as part of this ac tion, to identify the relevant in formation 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 pub licly 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. P ublicly 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., M onday through Friday, excluding legal holidays. The telephone number for the Public Readi ng 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 Re source Conservation and Recovery, 5303P, Environmental Protection Agency, Ariel Rios Building, 1200 Pe nnsylvania Avenue, N.W.,draft/deliberative – do not distribute, cite or quote

5 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 & 111,112,115draft/deliberative – do not distribute, cite or quote

6 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 exhaustiv e, but rather provides a guide for readers regarding entities likely to be impacted by this ac tion. This table lists examples of the types of entities of which EPA is aware th at could potentially be affected by this action. Other types ofdraft/deliberative – do not distribute, cite or quote

7 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 crit eria in this rule. If you have any questions re garding 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 th e 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 additi on 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 Regist er 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 Regulati ons (CFR) part or section number.

• Explain why you agree or disagree, suggest alternatives, and substitute language for your requested changes.draft/deliberative – do not distribute, cite or quote

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

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

• Provide specific examples to illustrate your concerns, and su ggest 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 a llowed 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 se nd a check will be i ssued to the patron. Documents also are available on microfilm. Th e EPA/DC staff assist patrons locate the needed documents and operate the microfilm ma chines. 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 sta ff 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, CISW I Definitions, and Boiler Rulemakings?draft/deliberative – do not distribute, cite or quote

9 B. Why Is the Court’s Decision Affecti ng 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 Legi timate “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 Wastesdraft/deliberative – do not distribute, cite or quote

10 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 Benefi cial 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 Fuelsdraft/deliberative – do not distribute, cite or quote

11 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 Mana ged 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 De scription of, Proposed Approach
1. Non-Hazardous Secondary Material s Used as Fuel within the Control of the Generator

a. Scope and Applicabilitydraft/deliberative – do not distribute, cite or quote

12 b. Restrictions and Requirements
2. Non-Hazardous Secondary Material s Used as Fuel Outside the Control of the Generator
3. Non-Hazardous Secondary Materi als Used as Ingredients in Combustion Units
4. Non-Hazardous Secondary Materi als Processed Into Non-Waste Fuel/Ingredient Products

a. Proposed Definition of Processing b. Rationale for Processing Discar ded 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 Actdraft/deliberative – do not distribute, cite or quote

13 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 Wast e 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: Regulat ory 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 Ch ildren from Environmental Health and Safety Risks
H. Executive Order 13211: Actions that Significantly Affect Energy Supply, Distribution or Usagedraft/deliberative – do not distribute, cite or quote

14 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 th e Resource Conservation and Recovery Act (RCRA), as amended, 42 USC 69 12(a)(1) and 6903(27). Section 129(a)(1)(D) of the CAA directs EPA to establish standard s 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) pr ovides that the term, solid wast e, 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 f unctions under the Act. The statutory definition of “solid waste” is provid ed 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 Incineratordraft/deliberative – do not distribute, cite or quote

15 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 Standard s 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 Fueldraft/deliberative – do not distribute, cite or quote

16 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 pr omulgate 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 pa rt, to mean “a distinct operating unit of any facility which combusts any solid waste material from co mmercial or industria l establishments...” Id . at § 7429(g)(1). The CAA specifically excludes the following types of units from the definition of “solid waste incineration unit”: (1) incinerato rs or other units require d to have a permit under section 3005 of RCRA; (2) mate rial recovery facilities (inc luding primary and secondary smelters) which combust waste for the primar y 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 facili ties, as defined in se ction 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 ener gy or in the case of qualifying cogeneration facilities which burn homogeneous waste for the production of elec tric energy or steam or forms of useful energy (such as heat) which are used for industrial, commercia l, heating or cooling purposes, or (4) air curtain incine rators, provided that such inci nerators only burn wood wastes, yard wastes and clean lumber and that such ai r 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 So lid Waste Disposal Act (SWDA) . However, this act, asdraft/deliberative – do not distribute, cite or quote

17 amended, is commonly referred to as RCRA. Th us, the term, "RCRA" is used in place of SWDA in this Notice. RCRA in turn defines the term “sol id waste” to mean “...any garbage, refuse, sludge from a waste treatment plant, wate r supply treatment plant, or air pollution control facility and other discarded ma terial, including solid, liquid, se misolid, 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 incl uded 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 proposa l, the statements in this proposal apply. A. What Is the History of CISWI, CIS WI Definitions, and Boiler Rulemakings? EPA promulgated a final rule setting fo rth performance emissions standards for Commercial and Industrial Solid Wa ste Incineration Units (referred to as the “CISWI Rule”). 65 FR 75338 (December 1, 2000). Under CAA sec tion 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 achie ved 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 t echnology (MACT) “floor.” EP A must also consider more stringent “beyond-the-floor” emi ssions controls, taking into a ccount cost, energy, and non-air quality environmental impacts. The Administra tor may also distinguish among classes, typesdraft/deliberative – do not distribute, cite or quote

18 (including mass-burn, refuse-derived fuel, modular and other types of units), and sizes of units within a category in estab lishing 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 monoxi de, dioxins/furans, hydrogen chloride, lead, mercury, oxides of nitrogen (NO x ), particulate matter (PM), sulfur dioxide (SO 2 ), and opacity. In addition, the rule es tablished 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 reconsidera tion 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 relate d to the issues that were raised by the court in Cement Kiln . The court granted EPA’s request fo r 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 re lated 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 rec onsideration on September 22, 2005, by repromulgating the definitions of “s olid waste,” “commerc ial or industrial solid waste incineration unit,” and “commercial or industr ial waste” (the “CISWI Defini tions Rule”). See 70 FR 55568.draft/deliberative – do not distribute, cite or quote

19 In the CISWI Definitions Rule, EPA defined “co mmercial 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 wa ste 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” – re gardless 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 rema nded EPA’s emissions standards for commercial, industrial, and institutio nal major source boilers (the Boiler MACT Rule), concluding that the universe of sources subject to th at 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 Affect ing 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 materials 1 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 devi ce. 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 purs uant 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 pr imary 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 no n-hazardous secondary materials.draft/deliberative – do not distribute, cite or quote

20 under CAA section 129. C. What Do CAA Sections 112 and 129 Require? CAA section 112 requires EPA to promulgate regulations to cont rol emissions of 187 2 hazardous air pollutants ( HAP) from major sources 3 in each source category listed by EPA under section 112(c). The statute requir es 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 previousl y, this level of stringency of c ontrol 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 so urce (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-per forming 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 stri ngency of control is usually referred to as the MACT ‘‘floor,’’ the term used in the Legislative History. Like the CAA section 112 standards, th e CAA section 129 standards are based on a MACT floor. Also, as with the section 112 st andards, above-the-floor standards may be established where EPA determines it is “achievabl e” taking into account costs and other factors. Although CAA section 129 “establishes emission re quirements 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).draft/deliberative – do not distribute, cite or quote

21 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 i ssue MACT standards for all solid waste incineration units in a given cat egory regardless of size. Sec ond, CAA section 129 requires that numeric emission limitations must be established for the following nine pollutants, plus opacity (as appropriate): cadmium, carbon monoxide, dioxi ns/furans, hydrogen chloride, lead, mercury, NOx, particulate matter (t otal and fine), and SO 2 . 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 incl udes specific requirements for operator training, pre-construction site assessments , and monitoring that are not in cluded in CAA section 112. See CAA section 129(a)(3), (c) and (d). Rather, CAA section 112’s imp licit authority and CAA sections 113 and 114’s explicit authority is reli ed upon to include provisions as necessary to assure compliance with and enfor cement 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 a nd 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 sect ion 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 heal th 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 11 2(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).draft/deliberative – do not distribute, cite or quote

22 Similar to other industrialized nations, the U. S. is pursuing an approach to materials management that employs the c oncepts of life cycle assessment 6 and full cost accounting. 7 Within the context of RCRA, 8 this proposal aims to facilitate th is approach, to th e extent allowed by the statute, through the establishment of a regula tory framework that guides the beneficial use of various secondary materials, while ensuring th at such use is protectiv e of human health and the environment. Beyond this regulatory framew ork, EPA, in conjunction with the states, seeks to further facilitate this objective through research, analys is, incentives, communication, and outreach. The Agency recognizes that secondary materials are widely used today as raw materials, as products, and as fuels and/or ingredie nts in industrial proces ses. 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 va riety of non-traditional sources, including the use of energy-containi ng secondary materials, is expect ed to play an important role in future resource conservation efforts. The use of secondary materials as alternativ e fuels and/or ingredie nts in manufacturing processes using combustion not only recovers valu able resources, it is known to contribute to emission reductions. For example, reducti ons in greenhouse gas (GHG) emissions and particulate matter have been identified. 9 The use of secondary mate rials 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 assessm ent” are commonly used interchangeably. Life cycle assessment is a system-wide analytical technique for a ssessing 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, he alth, 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.draft/deliberative – do not distribute, cite or quote

23 imports, reducing negative environmental impact s 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 re source recovery value in the generation and production of heat, energy, and/or marketable products. Th ese secondary materials can provide micro (firm level) and macroeconomic benefits when legitimat ely used as an effectiv e substitute for, or supplement to primary materials. Economic ef ficiency can be improved with the use of secondary materials, when substituted for increa singly scarce primary materials, because the use of such materials often results in an equivalent level of output at lo wer 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 he lps advance economic gr owth 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 mate rials are currently us ed 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 eigh t 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 gase ous 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 pr ocess that has value in the mark etplace, or value to the user. 11 Opportunities for improved econom ic efficiency are recognized th rough 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.”draft/deliberative – do not distribute, cite or quote

24 (building related, disaster debris, and land clearin g debris); scrap tires; scrap plastics; spent solvents; coal refuse; waste wate r 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); f oundry sand; silica fume; and secondary glass material. The ANPRM discussed and described thes e 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 second ary materials are auto shre dder residue and purification process byproducts We have prepared Mate rials 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 ex isting Materials Characterization Papers to incorporate commenter information, as appropriate , plus relevant inform ation derived from the 2008 combustion survey database (OMB Contro l Number 2060-0616). We believe that our newly defined list of secondary fuels and ingred ients 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 othe r non-hazardous secondary materials potentially used as fuels and/or ingredient s. Comments containing detaile d, 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 Wastedraft/deliberative – do not distribute, cite or quote

25 RCRA defines “solid waste” as “...any garbage, refuse, sl udge from a waste treatment plant, water supply treatment plant, or air pollution cont rol 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 ot her 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 R CRA 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 discus sion is relevant to this proposal and is incorporated into this rulemaki ng. We are repeating parts of th e discussion on legitimacy below to the extent it helps in understanding this proposal.
B . Case Law on Defini tion of Solid Waste Partly because the interpretation of the defini tion of solid waste is the foundation of the hazardous waste regulatory program, there has been a great deal of litiga tion over the meaning of “solid waste” under RCRA subtitle C. From th ese cases, a few key principles emerge which guide our thinking on the defi nition of solid waste. First, the ordinary plain-English meani ng of the term, “disca rd” 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 ordi nary plain-English meaning of the term discarded means “disposed of,” “thrown away,” or “abandoned.” The D.C. Circuit in AMC Idraft/deliberative – do not distribute, cite or quote

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 disc ussed 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 recy cled 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 th at 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 ma terial loses its status as a solid waste. See
API I , 906 F.2d at 741 n.16; United States v. ILCO Inc ., 996 F.2d 1126, 1131-32 (11 th Cir. 1993); Owen Steel v. Browner , 37 F.3d 146, 150 (4 th Cir. 1994). ILCO and Owen Steel , however, recognize that products made fr om 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”) reiterate d the concepts discu ssed in the previous cases. The Court held that it had already resolved the issue pres ented in ABR in its opinion in AMC I, where it found that “...Congress unambiguously expressed its intent that ‘solid waste’ (and thereforedraft/deliberative – do not distribute, cite or quote

27 EPA’s regulatory authority) be limited to materi als 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 pr ocess are neither disposed of nor abandoned (208 F.3d at 1051– 52). The court also explained that the interven ing 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 pr ocessing rule) is destined for reuse as part of a continuous industrial process and thus is not ab andoned or thrown away” (208 F.3d at 1056). In this regard, the court criticized all parties in th e case - industry as well as EPA - because they “presented this aspect of the case in broad abstraction, providing litt le 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 th e court at the same time, provides further guidance for defining solid waste, but in the co ntext of two specific waste streams in the petroleum refining industry. The court overturned EPA’s determina tion 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-bear ing wastewaters, EPA had determined that the first phase of treatment, primary treatment, results in a wa ste being created. 216 F.3d at 55. The court overturned this decision and remanded it to EP A for a better explanation, neither accepting EPA’s view nor the contrary industry view. The c ourt noted that the ultimate determination thatdraft/deliberative – do not distribute, cite or quote

28 had to be made was whether primary treatment is simp ly a step in the act of discarding or the last step in a production process before discard. 213 F.3d at 57. In particul ar, the court rejected EPA’s argument that primary treatment was requ ired by regulation, instead stating that the Agency needed to “set forth why it has conclu ded that the compliance motivation predominates over the reclamation motivation” and “why that c onclusion, even if validly reached, compels the further conclusion that the wastewater has been discarded.” 213 F.3d at 58. The court also considered whet her material is discarded in Safe Food and Fertilizer v.
EPA , 350 F.3d 1263 (D.C. Cir. 2003) (“Safe Food”). In that case, among ot her things, the court rejected the argument that, as a matter of plain meaning, recy cled material destined for immediate reuse within an ongoing industrial process is never cons idered "discarded," whereas material that is transferred to another firm or industry for subse quent 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 consis tent 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 sp ecifically found that non- hazardous secondary materials may, under certain circumstances, be bu rned 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 re turn 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 co ncept of legitimate us e and recycling. Underdraft/deliberative – do not distribute, cite or quote

29 RCRA subtitle C, some hazardous secondary mate rials that would otherwise be subject to regulation under RCRA’s “cradle to grave” system are not consider ed solid wastes if they are “legitimately recycled” or legitimately used as an ingredient or substitute for a commercial product. The principal reasoning be hind this construct is that use or recycling of such materials often closely resembles normal industrial producti on, rather than waste management. However, since there can be considerable economic incentive to manage recyclable materials outside of the RCRA hazardous waste regulatory syst em, there is a clear potential for and historical evidence of some handlers claiming they are recycling, when in fact they are c onducting waste treatment and/or disposal in the guise of recycling. EPA considers such “s ham” recycling to be, in fact, discard and such secondary materials be ing sham recycled are solid wastes. To guard against hazardous secondary material s being discarded in th e guise of recycling, EPA has long articulated the need to distinguis h 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 disc ussion 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 Waste 12 issued a memorandum that consolidated the various preamble and other statements concerning legitimate recycling into a list of questions to be consid ered 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 regulat ed 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.draft/deliberative – do not distribute, cite or quote

30 distinguishing between legitimate and sham recycling. On October 30, 2008, EPA finalized several exclus ions from the definition of solid waste for hazardous secondary materials being reclai med 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 recycl ed as a condition for the exclusion for hazardous secondary materials that are legitimately recl aimed 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 th at final rule, EPA also codified a legitimate recycling provision specifically as a requirement or condition ofthese 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 discarde d under the guise of recycling. Therefore, the Agency is including the following di scussion 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 fi nal rule, which applie s 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 su bmitted 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 Sier ra 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 consid er 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.draft/deliberative – do not distribute, cite or quote

31 hazardous secondary materials excluded under the rule , has two parts. The first part includes two factors: 1) the hazardous secondary materials be ing recycled must provide a useful contribution to the recycling process or to th e product or intermediate of th e recycling process, and 2) the product or intermediate produced by the recycl ing process must be valuable. These two legitimacy factors make up the core of legitim acy, and, therefore, a process that does not conform to them cannot be a legitimate recycl ing process, but would be considered sham recycling. The second part of the legitimacy provisi on consists of two factors that must be considered when determining if a particular ha zardous secondary material recycling process is legitimate for the purposes of the exclusion. Thes e 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 cont ain significant concentr ations of hazardous constituents that are not in an alogous products. EPA believes thes e two factors are important in determining legitimacy, but has not made them fact ors that must be met because the Agency is aware of situations where a legitimate recycli ng 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 f actors and consider legitimacy as a whole. If, after careful evaluation of these other considerations, one or bot h of the non-mandatory factors are not met, then this fact may be an indication th at the material is not legitimately recycled. To evaluate the extent to which these factors ar e met and in determining the legitimacy of a recycling process that does not meet one or bot h of these factors, pe rsons can consider the protectiveness of the stor age methods, exposure from toxics in the product, the bioavailability of the toxics in the product, and ot her relevant considerations.draft/deliberative – do not distribute, cite or quote

32 EPA stated in the preamble to the Octobe r 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-wast e determination process, it was stressing that EPA retains its long-standing policy that all recy cling of hazardous secondary materials must be legitimate and that the four legitimacy factor s codified at 40 CFR 260.43 are s ubstantively the same as the Agency’s long-standing legitimacy policy, as stat ed 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. Th at 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 thr ough 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 Pr oposed 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 vari ous scenarios in evaluating the usage of secondary materials (e.g., as fuels or ingred ients) and whether these materials should be considered solid wastes under RCRA when used in combustion devices, such that units burning these secondary materials woul d be subject to regulation unde r CAA section 129, rather than subject to CAA section 112. Specifically, the ANPRM identified several cases where such non-draft/deliberative – do not distribute, cite or quote

33 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 previous ly discarded, (3) seconda ry 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 derivative s (e.g., petroleum coke, bituminous coke, coal tar oil, refinery gas, synthetic fuel, heavy recycle, asphalts, bl ast 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 unuse d products that have not been discarded and therefore are not solid wastes. The ANPRM furthe r stated that wood collected from forest fire clearance activ ities and trees and uncontaminated wood found in disaster debris would not be discarded if manage d properly and burned as a legiti mate 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 determini ng if alternative fuel s 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 woulddraft/deliberative – do not distribute, cite or quote

34 not be considered a solid waste. The ANPRM fu rther 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 aba ndoned. Moreover, the ANPRM stated the term “discarded materials” could not in clude materials “...destined for be neficial reuse or recycling in a continuous process by the genera ting 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 co ntinuous 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 pr ocess, if it is used as a legitimate fuel or ingredient, these secondary material s are not solid wastes if they we re 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 consider s secondary materials to be legitimate non-waste fuels if they are handled as valuable commoditie s, have meaningful heating value, and contain contaminants that are not significantly higher in c oncentration 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 seco ndary materials to be considered a non-waste ingredient, the ANPRM stated that it would ge nerally consider second ary materials to be nonwaste ingredients if the secondary material is handled as a valuable commodity, the secondary material provides a useful contribution, the re cycling results in a va luable product, and the product does not contain contaminants that ar e significantly higher in concentration than traditional products.draft/deliberative – do not distribute, cite or quote

35 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 legi timate “fuel” reflects the availability of fuel materials generally, the demand for fuel, and te chnology 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 ar e secondary materials that may not have been traditionally used as fuels, but that are nonethel ess legitimate fuels today because of changes in technology and in the energy market. In cases wh ere these legitimate alte rnative 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 alternativ e fuels are not solid wast e since they have not been discarded in the first instance and are legi timate fuel products, noting that biomass can include a wide range of alternat ive fuels, and can be broken down into two different categories - cellulosic biomass and non-cellulo sic biomass. Cellulosic biomass was described to include forest-derived biomass (e.g., green wood, fore st thinnings, clean and unadulterated bark, sawdust, trim, and tree harvesting residuals fr om 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 tr ee harvesting), and agricultural residues (e.g., straw, corn husks, peanut shells, and bagasse). Non-cellulosic biomass wa s 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 pr oducts 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 asdraft/deliberative – do not distribute, cite or quote

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

wastes. The ANPRM also noted that tires used as ti re-derived fuel (TDF), which include whole or shredded tires, that have not been previously discarded, are le gitimate 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 Materi als Characterization Paper on Scrap Tires in the docket for today’s rule for a complete disc ussion 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 dealer ships that are sent to used tire processing facilities) are handled as valuable commoditie s, and, therefore, have not been abandoned, disposed of, or thrown away. We noted that b ecause states typically regulate these programs under their state solid waste author ities, it is not the Agency’s in tent to undercut the state’s authority in this area. We re quested comment on whether tires co llected pursuant to state tire oversight programs have been discarded, and also requested comment on whether an EPA designation specifying that used tires, for ex ample, 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 alte rnative 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 th e issue of tires collected und er state programs, which is discussed later in the preamble. In particular, the Ag ency proposes that tires coll ected 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 fo rmulation 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.draft/deliberative – do not distribute, cite or quote

37 alternative fuels (e.g., constr uction and demolition materials, 16 scrap plastics, non-hazardous non-halogenated solvents and lubricants, and wa stewater 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 valu e (wet biomass), or because they may contain contaminants that are significantly higher 17 in concentration than those in traditional fuel products to the degree that sham r ecycling is indicated. The materi als that were described in the ANPRM that could fall into this category in clude polyvinyl chloride (PVC), halogenated plastics, chromated copper ar senate (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 recons tituted wood/pane l products. 4. Secondary Materials Used as Legitimate “Alternative” Fuels Resulting From the Processing of Discarded Secondary Materials The ANPRM also stated that legitimate fu el 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 gene rally not be considered solid wa ste. 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 genera l principles discussed in today’s preamble for being a legitimate fuel. However, until a legiti mate 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, esp ecially 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 “signi ficant” for the purposes of determinin g whether the secondary material is a legitimate fuel.draft/deliberative – do not distribute, cite or quote

38 material that has been discarded is a solid waste, and must comply with any federal, state or local regulations. In addition, any wast e generated in the “processing” of these materials would need to be managed properly and comply with the ap propriate 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 st ripping 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 fo rms) 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 mate rial, but the objective remains the same – the product from the processing must be a legitimate fu el (i.e., a material with meaningful heating value, with contaminants that are not present at significantly higher concen trations 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 processe d by chipping or sorting prior to use as a fuel through combustion would be considered to have undergone adequate pro cessing to convert the discarded material into a fuel product. We also requested comment on whether mined landfill power plant residuals that is cr ushed, screened, and/orseparated 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 prev iously 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.draft/deliberative – do not distribute, cite or quote

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 wa ste. 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 disc arded, and thus whether such off-specification used oil should be consid ered a non-waste fuel. We stated that although off-specification used oil may cont ain 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 di scarded, 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 co mmerce 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 processe d 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 Ar e 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 mate rials that are legitimately used or recycled and determined that such material s, while they either met a listi ng description or exhibited one or more of the hazardous waste characteristics, were not “solid wastes” for pur poses of the subtitledraft/deliberative – do not distribute, cite or quote

40 C hazardous waste regulations. Sp ecifically, black liquor, spent su lfuric 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 Disc arded That Are Generally Considered to be Solid Wastes The ANPRM explained that secondary materials that have been prev iously discarded and not subsequently processed into legitimate fuels or ingredients are consid ered 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 fuel s 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 st andards 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 c ould be considered legitimate fuels. The ANPRM therefore requested comment on t hose situations where discarded materials (e.g., used tires and coal refuse) can be directly used as a legitim ate fuel or ingredient without processing because they are indistinguishable in a ll relevant aspects from a fuel or ingredientdraft/deliberative – do not distribute, cite or quote

41 product. (Note that the Agency only requested comment on these secondary materials at the point they have been removed from their “discard” environm ent 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 appr opriate federal, state and local regulations.) b. Other Approaches for Determining Whet her Secondary Materials Are Fuels and Not Solid Wastes The ANPRM requested comment on an approach, as presented to the Agency by industry representatives, for determini ng when non-hazardous secondary ma terials 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 ev aluated, on a case-by-cas e basis, to identify which criteria have been satisfied and determine wh ether the material is le gitimately handled as a fuel. Criteria identified by indus try stakeholders include: handli ng and storage of materials to minimize loss, use of materials w ithin a reasonable period of time, material value (e.g., whether there is a market for the material as a fuel, in ternal 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 secondar y material would not necessarily have to satisfy all criteria. To implement the aforemen tioned concepts for determining when or which secondary materials are fuels, the ANPRM desc ribed two methods presented by industry, which were not meant to be mutually exclusive. On e 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.draft/deliberative – do not distribute, cite or quote

42 self-implementing, but would a llow an owner or operator to petition EPA or the state to specifically list a secondary material as a le gitimate non-waste fuel (in addition to a preestablished list of materials). In the petition, the owne r or operator would us e the criteria as the basis for proposing that EPA or the state list the secondary materi al, or the owner or operator could submit additional information to demons trate the environmental equivalence of the material to other listed fuels. c. Materials for Which State Beneficial Use Determ inations Have Been Made The ANPRM explained that states regulat e the management of non-hazardous solid waste, including secondary industrial material s, and that many states have a process or promulgated regulations to determine when thes e 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 st ate 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 Ag encies for implementing the non-hazardous waste programs and, as such, the Agency wanted to ma ke sure that state programs are not adversely affected by any decisions that are made by EPA, no ting that we see a benefit to deferring to state decisions, which are able to consider site-specifi c information. As a result, the Agency requested comments on whether to consider secondary mate rials that receive a state beneficial use determination for use as a fuel or as an ingredient as not a solid waste, al so 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 or ganic sources. The ANPRM noted that biofueldraft/deliberative – do not distribute, cite or quote

43 production has increased dramatically in the pa st 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, ar e not considered to be solid wa stes themselves, but rather are viewed as legitimate fuel products. Secondary ma terials 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 produc tion 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, includ ing discard and the legitimacy cr iteria, the basic framework is different based partly on the appr oach 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 th e comments and EPA’s response), as well as on our interpretation of whether these secondary ma terials 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 num ber of secondary materials that would not be considered discarded even if the original gene rator sent them to another entity outside of its control. For example, used tires collected fr om automobiles at tire dealerships and managed pursuant to state tire collecti on programs were not viewed as solid wastes in the ANPRM. Comments received from the states suggested th at non-hazardous secondary material fuels thatdraft/deliberative – do not distribute, cite or quote

44 are transferred to a third party ha ve entered what is traditionall y 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 ti res) 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 ge nerator are solid wastes unless they are processed into non-waste fuel produ cts. (Note: The same non-h azardous 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 di scussed below, a non-waste dete rmination 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 propos al would consider to be solid wastes), to petition EPA for a determination th at such non-hazardous secondary materials are not discarded and therefore, are not solid wastes (a ssuming these materials have met the applicable legitimacy criteria). While the Agency recogn izes that a petition pr ocess can be resource intensive, we also believe it necessary and approp riate to provide an opportunity for persons to demonstrate to EPA that their non-hazardous seconda ry material fuels would not be considered “discarded” under RCRA and ther efore, not solid waste. Furthermore, some other important change s were made between the ANPRM and this proposal based on comments received and further i nvestigation. 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 so lid waste under subtitle C of RCRA in thisdraft/deliberative – do not distribute, cite or quote

45 rulemaking proceeding. Those materials are not non-hazardous secondary materials which are the only materials addressed in this rulema king. 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 thes e 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 soli d 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 material s 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 fo r which EPA grants a facility’s petition for a “non-solid waste” determination. The term “discarded” is intended to en compass material handling and management scenarios that meet the plain meaning of discar d (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 in stance. Materials that have been discarded in the first instance are solid waste even if they satisfy the legitim acy criteria (unless they are processed into a legitimate non-waste product) since both wastes and non-wastes may be legitimately recycled. 3. Legitimacy Criteriadraft/deliberative – do not distribute, cite or quote

46 This proposal also maintains the same genera l principles as descri bed in the ANPRM for determining whether a non-hazardous secondary ma terial is or is not a legitimate fuel or ingredient. Secondary materials used in a co mbustion 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 handle d as a valuable commodity, have meaningful heating value, be used as a fuel in a combus tion unit that recovers energy, and not contain contaminants that are significantly higher in co ncentration than traditional fuel products. For legitimate ingredients, the non-h azardous secondary material must be handled as a valuable commodity, provide a useful cont ribution, result in a valuable product or intermediate, and the product must not contain contaminants that ar e significantly higher in concentration than analogous products. 4. Traditional Fuels This proposal recognizes that traditional fuels are not soli d wastes when burned in a combustion unit. Traditional fuels are those fu els 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 m eeting on-specification le vels, natural gas) and their derivatives (e.g., petroleum coke, bituminous coke , coal tar oil, refinery gas, synthetic fuel, heavy recycle, asphalts, blast furnace gas, reco vered gaseous butane, and coke oven gas). Clean cellulosic biomass materials are al so traditional fuels rather than wastes when burned as a fuel. “Clean” material is defined as those non-hazard ous 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 virg in biomass materials. Clean cellulosic biomass includes fore st-derived biomass (e.g., green w ood, forest thinnings, clean anddraft/deliberative – do not distribute, cite or quote

47 unadulterated bark, sawdust, trim, and tree harvesting residuals from logging and sawmill materials), corn stover and other biomass cr ops used specifically for energy production (e.g., energy cane, other fast gr owing grasses), bagasse 20 and other crop residues (e.g., peanut shells), wood collected from forest fire clearance activ ities, 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 shoul d be classified as traditional fuels, and also whether other types of cellulosic biomass s hould be designated as clean biomass, and thus a trad itional fuel. In identifying other secondary materials as a traditional fuel, commenters will need to explai n 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 eco nomically viable to be used as “traditional” fuels. It also may not always be clear whether a fu el material is a traditional fuel. We agree with commenters to the ANPRM that this rulemaking s hould be flexible to account for increasing use and changes in commodities, technologies, market s, 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 proce ss discussed in section VII.D.5. 5. Circumstances Under Which a Non-Hazard ous Secondary Material Would Not Be

20 Bagasse is the matted cellulose fiber residue from sugar cane that h as been processed in a sugar mill. For more information on bagasse, se e the Materials Characterization Paper on BiomassAgricultural Residues and Food Scraps, which is lo cated in the docket of today’s proposed rule.draft/deliberative – do not distribute, cite or quote

48 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 genera tor as discussed in section VII.D.1, and meet the legitimacy criteria; or 2) th ey are legitimate non-waste fuels that meet the legitimacy criteria and are produced from the processing of di scarded non-hazardous s econdary materials as discussed in section VII.D.4. Non-hazardous sec ondary 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 in gredients 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, irrespec tive of whether they have been transferred to a third party. We are not proposing to differentiate ingredients th at 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 cons idered to be more integral or akin to use in a commercial manufacturing process and thus these non-h azardous secondary mate rials would not be considered discarded provided they satisfy the legitimacy criteria. Except for the petition process, the propos ed criteria are designed to be selfimplementing in nature, not requir ing Agency action. As such, we are proposing that it will be the facility’s (i.e., the fa cility that burns the material) respons ibility to determine if the secondary material satisfies the proposed criteria that iden tifies which material is a solid waste when burned in a combustion unit. 6. Petition Processdraft/deliberative – do not distribute, cite or quote

49 EPA is also proposing to establish a non- waste determination petition process for secondary materials used as fuels outside the c ontrol of the generator. The petition process provides persons with an administrative proce ss for a formal determination that their nonhazardous secondary material fuel is indistinguishable in all rele vant 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 co mmercial 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 seconda ry 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 e ither a statistical or from a health and environmental risk perspective than would otherwise be released; and (5) other rele vant factors. For further information regarding the non-waste determina tion 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 competi ng suggestions and recommendations based upon different state programs and experiences.
Comment :draft/deliberative – do not distribute, cite or quote

50 Some states did not want EPA to define what is or is not a wa ste at the federal level if it impacts or limits the scope of what states curr ently regulate per their solid waste management authority. Some states noted a potential problem related to exis ting “stringency provisions” in some state laws. For example, if a solid waste dete rmination is made at the federal level, it could be argued that the state is less stringent through their issued exem ptions and the state rule must be rescinded. Conversely, some states argued th ey 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 fede ral definition. Many states said we should defer the determination of whether those non-hazar dous secondary materials used as fuels or ingredients are solid wastes to the states and ur ged 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 12 9(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 le vel in order to identify the universe of sources subject to the boilers emissions standards to be issued unde r 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 applicab ility of state solid waste de finitions 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 theirdraft/deliberative – do not distribute, cite or quote

51 regulatory programs in the past, a nd that it was inappropriate and c ontrary to the intent of RCRA for EPA to exclude this material, which had b een considered “waste” for many decades, from regulation under RCRA. On the other hand, other states were concerne d a federal designation that some of these non-hazardous secondary materials are “wastes” would disrupt existi ng recycling markets by creating a deterrent from using th ese non-hazardous secondary material s as fuels or ingredients. These states emphasized the importance of promot ing beneficial use of non-hazardous secondary materials and were concerned that regulation of certain material s (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/reg ulate 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 th ese 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, usua lly under its solid waste management authority. 21 For example, some states recommended that EP A exclude whole tires from the definition of solid waste at the point of combustion. 22 EPA’s Response : In developing this proposed rule, EPA atte mpted 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 reso lution 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).draft/deliberative – do not distribute, cite or quote

52 raised by the states regarding potential imp acts on their existing solid waste programs in determining which non-hazardous secondary materi als 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 wa y 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 unde rstand that today’s proposal coul d impact existing state solid waste management programs, as well as states’ be neficial use programs, and specifically request comment on how today’s proposal impacts or could impact such state programs.
Comment : Some state commenters s uggested that the Agency address CAA section 129 implementation issues by subcategorizing energy recovery units that bu rn 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 so lid waste incineration units under section 129 and is not relevant to this action, which simply pr oposes 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 tr eatment plant, or air po llution control facility and other discarded material ... resulting from industrial, co mmercial, mining, and agricultural operations, and from community act ivities...” (RCRA section 1004 ( 27) (emphasis added)). The ANPRM provided a thorough discussion on th e definition of solid waste, including a

23 Id. 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.draft/deliberative – do not distribute, cite or quote

53 summary of relevant case law. See also Secti on VI.B in today’s preamb le. Further, the ANPRM highlighted the importance of the concept of “dis card,” noting that the de finition of solid waste turns on the meaning of the phrase, “other discar ded 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 defi ning the term “solid wa ste” for the purpose of establishing the appropriate st andards for combustion units u nder CAA sections 112 and 129. EPA’s Response : EPA agrees with the premise of using the “pla in meaning” of discard, as this position is consistent with case law on the issue (for a more detailed disc ussion, please refer to the ANPRM and section VI.B of today’s preamble).
Comment : Some commenters noted that th e same rationale and princi ples 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 re lative 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 a pplies to both RCRA subtitles D and C. However,draft/deliberative – do not distribute, cite or quote

54 EPA is not proposing in today’s action any revi sions to its hazardous waste regulations.
Comment : Some commenters argued that a ny secondary materials that ar e beneficially reused or recycled are not waste, regardless of whether or not the reuse or recyc ling is conducted in the same or different location or indus try (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 mate rial 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 recycl ing 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 w ith 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 transf erred outside the control of the generator. As previously described, this proposal states that non-haza rdous secondary materials used as a fuel in combustion units that remain under the contro l of the generator and meet the legitimacy criteria are not solid waste, but that non-hazar dous secondary materials th at are transferred to a third party and combusted are considered so lid 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 contro l of the generator as long as they meet the legitimacy criteria. See sect ion VII.D.6 for a discussion on EPA’s rationale for thesedraft/deliberative – do not distribute, cite or quote

55 determinations.
Comment: One commenter noted that EPA’s hazardous wa ste regulations under subtitle C provide that hazardous secondary materials “burned to recover energy” or “use d to produce a fuel” are “discarded” and, therefor e, 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 ma terial, 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. Regardle ss 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 num ber 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 wast es); 261.4(a)(6)(“black liquor” in pulping processes); 261.4(a)(7) (spent sulf uric acid); and 261.4(a)(16) (com parable 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 inse rted into the petroleum refining process), and 261.4(a)(18) (petrochemical recovered oil insert ed into the refining process).draft/deliberative – do not distribute, cite or quote

56 Regardless of the appropriateness of thes e exclusions, or whether the Agency may appropriately exclude any secondary materials from the solid waste definition, consistency between the regulations for haza rdous and non-hazardous secondary materials is not an issue. This proposed rule, which identifies certain se condary 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 regul ations. Conditions apply to a ll of the secondary materials being considered for determinations as to whethe r they are solid wastes. The legitimacy criteria apply to all of the secondary materials. It is reasonable and within EPA’s discre tion 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 mate rials 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 mi sconception 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 mana ged is a key factor that determines discard. Contaminant levels are part of th at 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 c ontaminants. Thus, EPA could reasonably presume that burning such secondary material s, even if burned for energydraft/deliberative – do not distribute, cite or quote

57 recovery, is likely a waste activity. This was th e Agency’s rationale for issuing the subtitle C rule at 40 C.F.R. § 261.2(c)(2) that states burni ng for energy recovery is a waste disposal activity. In EPA’s rule establishing the comparab le fuels exclusion from the definition of solid waste for hazardous secondary materials, the Ag ency stated that these hazardous secondary materials (comparable fuels) are lower in h azardous contaminants than the normal hazardous wastes and that burning of the comparable fuel s “does not present the element of discarding hazardous constituents through combustion that underl ies 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 valu able commodities to recover energy. This interpretation, however, is consistent with today’s proposal, which al so evaluates whether materials burned for energy recove ry 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 cons ideration in this case dealt specifically with material “reclaim ed” in a continuous process. Th at 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 reus ed 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 specifi cally found that non-hazardousdraft/deliberative – do not distribute, cite or quote

58 secondary materials may, under certain circumstan ces, be burned and not c onstitute 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 treatmen t even in the absence of energy recovery. We believe, therefore, that burning material for a nother 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 wastewater s are wastes (216 F.3d at 55-58 ) and upheld conditions imposed by the Agency in excluding petrochemical recove red oil from the definition of solid waste (216 F.3d at 58-59). Both of these materials are retu rned 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 defin ition of solid waste. For purposes of the issue of concern in today’s proposal, th is decision supports EPA’s disc retion to determine whether or not a secondary material used as a fuel product is a solid waste or not, in li ght of factors relevant to determining whether the material is discar ded. Therefore, EPA is not prevented from exercising its discretion to deci de that issue either way. 3. General Approach EPA received several comments on the genera l 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 comm enters supported the general regulatory structure that included: (1) a recognition th at certain materials are inhere ntly fuel products, (2) a selfimplementing approach for identifying those non-hazardous secondary materials that are notdraft/deliberative – do not distribute, cite or quote

59 considered solid waste pursuant to general crite ria and (3) a petition pr ocess for receiving a nonwaste determination from the Agency. 24
Comments : Several commenters discussed whether to in clude a list of wastes and/or a list of nonwastes in the regulations. One commenter recomme nded that a list of secondary materials that are considered wastes be identified, rather th an a list of secondary materials that are not considered wastes, while other commenters ur ged 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 additiona lly include a list of secondary materials that are considered wastes in order to remove any uncertainty. Thos e commenters who urged that the regulations include a list of sec ondary materials not considered a waste when used as a fuel or ingredient also cautioned that such a list shou ld not be all-inclusive in order to account for changes in technology and new secondary material s and processes that are not yet developed. EPA’s Response : In recognition of changes in economies, t echnologies, markets and material processes, EPA is not proposing to list spec ific non-hazardous s econdary materials as either wastes or nonwastes in regulatory langua ge, 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-hazardou s 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.draft/deliberative – do not distribute, cite or quote

60 determinations of whether a particular non-h azardous secondary material meets the various criteria will have to be base d on site-specific information; a national designation that in all circumstances, a particular non-hazardous secondar y material is or is not a waste may not be possible. However, it is EPA’s goal in this pr oposal, 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 seconda ry materials that could, in th e future, be viable fuels or ingredients. The proposed approach allows for th ese changes, not by codifying a list of specific non-hazardous secondary materials that are or not waste, but rath er by adopting a selfimplementing approach that can consider s ite-specific informati on, if necessary.
Comment : A few commenters noted a preference for cat egorical 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. Th e proposed rule discusse s 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 mate rials, 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-implemen ting regulatory criteria to be used by the regulated universe to determine whether the non-hazardous secondary material would or woulddraft/deliberative – do not distribute, cite or quote

61 not be a solid waste. The re gulatory criteria are based on f our categories of non-hazardous secondary materials that are managed under vari ous scenarios, including: (1) non-hazardous secondary materials used as a fuel in a combus tion unit that remains with in the control of the generator and that meets the legi timacy 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-h azardous 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 categorie s 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 mate rials qualify as alternative fuel s should be self-implementing and not involve the need for individu al regulatory determinations. EPA’s Response : The non-waste petition process th at 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 ma terials would be a solid waste, unless they are granted a non-waste determinati on 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 informa tion, if necessary (i.e., fa cilities will make adraft/deliberative – do not distribute, cite or quote

62 self-determination of whether the non-hazardous secondary ma terial in question meets the regulatory criteria). We again note it is EPA’s in tention to indicate in the preamble, as clearly as possible, which non-hazardous materials used as fu els 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-hazar dous secondary material is processed into a legitimate fuel or ingredient product, then the processed mate rial would not be a discarded material. We listed various non-hazardous seconda ry 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, shoul d be considered to have undergone adequate processing, such that it would be rendered a non-waste.
Comments : Most commenters generally agreed with th e concept, but had differing views on what level of “processing” wo uld render a discarded material a le gitimate non-waste product fuel or ingredient product. Their views ranged from not requiring any proces sing, to specifying a minimum level of processing if processing criteria are retained. These commenters argued that any management activity associated with r ecovering the non-hazardous secondary material would be sufficient. Commenters who indicate d that the non-hazardous secondary material should not be required to “undergo processing” be fore 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 re covered from the discard environment; thesedraft/deliberative – do not distribute, cite or quote

63 commenters provided examples of non-hazardous secondary mate rials, such as whole tires, biomass, and coal fly ash. Also, some comme nters stated that the act of recovering or “extracting” the material from the “discard environment” should constitute the requisite degree of processing needed. Commenters who ar gued 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 requir ed 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 gene rally argued that no le vel of processing or even a minimum level of processing should be sufficient to produce a non-waste fuel or ingredient. We likewise disagr ee with those commenters who ar gued that the act of recovering or “extracting” seconda ry material from the discard envir onment should be sufficient to be considered processing. Rather, the Agency believ es that sufficient processing of the secondary material (e.g., changing the mass, chemical ma ke-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 ingr edient product. Thus, our positio n 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 a ny operations that tr ansform discarded nonhazardous secondary material into a new fuel or new ingredient produc t. Minimal operations, such as operations that result on ly in modifying the size of th e material by shredding, do not constitute processing for purposes of this definitio n. Processing includes, but is not limited to,draft/deliberative – do not distribute, cite or quote

64 operations that: remove or destroy contaminants; significantly improve the fuel characteristics of the material, e.g., sizing or drying the material in combination w ith 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 specifi c 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 belie ve that discarded non-hazardous secondary materials must be sufficiently processed in order to render a sec ondary material into a non-waste product. Without sufficient processin g, 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 C AA section 129 requirements. The Agency specifically requests comment on these points. See section VII.D.4 for a discussion of the proce ssing of discarded non-hazardous secondary materials into non-wast e fuel or ingredient products. That section describes EPA’s rationale for why this processed material is no longer considered a so lid 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 bei ng used as fuels and ingredients. We solicited comment on additional information, including: the composition or characteristics of nonhazardous secondary materials; how much of th e non-hazardous secondary material is produceddraft/deliberative – do not distribute, cite or quote

65 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-- bioma ss, used tires, used oil, coal refuse, and sewage sludge. a. Traditional Fuels. The ANRPM described traditiona l fuels to include: coal, oil, natural gas, and their derivatives (e.g., petroleu m coke, bituminous coke, coal tar oil, refinery gas, synthetic fuel, heavy recycle, asphalts, bl ast furnace gas, recovered gaseous butane, and coke oven gas), as well as cel lulosic biomass (e.g., wood). We requested comment on whether there are other fuels that should be considered as traditional fu els 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 bi omass crops similar to bagasse (e.g., energy cane and other fast growing grasses) grown specifically for fuel producti on, agricultural seeds, woody biomass, and wood collected from forest fire cl earance activities, land clearing biomass, trees, unadulterated wood from pallets, and uncontaminated wood from disast er debris were suggested as materials that should qualify as traditional fuels. Last, severa l 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 th e materials mentioned in the comments shoulddraft/deliberative – do not distribute, cite or quote

66 be classified as traditional fuels, which are not solid waste. However, to further add clarity, we are proposing that in order to qua lify as a traditional fuel, cellul osic 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 associ ated with virgin biomass materials, to ensure that the material being burned does not introdu ce 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 una dulterated bark; sawdust; trim; and tree harvesting residuals from logging and sa wmill 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, agricultura l seeds); wood collected from forest fire clearance activities; trees and clean wood found in disast er debris; clean biomass from land clearing operations; and clean construction wood. In regard to used oil, for th e reasons discussed later in se ction VII.D.4, we are including on-spec used oil in the list of traditional fuels beca use we believe it meets our view of what is a traditional fuel (i.e., fuels that have been histor ically 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 a nd 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 a nd 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.”draft/deliberative – do not distribute, cite or quote

67 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 ar e typically used on-site to either make composites or are used as fuel. One commenter st ated that “[i]t is also important to note the quantity of formaldehyde actually pr esent in these resonated wood fuel s. It is minute. As the resins cure, virtually all of the formaldehyde in the adhesive is cr oss linked into polymers and no longer exists as formaldehyde. Current extract ion tests on the highest formaldehyde content products show levels to be less than 0.02%, us ing the standard industry extraction test for formaldehyde from composites, EN 1203.” Co mmenters also point out that formaldehyde is a common product of incomplete combustion, sugg esting that trace amounts of formaldehyde would be present in the emissi ons irrespective of whether tr ace amounts are present in the residuals. One commenter noted that incomplete combustion of virtually all organic materials produces carbon monoxide and formaldehyde. Commen ters 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 re siduals are not significa ntly 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.draft/deliberative – do not distribute, cite or quote

68 and traditional fuels like coal and oil that contain concentrations of Part 261, Appendix VIII constituents that are orders of magni tude higher than in panel trim. One commenter discussed the use of pulp a nd 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 cr iteria-related pollutants, such as NOx, SO 2 , 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 emi ssions of these organics when the residuals were co-fired. A similar co mparison was conducted for metals, showing no discernable impact when burning these sludges. Another commenter stated that treate d wood (e.g., pentachlor ophenol, 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 derivativ e and burning creosote would likel y result in emissions no greater than burning coal. Creosote is a distille d 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.draft/deliberative – do not distribute, cite or quote

69 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 “cle an” and non-cellulosic biomass) materials can be legitimate fuels. We also generally agree with commenters that cellulosic biomass, such as seconda ry mill residues (i.e., residues such as sanderdust, board, trim and breakage from the manufacture of reconst ituted 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, specif ically in regard to formaldehyde and emissions comparisons relative to burning wood that do no t contain these resinated materials. Although emissions comparisons are not a direct indicato r 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 relativ e 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 generato r. However, given the general lack of data, we are requesting comment both on th e contaminant levels of these materials, as well as the appropriateness of cat egorizing 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 up date 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 ac ross EPA. EPA will releasedraft/deliberative – do not distribute, cite or quote

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 th e ANPRM about contaminants associated with these materials. Similar to resinated wood resi duals, based on the limited data we have, we believe it is appropriate to cons ider pulp and paper sludges that are used as fuels within the control of the generator to be non-waste. Ho wever, 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 submitte d in regard to painted wood or pentachlorophenol, copper-based and borate-base d compound treated wood materials and their contaminant concentrations, we believe these se condary materials contain elevated levels of contaminants relative to traditional fuels, and th us 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 ma terials are identified as a ha zardous waste, it would not be eligible to be burned in a non-h azardous waste combustion unit.) In regard to creosote treated lumber, we believe there is still a fair amount of uncertainty associat ed with the level of contaminants (e.g., levels of polycyclic arom atic hydrocarbons present in creosote) in comparison to traditional fuels. We, theref ore, are requesting that commenters provide additional data on contaminant levels associated with these non-hazar dous 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 scientif ic peer review, with a National Academy of Sciences (NAS) panel review expected to commence in late April 2010, which will coincide with a fo rmal public comment process through the Federal Register.draft/deliberative – do not distribute, cite or quote

71 One commenter stated that animal manure shou ld not be categorically excluded from the definition of solid waste because it is inherently waste-like, is discarde d, and does not meet the legitimacy criteria for “handled as a valuable commodity.” The co mmenter stated that concentrated Animal Feeding Operation (CAFO) wastes are known to contain heavy metals, halogens, dioxins, etc. Manure fr om 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 au tomatically be exempt from the definition of solid waste. In support of its position that manure re cycled into bioenergy and used as fuel is still a solid waste, the commenter cites the regula tions at 40 CFR §261.2(e)(2)(ii), wh ich lists materials burned for energy recovery, used to produce a fuel, or contai ned fuels among materials that are solid wastes, even if recycling of those material s involves use, reuse, or return to the original process. Overall, the commenter is concerned with the large volume s of animal waste currently being produced at animal feeding operations and the la ck of oversight at recycling fac ilities 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 wi ll meet the two benchmarks of immediacy and environmental care that define a “valuable commodity.” They c onclude 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 Biomassdraft/deliberative – do not distribute, cite or quote

72 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 la nd application), we are not making solid waste determinations that necessarily cover all possibl e 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 legitim ate non-waste fuel, we have limited data on contaminant concentrations and Btu value. Th erefore, we are requesting that commenters provide additional data on the extent to which manures (including materials, such as chicken litter) are currently used as fu els, as well as data to support whether these materials meet our legitimacy criteria, including the contaminant le vels and heating content. In addition, we recognize that animal manure, as generated, is t ypically not handled as a valuable commodity at the point of generation, but remains in feedlots or other areas with the po tential 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 contamin ant 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 cons ist of methane gas, and thus, would be considered a legitimate fuel that has been pr ocessed from a non-hazardous secondary material.draft/deliberative – do not distribute, cite or quote

73 We again acknowledge, however, that we have lim ited data (contaminant concentrations and Btu value) on biofuels that are produced from anim al manures, and are requesting that commenters provide additional data on the extent to which ma nures are currently proce ssed into biofuels, as well as data to support whether these material s 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-wa ste fuel if they have not been previously disc arded (i.e., if the used tires have not been ab andoned and thrown away). The ANPRM further stated that used tires collected and managed pursuan t to a state tire oversight progr am, are not considered to be discarded. The ANPRM also explained that discar ded used tires that have been processed to make a legitimate fuel product (such as TDF) w ould not be a solid waste. Furthermore, we requested comment on whether used tires that fall within the cate gory 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 wast es. Several commenter s responded that tires should be excluded from the defi nition 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 whethe r 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.”draft/deliberative – do not distribute, cite or quote

74 stated that extraction and reclamation from a wa ste 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 us ed 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 C AA section 129 requirements unless processed into a non-waste fuel product. See section VII.D.2 fo r 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 f acility or person can apply for a non-waste determination for secondary materi als that are not managed within the control of the generator. As outlined in section VII.D.5, the purpose of th e 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 demons trate 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 th e criteria outlined in the petition pro cess, which includes whether it meets the legitimacy criteria.draft/deliberative – do not distribute, cite or quote

75 in this proposal), should not be considered solid wastes if they meet the legitimacy criteria and are indistinguishable in all relevant as pects from a product or intermediate. d. Used Oil. As indicated in the ANPRM, we cons ider off-specification (or “off-spec”) used oil that is collected from repair shops to have been discar ded. Used oil that meets the onspecification (or “on-spec”) leve ls 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 devices 32 should be considered a legitimate non-waste fuel.
Comments : Most commenters believe that off-spec (and on-s pec) 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. Designa tion as a solid waste would lead to costly burning in hazardous waste incinerators, burning in uncontrolled sp ace heaters, and more undesirable disposal methods. Many commenters also referred to Congre ss’ 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 neith er disposed of, thrown away, nor abandoned, but is collected and containe d. Used oil is a valu able product that is subject to EPA’s recycling presumption. Btu cont ent 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 slig htly different view, a number of commenters argued that on-spec

32 Devises include industrial boilers located at facili ties 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.draft/deliberative – do not distribute, cite or quote

76 and off-spec used oil should be included in th e list of traditional fuels. Since neither is discarded, the presumption is that it is recycle d. 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 traditiona l 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 ma ximum 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 envi ronment 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) pres ent in on-spec used oil are either at the same concentration or a lower concentrat ion 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 exclude d from the definition of solid waste certain recycled materials used to make zinc fertilizers (and the fertili zers themselves) as long as they were not speculatively accumulated, met certain handling, storage and reporting conditions, and were “identical” to fertilizers ma de from raw materials, i.e., th ey 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 ru le 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).draft/deliberative – do not distribute, cite or quote

77 certain chemicals that fall below specified th resholds. 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 bur ned in specific types of combustion devices. 35 Although off-spec used oil may be managed within the control of the gene rator, it contains contaminants that are significantly higher in conc entration than traditional fuels, and thus would not be considered a legitimate non-waste fuel pe r 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 us ed oil that the owner or operator generates or used o il 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 am bient 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 hum an health and the environment. 36 However, consistent with our determination that off-spec used oil be cons idered a solid waste when burned as a fuel, we believe that off-spec used oil managed within th e control of the genera tor 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 ar e equipped with particulate control eq uipment (as required by CAA permits). Nonindustrial boilers (e.g., th ose located in apartment an d office buildings, schools, and hospitals), on the other hand, were found to pose significant ri sk when off-spec used oil is burned b ecause 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).draft/deliberative – do not distribute, cite or quote

78 the generator controlled excl usion when burned in a used oil fired-space heater, since contaminants are likely present at significantly highe r 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 identifie d 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 ar e removed or recovere d 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 clas sify an alternative fuel or ingredient as a solid waste merely because it does not have to undergo so me type of processing before being used. The same commenter also indi cated 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, a nd chemical analysis to identify Bt u, ash characteristics and sulfur content). Given the significant costs associated w ith the extraction of these materials, including excavation and handling, as well as the nearly iden tical nature of these materials to traditional fuels and ingredients, the extraction operations themselves constitute the requisite degree ofdraft/deliberative – do not distribute, cite or quote

79 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 conten t 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 take s 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 pa tented processes for removing unwa nted 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 th e 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 co als 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 Characterizat ion 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 la te 1970s. Beginning in the late 1970s, laws were enacted that, for the first time, required stabilization and recl amation of mining sites, including coal refuse disposal piles and fills. Current mining operatio ns continue to generate the material, though likely at lower rates than in previous decades. For purposes of this proposal, we are theref ore differentiating between coal refuse that was generated in the past and placed into "leg acy" piles, and the current generation of coal refuse. Legacy piles of coal refuse would cl early be considered to be disposed of and abandoned, thus meeting the definition of a solid waste material. We would not considerdraft/deliberative – do not distribute, cite or quote

80 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 pile s, the processing of coal refuse for use as a fuel or ingredient involves sepa ration through the use of screens or grizzlies, blending, crushing, and some drying. Although we understand that virg in coal is similarly processed, we believe that such operations would cons titute “minimal processing” a nd would not meet the processing definition as proposed. See secti on VII.D.4 for a discussion of wh at does and does not constitute “processing” as defined in this proposal. Theref ore, because coal refuse from legacy piles has been discarded and does not under go a sufficient level of processi ng, it is considered a solid waste and would be subject to the CAA 129 requi rements if burned in a combustion unit. We note that one commenter contended that co al refuse contained elevated levels of mercury, chromium, and lead when compared to ot her coals. We recognize that available data show that coal refuse generally has higher metals concentrations than non-refuse coal concentrations. Although coal refuse can contai n metals concentrations that are higher than found in virgin coal, data also show that emi ssions 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 le gacy piles satisfies the contaminant requirement of the legitimacy criteria, given th at we believe that such coal refu se 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 SO 2 emissions, which results in greater metal fixation to the ash.draft/deliberative – do not distribute, cite or quote

81 We are also differentiating between mined landfilled ash, which generally refers to landfilled coal ash, from coal refuse, which we ge nerally characterize as co al 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 pro cessed 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 ad ditional information, we are not in a position to indicate that such processing is sufficient to produce a non-wast e fuel. Therefore, we are requesting that commenters provi de additional information expl aining how this processing is conducted, and the extent to which these high carbon fuels are produced nationwide. With respect to high-carbon fly and botto m ash taken directly from exis ting boiler units and burned at power generating stations, we belie ve that such secondary materi als are not discarded and would not be considered a solid waste if it was managed within the contro l 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 w ith 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 pr ocessing requirement of this proposal. Although we recognize that sizing of materi als 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.draft/deliberative – do not distribute, cite or quote

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 treat ment sludge” as referred to in the ANPRM, was one of several non-ha zardous secondary materials that we solicited comment as to whether it is a legitimate alternative fuel and th us 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 speci fically pointed to the RCRA statutory definition of solid waste, stating that C ongress 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 Wate r Act (CWA), or to the extent necessary to meet CAA obligations, EPA should regulate th e 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 th e Agency to exempt sewage sl udge from the definition of solid waste, that the Agency provide a regulatory ex clusion for sewage sludge burned in incinerators in order to preserve the current framework fo r 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 purpos es (e.g., land application).draft/deliberative – do not distribute, cite or quote

83 Two commenters stated that sewa ge sludge meets all three legitim acy 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 commen ter stated these materials have meaningful heating value, given that it r ecovers a net energy value of 4,300,000 Btus/hour of useable thermal energy from its combustion. Also, the CWA sec tion 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 signif icant health risk. EPA’s Response : We agree with commenters that the RCRA st atutory definition of solid waste excludes the solid or dissolved material in domestic sewage. This is evidenced by the RCRA hazardous waste regulations that extend th is 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 generate d 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 inci nerator is discarded, and thus a solid waste. Further, the Agency is not proposing to provide a regulatory solid wast e exclusion for sewage sludge burned in incinerators th at 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 with in 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 Wa ste 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 syst em 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 defi nitions of “solid waste” and “sludge” was clear. (See 45 FR 33101).draft/deliberative – do not distribute, cite or quote

84 concerns about possible impact s 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 de finition of which non- hazardous secondary materials are or are not solid wast e 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 rec over energy in the form of usable heat from the incineration of sewage sludge via wast e 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 recove ry 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 on e that meets the definition of a boiler or an industrial furnace (see 40 CFR §260.10). Among ot her 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 ex emption. Thus, a combustion chamber that is connected by a duct to a waste heat boiler (or re cuperator/heat exchanger) does not qualify as a legitimate energy recovery device. The CAA pr ogram views waste heat recovery units (i.e., external to the combustion chamber) similarly. Wa ste heat recovery units are designed to cool the exhaust gas stream, and/or to recover, indirectly, the useful h eat remaining in the exhaust gas from a combustion unit that has some other pr imary purpose (such as an institutional waste incinerator). The presence of a waste heat reco very unit on the exhaust gas does not change the fact that the unit combusting the secondary mate rial is primarily an incineration unit burningdraft/deliberative – do not distribute, cite or quote

85 waste for disposal purposes. See Other Solid Wa ste 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 trad itional fuels (e.g., coal and fuel oil). See the table below for a compar ison of the concentration of certain toxics of municipal wastewater treatment sludges to coal.

Comparison of Toxics of Municipal Wastewa ter Treatment Sludges to Traditional Fuels 40
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 trea tment works, receiving seconda ry treatment or better, and which may include sewage sludge processed to meet the land a pplication standards.
As such, the Agency does not believe that sewage sludge would meet the legitimacy criteria for contaminants. Therefore, the Ag ency 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-hazard ous 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.draft/deliberative – do not distribute, cite or quote

86 coal combustion residual group (fly ash, bottom as h, 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 le gitimacy criteria, and requested additional data and/or information supporting whether these secondary materials are legitimate ingredients. The majority of comm ents 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 pr oduction process.
Comments : One commenter responded that they st rongly 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 pr oposing 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 th at ingredients used in combustion units that arenot 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 commercialdraft/deliberative – do not distribute, cite or quote

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 interp retation regarding the use of CKD must allow for access of the material irrespective of where the i ngredient 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 woul d not be considered a solid waste whether it remains unde r the control of the generator or is transferred to another person, so long as it meets the legi timacy 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 secti on 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 w ithin continuous commerce wh en it is marketed to cement kilns as an alternative ingredient is no t discarded. Under the ANPRM approach, if the CCR product was previously discarded, such non-h azardous secondary materials would be solid wastes, unless they were processed into a legitima te ingredient product. However, we solicited comment on the situation where a discarded mate rial is recovered from the environment and directly used as an ingredient (i.e. without processing). A dditionally, we solicited comment on the extent to which non-hazardous secondary mate rials 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 descri ptions of the types of processi ng that these secondary materials undergo.
Comments :draft/deliberative – do not distribute, cite or quote

88 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 ingredie nt. As an ingredient, the constituents within the fly ash are similar to those required from natu ral 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 im parts energy through its combus tion, reducing the need for some portion of fossil or other fuels for the kiln. EPA’s Response : As discussed above (and as further discusse d in Section VII.D.6.b), we are proposing that non-hazardous secondary materials used as ingredient s 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 kil n. With respect to CCRs, we believe the primary purpose of their use is as an ingredient; thus, pr ovided the CCRs satisfy the legitimacy criteria fordraft/deliberative – do not distribute, cite or quote

89 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 proc esses 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 in to 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 materi als 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 anal ysis to identify Btu, ash charac teristics and sulfur content). Finally, one commenter disagree d with our position on CCRs. The commenter believes that CCRs are wastes due to their high concentra tion 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 ma terial is a solid waste, unless it undergoes a sufficient level of processing to pr oduce a legitimate fuel product or ingredient. As discussed in detail in sect ion VII.D.4, when a non-hazardous secondary material has been discarded, unless sufficient processing occurs to ch ange 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 ingred ient 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 determinin g whether the materials are discarded and legitimate.draft/deliberative – do not distribute, cite or quote

90 requesting comment on whether such non-hazar dous 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 ingr edient, 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 th at are used as fuels, it appears that the patented processes described by the commenter th at separates carbon from the fly ash to produce technically compliant fly ash for use in conc rete would satisfy the processing requirement included in this proposal; however, we are re questing that commenter s provide additional information explaining how this processing is conduc ted, and whether this type of fly ash is used as an ingredient in the c linker 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 w ith 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 screeni ng, sizing, and chemical an alysis by itself is a sufficient level of processing that would render a discarded materi al into a non-waste ingredient product. As we noted previously in Section VII.C.5.e., while we rec ognize that screening, sizing, and chemical analysis can be important for pr oducing 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 under go 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. Howe ver, we request that commenters provide additional information as to the extent to which CCRs are recovered from the discard environment (e.g., landfill s) and used as ingredients in cement kilns, and if so, wedraft/deliberative – do not distribute, cite or quote

91 request commenters provide more detailed info rmation on the extent to which these CCRs are processed, and thus, might satisfy our proposed de finition 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 no ting that the chemical properties of CCRs are influenced to a great extent by those of the coal burned, the type of co mbustion unit, and the air pollution controls applied. 42 We are also aware that fly ash ma y contain various levels of metals, such as vanadium, zinc, copper, chromi um, nickel, lead, arsenic, and mercury. 43 However, in a recent Report to Congress that addr essed the use of thes e secondary materials as ingredients in cement and concrete applications, the overall co nclusion reached with respect to the perceived safety health risk barriers was a positive one, in th at the risk analyses di d not identify significant risks to human health an d the environment associated with these uses. 44 The Report to Congress also identifies severa l industry stakeholders and state agencies that have recognized that regulatory programs fo r the control of mercury and NOx in electric utility air emissions (and the necessary new emi ssion 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 th e ash as a supplementary cementitious material. 45 Consequently, EPA is studying the possible effects of new air emi ssion control technologies and

42 For more information on the different types, or ranks, of coal, please refer to the Ma terials 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.draft/deliberative – do not distribute, cite or quote

92 configurations on the composition of CCRs and publishing its findi ngs 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 resu lt 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 discu ssed ingredients, we requested data and/or information supporting whet her foundry sand is discarded and if not discarded, whether it meets the legitimacy criteria.
Comment : One commenter responded and stated that found ry sand meets all four legitimacy criteria for ingredients. The commenter offered severa l examples of applica tions for foundry sand in support of why it should not be a solid waste; however, very lit tle 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 s ituations 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 di rectly relevant. However, a s previously explained, we are proposing that non-hazardous secondary materials used as ingred ients 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.draft/deliberative – do not distribute, cite or quote

93 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 sl ag 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 aggregat es (though drilling and blas ting practices are not required for recovery). In part icular, iron and steel slag aggreg ates 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 ar e 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.draft/deliberative – do not distribute, cite or quote

94 7. Legitimacy Criteria The ANPRM discussed the following legitimacy cr iteria 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 valu able product; and (4) the product does not contain contaminants that are significa ntly higher in concentr ation than traditional products. We requested comment on the criteria th emselves 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 seconda ry materials that are used as fuels or ingredients. Several commenters disagreed with the application of th e 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 pr ices and should not be more onerous than the legitimacy test codified at 40 CFR §260.43. Comme nters 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.draft/deliberative – do not distribute, cite or quote

95 EPA’s Response: Application of Legitimacy Criteria First, we would note that ther e are two questions that the Ag ency 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 di scarded and is therefore a soli d waste, which includes wastederived fuels or ingredients a nd (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 ingr edient product are being legitimately and beneficially us ed and not simply being discar ded via sham recycling. The definition of legitimate recycling developed fo r 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. Like wise, 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 legitim acy criteria that use the same basic framework that has been established for the subtitle C hazardous waste regu lations, but that are also tailored specifically for application to non-hazardous secondary material s 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 th e non-hazardous secondary materials legitimacy provisions (including comparisons to the DSW le gitimacy provision) is discussed in section
VII.D.6. Commenters also suggested that the legitim acy criteria must be flexible to account for increasing use and changes in commodities, tech nologies, markets, and fuel prices and shoulddraft/deliberative – do not distribute, cite or quote

96 not be more onerous than the legitimacy defini tion codified at 40 CFR §260.43. We agree with these commenters and have proposed qualitative crit eria that we believe provide the flexibility needed in evaluating these secondary material s that will accommodate such changes. The legitimacy criteria are structured to distinguish between legitima te reuse/recycling and disposal (i.e., sham recycling), while at the same ti me not impose restrictions on the types of nonhazardous secondary materials that may be of valu e in the future. For a detailed discussion of the proposed legitimacy crit eria, see section VII.D.6

. In regard to the commenters who requested clar ification on whether all criteria need to be met, we believe that each of the criteria is importa nt 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 regardin g the legitimacy criteria for ingredients. The commenter argued that the dete rmination 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 f actors. 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 exis ts, but may not conform to one or both of these factors. For further discussion of the legitimacy factors in the hazardous waste ru les, 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.draft/deliberative – do not distribute, cite or quote

97 EPA’s Response: Ingredients (General) We generally agree with the commenter. That is, to the extent th at the non-hazardous secondary material has not been discarded in th e first instance, which we presume it would not be as part of a closed-loop system, and such s econdary material meets the legitimacy criteria, it would not be considered a solid waste when co mbusted. Thus, as an example, where CKD is recycled back into the cement kiln, and meets th e legitimacy criteria, it is not solid waste. b. Fuels or Ingredients Being Managed as Valuable Commodities
Comments : For this criterion, most commenters genera lly 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 ma ndatory part of the criteria. One commenter suggested that rather than focus on contai nment, 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-haza rdous secondary material should be stored in a manner that preserves their economic value and a voids damaging releases to the environment. Another commenter thought that EPA should lo ok to state requirements for containment, handling, and storage. Similarly, another comm enter suggested that EP A should recognize that if a non-hazardous secondary material is manage d pursuant to federal requirements that also apply to raw materials (e.g., coal refuse comp ared 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 ma terials to make recovery economical and thus, is not an appropriate criterion to concl ude that a non-hazardous s econdary material isn’t being reused and is a solid waste.draft/deliberative – do not distribute, cite or quote

98 EPA’s Response : We generally agree with those commenter s who argued that a specific containment system should not be required a nd, therefore, are proposing a qualita tive approach in line with the same principle as the commenter who sugge sted 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 proposi ng that where there is an analogous fuel or ingredient, the nonhazardous secondary material used would be require d to be managed in a manner consistent with the management of the analogous fuel or ingredie nt or otherwise must be adequately contained so as to prevent releases to the environm ent. As explained in section VII.D.6, an “analogous ingredient or fuel ” is an ingredient or fu el 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 adeq uately 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 sec ondary material. In regard to the comment on speculative accumulation, we are not proposing a sp ecific timeframe, because states already require varied timeframes and we will l eave 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 itdraft/deliberative – do not distribute, cite or quote

99 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 be nchmark with a case-by-case analysis. No commenters recommended deleting the criterion. Commenters em phasized 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 ar e clarifying in this proposal , that non-hazar dous 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 sec ondary materials with a heating value lower than 5,000 Btu/lb, as fired, may also be considered to have a meaningful h eating value if the unit can cost-effectively recover m eaningful energy. See section VII.D.6.a

. for an explanation of the factors that may be considered in determin ing whether an energy recovery unit can costeffectively recover energy from a non-hazardous secondary materi al. Also, as outlined in the same section, this criterion is an appropriate factor, since it expresse s 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 consiste nt with determinations expres sed in previous RCRA and CAAdraft/deliberative – do not distribute, cite or quote

100 rulemakings, including the RCRA comparable fu els 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 ma terials would not be considered to have meaningful heating value and thus, woul d be a solid waste by definition. d. Fuel/Ingredient Contaminant Levels. To address the possibl e presence of waste-like contaminants in non-hazardous secondary materi als, the ANPRM stated that such secondary materials used as fuels should not contain contam inants that are signific antly higher than thosecontained in traditional fuels. For ingredients, the ANPRM stated that products that use nonhazardous secondary materials as ingredient s in combustion units should not contain contaminants that are significantly higher in co ncentration than the pr oduct produced without the non-hazardous secondary material. For both ingred ients and fuels, the ANPRM suggested that a qualitative approach may be more appropriate to use than numerical specif ications. In addition, we requested comment on whether the contaminants evaluated should be the hazardous constituents listed in Appendix VIII to 40 CF R part 261, or whether a different list of contaminants would be more appropriate.
Comments : Commenters were evenly divided on whethe r the presence of contaminants was an appropriate legitimacy criterion. For commenters favoring the crit erion, most believed that a qualitative approach was preferable ; stating that little risk exis ts 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 commentersdraft/deliberative – do not distribute, cite or quote

101 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 inap propriate, 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 alternativ e 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 i ngredients in combustion units, one commenter agreed that the assessment should involve the final recycled product and not the ingredient itself. However, another commenter c ountered 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 virg in materials. This commente r reasoned that combustion will destroy many of the substances that EPA c onsiders possible contam inants and basically eliminates any environmental concern. Anot her 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 comment s, we believe it appropriate to include contaminant levels as a legitimacy criterion. Th us, we do not agree with those commenters’ that assert that contaminant comparisons are not appr opriate to require as pa rt of the legitimacy criteria. The Agency believes the criterion is necessary because non-hazardous secondary materials can contain contaminants that are sign ificantly higher in concentration than those contained in traditional fuel products or i ngredients, which would suggest that thesedraft/deliberative – do not distribute, cite or quote

102 contaminants are being combusted as a means of discarding them, and thus the non-hazardous secondary material should be classified as a soli d 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 contamin ants 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 assessm ent 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 there by eliminate any environmental concern). The Agency believes that this post-combustion asse ssment of contaminants further supports the principle that contaminant levels (before and after combustion) are im portant indicators of legitimacy. Despite the preference for a qua ntitative approach by some commenters for this criterion, we continue to believe that a qualitative a pproach 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 “signifi cant” via a bright-line quantitative test for all industries, and all recycling pro cesses, and all recycled hazardous secondary materials would be too great for the Agency to design as a simple a nd 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 comparis on and, if needed, a separate qualitative assessment. We are proposing assessments that include whether non-h azardous secondary materials used as fuels in combustion units have contaminants that are significantly higher in concentration than traditionaldraft/deliberative – do not distribute, cite or quote

103 fuel products by 1) a direct comparison of contamin ant levels in the fuels themselves (materials with contaminants that are not significantly hi gher than the traditional fuels would pass the criteria) and by 2) if it does not pass the firs t criteria, perform a qua litative assessment of contaminant levels. Such assessments should consid er the type of contamin ant, the toxicity of the contaminant, and the potential impact on re leases to the environment during handling and combustion. In the comparisons, the range of th ese types of contaminant levels need to be included since they can vary simila r to how the contaminant levels can vary in traditional fuels. For ingredients, we continue to believe th at the contaminant assessment should be based on a comparison between the product made w ith the non-hazardous secondary material ingredient and the product made with traditional ingr edients. As with fuels, we believe this can either be made by a direct comparison of contam inant levels in the products themselves, or by evaluating the non-hazardous secondary material qualitatively in determining whether the products contain significantly higher concentrat ions 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 haza rdous waste) five ways 48 in which a secondary material can add value and usefully contribute to a recycling pr ocess 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 th e recycling process; or (iii) is the sour ce of a valuable cons tituent 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.draft/deliberative – do not distribute, cite or quote

104 Only one commenter responded and indicated that the five criteria are too narrow and should be broadened to apply to the non-hazardous sec ondary material uses (i.e., processes not considered recycling) since us ing the criteria for hazardous wa ste as a model is too limiting. EPA’s Response : After review of the comment, we understand th at there is some interest in broadening those criteria for non-hazardous secondary material use, but the commente r did not provide any information to merit the development of a sepa rate or additional criteria for non-hazardous secondary material use to describe how they can “add value and usefu lly contribute to a recycling process” (or broaden to non-recycling uses as suggeste d by the commenter). However, the Agency solicits comments on this point; in part icular, 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 valu able if it is (i) sold to a third party or (ii) used by the recycler or generator as an effec tive 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/inte rmediate is an appropriate way to consider this criterion in the context of non-hazardous secondary ma terials used as ingredients.
Comments : One commenter responded that they support th is criterion, but caution that it be broad enough so that it addresses the va lue obtained by both its use on-site and off-site by a third party. The commenter also suggested th at the provision be interpre ted broadly to also includedraft/deliberative – do not distribute, cite or quote

105 traditional recycling markets and the products gene rally 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 in clude traditional recy cling markets and the products in which the secondary materials are utilize d, we do not agree that it would be appropriate. Specifically, this rule is addressing a part icular issue within the cont ext 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 cr iteria 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 be yond 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 minimi s amounts of solid waste to be burned without being subject to the CAA 129 requirements.
Comments : Several commenters believe that any regulat ory 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 co mbusted, result in de minimis emissions. An example provided by the commenters of a waste ma terial is boiler chemical cleaning waste, which consists primarily of water, but also incl udes metal deposits from the boiler tubes, as well as spent solvent. Another exam ple is oily rags which are generated in small quantities duringdraft/deliberative – do not distribute, cite or quote

106 routine maintenance activities. Air emissions asso ciated with these practices is a small fraction compared to the emissions generated from fo ssil 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 s econdary 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 mini mis amounts of solid waste (i.e., because it results in de minimis emissions) can be exempted from CAA 12 9 regulation is outside the scope of this rulemaking. In the court cases cite d by the commenters, de minimis exceptions were in the context of the CAA and its regulato ry scheme. Therefore, these issues are more appropriately addressed in rulemakings that speci fically 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 ma terials 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 sectio n VII .D.1, and are legitima te fuels; or 2) they are legitimate fuels that are produced from th e processing of discarde d non-hazardous secondary materials as discussed in secti on 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 so lid wastes unless a non-waste determination hasdraft/deliberative – do not distribute, cite or quote

107 been made pursuant to the proposed petition process (discussed below in section VII.D.5). 49 Non-hazardous secondary materials used as in gredients in combustion units would not be considered solid waste if they have not been di scarded 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 s econdary materials that have been discarded may be processed into a non-waste i ngredient that meets the legitim acy requirements as discussed in
VII.D.4. The ANPRM also discussed another possible ex clusion 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 conc luded 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, th erefore, are not subject to th is rule, which deals with the definition of solid waste for non-hazardous second ary materials used in combustion units. As noted in the ANPRM, under the hazardous wast e regulations, the Agency has evaluated a number of hazardous secondary mate rials 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. Speci fically, the following materials may be burned under certain conditions and are no t 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.draft/deliberative – do not distribute, cite or quote

108 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 no t considered solid wast es 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 fuels 53 are not being reopened in this proceeding and EPA is no l onger requesting comment on those solid waste definitions for purposes of this rule. Except for the petition process, the proposed cr iteria are designed to be self implementing in nature, i.e. they do not requi re prior Agency approval. 1. Non-Hazardous Secondary Materials Used as Fuel within the Control of the Generator We are proposing to use the general framewor k finalized in the Definition of Solid Waste Rule to determine circumstances under which non-hazardous secondary materials remaining under the control of the ge nerator that are used as fuels in co mbustion units are not considered to have been discarded.

a. Scope and Applicability. EPA is proposing that non-ha zardous secondary materials used as fuels in combustion units that remain w ithin 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 cont rol of the generator and meet these criteria are

50 Black liquor is burned in a pulping liquor recovery furn ace 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 pr ocess. With respect to co mparable fuel, these hazardous secondary materials are considered a legitimate non-waste fuel because they meet the chemical and physical specifications of a traditional benchmark fu el. Commercial chemical products that are themselv es fuels, such as offspecification fuels, incl uding 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.draft/deliberative – do not distribute, cite or quote

109 referred to as legitimate (non-wa ste) fuel products. The propos ed 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 se condary 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 ma terials qualify for being “under the control of the generator.” The first part applies to non-hazar dous secondary material generated and used as fuels at the generating f acility. For purposes of this propo sed criteria, “gen erating 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 genera ting facility. A facility that collects nonhazardous secondary materials from other persons (for example, used tir es collected through a collection program) is not the second ary material generator of those ma terials. This is consistent with the approach taken in the DSW final rule, which specified that a facility that collects hazardous secondary materials from other pers ons (for example, when mercury-containing equipment is collected through a special collec tion program), would not be considered the hazardous secondary material generator for purpose s of eligibility for the generator-controlled exclusion. See 73 FR at 64715. If a generator hires or co ntracts with a different co mpany to use the non-hazardous secondary materials at the genera tor’s facility as fuel, either temporarily or permanently, these materials remain under the control of the genera tor. However, generators sometimes contract with a second company to collect non-hazardous secondary materi als at the generating facilitydraft/deliberative – do not distribute, cite or quote

110 and such materials are subsequently used as fuels in a combustion unit at anot her facility. In that situation, if the facili ty that burns the non-hazardous sec ondary 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 pursua nt 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 ge nerator and the facility using the fuel in a combustion unit). For purposes of this proposed cr iteria, “control” means th e 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, n on-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 th ird 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 manufact urer and legitimately reclaime d by the tolling contractor. For purposes of that exclusion, a tol ling contractor is a person who a rranges for the production of a product or intermediate made from specified raw or virgin materials th rough a written contract with a toll manufacturer. The toll manufacturer is the pers on who produces the product or intermediate made from the specified raw or virg in materials pursuant to a written contract with a tolling contractor. We view th is as a very specific type of arrangement where, for example, adraft/deliberative – do not distribute, cite or quote

111 chemical manufacturer outsources a step in the manufacturing process to another company (typically a "batch" manu facturer), and then the batch ma nufacturer sends both the product and the residuals back to the main company (and the residuals ar e then reclaimed by the main company). Although there are two companies, th ere is only one manu facturing 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 thes e types of contractual arrangements where both products and secondary mate rial 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 comme nts on whether to include this option in the final rule; those persons who provide comments s upporting the addition of this option to the final rule should provide specific instances or exam ples 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 mu st 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 combus tion unit that recovers energy, a nd does not contain contaminants that are significantly higher in concentration th an traditional fuel products. The details of the legitimacy criteria are discussed in Section VII.D.6. of this proposal.draft/deliberative – do not distribute, cite or quote

112 Notification. We are not proposing to require fa cilities that use non- hazardous secondary material fuels within the control of the generato r 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 proc ess heaters today. That proposal would require specific notifications from sour ces subject to the standards including notificati ons of compliance status, test results and descrip tions of applicable air pollution control devices. In addition, for sources that have made a non-waste self-det ermination 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 defini tion of processing as appropriate
. However, we solicit comment on this and specifically request comment on whethe r the Agency should requi re, at least initially, if not on a periodic basis, notification a nd recordkeeping under RCRA by those persons who both generate or combust non-hazardous seconda ry 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 ge nerator would be considered solid wastes unless they have been processe d into a legitimate non-waste fuel product (discussed in section VII.D.4. below) or unless a non a non-waste de termination has been made pursuant to the proposed petition proces s (discussed in sec tion VII.D.5. below). This proposed approach differs from the ANPRM approach, which specified that nonhazardous secondary materials, such as used tires co llected at tire dealersh ips and transferred to a third party would not be consider ed discarded if, for example, th ey 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 havedraft/deliberative – do not distribute, cite or quote

113 entered what is traditionally considered to be th e “waste stream” (and have been regulated by the states as wastes) and therefore s hould appropriately be considered to be solid wastes (e.g., scrap tires) unless/until they are proces sed 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 approac h, we request that commenters provide the basis for why such secondary materi als have not been discarded. When non-hazardous secondary material fuel s are transferred to another party, we generally believe that the material is discarded since the generato r 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 petiti on process to allow any person to demonstrate that non-hazardous secondary material fuels transf erred to another party outside the control of the generator have not been di scarded, and thus, are not a soli d waste. See section VII.D.5. below for details on the petition process.) This lack of incentive to manage as a us eful 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 pl ace under the transfer-based exclusion for hazardous secondary materials that are generated and then transf erred 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.draft/deliberative – do not distribute, cite or quote

114 For example, the over-accumulation of scrap tires is well known and has resulted in massive piles of discarded tires that have cont ributed to the overall solid waste management problem due to the threat of fires, su ch as the Rhinehart Tire Fire Dump, 55 and because they provide an ideal breeding ground for mosquitoes a nd 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 seconda ry materials destined for use as a fuel that were accumulated, but then di scarded have similarly co ntributed 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 manufactur ing, where the cost of raw materials or intermediates (or inputs) is greater than zero and revenue is generated prim arily from the sale of the output, secondary materials r ecycling, including when used as a fuel, can involve generating revenue primarily from receipt of the secondary materials. Recy clers of secondary materials in this situation may thus respond differently than traditional manufacturers to economic forces and incentives, accumulating more inputs (secondary ma terials) than can be processed and generating stockpiles with sometimes little in centive 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 tradit ional 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 a pply equally to non-hazardous secondary materials.draft/deliberative – do not distribute, cite or quote

115 used as ingredients in manufacturing processes th at utilize combustion syst ems. As previously discussed, traditional fuels have been burned historically as fuels and have been managed as valuable products, are considered unused products and therefore ar e not solid wastes. Also see discussion in section VIII.D.6.b below that explains EPA’s rationa le as to why ingredients that are not managed within the control of the gene rator are determined not to be discarded. In some cases, a non-hazardous secondary materi al may be transferre d to another entity to be burned for energy and still more closely resemb le a product than a wast e, despite the fact it is neither a traditional fuel nor has it been proces sed 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-haza rdous 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 discusse d previously, whole tires that originate from tire dealerships and automotive shops (that are overs een by state tire collection oversight programs) would be considered to be discarded unless a nd until they are processed into TDF that has removed the steel belts and wire, or a case-speci fic non-waste determination petition is granted. EPA believes tires that are coll ected from tire dealer ships and automotive s hops, especially if overseen by a state tire collection oversight program that collects fees and regulates the process under state “waste” au thorities, generally meet the plain m eaning of discard; such materials can be considered as having been “discarded” by the original ow ner of the tire. This is further supported by the fact that ma ny 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 regulationdraft/deliberative – do not distribute, cite or quote

116 ranges from state to state, but ma ny states directly regulate used ti res, 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 ar e generated at tire collection point s, such as tire dealerships. 3. Non-Hazardous Secondary Materials Used as Ingredients in Combustion Units. Non-hazardous secondary materials used as in gredients 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 c ontrol 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-haza rdous 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 ma terials are not solid wa stes. 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-haza rdous secondary materials have been processed into a non-waste fuel or ingredient product m eeting the legitimacy criteria, the discarded nonhazardous secondary material are considered solid wastes and would be subj ect to all appropriatedraft/deliberative – do not distribute, cite or quote

117 federal, state and local requirements. Similar to the proposed approach for non-haza rdous secondary materials that are used as fuels within the control of the generator, we ar e not proposing to require facilities that combust non-hazardous secondary materials that have b een processed into non-waste fuel/ingredient products to notify EPA as part of this proposal. We believe th is would be duplicative to the CAA 112 regulatory notification and record keepi ng 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 addi tion, 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 fu el 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 record keeping under RCRA by those persons who both generate or combust non-hazardous secondary material s that are not solid wastes.

a. Proposed Definition of Processing. The proposed definition of processing means any operations that transform discar ded non-hazardous secondary materi al into a new fuel or new ingredient product. Minimal operations, such as op erations 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, opera tions that: remove or destroy contaminants; significantly improve the fuel char acteristics of the material, e.g., sizing or drying the material in combination with other operations; chemically imp rove the as-fired energy content; and improve the ingredient characteristics. While today's rule proposes a definition of operations thatdraft/deliberative – do not distribute, cite or quote

118 constitute processing, the level of processing that is necessa ry to render a discarded nonhazardous secondary material into a non-waste pr oduct 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 ingredie nt, 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 t hus a solid waste. The Agency seeks comment on the proposed definition of processing, including whether such definition provides sufficient clarity that it can be impl emented under the self-implementing provision in today’s proposed rule (thi s approach is discussed fu rther in this section). b. Rationale for Processing Discarde d Material Into Non-Waste Products . Today’s proposed rule identifies circumstances where mate rials 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 definitio n 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 mate rial consistently satisfies th e 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 pro cessed into new recycled paper and aluminumdraft/deliberative – do not distribute, cite or quote

119 products that are not considered so lid waste. Collected plastic is generally sent to a reclaimer, who will sort, grind, and clean the plastic. Th e cleaned and sorted plastic is sent to a manufacturer who will use it as feedstock. Thes e are clear examples where discarded materials are processed into legitimate non-waste products. Recycled fuel products are no different fr om recycled paper and aluminum cans with respect to discard. If non-haza rdous 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 ma rketed and sold as a valuable commodity and are no different that traditional fuels used today, then they shoul d 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 insi ght into how secondary materials can be processed into valuable products. For instance, discarded spent so lvents are commonly recycled via distillation into legitimate, newly usable solv ents. 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-hazar dous secondary material that is processed into a non-waste. (EPA specifically exempted scra p 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 physic ally altered to either separate it into distinct materials to enhance the economic value or im prove the handling of these mate rials. Processed scrap metal includes...scrap metal which has been baled, shredded, chopped crushed, flattened, cut, melted, or separated by metal type (i.e. sorted). . .” (s ee 40 CFR 261.1(c)(10)). We believe this is adraft/deliberative – do not distribute, cite or quote

120 good example of where the level of processing ne cessary 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 sin ce 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 w ith determining whether non-waste fuels can be processed from discarded materials is th at the combustion of materials is commonly associated with disposal, whether it is waste disposal in incinera tors or waste disposal in energy recovery devices (e.g., municipal waste co mbustors that rec over 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 mate rial 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.draft/deliberative – do not distribute, cite or quote

121 environment. Another difficulty the Agency faces is the mi sconception 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 th rown away); contaminant levels are part of that consideration, such that if a secondary mate rial 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 contaminat ed materials can. This, combined with the perception that combustion of secondary materi als is equated to discard, results in the perception that there needs to be a very high th reshold with respect to the level of processing that must take place to render a discarded mate rial into a non-waste product. We believe, however, that a strict, but appropr iate 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 consid ered 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 incl ude 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 ingredie nt 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 material s that have been discarded, but can be processed into a non-waste fuel or ingredient product include, but are not limited to, used tires,draft/deliberative – do not distribute, cite or quote

122 solid waste processed in gasifier s to produce synthesis gas, off-sp ec used oil (discussed above), sewage sludge processed into pellets, painted wood, and coal fines and biomasss processed into pellets with the impurities remove d. Each of these are described in more detail below. Used Tires. EPA views used tire processers as faci lities that take solid waste that can produce valuable non-waste products. Used tir es undergo various pro cessing steps to meet certain specifications that are necessary for a partic ular 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 cons istently meets the needs of that particular end use. This is common for TDF. Used tires are often processed by shredding a nd removing dirt or other contaminants to produce TDF. Processing scrap tires into TD F can involve two physi cal processing steps: chipping/shredding (usually rangi ng in size from 1 to 4 inch es) and (in some cases) metal removal, with the amount of metal in TDF vary ing 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 benef it 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 pr ocessing discussed above. Thus, used tires that

60 As discussed previously, today’s pr oposal only addresses non-hazardous s econdary materials that are used in combustion process, and not in other applications. 61 We note that most cement kilns use w hole tires as fuels, as op posed 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 propos al, 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.draft/deliberative – do not distribute, cite or quote

123 have been shredded/chipped without the remova l of the metal belts or wire would not be considered to have been sufficiently processed, a nd any TDF that is genera ted in such a fashion would be considered a waste-de rived 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 a ll types of solid fuel, prope r 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 st andard 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 com bustion. 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 rem oved consistent with the ASTM standard for relatively wire free. However, as noted in footnote 60, ce rtain types of combustion units, such as cement kilns also use the wire in the tire as an ingredie nt 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 se rve a useful purpose in the process of making clinker . Syngas Produced from Gasification of Solid Waste. Although not specif ically 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 compar able; zinc is present in higher conc entrations in TDF than coal.draft/deliberative – do not distribute, cite or quote

124 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 av ailable for conversion to energy, including conversion through gasification te chnologies. Gasification is a ch emical production process that converts carbonaceous material into a synthesis gas that can be used for energy production (or as a building block for other chemi cal manufacturing processes). In general, gasification systems are designed to react carbon-cont aining materials and steam at high temperatures to produce a synthesis gas composed mainly of carbon monoxide and hydrogen. Gasification systems include two basic component s. The first is the re actor or gasifier and the second is a gas cleanup or polishing system us ed to remove various contaminants from the raw (un-polished) synthesis gas. At a minimum, syngas cleanup generally incl udes 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 bios olid drying that destroys pathoge ns and bacteria. Specifically, raw sewage sludge is moved to digesters wher e 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 “t umble-drying” ovens that destr oy the pathogens and bacteria, removing any remaining water, and rotate the sl udge into the final pe lletized product. Although we consider this to meet our definiti on of processing, the fu el pellets would still have to meet the legitimacy criteria to be cons idered a non-waste fuel. As discussed in section VII.C.5.f., we generally believe se wage sludge itself has contaminan t levels that are higher thandraft/deliberative – do not distribute, cite or quote

125 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-hazardou s 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 dispos ed 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 char acteristics of coal. For example, the K-Fuel process employs heat and pressure to transfor m 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 ligni te 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-h azardous secondary materials to have been sufficiently processed to produce a fuel product th at 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 wa stes prior to processing and would be subject to appropriate federal, stat e, and local requirements. d. Examples of Minimal Processing That Would Not Meet Proposed Definition of Processing. S ewage sludge, and other non-hazardous seconda ry materials that have a high moisture content can be dewatered to effectively increase th e 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, dewateri ng sewage sludge would likely be required processing as part

63 Evergreen Energy Company Website. http://www.evgenergy.com/k_fuel.phpdraft/deliberative – do not distribute, cite or quote

126 of normal waste management activities (e.g., prio r 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, remove d from waste tire piles or collected and managed pursuant to state tire collection programs, that are mark eted to cement kilns or other industrial furnaces and used as fuels absent pr ocessing into what we consider processed TDF would be another example of insufficient pro cessing to produce a non-waste fuel. However, we are also requesting comment on wh ether discarded materials that have been collected and that otherwise have not been processe d (as defined in this proposal), should not be considered solid wastes if they are indistinguishable in all releva nt aspects from a product (again, of course they must be legitimate), and such whole tires are marketed to cement kiln s 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 propos ed definition can be shown to be no different than other non-waste fuels in use today, could th at secondary material be considered a non-waste fuel/ingredient product even though it was discarde d in the first instance? Commenters should provide the rationale suppor ting 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 produ ce a non-waste fuel or ingredient. The Agency believes that such an approach is appropriate consideri ng the large number of non-hazardous secondary materials that are generated that may be processed into a non-waste fuel or ingredient. However,draft/deliberative – do not distribute, cite or quote

127 there is also the question of whet her 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 th is particular provisi on 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 i ngredient would be considered a non-waste fuel or ingredient. We also re quest 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 appr oach would put a much gr eater burden on EPA, it would also provide greater certainty to the regulated community as to which non-hazardous secondary materials have been sufficiently pro cessed to produce a non-wast e 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 receivi ng a formal determination from EPA that nonhazardous secondary material fuel that has not b een managed within the control of the generator has not been discarded, and is indistinguishable in all relevant aspects fr om 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-haza rdous secondary material fuel (and thus is “outside the control of the gene rator”) 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 “gen eral rulemaking authority” could also be promulgated under RCRA subtitle D.draft/deliberative – do not distribute, cite or quote

128 indistinguishable in all releva nt aspects from a fuel. This proposed process would be voluntary. The non-waste determination process would require the petitioner to request such a case-sp ecific 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 demons trate 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 seconda ry material used a fuel has not been discarded in the first instance, the petitioner would need to demonstr ate 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 mate rials would be considered to be discarded in the first instance. For example, secondary materi al retrieved from a landfill or tires retrieved from waste tire piles would be considered material s 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 n on-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) whethe r the capacity of the market would use the nonhazardous secondary material in a reasonable timefr ame; (4) whether the constituents in the non-draft/deliberative – do not distribute, cite or quote

129 hazardous secondary material are not released to the air, water or land from the point of generation to the combustion of the secondary materi al at significantly higher levels from either a statistical or from a health and environmental risk persp ective than would otherwise be released; and (5) othe r relevant factors. Specifically, the first criterion for a non-waste determination is whether market participants handle the n on-hazardous secondary material as a fuel rather than a solid waste. This would include consideration of likely ma rkets 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 pa rticipation is a key from a fuel products standpoint rather than as negatively-valued wastes. The second criterion for a non-waste determina tion is the chemical and physical identity of the non-hazardous secondary material and whethe r it is comparable to commercial fuels. This “identity principle” is a key fact or that the Court of Appeals for the D.C. Circuit cited in Safe Foods in determining whether a ma terial is indistinguishable from a product. It is important to note that the identity of a material can be comp arable 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 a nd the commercial fuel should not be significant from a health and environmental risk perspective. The third criterion for making a non-waste determ ination is the capacity of the market to use the non-hazardous secondary material as a fu el 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 no n-hazardous secondary materials will in fact bedraft/deliberative – do not distribute, cite or quote

130 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 involve d, and therefore determining this time frame should be made on a case-specific basis. Howeve r, the Agency solicits comments on whether it should propose a specific timeframe as part of this criterion. The fourth criterion for a non-waste determina tion is whether the constituents in the nonhazardous secondary material fuels are not rele ased 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 Ag ency 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. Th e Agency recognizes that combustion using traditional fuels also result in a certain level of re lease and, in evaluating this cr iterion, 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 rela tively 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 materi al 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 th e non-hazardous secondary material is not a solid waste. This catch-all criterion is intended to allow the pe rson to provide any cas e-specific information considered important and releva nt in making the case that its non-hazardous secondary materialdraft/deliberative – do not distribute, cite or quote

131 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 ther e is overlap between th e legitimacy criteria and the five petition criteria discussed above. Thus, the same rationale used to demonstrate that the non-hazardous secondary material does not contai n contaminants that are significantly higher than traditional fuels in combination with the ar gument that such secondary material contains meaningful heating value can be used to satisf y 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 th at would otherwise be regulated must apply to the Regional Administrator per the pr ocedures described in proposed §241.3(c). The application must address the re levant 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 gr anting or denying the applicati on. Notification of this tentative decision will be provided by newspaper advertis ement or radio broadcas t in the locality where the recycler is located. The Regional Admini strator 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.draft/deliberative – do not distribute, cite or quote

132 The Regional Administrator will issue a final de cision 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 w ould 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 withou t 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 aut horized for this provision or if the following conditions are met: (1) the state determines the hazardous secondary mate rial 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 al low this type of non-waste determination process in determining whether or not such non-h azardous secondary material is or is not a solid
waste? We note that states may submit these de terminations on behalf of the petitioner for EPA to evaluate under the proposed non-waste de termination criteria in proposed §241.3(c)(1). If EPA determines through the petition process that the secondary ma terial in the state determinations are not solid wa ste, 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-haza rdous 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 affectsdraft/deliberative – do not distribute, cite or quote

133 how a non-hazardous secondary material meets th e relevant criteria contained in proposed §241.3(c)(1), persons must re-apply to the Region al Administrator for a formal determination that the non-hazardous secondary material continue s 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 th at 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 re quire 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 mana ged in a manner consistent with the management of the analogous fuel or otherw ise 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 releas es to the environment. An “analogous fuel” is a traditional fuel for which the non-hazardous secondary material s ubstitutes and which serves the same function and has similar physical and chemical propertie s as the non-hazardous secondary material. With respect to how long a non-hazardous sec ondary material can be stored before the

65 We note, however, that non-hazardous secondary materials that satisfy th e 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.draft/deliberative – do not distribute, cite or quote

134 material is not considered to be “managed as a valuable commodity,” we are not specifying a specific timeframe, but requiring that the non-h azardous secondary material be stored for a reasonable time frame. EPA is not proposing to specifically define “rea sonable 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 fl exible enough to allow accumulation to be costeffective, but at the same time, allows for en forcement of over-accumulation. Nevertheless, the Agency solicits comment on whether it should de fine a specific timeframe as part of this criterion, such as adopting the speculative accu mulation 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 befo re 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 generato r-controlled exclusion, as well as to materials that have been processed into a product fuel . For the generator-controlle d provision, the non-hazardous secondary material must be managed as a va luable commodity upon generation through its end use as a fuel. For non-hazardous secondary mate rials that are proce ssed 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 prev iously, before the fuel product is produced, the non-hazardous secondary materials are solid wastes.draft/deliberative – do not distribute, cite or quote

135 This criterion requires that the non-hazardous secondary material be managed appropriately before its end use as a fuel. In EPA’s view, a compa ny will value non-hazardous secondary materials used as fuels that provide an important contribution and, therefore, will manage those secondary materials in a manner cons istent with how it manage s 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 indicat e 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 s ituations. The first situa tion 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 wh ere 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 seconda ry material fuel, or because physical or chemical differences between the secondary materi al 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 w ould not be considered analogous even if they serve the same function because it may not be appr opriate 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 todraft/deliberative – do not distribute, cite or quote

136 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 placi ng the material in a unit that controls the movement of that material out of the unit. 66 We believe this sligh tly revised definition is appropriate because of the wide range of non-h azardous secondary materials that are used as fuels, some of which may not need to be “contai ned” 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 ru le required that this factor be considered, but not necessarily met. Under that rule, th e Agency was aware of situations in which the contained factor is not met, but the secondary material is sti ll 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 w oven super sack and stored in an indoor containment area that has an analogous raw material that is shipped and stored in drums. A strict read ing of this factor may determine that the hazardous secondary material is not being managed in a manner consistent with the analogous secondary mate rial even if the differences in management are not actually impacting the likelihood of a release. This proposal includes a requirement for anal ogous raw materials to “...be managed in a manner consistent with the analogous fuel or ot herwise be adequately contained to prevent releases to the environment” (§241.3(d)(1)(i)(B)). This is si milar to the DSW final rule provision, but is also different in that the requirem ent in today’s proposal has to be met (not just considered) and the proposal’s standard is more flexible than the DS W provision. Thus, today’s

66 See October 30, 2008; 73 FR 64681draft/deliberative – do not distribute, cite or quote

137 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 mate rial would be discarded. This approach is simpler, but functionally equi valent 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 va lue and be used as a fuel in a combustion unit that recovers energy. See pr oposed §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 clea r that non-hazardous sec ondary materials having a meaningful heating value, but that are not bur ned 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 s econdary materials with a meaningful heating value and use that fuel value to limit the other ty pes 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 sec ondary 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. S econd, since these provisions ar e 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 appropria te to highlight that point by adding that restriction directly to this legitimacy criteria. With respect to the requirement that th e non-hazardous secondary material have a meaningful heating value, in the context of th e 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 wast e heat recovery boiler would not be considered a combustion unit that satisfies this legitimacy criterion.draft/deliberative – do not distribute, cite or quote

138 value, in the so-called “comparable fuels” ru le (63 FR 33781) by defini ng it with a benchmark Btu content of 5,000 Btu/lb. EPA ha s 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 co mbustion. “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 a pply 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-effectivel y produce energy from secondary materials with lower energy content. As a result, for purposes of meeting the legitimacy criteria for fuels, we would consid er non-hazardous seconda ry materials with an energy value greater than 5,000 Btu/lb, as-fired, to have a mean ingful heating value, and satisfy this legitimacy criterion. Facil ities 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-effectiv ely 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-eff ectively recover energy from the non-hazardous secondary material include, but are not limited to , whether the facility en counters 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 thedraft/deliberative – do not distribute, cite or quote

139 secondary material they are burning can self-s ustain 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 wh ether it should promulgate a bright-line test for determining what is considered a meaningf ul heating value in an effort to provide greater certainty to both the regulated community and re gulatory 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 shoul d 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 destru ction as opposed to energy recovery. Under this approach, non-hazardous secondary materi als between this lowe r level and 5,000 Btu/lb (assuming there is a difference) could pass this cr iterion provided the facility demonstrates the energy recovery unit can cost-e ffectively 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 ev aluate hazardous secondary materials in the DSW final rule. In that rule, with respect to usef ul contribution, EPA said that legitimate recycling must involve a hazardous secondary material that provides a useful contri bution 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 - legitimat e use is not occurring if the se condary materials being used dodraft/deliberative – do not distribute, cite or quote

140 not add anything to the process. Th is 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 legitim acy factor, the DSW fi nal 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 expres ses 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 co mmercial product that it would otherwise have to buy or obtain for its industrial process. We be lieve non-hazardous secondary ma terials that have meaningful heating value that are used as fuels in combusti on 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-h azardous secondary materials used as fuels in combustion units not contain cont aminants 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, in cluding those contaminants that could generate products of incomplete combustion (PICs). The assessment of whether non-hazardous s econdary 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 fuelsdraft/deliberative – do not distribute, cite or quote

141 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 signif icantly higher concentrations of contaminants that may be a concern when burned as a fuel. Under the fi rst option, we request comment on whether the contaminant comparisons should be based upon nor malizing the contaminant levels on a “per Btu” basis. EPA continues to believe that a qualita tive approach of determining whether nonhazardous secondary materials have significantly hi gher 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 pl ace, would make the development of numerical specifications impracticable for combustion techno logies and fuels in us e 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 co ntaminant 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 comm ent 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 wh at will be considered a “reasonable timeframe” from the Agency’s perspective. Commenters th at suggest that the Agen cy establish numerical cut-offs should indicate what the levels should be, and the basis or rationale for such andraft/deliberative – do not distribute, cite or quote

142 approach. As discussed in the ANPRM, in determining whether the concentration of contaminants in non-hazardous secondary materi als is “significantly higher,” we believe that a qualitative evaluation of the potential human health and envi ronmental 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 ri sk, and therefore may not be considered “significant” for the purposes of determining whether the non-hazardou s secondary material is legitimately being burned as a fuel in combustion units. Since thes e 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 compari ng 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 elev ated contaminant levels impact the use of the material. However, the Agency requests comment as to whether the rule s should require the owner/operator of the combusti on unit to keep such documenta tion, 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 crit erion addressing contam inant 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 criteri on for contaminants is tailored specifically todraft/deliberative – do not distribute, cite or quote

143 the use of these non-hazardous secondary mate rials 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 le gitimately used as a fuel. We are therefore proposing that this legitimacy criterion be met fo r 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 usef ul contribution, be used to produce a valuable product or intermediate, and the product must not contain contaminants that are significantly higher in concentration than tr aditional products. Th ese criteria are discussed below. Managed as Valuable Commodities. We are proposing to requi re 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 th e management of the analogous ingredient, or otherwise be adequately contained so as to prevent releases to th e 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 su bstitutes and which serves the same function and has similar physical and chemical propertie s as the non-hazardous secondary material. We are proposing the same storage time and containment requirements that weredraft/deliberative – do not distribute, cite or quote

144 discussed earlier for the legitimacy criteria for fu els, and are also proposin g that this criterion be met. Consistent with the legitimacy criteria for fuels, this criterion addresses the management of non-hazardous secondary materials used as ingred ients in two distinct situations. The first situation is when the non-hazar dous secondary material is anal ogous to an ingredient that otherwise would be used in the production pro cess. In this case, the non-hazardous secondary material should be managed prior to use as an ingredient similarl y to the way analogous ingredients are managed in the course of norma l manufacturing, or otherwise be adequately contained. The second situation this criterion addresse s is the case where there is no analogous ingredient that otherwise would be used in the pr oduction process. This could be either because the process is designed around a particular non -hazardous secondary material, or because physical or chemical differences between th e 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 fuel s for additional discussion of this criterion. Useful Contribution. We are proposing that the non-haza rdous secondary materials used as ingredients in combustion units provide a usef ul contribution to the production/manufacturing process. See proposed 241.3(d)(2)(ii). A non-ha zardous secondary material used as an ingredient in combustion systems provides a us eful contribution if it contributes valuable ingredients to the production/manuf acturing process or to the pr oduct 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 cr iterion is intended todraft/deliberative – do not distribute, cite or quote

145 prevent the practice of adding non-hazardous sec ondary materials to a manufacturing operation simply as a means of disposing of them, whic h 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 cata lyst 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 t oday’s proposal addresses non-hazardous secondary materials that are used as ingredients in combus tion units, we believe that only items (i) and (v) are specifically relevant to our assessment of whether these non-hazar dous secondary materials provide a useful contribution in combustion scenarios. We request comment, however, on whether this is accurate, and whether the secondar y materials we are assessing as ingredients can provide useful contribution in other ways. For purposes of satisfying this proposed criter ion, 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 ar e needed in the manufacturing process, such as, for example, zinc in non-hazardous secondary mate rials that are used to produce zinc-containing micronutrient fertilizers, and satisfy this criterion (although we woul d also note that the constituents not directly contributing to the manufacturing process coul d still result in the material failing the contaminant pa rt of the legitimacy criteria). Valuable Product. We are proposing that the non-hazar dous secondary materials used as ingredients in combustion units must be used to produce a valuable product or intermediate. Seedraft/deliberative – do not distribute, cite or quote

146 proposed 241.3(d)(2)(iii). The product or intermediate is valu able if it is (i) sold to a third party or (ii) used as an effective substitute for a comm ercial 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 pro cess should be a material of value, either to a third party who buys it from the manufacturer, or to the same manufactur er 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 concep t of legitimate use of secondary materials as ingredients because legitimate use cannot be occurri ng if the product or interm ediate 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 disp osal. Such a practice would be sham recycling. One way that the use of the non-hazardous s econdary 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 documentati on on the sale of the product to a third party. Such documentation could be in the form of recei pts 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 es tablish value by demonstrat ing that it can replace another product or intermediate that is available in the marketplace. Production/manufacturing processes that use non-hazardous sec ondary materials as ingredients in combustion system s 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 adraft/deliberative – do not distribute, cite or quote

147 feedstock in a manufacturing process, but have no estab lished monetary value in the marketplace. Such products or inte rmediates would be considered to have intrinsic value, though demonstrating intrinsic value ma y be less straightforward than demonstrating value for products that are sold in the marketplace. Demonstrations of intrinsic valu e could involve showing that the product or intermediate of the production/manufactur ing process replaces a nother material that would otherwise have to be purchased or c ould involve a showing that the non-hazardous secondary material meets specific product specific ations or specific indus try standards. Another approach could be to compare the non-hazardous secondary mate rial’s physical and chemical properties or efficacy for certain uses with thos e 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 wi ll yield a valuable product or intermediate. When each step in the process yields a valuable pr oduct or intermediate that is salable or usable in that form, the activity woul d conform to this criterion. Contaminant Levels. We are proposing that the produc ts resulting from the use of nonhazardous secondary materials as ingredients in combustion units must not contain contaminants that are significantly higher in concentrati on than traditional products that are manufactured without these non-hazardous sec ondary 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 ha ve contaminants that ar e significantly higher indraft/deliberative – do not distribute, cite or quote

148 concentration than the same product that is produced wit hout 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 themselv es to traditional ingred ients 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 “signi ficantly higher,” we believe that a qualitative evalua tion of the potential human health and environmental risks posed could be used in instances where contaminants in the product are presen t at slightly higher concentrations relative to th e product that is produced w ithout use of the non-hazardous secondary material ingredient. A contaminant c oncentration 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 requi rements are self implementing in nature (i.e., they do not need up front approval from the regulat ory agency), facilities that satisfy this criterion by qualitatively compar ing risk levels may decide to keep supporting documentation on-site in the event they are inspected by regulat ory 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 imp act 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 high er” and would not pose an unacceptable risk when burned.draft/deliberative – do not distribute, cite or quote

149 Similar to fuels, we are proposing that th e 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 criter ion 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 me t, but the material would still be considered legitimately used as an ingredient.

Alternative Approach for Consideration In addition to the proposed approach desc ribed in Section VII.D., the Agency is identifying an alternative approach for consider ation 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 valu able products (as discussed in section VII.C.5.) would not be solid wastes. In addition, non-haza rdous secondary materials used as fuels or ingredients are excluded from the defi nition of solid waste if they both remain within the control of the generator and meet the legitimacy criteria. In contrast to the proposed approach desc ribed above, all other non-hazardous secondary materials that are burned as a fuel or used as an ingredient in the co mbustion process are solid wastes subject to the CAA section 129 standards. Also, all materials that result from processing of discarded non-hazardous seconda ry materials would be solid wa stes. As with the proposed approach, wastes include those se condary 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. Th is solid waste designation would include materials, such as secondary wood products combusted on-site, coal refuse, and tires processed into TDF, and on-draft/deliberative – do not distribute, cite or quote

150 spec used oil (for the purposes of this alternative a pproach only), and all secondary materials used as ingredients managed outside the contro l 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 potenti al impact this alte rnative 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 tradit ional recycling, while en suring more stringent emissions standards under CAA section 129 for those sources that elect to continue to burn these secondary materials. Depending upon local disp osal 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 ensu re adequate protection 69 ; 2) establish monitori ng of actual emissions; 3) include requirements for operator training a nd certification; 4) pr ohibit 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 second ary 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.draft/deliberative – do not distribute, cite or quote

151 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 base d on case law holding that, the RCRA definition of solid waste does not extend to secondary material beneficially reused in a continuous industrial proce ss 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 “reclaim ed” in a continuous process. Th at 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 reus ed 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, EP A 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 wast es 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 continuou s industrial process would be excluded from thedraft/deliberative – do not distribute, cite or quote

152 definition of solid waste. This is differen t from the proposed approach, in which EPA has chosen to exercise its discretion to conclude th at certain materials are not wastes even though the courts have not expressed any view s 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 (11 th Cir. 1993); Owen Steel v. Browner , 37 F.3d 146, 150 (4 th Cir. 1994). Wastes may be used benefi cially. Even assuming beneficial reuse takes place, therefore, a material once discarde d 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 materi al 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 gene rator. 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 neith er 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 ge neralities. Relevant for today’s alternative approach, we note that oil bearing wastewaters disc ussed in API II were in fact recycled on-site, but that the court could not dete rmine whether they were wastes or not. Clearly, the issue wasdraft/deliberative – do not distribute, cite or quote

153 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 ge nerally, 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 ha ve excessive amounts of contaminants that have no fuel value. In particular, if there are excessive contaminants, that would be an indicati on that the material is really a waste and it is being combus ted 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 manu facturing process, must be used to produce a valuable product or intermediate, and cannot result in products that contain contaminants that are significantly higher in conc entrations than found in traditional products. For details on the legitimacy requirement, see s ection VII.D.6, above. In fact, as noted below, EPA has determined, for purposes of this alternat ive approach, that [see wood residuals and pulp and paper sludge below], even though they are recycled on-site or unde r the control of the generator, they are still c onsidered solid wastes. The key point regarding the legal basis of th is 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 ingr edient is not a solid waste. The alternative approach, accordingly, requi res that the secondary ma terial material is both recycled under the control of the generator and complies with the leg itimacy criteria to ensure that it is in fact not handled as a waste and is a truly beneficial fuel or ingredie nt product. An example of a materialdraft/deliberative – do not distribute, cite or quote

154 burned for energy recovery under the control of the generator and meeting the legitimacy requirements is on-spec used oil generated on-si te and combusted in an industrial boiler. Other examples, such as pulp and paper sl udge and wood manufacturi ng 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 determ ined 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. Howeve r, for this alternative approa ch, 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 ma y or may not be discarded. The D.C. Circuit has also acknowledged the ambiguity of the te rm “solid waste” under RCRA as applied to particular situations. Specificall y, the court stated that “[the] term may be ambiguous as applied to some situations, but not as applied to othe rs.” ABR at 1056. Thus , there could be some secondary materials that are clear ly legitimately recycled within a continuous industrial process and others that are less clear. EPA believes that wood residual s 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 genera tors to fuel their bo ilers and are treated like valuable commodities. However, there appear to be questions with re spect to contaminants that give EPA pause as to whether they are primarily waste treatment activities involved withdraft/deliberative – do not distribute, cite or quote

155 these materials - - specificall y, levels of chlorine in pulp a nd paper sludge and formaldehyde in wood residuals. Accordingly, EPA believes that with respec t to contaminant leve ls the wood residuals and pulp and paper sludge presen t a situation in which reasonab le 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 mo re definitive decision in the final rule. EPA believes that its formulation that secondary material recycled or reused legitimately under the control of the ge nerator will cover all, or almost al l, secondary material recycled or reused in a continuous industrial process. The Agency requests co mment on the adequacy of this formulation and any data commenters may have i ndicating particular seco ndary materials that will fall within or without this formulation and whether those materials are discarded or not. Comments are specifically reque sted 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 incl ude a petition process that provides persons with an administrative process for a formal determina tion that their non-hazard ous secondary material fuel or ingredient is indistinguish able 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 fo r determining when non-hazardous secondary materials are legitimately burned as non-waste fu els or ingredients has applicability to the universe of facilities subject to CAA sections 112 and 129, as well as other rules and agencydraft/deliberative – do not distribute, cite or quote

156 regulatory programs. 1. Clean Air Act
a. CISWI. As discussed in Section IV. the CI SWI 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-p romulgating the definitions of “solid waste,” “commercial or industrial solid waste in cineration unit,” and “commercial or industrial waste” in the CISWI Definitions Rule. The CISWI Definitions Rule was the subject of anot her judicial challenge where the Court observed that the statute unamb iguously requires any unit that combusts “any solid waste material at all” – rega rdless 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 pr oposed rule establishe s under RCRA which nonhazardous secondary materials constitute “solid wast e,” and, the established definition has been used by EPA in proposing which universe of fa cilities are subject to the CAA section 129 requirements. That is, any unit combusting “solid waste” will be regula ted as a “solid waste incineration unit” under CAA secti on 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 pr ocess, 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),draft/deliberative – do not distribute, cite or quote

157 as well as air emission requirements under sectio n 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 inst itutional boilers and process heat ers (Boilers MACT) as subpart DDDDD of 40 CFR part 63 pursuant to CAA secti on 112(d). As discussed in Section IV., on June 8, 2007, the Court of Appeals for the D.C. Circ uit issued a decision vacating the rule in its entirety and remanding the Boiler MACT, indica ting that EPA erred in including units that combust solid waste for energy recove ry 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 wast e combustor (VSMWC) units, and (2) institutional waste incineration (IWI) units. The rules establish emission limits for nine air pollutants from these two types of in cinerators under CAA section 129. Based on the ruling by the D.C. Court of A ppeals 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 incinera tion units and, as such, must be regulated under CAA section 129. Categor ies 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), agricultu ral residue and animaldraft/deliberative – do not distribute, cite or quote

158 manure incinerators, and other t ypes of VSMWC units and IWI un its 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 s ubpart 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 material s 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 c overage under both CAA sections 111 and 129). Conversely, if the fuel is determined to be non-waste secondary ma terials, the EGUs which combust them would be regulated under the CAA section 112 rulemaking. 2. Renewable Energy This proposal may impact how some non-hazard ous secondary materials could be used to help supply renewable energy to the U.S. a nd 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 pro duction of transportation fuels. Qualified sources would include wind, solar, and geothe rmal power, but could also include power generated by the combustion of biogenic ma terials, which may include some non-hazardousdraft/deliberative – do not distribute, cite or quote

159 secondary materials burned for energy recovery. Biogenic materials are materials that result from the activity of living organisms and a num ber of non-hazardous secondary materials are partially or completely biogenic. The urgency for establishing national legisl ation mandating the use of renewable energy sources comes in part from an increasing internat ional concern over climate change. Releases of
CO 2 from human activity, particularly from power generation and use, are expected to cause or contribute to an increase in the global temperatur e if they are not reduced. Thus, the increased use of any source of energy that could result in the reduction of gree nhouse 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 ma terials could be set at the level of energy in the source that is biogenic in origin. Energy from biogenic sources is ge nerally preferable to fossil fu els. 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 prov ide states with a mechanism to increase renewable energy generation using renewable energy sources (incl uding 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 w ith 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 economical ly competitive with conventional forms of electric power. States create RPS programs becau se of the energy, environmental, and economicdraft/deliberative – do not distribute, cite or quote

160 benefits of renewable energy and sometimes ot her clean energy approaches, such as energy efficiency and combined heat and power. Today's proposed rule determining which nonhazardous secondary materials constitute solid wa ste may impact the requirements for secondary materials that may be burned for ener gy 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 fe deral program has a long regulatory history in defining ‘‘solid waste’’ for purpos es of the hazardous waste regulations. However, the 40 CFR 261.2 definition of solid waste expl icitly applies only to wastes that also are hazardous for purposes of the subtitle C regulations (s ee 40 CFR 261.1(b)(1)). CAA section 129 also specifically excludes subtitle C units from cove rage under that section. EPA emphasizes that it is not modifying or reopening its hazardous wa ste 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 e ndangerment” 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 seconda ry 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 regu lations. 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 ab ility to pursue potentially responsible persons under section 107 of CERCLA for rel eases or threatened releases of hazardous substances. VIII. State Authoritydraft/deliberative – do not distribute, cite or quote

161 Subtitle D of RCRA establishes a framework for state, federal, and local government cooperation in controlling the management of non-hazardous so lid waste. The federal role in this arrangement is to establish the over all regulatory direc tion, by providing minimum nationwide standards for protecti ng human health and the environm ent, and to provide technical assistance to states for planni ng 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-hazar dous secondary material activities involve the management of a solid waste. Many states ha ve a process or promul gated 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 articula ting 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 Defini tions and Beneficial Use Determinations CAA Section 129 states that the term ‘‘solid waste’’ shall ha ve 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 sectiondraft/deliberative – do not distribute, cite or quote

162 129 standards apply. Specifically, state determinati ons 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 second ary material under EPA’s solid waste definition as it relates to which combustion units are subject to the CAA secti on 129 standards, except perhaps as discussed in section VII.D.5, where we discus s a state’s ability to s ubmit, on behalf of the petitioner, a petition for EPA to evaluate under the proposed non- waste determination criteria. 70 Likewise, non-hazardous secondary materials th at are exempted from being a solid waste by EPA’s proposed rule, if finalized, would be exem pt from the CAA section 129 standards, even though the state standards may define the non-hazar dous 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 so lid 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 de termination 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 de termination. 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 ra w material it is replacing or, when incorporated into another product, its use w ould be beneficial to the fina l product. Relying on these beneficial use determinations would recognize st ate interests in defini ng 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.draft/deliberative – do not distribute, cite or quote

163 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 whethe r certain materials are solid wastes when used as fuels or ingredients in combustion units, must take into account the cu rrent legal rationale for defining solid waste under EPA authority. Specifi cally, the courts have held that a secondary material that has been discarded is a solid waste regardless of whet her 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 st atus as a solid waste. See the ANPRM for this rulemaking for the comp lete 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 adop tion of today's proposed rule are included in today’s proposal under RCRA subtitle D. A lthough 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 re quired to adopt today’s rule, so me states incorporate federal regulations by reference or have sp ecific 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 traditio nally measured by the net change in socialdraft/deliberative – do not distribute, cite or quote

164 welfare that it generates. This action alone does not directly invoke any costs 71 or benefits. This proposal is being developed and published in conjunction with the upcoming Boiler MACT and CISWI proposed rules 72 . Costs to the regulated community and corresponding benefits to human health and the environment fall unde r the jurisdiction of these rules. As such, the Agency has not prepared a separate economic assessment in s upport 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 C AA proposed rules. Thes e independent regulatory impact analyses measure, among other factors, the estimated net change in social welfare associated with these actions. In th e 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 B udget (OMB) guidelines and procedures. The Agency has also prepared a general executive su mmary document that addresses overall impacts of this rulemaking package. These documents ar e 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 a nd Budget (OMB) has determined that this

71 Excluding minor administrative burden /cost (e.g. rule fa miliarization) and management, voluntary petition costs. 72 National Emission Standards for H azardous Air Pollutants for Area So urces: 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.draft/deliberative – do not distribute, cite or quote

165 proposed rule is a significant regulatory action becau se it contains novel policy issues, as defined under part 3(f)(4) of the Order. Accordingl y, 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 Reque st (ICR) document prepared by EPA has been assigned EPA ICR number 2382.01. This proposal establishes a vol untary non-waste determination petition process for materials identified as solid wast es. 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 info rmation about the seconda ry material and the market demand for this material will be neces sary to demonstrate that the non-hazardous secondary material will in fact be used as a fu el or ingredient in th e combustion process. Specifically, the petition will need to contain information to assess the following criteria: (1) whether market participants handl e the non-hazardous secondary materi al as a fuel rather than a waste; (2) whether the chemical and physical iden tify of the non-hazardous s econdary material is comparable to a commercial fuel; (3) whethe r the capacity of the market would use the nonhazardous secondary material in a reasonable timefr ame; (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 si gnificantly higher levels from either a statistical or from a health and envir onmental risk perspective than would otherwise bedraft/deliberative – do not distribute, cite or quote

166 released; and (5) othe r relevant factors. The facility-level burden associ ated with this voluntary pe tition option is uncertain. However, we estimate an average total one-tim e burden of approximately 700 hours per facility, with a total cost per facility of approximatel y $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 Agen cy requests comment on the number of petitions that are likely to be submitted to EPA for cons ideration. Burden is defined at 5 CFR 1320.3(b). An agency may not conduct or sponsor, a nd 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 Info rmation 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 d ecision 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 Actdraft/deliberative – do not distribute, cite or quote

167 The Regulatory Flexibility Act (RFA) gene rally 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 signifi cant economic impact on a substantial number of small entities. Small entities include sma ll businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of toda y's rule on small entities, small entity is defined as: (1) a small business, as define d by the Small Business Administration’s (SBA) regulations at 13 CFR 121.201; (2) a small government al jurisdiction that is a government of a city, county, town, school district or special district with a popul ation of less than 50,000; and (3) a small organization that is a ny not-for-profit enterprise whic h is independently owned and operated and is not dominant in its field. After considering the economi c impacts of today’s proposed rule on small entities, I certify that this action will not have a significant economic imp act 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 a nd process heaters, area source industrial, commercial, and institutional bo ilers and commercial and industrial solid waste incineration units. We estimate that these units operate in ap proximately 50 different industry categories based on the NAICS three digit sector code level. These sectors include: crop production; forestry and logging; support activities fo r agriculture and fo restry; oil and gas extraction; mining (except oil and gas); utilities; heavy and civil engine ering construction; food manufacturing; beverage and tobacco product ma nufacturing; textile mills and textile productdraft/deliberative – do not distribute, cite or quote

168 mills; wood product manufacturing; paper manuf acturing; petroleum and coal products manufacturing; chemical manufacturing; pl astics and rubber products manufacturing; nonmetallic mineral product manufacturing; prim ary metal manufacturing; fabricated metal product manufacturing; machinery manufact uring; computer and electronic product manufacturing; transportati on equipment manufacturing; furniture and related product manufacturing; merchant wholesalers; motor vehi cle and parts dealers; air, rail, and pipeline transportation; warehousing and storage; wa ste management and remediation services; educational services; hospita ls; 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 analys is 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 ec onomic 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 im pact on a substantial number of small entities, EPA nonetheless has tried to reduce the (indirect) im pact of this rule on small entities through the careful and targeted identific ation 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 H azardous Air Pollutants for Area So urces: 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.draft/deliberative – do not distribute, cite or quote

169 D. Unfunded Mandates Reform Act This proposed rule does not contain a Fede ral mandate that may re sult in expenditures of $100 million or more for State, local, and tribal gove rnments, 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, th is rule is not subject to the requirements of sections 202 or 205 of UMRA. This proposed rule is also not subject to th e requirements of section 203 of UMRA because it contains no regulatory requi rements that might significantly or uniquely affect small governments. As described above, this action alone does not re sult in unique effects, or significant economic impacts. E. Executive Order 13132: Federalism This action does not have federalism implica tions. 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, i ndependent of the CAA rules, as proposed (see footnote 81), will not result in substantial direct effects on th e states. Furthermore, this action will not preempt state laws related to the a ffected materials. States will remain free to manage these materials as appropriate under thei r Subtitle D programs. Thus, Executive Order 13132 does not apply to this action. Although we believe that this action, as pr oposed, will not result in substantial direct effects on the states, we are sensitive to the percep tions States may have of this action in regard to their solid waste management programs. On January 2, 2009 we published an ANPRMdraft/deliberative – do not distribute, cite or quote

170 (Identification of Non-Hazardous Materials That Ar e Solid Waste) that presented the Agency’s anticipated approach for this action. We received numerous co mments on this ANPRM, many of which came from States. Furthermore, we ha ve reached out to the States with various informational conference calls throughout the development of this proposal. . In the spirit of Executive Or der 13132, and consistent with EPA policy to promote communications between EPA and State and lo cal governments, EPA specifically solicits comment on this proposed action fr om 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, th at 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 trib al governments, nor preempt Tribal law. The proposed rule may have minor tribal implications to the extent that enti ties generating or burning solid wastes on tribal la nds could be affected. EPA consulted with tribal officials early in the process of developi ng 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 Chil dren from Environmental Health and Safetydraft/deliberative – do not distribute, cite or quote

171 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 Si gnificantly 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 actio n, 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 ar e assessed and discussed in the preambles and supporting materials for those rules. I. National Technology Transfer Advancement Act Section 12(d) of the Na tional 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 regul atory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Volunt ary consensus standards are technical standards (e.g., materials specifications, test methods, samp ling procedures, and busi ness practices) that are developed or adopted by voluntary consensus st andards bodies. NTTAA directs EPA to providedraft/deliberative – do not distribute, cite or quote

172 Congress, through OMB, explanations when th e Agency decides not to use available and applicable voluntary consensus standards. This proposed rulemaking does not involve technical standard s. Therefore, EPA is not considering the use of any vol untary 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 provi sion 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, disp roportionately high and adverse human health or environmental effects of their programs, policie s, 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 advers e human health or environmen tal effects on minority or lowincome populations. We have completed prel iminary environmental justice analyses in conjunction with the Boiler MACT and CISWI propos ed rules (see s ection IV.A.). Refer to those proposed rules and the supporting materials in their dockets for details on those environmental justice analyses (D ocket # 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 environmen tal justice concerns and has assumed a leadership role in environmental justice initia tives to enhance environmental quality for alldraft/deliberative – do not distribute, cite or quote

173 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 citi zens 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 a rray of environmental jus tice 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 toda y’s proposal includes two main parts: 1) demographic analysis and environm ental impacts; and 2) outreach. Demographics Analysis and Environmental Impacts. For this proposal, the demographic analys is focuses on the management of secondary materials that have been propos ed to be solid waste under this proposed rule (versus the emissions from the combustion of the non-hazardous secondary mate rials which will be covered in the Boiler MACT and CISWI proposed rules) . Specifically, the analysis focuses on the populations around the facilities accepting non-h azardous 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 rulema king. The analysis includes a demographic evaluation (focusing on the presence of low-in come 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 impactsdraft/deliberative – do not distribute, cite or quote

174 of the CISWI and Boiler MACT propos ed rules using the least cost a pproach). The analysis also covers additional diversion implications. The assessment includes impacts on the abatement of scrap tire piles, stockpiling of secondary material s, and the disposal of us ed 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, identifi cation of demographic characterist ics 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 outrea ch process took place at the EPA Community Engagement in Rulemaking Roundtable Discus sion 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 meet ing, the basics of the advanced notice of proposed rulemaking were discussed, includi ng how it interacts with EPA’s upcoming CAA section 112 and section 129 rulemakings, and provide d an educational forum to bring together EPA technical experts, community leaders, nonprof it 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 outre ach 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 asso ciated with the outreach are posted atdraft/deliberative – do not distribute, cite or quote

175 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, ti tle 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 FU ELS OR INGREDIENTS IN COMBUSTIONdraft/deliberative – do not distribute, cite or quote

176 UNITS

SUBPART A -- General
Sec. 241.1 Purpose 241.2 Definitions SUBPART B – Identification of Non-Hazardous Seco ndary Materials that are Solid Wastes When Used as Fuels or Ingred ients In Combustion Units
Sec. 241.3 Standards and Procedures for Identificatio n of Non-Hazardous Seco ndary Materials that are Solid Wastes When Used as Fuel s or Ingredients in Combustion Units

SUBPART A -- General 241.1 Purpose This part identifies the requirements and proced ures 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 seconda ry 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 pro ducts of incomplete combustion (PICs).draft/deliberative – do not distribute, cite or quote

177 Contained means the non-hazardous secondary materi al 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 th e facility, whether by the ownership of stock, voting rights, or otherwise, except that contractors who operate facili ties 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, l eased, or otherwise controlled by the non-hazardous secondary material generator owner /operator.

Intermediate product means a finished product traded us ually 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], partnershi p, association, State, municipality, commission, political subdivision of a st ate, or any interstate body.

Processing means any operations that transform dis carded non-hazardous secondary materialdraft/deliberative – do not distribute, cite or quote

178 into a new fuel or new ingredient product. Mini mal 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 char acteristics of the materi al, e.g., sizing or drying the material in combination with other opera tions; chemically improve the as-fired energy content; and improve the ingredient characteristics.

Secondary material means any material that is not th e primary product of a manufacturing or commercial process, and can include post-cons umer material, off-sp ecification commercial chemical products or manufacturing chemical inte rmediates, 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 s econdary material is generated and burned in combustion units at the generating fac ility; or that such material is generated and burned in combustion units at diffe rent facilities, if the facility combusting the material is controlled by the generator; or if both the ge nerating facility and the facility combusting the material are under cont rol of the same person as defined in §241.2.

SUBPART B - - Identification of Non-Haza rdous Secondary Materials that are Solid Wastes When Used as Fuels or Ingredients in Combustion Units

§241.3 Standards and Procedures for Iden tification of Non-Hazardous Secondarydraft/deliberative – do not distribute, cite or quote

179 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 Administra tor pursuant to paragraph (c) of this section. The criteria to be addressed in the petition, as we ll 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 genera tor (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 specifie d in paragraph (d)(2) of this section. (3) Fuel or ingredient products that ha ve undergone processing (as defined in 241.2) from discarded non-hazardous secondary materials a nd that are used as fuel s 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 resp ect 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 di scarded 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 Re gional Administrator for the EPA Region wheredraft/deliberative – do not distribute, cite or quote

180 the facility combusting the non-hazardous secondar y material is located by an applicant for a determination that the non-hazar dous secondary material, even though it has been transferred to a third party, has not been discarde d and is indistinguishable in a ll relevant aspects from a product fuel. The determination will be based on wh ether 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 identi ty 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-hazard ous secondary material are not released to the air, water or land from the point of ge neration 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 evalua te 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 evalua te the application a nd issue a draft notice tentatively granting or denying the application. Notification of this tentative decision will be published in a newspaper advertis ement or radio broadcast in th e locality where the facilitydraft/deliberative – do not distribute, cite or quote

181 combusting the non-hazardous seconda ry 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 hear ing 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 determ ination that the non-hazardous s econdary material continues to meet the relevant criteria and is not di scarded 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 th at recovers energy and that remains within the control of the generator, non-h azardous secondary materials us ed as an ingredient in a combustion unit, and fuel or ingredient produc ts that are processed from discarded nonhazardous secondary materials that are used as fu els 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, th e non-hazardous secondary material must bedraft/deliberative – do not distribute, cite or quote

182 managed in a manner consistent with the analogous fuel or otherwise be ad equately 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 pr event releases to the environment; (ii) The non-hazardous secondary material mu st have a meaningful heating value and be used as a fuel in a combustion unit that recovers energy. (iii) The non-hazardous secondary materi al cannot contain contaminants that are significantly higher in co ncentration than tradit ional fuel products. (2) Legitimacy criteria for non-hazardous sec ondary 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 anal ogous ingredient or otherwise be adequately contained to prevent releas es 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 pr ocess. The secondary material provides a useful contribution if it contribu tes a valuable ingredient to the product or intermediate or is an effective substitute for a commercial product.draft/deliberative – do not distribute, cite or quote

183 (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 sign ificantly higher in con centration than found in traditional products that are manufactured wi thout the non-hazardous secondary material ingredients it is replacing.