80452 Federal Register/Vol. 76, No. 247/Friday, December 23, 2011 /Proposed Rules 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 60 and 241 

[EPA-HQ-OAR-2003-0119 and EPA-HQReRA 2008-0329; FRl-9503-7] 

RIN 206Q-AR15 and 20SQ-AG44 

Commercial and Industrial Solid Waste 

Incineration Units: Reconsideration 

and Proposed Amendments; NonHazardous Secondary Materials That 

Are Solid Waste 

AGENCY: Environmental Protection 


Agency. 


ACTION: Proposed rules; Reconsideration 


of final rule. 


SUMMARY: On March 21, 2011, the EPA 

promulgated its final response to the 

2001 voluntary remand of the December 

1,2000, new source performance 

standards and emission guidelines for 

commercial and industrial solid waste 

incineration units and the vacatur and 

remand of several definitions by the 

District of Columbia Circuit Court of 

Appeals in 2007. Following that action, 

the Administrator received petition[s] 

for reconsideration as well as identified 

some issues that warrant further 

opportunity for public comment. In 

response to the petition!s], the EPA is 

reconsidering and requesting comment 

on several provisions of the final new 

source performance standards and 

emission guidelines for commercial and 

industrial solid waste incineration 

units. 

In addition, the EPA is proposing 

amendments to the regulations which 

were codified by the Non-Hazardous 

Secondary Materials rule. Originally 

promulgated on March 21,2011, the 

Non-Hazardous Secondary Materials 

rule provides the standards and 

procedures for identifying whether NonHazardous Secondary Materials are 

solid waste under the Resource 

Conservation and Recovery Act when 

used as fuels or ingredients in 

combustion units. The purpose ofthese 

proposed amendments is to clarify 

several provisions in order to 

implement the Non-Hazardous 

Secondary Materials rule as the Agency 

originally intended. 

DATES: Comments must be received on 

or before February 21, 2012. 

Public Hearing. If anyone contacts the 

EPA requesting to speak at a public 

hearing by January 3, 2012, a public 

hearing will be held on January 9, 2012. 

For further information on the public 

hearing and requests to speak, contact 

Ms. Janet Eck at (919) 541-7946 to 

verify that a hearing will be held. 

ADDRESSES: Submit vour comments on 

the commercial and'industrial solid 

waste incineration reconsideration and 

proposed rule, identified by Docket ID 

No. EPA-HQ-OAR-2003-0119, by one 

of the following methods: • http://www.regulations.gov: Follow· 

the on-line instructions for submitting 

comments. • Email: a-and-r-Docket@epa.gov, 

Attention Docket ID No. EPA-HQ-­

OAR-2003--0119. • Fax: (202) 566-9744, Attention 

Docket ID No. EPA-HQ-OAR-2003­

0119. • Mail: EPA Docket Center (EPA/DC), 

Environmental Protection Agency, 

Mailcode 6102T, 1200 Pennsylvania 

Ave. NW., Washington, DC 20460, 

Attention Docket ID No. EPA-HQOAR-2003-0119. Please include a total 

of two copies. We request that a separate 

copy also be sent to the contact person 

identified below (see FOR FURTHER 

INFORMATION CONTACT). 

• Hand Delivery: In person or by 

Courier, deliver comments to: EPA 

Docket Center (EPA/DC), Room 3334, 

1301 Constitution Ave. NW., 

Washington, DC 20004. Such deliveries 

are accepted only during the docket's 

normal hours of operation, and special 

arrangements should be made for 

deliveries of boxed information. 

Submit your comments on the NonHazardous Secondary Materials 

proposed rule, identified by Docket ID 

No. EPA-HQ-RCRA-2008-0329, by one 

of the following methods: 

• http://www.regulations.gov:Follow 

the on-line instructions for submitting 

comments. 

• Email: Comments may be sent by 

electronic mail (email) to: rcra-docket@ 

epa.gov, Attention Docket ID No. EPAHQ-RCRA-2008-0329. 

• Fax: Comments may be faxed to 

(202) 566-9744, Attention Docket ID No. 

EPA-HQ-RCRA-2008-0329. 

• A'/ail: Send comments to: RCRA 

Docket, EPA Docket Center, 

Environmental Protection Agency, 

Mailcode: 28221T, 1200 Pennsylvania 

Ave. NW., Washington, DC 20460, 

Attention Docket ID No. EPA-HQRCRA-2008-0329. Please include a total 

of two copies of your comments. We 

request that a separate copy also be sent 

to the contact person identified below 

(see FOR FURTHER INFORMATION CONTACT). 

• Hand Delivery: Deliver two copies 

of your comments to: Environmental 

Protection Agency, EPA Docket Center, 

Room 3334, 1301 Constitution Avenue 

NW., Washington DC, Attention Docket 

ID No. EPA-HQ-RCRA-2008-0329. 

Such deliveries are only accepted 

during the Docket's normal hours of 

operation, and special arrangements 

should be made for deliveries of boxed 

information. 

Instructions: Direct your comments on 

the commercial and industrial solid 

waste incineration reconsideration and 

proposal to Docket ID No. EPA-HQOAR-2003-0119. Direct your comments 

on the Non-Hazardous Secondary 

Materials proposed rule to Docket ID 

No. EPA-HQ-RCRA-2008-0329. The 

EPA's policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http://www. regu]ations.gov, including any personal 

information provided, unless the 

comment includes information claimed 

to be confidential business information 

or other information whose disclosure is 

restricted by statute. Do not submit 

information that you consider to be 

confidential business information or otherwise protected through http:// 

www.regulations.gov or email. The 

http://www,regulations.govWeb site is 

an "anonymous access" system, which 

means the EPA will not know your 

identity or contact information unless 

you provide it in the body of your 

comment. If you send an email 

comment directly to the EPA without 

going through http://M\;w.regulations. 

gOY, your email address will be 

automatically captured and included as 

part of the comment that is placed in the 

public docket and made available on the 

Internet. If you submit an electronic 

comment, the EPA recommends that 

you include your name and other 

contact information in the body of your 

comment and with any disk or CD-ROM 

you submit. Ifthe EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

the EPA may not be able to consider 

your comment. Electronic files should 

avoid the use of special characters, any 

form of encryption, and be free of any 

defects or viruses. For additional 

information about the EPA's public 

docket, visit the EPA Docket Center 

homepage at http://www.epa.gov/ 

epahome/dockets.htm. 

Docket: All documents in the docket 

are listed in the http://www.regulations. gov index. Although listed in the index, 

some information is not publicly 

available, e.g., confidential business 

information or other information whose 

disclosure is restricted bv statute. 

Certain other material, such as 

copyrighted material, will be publicly 

available only in hard copy. Publicly 

available docket materials are available 

either electronically in http://www. regulations.govor in hard copy at the 

EPA Docket Center, EPA West Building, 

Room 3334, 1301 Constitution Ave. 

NW., Washington, DC. The Public 
Federal Register/Vol. 76, No. 247/Friday, December 23, 2011/Proposed Rules 80463 

ensure that all data are correctly 

identified as either non-detection or 

detection level limited. where some of 

the fractions may be non-detection, but 

not all of them. While our findings 

found the most data were accurately 

identified, there were a few average 

values that were reclassified as 

"detection level limited." However, 

these corresponding run data were 

correctly identified and were included 

in the three times the detection limit 

methodology. Therefore, no D/F 

emission limits were impacted due to 

this review. 

In addition, the EPA conducted a 

review of sampling volumes and 

detection levels across various emission 

testing ICR efforts on various 

combustion sources (See memorandum 

"Updated data and procedure for 

handling below detection level data in 

analyzing various pollutant emissions 

databases for MACT and RTR emissions 

limits" in the CISWI docket). As a result 

of this analysis, we have determined 

recommended values for three times the 

RDL (3xRDL) that may be used as a 

minimum emission limit value that can 

be accurately measured by most 

laboratories. These recommended 

values were then compared with 

calculated emission limits and, if the 

calculated limit is less than the 

recommended 3xRDL, the 3xRlJL value 

is selected as the limit. This premise for 

this approach is the same as described 

in the final rule, but using a broader 

data set to establish the 3xRDL value. 

We have not changed the methodology 

of the emission limit calculation' or 

tabulation of the three times the 

detection limit value that was used in 

the final CISWI rule. Therefore, we are 

not accepting comment on the emission 

limit calculation methodology. 

One petitioner has suggested that Df 

F emission limits should not be less 

than 0.3 ng/dscm. We are requesting 

comment and data on wh.,ther 0.3 ng/ 

dscm or the recommended 3xRDL 

values for each test method are 

sufficient to reflect quantifiable 

concentration levels, or whether other 

values should be selected as a lower 

quantification boundary for emission 

limits for CISWI sources. 

10. Providing an Option for Sources To 

Use Emissions Averaging To 

Demonstrate Compliance 

Several petitioners contend that the 

EPA did not adequately address 

comments on the issue of allowing 

sources with multiple CISWI units at a 

facility to use emissions averaging to 

demonstrate compliance, similar to the 

provisions provided in the major source boiler NESHAP. The boiler MACT 

allows emissions averaging across 

subcategories within an affected facility. 

The applicability of CISWI is such that 

each unit is an affected facility, if it 

otherwise meets the applicability of the 

rule. 'We cannot allow emissions 

averaging across affected facilities 

because we establish MACT on an 

affected facility basis and it would be 

impossible to justify MACT when 

averaged across affected facilities. 

11. Definitions 

a. Establishing a Definition of Foundry 

Sand Thermal Reclamation Unit 

Following publication of the final rule 

and the NHSM rule, we were made 

aware of a certain class of unit that had 

not previously been considered a CISWI 

unit, but could potentially be 

considered a type of CISWI once the 

NHSM rule came into effect. These units 

are called TSR units, and are a 

component of a foundry's "sand loop." 

We have concluded that these units are 

parts reclamation units as defined in the 

2000 CISWI rule. We defined parts 

reclamation units as "unitls] that burn 

coatings off parts (e.g., tools, equipment) 

so that the parts can be reconditioned 

and reused." In the 2011 CISWI rule, 

parts reclamation units are a 

subcategory of burn-off ovens. Thermal 

reclamation units that recover foundry 

sands serve the same purpose as othe~ 

parts reclamation units that recover 

metal parts. Specifically, foundry sand 

units recover parts (i.e., sand) by 

removing coatings (e.g., binders and 

resins) from the foundry molds. Thus, 

TSR units are part reclamation units 

that remove coatings that are on foundry 

sand, which allows re-use of the sand. 

As with other burn-off ovens, TSR parts 

reclamation units conserve natural 

resources (j.e" virgin sand] and 

minimize the use of landfill capacity for 

foundry sand. 

As with other burn-off ovens, we do 

not currently have emissions data for 

TSR units and regulation of such units 

is not required to comply with the 

Agency's CAA 112(c)(6) obligation. For 

these reasons, we are not proposing 

standards for TSR units are this time. 

We are soliciting comment on the 

proposed definition ofTSR units. 

b. Removing the Definition of Contained 

Caseous Material 

The EPA did not propose to remove 

the definition of contained gaseous 

material in the proposed CISWI 

standards. In the final CISWI rule 

preamble (76 FR 15708), we removed 

definitions that define or clarify what 

constitutes a solid waste from the 

standards to minimize confusion in 

light of the definition of solid waste in 

the final NHSM rule. The definition of 

"contained gaseous material" was one 

of the definitions that was removed 

from the 2000 CISWI standards. 

Several petitioners asked for 

confirmation that the Agency had not 

changed its historical interpretation of 

what gases could be considered to be 

solid waste (i.e., a "contained gas"). 

These petitioners also requested that the 

EPA reconsider the removal of the 

definition of "contained gaseous 

material" in the CISWI rule, since the 

same definition appears in subparts 

EEEE and FFFF of part 60 (§ 60.2977 

and § 60,3078) and subpart III of part 62 

(§ 62.14840). The Agency did not intend 

to create ambiguity by removing the 

definition of "contained gaseous 

material" from the CISWI rule. 

Accordingly, the proposed CISWI 

reconsideration rule includes the same 

definition of "contained gaseous 

material" that was removed from the 

final CISWI rule, This definition is 

consistent with the definition in the 

subparts cited above. Moreover, our 

proposal to add the definition of 

"contained gaseous material" to the 

proposed CISWI reconsideration rule is 

consistent with the position in other 

sections of this preamble that address 

the NHSM rule where we make clear 

that the Agency is not changing any of 

its previous positions with regard to 

contained gas. The EPA is soliciting 

comment on the need to retain the 

definition of contained gaseous 

material. 

c. Revising Definition of Chemical 

Recovery Unit 

Following publication of the final rule 

and the NHSM rule, we received 

additional information about a handful 

of combustion units that had previously 

not been regulated as CISWI sources, 

but could potentially be considered a 

type of CISWI unit once the 2011 NHSM 

final rule came into effect. However, 

these units do not adequately fit into 

any of the four subcategories of units in 

the final CISWI standards. The units 

that have been identified are SARUs 

that may be burning sulfur-bearing 

compounds which are classified as nonhazardous waste at facilities that are 

non-RCRA part B permitted SARUs. 

Stakeholders have identified four such 

facilities, and have contended that 

response to comments and preamble 

language in both the 2011 NHSM final 

rule and the final CISI/VI rule are 

confusing and inadequately address 

their particular questions on 

applicability of CISWI to these units. 

The stakeholders ask speCifically which 

subcategory should apply to these units, 
80472 Federal Regish~r/Vol. 76, No. 247 I Friday, December 23, 2011 I Proposed Rules 

and off-specification tires, and (2) 

resinated wood. Thus, persons who 

burn these NHSMs as a fuel would not 

need to evaluate them using the selfimplementing legitimacy criteria when 

burned. 

In addition, the Agency recognizes 

that there may be other NHSMs that 

should also be considered non-waste 

fuels, based on a balancing of the 

legitimacy criteria with other relevant 

factors. Therefore, we are proposing to 

create a petition process that would 

provide the regulated community an 

opportunity to submit a rulemaking 

petition to the EPA for a determination 

that a particular NHSM should not be 

considered solid waste when burned as 

a fuel in a combustion unit. This 

process could be used when a facility 

does not believe that the selfimplementing legitimacy criteria yields 

a clear result or does not accurate Iv 

reflect whether the material is being 

discarded. A brief discussion of the 

specific NHSMs being proposed to be 

listed as not solid waste is provided 

below, as well as an overview of the 

petition process for identifying 

additional NHSMs as not being solid 

wastes when burned as a fuel in a 

combustion unit for energy recovery, 

See section 11,0.3 and 4 oftoday's 

proposed rule for a detailed discussion 

of these topics. 

a. Scrap Tires 

In the 2011 NHSM final rule, the EPA 

determined that scrap tires removed 

from vehicles and managed pursuant to 

established tire collection programs 

would not be considered a solid waste. 

This determination was codified in 

§ 241.3(b)(2)(i). This determination was 

made after the EPA analyzed scrap tires 

removed from vehicles and managed 

pursuant to established tire collection 

programs and concluded that (1) these 

materials would meet the legitimacy 

criteria for fuels, and (2) these materials 

were not discarded when transferred 

off-site from the generating facility.10 

Since promulgation of the 2011 

NHSM final rule, the EPA has receivHd 

information that tire manufacturers, 

including downstream distribution 

channels, may produce tires that are not 

suitable for use on vehicles, but like the 

tires removed from vehicles, are usable 

as legitimate fuels. They are, for all 

intents and purposes, the same as the 

vehicle tires managed under the 

oversight of established tire collection 

programs. As a result, the revised 

definition of "established tire collection 

program," would encompass offspecification tires (including 

'"See 76 FR 15490-15499. 

scra p tires) that are con tractuall y 

arranged to be collected, managed, and 

transported between a tire 

manufacturer, which would include 

wtaHers and other parties involved in 

the distribution and sale of new tires 

and a combustor. We note that tires 

coming from vehicles that are part of an 

established tire collection program 

would be a non-waste fuel under the 

2011 NHSM final rule. The EPA is not 

reopening this determination in today's 

proposed rule. 

For clarity, the Agency is proposing to 

add scrap tires that are not discarded 

and are managed under the oversight of 

established tire collection programs, 

including tires removed from vehicles 

and off-specification tires, to the 

categorical list of non-waste fuels (see 

40 CFR 241.4(a)), For more on this 

determination and the off-specification 

tires from tire manufacturers or 

downstream distribution channels, see 

section ILD.3 oftoday's proposed rule, 

b. Resinated Wood 

The 2011 NHSM final rule 

determined that resinated wood is not a 

solid waste when used as a fuel 

regardless of whether it remained 

within the control of the generator [see 

40 CFR 241.3(b)(2)(ii)). This 

determination was made after the EPA 

analyzed resinated wood and concluded 

that (1) resinated wood generally would 

meet the legitimacy criteria for fuels, 

and (2) resinated wood was not 

discarded when transferred off-site from 

the generating facility.11 Today's action 

proposes to revise part 241 to state 

affirmatively that resinated wood, when 

used as a fuel, is not being burned for 

discard and is not a solid waste. We are 

proposing to codify this determination 

based on our belief that the use of 

resinated wood as fuel represents an 

component to the wood 

manufacturing process and, as such, 

resinated wood is not being discarded, 

and therefore not solid waste, when 

burned as fuel. For more on this 

proposed revision, see section II,D.3 of 

today's proposed rule. 

c. Rulemaking Petition Process for Other 

"~on-Waste Determinations 

Under today's rule, the Agency is 

proposing to create a rulemaking 

petition process that would provide 

persons an opportunity to submit a 

rulemaking petition to the 

Administrator, seeking a categorical 

determination for additional NHSMs to 

be listed in section 241.4(a) as nonwaste fuels. The process for submitting 

11 For a hlll discuBsion und rationale for 

reachod this coudusioll, see FR 

a rulemaking petition to the Agency, as 

well as the factors a successful 

application must include, is proposed in 

241.4(b). For more information 

regarding the rule making petition 

process, see section II.D.4 of today's 

proposal. Parties have identified the 

potential of manure not being solid 

waste. Parties can present information 

including data demonstrating that 

manure is not discarded either through 

the existing non-waste petition process 

or the proposed categorical 

determination process. 

4. Additional Request for Comment 

As discussed elsewhere in this 

preamble, the Agency requests 

additional information regarding pulp 

and paper sludge in order for the 

Agency to determine whether a 

categorical determination that pul p and 

paper sludge is a non-waste, when used 

as fuel, is appropriate. Information that 

would be particularly helpful includes: 

(1) Documentation of how the use of 

pulp and paper sludges that are used as 

a fuel are integrated into the industrial 

production process and the steps taken 

industry-wide to ensure that this NHSM 

is consistently used as a legitimate fuel 

and is not discarded, including when 

transferred to a different person for use 

as a fuel; (2) documentation on the 

amount of pulp and paper sludges 

burned as a fuel (whether within the 

control of the generator or outside the 

control of the generator), and what 

determines which pulp and paper 

sludges are burned as a fuel, as opposed 

to being land applied or disposed; (3) 

additional data regarding the 

contaminant levels of the various HAP, 

such as chlorine and metals, and what 

steps the industry has taken to ensure 

the quality of these sludges when used 

as a fuel are consistent with that of fuel 

product; (4) information on standard 

practices used to ensure that these 

sludges have a meaningful heating 

value, including the types of dewatering 

and other processing steps that these 

sludges are subject to, as well as 

information on whether any pulp and 

paper sludges that are burned as a fuel 

are done so without any processing, 

including dewatering; and (5) when 

shipped to a different person for use as 

a fuel, how these sludges are managed, 

including how they are shipped, any 

processing that may occur, and how 

long these sludges are typically stored 

prior to being burned as a fuel. 

5. Clarification Letters Issued After 

Promulgation of the NHSM Final Rule 

After promulgation of the 2011 NHSM 

final rule, a number of questions were raised regarding certain issnes, 
Federal Register/Vol. 76, No. 247/Friday, December 23, 2011 I Proposed Rules 80473 

including whether the EPA was 

changing its position regarding 

"contained gaseous materials" and 

whether they are solid wastes when 

burned in combustion units. While 

there was no regulatory text or 

discussion in the preamble to the final 

NHSM rule, the Agency did respond to 

several comments that were submitted 

to the EPA during the comment period. 

Specifically, its response to the fourth 

comment in part 3b.I3 of the document 

entitled, "Responses to Comments 

Document for the Identification of NonHazardous Secondarv Materia ls that are 

Solid Waste (Februa{y 2011}," 12 created 

concerns among the regulated 

community that the Agency had 

changed a long-standing interpretation 

of what constitutes a "contained 

gaseous material" for purposes of 

defining the term solid waste under 

RCRA. 

In a letter sent to the American Forest 

and Paper Association, the EPA clarified 

that it was not changing its previous 

interpretations and that such 

interpretations still were the Agency's 

position. 13 Specifically, as we state in 

the letter, "EPA was responding to a 

comment requesting that we include in 

the NHSM final rule a definition of 

'contained gaseous materiaL' The 

Agency does not believe that including 

such a definition in the rule is 

necessary, However, our response seems 

to have caused confusion about whether 

the Agency was changing its prior 

interpretations regarding the burning of 

gaseous materials, for example in fume 

incinerators, and whether or not such 

burning is considered to be treatment of 

a solid waste by burning. The response 

does not change any previolls EPA 

positions. We clarify here that the 

Agency's previolls statements and 

interpretations remain effective. Thus, 

burning of gaseous material, slich as in 

fume incinerators (as well as other 

combustion units, including air 

pollution control devices that may 

combust gaseous material) does not 

involve treatment or other management 

of a solid waste (as defined in RCRA 

section 1004(27)." Thus, we are stating 

again in the preamble to today's 

proposed rule that we are not changing 

any of our previous interpretations as it 

12 See "Responses to Comments Document for the 

Identification of Non-Hazardous Secondary 

Materials that are Solid Waste (Febrnarv 2011). A 

copy ofthis document can be found at imp:l/ wU1w.epa.gov/epau'Gste/nonlJazlde!inelindex.htm. 

1.31vfuy 13. 2011 Letter to Tim Hunt, American 

Forest and Paper Association. A of this letter 

has been placed in the docket for proposed n:de. 

relates to whether "contained gaseous 

material" is a solid waste, 

In addition to this letter, the Agency 

has also issued a number of other letters 

in which we clarify how the 2011 

NHSM final rule addresses certain 

materials or activities. For example, the 

EP A has issued clarification letters 

covering the following materials and 

issues: (1) July 21, 2011, letter to Pamela 

F. Faggert, Dominion Resources 

Services, regarding materials that are 

used in recirculation/reinjection 

processes and CBO units; (2) August 5, 

2011. letter to Sue Briggmn, Waste 

Management, regarding landfill gas; (3) 

August 5,2011, letter to Tracey Norberg, 

Rubber Manufacturers Association. 

regarding off-specification tires ' 

(including factory scrap tires); and (4) 

August 15, 2011, letter to JefI A. 

McNelly, ARIPPA, regarding coal refuse 

in legacy piles. We are not taking 

comment on these letters, since they 

reflect the Agency's interpretation of its 

existing March 21, 2011, NHSM rule, 

6, Clarification of the Process for 

Submittal of Non-Waste Petitions 

The 2011 NHSM final rule established 

a non-waste determination process that 

provides persons with an administrative 

petition process for receiving a formal 

determination from the EPA Regional 

Administrator that a NHSM that is used 

as a fuel, and which is not managed 

within the control of the generator, can 

be considered a non-waste fuel provided 

they are able to demonstrate that such 

material has not been discarded and is 

indistinguishable in all relevant aspects 

from a fuel product, (40 CFR 241.3(c)), 

As discussed in the March 21, 2011 

final rule (76 FR 15471), EPA has not 

arbitrarily determined that secondary 

materials transferred between 

companies are wastes. Instead, EPA 

examined a number of specific recycled 

materials, both within the control of the 

generator and transferred to a third 

party for recycling and decided that 

materials are to be considered solid 

wastes except in certain instances 

described in 40 CFR 241.3(b). These 

determinations were based on the 

record available to EPA. In order to 

better reflect the evidentiary record, 

EPA is proposing to amend the language 

of 40 CFR 241.3(a) to state that except 

for materials described in 241,3(b), and 

newly proposed section 241.4, 

combusted non-hazardous secondarv 

materials are "presumed" to be solid 

wastes. 

This petition process provides an 

opportunity under 40 CFR 241.3(c) for 

companies to show that their materials 

are not wastes, The petition process is 

essential because NHSMs are recycled 

and managed in many different ways 

and the Agency may lack the specific 

details in certain cases to know whether 

or not such NHSMs are or are not waste 

(76 FR 15472), We believe that the 

petition process provides an important 

assurance to the community on waste 

status and relevant standards and also 

provides an opportunity to demonstrate 

that the particular NHSM was not 

discarded. The Agency solicits comment 

on the petition process as it relates this 

approach, and on whether or not the 

regulatory text should also be changed 

to address this situation as it relates to 

the petition process where snch NHSM 

has not in fact been discarded, 

In evaluating whether to grant or deny 

the petition, the ultimate question that 

EPA will need to answer is whether or 

not the NHSM has been discarded, Ifthe 

applicant is able to demonstrate that 

such NHSM has not been discarded, 

including meeting the legitimacy 

criteria, it is likely that the Agency will 

grant the petition. Under the existing 

regulations, until EPA acts on such 

petition. the NHSM is considered to be 

a solid waste, However, we would note 

that if the NHSM has not been 

discarded, EPA's grant of the petition 

would apply as of the date that the 

petition was submitted to the Agency, 

The Agency solicits comment on 

whether or not the regulatory text 

should also be changed to address this 

situation where such NHSM has not in 

fact been discarded. 

Since promulgation of the 2011 

NHSM final rule, concerns have been 

raised that the information required for 

a non-waste determination petition 

would be extensive and the timeframe 

for issuance of the decision lengthy, The 

Agency wishes to clarify that we do not 

intend that the application required or 

the petition process itself to be 

burdensome or time and resource 

intensive for the applicant. 

As noted in the March 2011 final rule, 

the applicant must demonstrate that the 

NHSM that is to be burned as a fuel has 

not been discarded, is a legitimate 

product fuel (per § 241,3(d)(1)), 

considering the five criteria identified in 

§ 241.3(c)(1)(i)-(v): 

(1) Whether market partiCipants treat 

the non~hazardous secondary material 

as a product rather than as a solid waste; 

(2) Whether the chemical and 

physical identity of the nun-hazardous 

secondary material is comparable to 

commercial fuels; 14 

14 As discussed elsewhere in loday's proposal, 

EPA is clarifying that in making comparisons 

between the NHSM and the traditional fuel, the 

ownBr or operator can consider individual 

Continued