31844 Federal Register / Vol. 75, No. 107 / Friday, June 4, 2010 / Proposed Rules 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 241 

[EPA–HQ–RCRA–2008–0329; FRL–9148–2] 

RIN 2050–AG44 

Identification of Non-Hazardous 

Secondary Materials That Are Solid 

Waste 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: On January 2, 2009, the 

Environmental Protection Agency (EPA 

or the Agency) issued an Advanced 

Notice of Proposed Rulemaking 

(ANPRM) to solicit comment on which 

non-hazardous secondary materials that 

are used as fuels or ingredients in 

combustion units are solid wastes under 

the Resource Conservation and 

Recovery Act (RCRA). The meaning of 

‘‘solid waste’’ as defined under RCRA is 

of particular importance since it will 

determine whether a combustion unit is 

required to meet emissions standards for 

solid waste incineration units issued 

under section 129 of the Clean Air Act 

(CAA) or emissions standards for 

commercial, industrial, and institutional 

boilers issued under CAA section 112. 

CAA section 129 states that the term 

‘‘solid waste’’ shall have the meaning 

‘‘established by the Administrator 

pursuant to [RCRA].’’ EPA is proposing 

a definition of non-hazardous solid 

waste that would be used to identify 

whether non-hazardous secondary 

materials burned as fuels or used as 

ingredients in combustion units are 

solid waste. EPA is also proposing that 

non-hazardous secondary materials that 

have been discarded, and are therefore 

solid wastes, may be rendered products 

after they have been processed (altered 

chemically or physically) into a fuel or 

ingredient product. This proposed rule 

is necessary to identify units for the 

purpose of developing certain standards 

under sections 112 and 129 of the CAA. 

In addition to this proposed rule, EPA 

is concurrently proposing air emission 

requirements under CAA section 112 for 

industrial, commercial, and institutional 

boilers and process heaters, as well as 

air emission requirements under CAA 

section 129 for commercial and 

industrial solid waste incineration 

units. 

DATES: Comments. Comments must be 

received on or before July 19, 2010. 

Under the Paperwork Reduction Act, 

comments on the information collection 

provisions are best assured of having 

full effect if the Office of Management 

and Budget (OMB) receives a copy of 

your comments on or before July 6, 

2010. 

Public Hearing. We will hold a public 

hearing concerning this proposed rule 

and the interrelated proposed CAA 

rules, discussed in this proposal and 

published in the proposed rules section 

of today’s Federal Register, on June 21, 

2010. Persons requesting to speak at a 

public hearing must contact EPA by 

June 14, 2010. 

ADDRESSES: Submit your comments, 

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. 

• E-mail: Comments may be sent by 

electronic mail (e-mail) to: rcradocket@epa.gov, Attention Docket ID 

No. EPA–HQ–RCRA–2008–0329. In 

contrast to EPA’s electronic public 

docket, EPA’s e-mail system is not an 

‘‘anonymous access’’ system. If you send 

an e-mail comment directly to the 

docket without going through EPA’s 

electronic public docket, EPA’s e-mail 

system automatically captures your email address. E-mail addresses that are 

automatically captured by EPA’s e-mail 

system are included as part of the 

comment that is placed in the official 

public docket, and made available in 

EPA’s electronic public docket. 

• Fax: Comments may be faxed to 

202–566–9744, Attention Docket ID No. 

EPA–HQ–RCRA–2008–0329. 

• Mail: Proposed Rulemaking— 

Identification of Non-Hazardous 

Secondary Materials That Are Solid 

Waste, Environmental Protection 

Agency, Mailcode: 28221T, 1200 

Pennsylvania Ave., NW., Washington, 

DC 20460. Please include a total of 2 

copies. In addition, please mail a copy 

of your comments on the information 

collection provisions to the Office of 

Information and Regulatory Affairs, 

Office of Management and Budget 

(OMB), Attn: Desk Officer for EPA, 725 

17th St., NW., Washington, DC 20503. 

• Hand Delivery: Deliver two copies 

of your comments to Proposed 

Rulemaking—Identification of NonHazardous Secondary Materials That 

Are Solid Waste, EPA/DC, EPA West, 

Room 3334, 1301 Constitution Ave., 

NW., Washington, DC 20460. Attention 

Docket ID No. EPA–HQ–RCRA–2008– 

0329. Such deliveries are only accepted 

during the Docket’s normal hours of 

operation and special arrangements 

should be made for deliveries of boxed 

information. 

Instructions: Direct your comments to 

Docket ID No. EPA–HQ–RCRA–2008– 

0329. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through http:// 

www.regulations.gov, your e-mail 

address will be automatically captured 

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, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. For additional information 

about EPA’s public docket, visit the EPA 

Docket Center homepage at http:// 

www.epa.gov/epahome/dockets.htm. 

For additional instructions on 

submitting comments, go to the 

SUPPLEMENTARY INFORMATION section of 

this document. We also request that 

interested parties who would like 

information they previously submitted 

to EPA to be considered as part of this 

action, to identify the relevant 

information by docket entry numbers 

and page numbers. 

Public Hearing: We will hold a public 

hearing concerning the proposed rule on 

June 21, 2010. Persons interested in 

presenting oral testimony at the hearing 

should contact Ms. Odessa Bowling, 

Program Implementation and 

Information Division, Office of Resource 

Conservation and Recovery, at (703) 

308–8404 by June 14, 2010. The public 

hearing will be held in the Washington 

DC area at a location and time that will 

be posted at the following Web site: 

http://www.epa.gov/osw/nonhaz/ 

definition.htm. Please refer to this Web 

site to confirm the date of the public 

hearing as well. If no one requests to 


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speak at the public hearing by June 14, 

2010 then the public hearing will be 

cancelled and a notification of 

cancellation posted on the following 

web site: http://www.epa.gov/osw/ 

nonhaz/definition.htm. Information 

regarding the interrelated CAA 

proposals referenced can be found at 

http://www.epa.gov/airquality/ 

combustion. 

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., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically in http:// 

www.regulations.gov or in hard copy at 

the RCRA Docket, EPA/DC, EPA West, 

Room 3334, 1301 Constitution Ave., 

NW., Washington, DC. The Public 

Reading Room is open from 8:30 a.m. to 

4:30 p.m., Monday through Friday, 

excluding legal holidays. The telephone 

number for the Public Reading Room is 

(202) 566–1744, and the telephone 

number for the RCRA Docket is (202) 

566–0270. 

FOR FURTHER INFORMATION CONTACT: 

George Faison, Program Implementation 

and Information Division, Office of 

Resource Conservation and Recovery, 

5303P, Environmental Protection 

Agency, Ariel Rios Building, 1200 

Pennsylvania Avenue, NW., 

Washington, DC 20460–0002; telephone 

number: 703–305–7652; fax number: 

703–308–0509; e-mail 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 & livestock production).111, 112, 115 

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 Collection and Solid 

Waste Landfill.

562111, 562212.

Metal-casting industry .................... 331522.

Glass and Glass Product Manufacturing.3272.


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Generators Users 

Major generator category NAICS* Major boiler type and primary industry category NAICS* 

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 Members Manufacturing.321213.

All Other Miscellaneous Chemical 

Product and Preparation Manufacturing.

325998.

* NAICS = North American Industrial Classification System. 

This table is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

impacted by this action. This table lists 

examples of the types of entities of 

which EPA is aware that could 

potentially be affected by this action. 

Other types of entities not listed could 

also be affected. To determine whether 

your facility, company, business, 

organization, etc., is affected by this 

action, you should examine the 

applicability criteria in this rule. If you 

have any questions regarding the 

applicability of this action to a 

particular entity, consult the person 

listed in the preceding section: FOR

FURTHER INFORMATION CONTACT. 

B. What Should I Consider as I Prepare 

My Comments for EPA? 

1. Submitting CBI. Do not submit this 

information to EPA through http:// 

www.regulations.gov or e-mail. Clearly 

mark the part or all of the information 

that you claim to be CBI. For CBI 

information in a disk or CD ROM that 

you mail to EPA, mark the outside of the 

disk or CD ROM as CBI and then 

identify electronically within the disk or 

CD ROM the specific information that is 

claimed as CBI. In addition to one 

complete version of the comment that 

includes information claimed as CBI, a 

copy of the comment that does not 

contain the information claimed as CBI 

must be submitted for inclusion in the 

public docket. Information so marked 

will not be disclosed except in 

accordance with the procedures set 

forth in 40 CFR part 2. 

2. Tips for Preparing Your Comments. 

When submitting comments, remember 

to: 

• Identify the rulemaking by docket 

number and other identifying 

information (subject heading, Federal 

Register date, and page number). 

• Follow directions—The agency may 

ask you to respond to specific questions 

or organize comments by referencing a 

Code of Federal Regulations (CFR) part 

or section number. 

• Explain why you agree or disagree, 

suggest alternatives, and substitute 

language for your requested changes. 

• Describe any assumptions and 

provide any technical information and/ 

or data that you used. 

• If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

• Provide specific examples to 

illustrate your concerns, and suggest 

alternatives. 

• Explain your views as clearly as 

possible. 

• Make sure to submit your 

comments by the comment period 

deadline identified. 

3. Docket Copying Costs. Many 

documents are available only in the 

original and, therefore, must be 

photocopied. Patrons are allowed 100 

free photocopies. Thereafter, they are 

charged 15 cents per page. When 

necessary, an invoice indicating how 

many copies were made, the cost of the 

order, and where to send a check will 

be issued to the patron. 

Documents also are available on 

microfilm. The EPA/DC staff assist 

patrons locate the needed documents 

and operate the microfilm machines. 

The billing fee for printing microfilm 

documents is the same as for 

photocopying documents. 

Patrons who are outside of the 

metropolitan Washington, DC, area can 

request documents by telephone. The 

photocopying and microfilming fee is 

the same as for walk-in patrons. If an 

invoice is necessary, EPA/DC staff can 

mail one with the order. 

Preamble Outline 

I. Statutory Authority 

II. List of Abbreviations and Acronyms 

III. Introduction 

IV. Background 

A. What Is the History of CISWI, CISWI 

Definitions, and Boiler Rulemakings? 

B. Why Is the Court’s Decision Affecting 

the CAA Rules Relevant to RCRA? 

C. What Do Sections 112 and 129 of the 

CAA Require? 

V. Use of Secondary Materials 

A. Introduction 

B. Secondary Materials Use and Benefits 

VI. History of the Definition of Solid Waste 

A. Statutory Definition of Solid Waste 

B. Case Law on Definition of Solid Waste 

C. The Concept of Legitimacy 

VII. ANPRM Discussion, Summary of the 

Proposed Approach, Comments Received 

on the ANPRM, and Rationale for and 

Detailed Description of the Proposed 

Rule 

A. Summary of the ANPRM Approach 

1. Traditional Fuels 

2. Guiding Principles Used To Determine 

if Secondary Materials Used in 

Combustion Units Are Solid Wastes 

3. Secondary Materials Used as Legitimate 

‘‘Alternative’’ Fuels That Have Not Been 

Previously Discarded 

4. Secondary Materials Used as Legitimate 

‘‘Alternative’’ Fuels Resulting From the 

Processing of Discarded Secondary 

Materials 

5. Secondary Materials Used as Legitimate 

Ingredients 

6. Hazardous Secondary Materials That 

May Be Excluded From the Definition of 

Solid Waste Under RCRA Subtitle C 

Because They Are More Like 

Commodities Than Wastes 

7. Additional Areas for Comment in the 

ANPRM 


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a. Fuels or Materials That Have Been 

Discarded That Are Generally 

Considered To Be Solid Wastes 

b. Other Approaches for Determining 

Whether Secondary Materials Are Fuels 

and Not Solid Wastes 

c. Materials for Which State Beneficial Use 

Determinations Have Been Made 

d. Biofuels 

B. Summary of the Proposed Approach 

1. Changes From the ANPRM Approach 

2. General Proposed Approach 

3. Legitimacy Criteria 

4. Traditional Fuels 

5. Circumstances Under Which a NonHazardous Secondary Material Would 

Not Be Considered a Solid Waste 

6. Petition Process 

C. What Were the Major Comments on the 

ANPRM? 

1. Comments From State Agencies 

2. Meaning of Discard 

3. General Approach 

4. Level of Processing Needed to Produce 

a Non-Waste Product From Discarded 

Waste Material 

5. Comments on Specific Materials Used as 

Fuels 

a. Traditional Fuels 

b. Biomass 

c. Used Tires 

d. Used Oil 

e. Coal Refuse/Coal Combustion Residuals 

f. Sewage Sludge 

6. Comments on Specific Materials Used as 

Ingredients 

a. Cement Kiln Dust 

b. Coal Combustion Residuals 

c. Foundry Sand 

d. Blast Furnace Slag/Steel Slag 

7. Legitimacy Criteria 

a. General 

b. Fuels or Ingredients Being Managed as 

Valuable Commodities 

c. Fuels Must Have Meaningful Heating 

Value 

d. Fuel/Ingredient Contaminant Levels 

e. Ingredients Must Provide Useful 

Contribution 

f. Ingredients Must Produce a Valuable 

Product 

8. De Minimis Concept 

D. Rationale for, and Detailed Description 

of, Proposed Approach 

1. Non-Hazardous Secondary Materials 

Used as Fuel Within the Control of the 

Generator 

a. Scope and Applicability 

b. Restrictions and Requirements 

2. Non-Hazardous Secondary Materials 

Used as Fuel Outside the Control of the 

Generator 

3. Non-Hazardous Secondary Materials 

Used as Ingredients in Combustion Units 

4. Non-Hazardous Secondary Materials 

Processed Into Non-Waste Fuel/ 

Ingredient Products 

a. Proposed Definition of Processing 

b. Rationale for Processing Discarded 

Material Into Non-Waste Product 

c. Examples of Adequate Processing 

d. Examples of Minimal Processing That 

Would Not Meet Proposed Definition of 

Processing 

e. Alternative Approach for Addressing 

Non-Hazardous Secondary Materials 

That Are Processed Into Non-Waste 

Fuels or Ingredients 

5. Non-Waste Determination Process 

6. Legitimacy Criteria 

a. Legitimacy Criteria for Fuels 

b. Legitimacy Criteria for Ingredients 

E. Alternative Approach 

F. Effect of Today’s Proposal on Other 

Programs 

1. Clean Air Act 

2. Renewable Energy 

3. Subtitle C Hazardous Waste Program 

VIII. State Authority 

A. Applicability of State Solid Waste 

Definitions and Beneficial Use 

Determinations 

B. State Adoption of the Rulemaking 

IX. Cost and Benefits of the Proposed Rule 

X. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution or Usage 

I. National Technology Transfer 

Advancement Act 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

I. Statutory Authority 

The U.S. Environmental Protection 

Agency (EPA) is promulgating these 

regulations under the authority of 

sections 2002(a)(1) and 1004(27) of the 

Resource Conservation and Recovery 

Act (RCRA), as amended, 42 U.S.C. 

6912(a)(1) and 6903(27). Section 

129(a)(1)(D) of the CAA directs EPA to 

establish standards for Commercial and 

Industrial Solid Waste Incinerators 

(CISWI), which burn solid waste 

(section 129(g)(6) of the Clean Air Act 

(CAA), 42 U.S.C. 7429). Section 

129(g)(6) provides that the term, solid 

waste, is to be established by EPA under 

RCRA. Section 2002(a)(1) of RCRA 

authorizes the Agency to promulgate 

regulations as are necessary to carry out 

its functions under the Act. The 

statutory definition of ‘‘solid waste’’ is 

provided in RCRA section 1004(27). 

II. List of Abbreviations and Acronyms 

ANPRM Advanced Notice of Proposed 

Rulemaking 

ASME American Society of Mechanical 

Engineers 

Btu British Thermal Unit 

CAA Clean Air Act 

CAFO Concentrated Animal Feeding 

Operations 

CCA Chromated Copper Arsenate 

CCR Coal Combustion Residuals 

CFR Code of Federal Regulations 

CISWI Commercial and Industrial Solid 

Waste Incinerator 

CKD Cement Kiln Dust 

CWA Clean Water Act 

DSE Domestic Sewage Exemption 

DSW Definition of Solid Waste 

EG Emission Guidelines 

EGU Electric Utility Steam Generating Unit 

EPA U.S. Environmental Protection Agency 

GACT Generally Available Control 

Technology 

GHG Greenhouse Gas 

HAP Hazardous Air Pollutant 

IWI Institutional Waste Incinerator 

LCA Life Cycle Analysis 

MACT Maximum Achievable Control 

Technology 

NESHAP National Emission Standards for 

Hazardous Air Pollutants 

NSPS New Source Performance Standards 

OSWI Other Solid Waste Incinerator 

PC Portland Cement 

PIC Product of Incomplete Combustion 

POTW Publicly Owned Treatment Works 

PVC Polyvinyl Chloride 

RCRA Resource Conservation and Recovery 

Act 

SWDA Solid Waste Disposal Act 

TDF Tire Derived Fuel 

VSMWC Very Small Municipal Waste 

Combustor 

III. Introduction 

In 1990, Congress added section 129 

to the CAA to address emissions from 

solid waste incinerators. CAA section 

129 directs EPA to promulgate emission 

standards for categories of ‘‘solid waste 

incineration units.’’ 42 U.S.C. 7429(a)(1). 

The term ‘‘solid waste incineration unit’’ 

is defined, in pertinent part, to mean ‘‘a 

distinct operating unit of any facility 

which combusts any solid waste 

material from commercial or industrial 

establishments * * *’’ Id. at 

§ 7429(g)(1). The CAA specifically 

excludes the following types of units 

from the definition of ‘‘solid waste 

incineration unit’’: (1) Incinerators or 

other units required to have a permit 

under section 3005 of RCRA; (2) 

material recovery facilities (including 

primary and secondary smelters) which 

combust waste for the primary purpose 

of recovering metals; (3) qualifying 

small power production facilities, as 

defined in section 3(17)(C) of the 

Federal Power Act, or qualifying 

cogeneration facilities, as defined in 

section 3(18)(B) of the Federal Power 

Act, which burn homogeneous waste 

(such as units which burn tires or used 

oil, but not including refuse-derived 

fuel) for the production of electric 

energy or in the case of qualifying 

cogeneration facilities which burn 

homogeneous waste for the production 

of electric energy or steam or forms of 

useful energy (such as heat) which are 

used for industrial, commercial, heating 


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1A secondary material is any material that is not 

the primary product of a manufacturing or 

commercial process, and can include postconsumer 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 nonhazardous secondary materials. See also American 

Mining Congress v. EPA, 824 F.2d 1177 (DC Cir. 

1987) in which the U.S. Court of Appeals for the 

District of Columbia Circuit discussed secondary 

materials. 

2EPA has delisted 3 of the 190 HAP initially 

listed in section 112(b)(1): Methyl ethyl ketone, 

glycol ethers, and caprolactam. 

3A ‘‘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). 

or cooling purposes, or (4) air curtain 

incinerators, provided that such 

incinerators only burn wood wastes, 

yard wastes and clean lumber and that 

such air curtain incinerators comply 

with the opacity limitations to be 

established by the Administrator by 

rule. Id. 

CAA section 129 further states that 

the term ‘‘solid waste’’ shall have the 

meaning ‘‘established by the 

Administrator pursuant to the Solid 

Waste Disposal Act’’ Id. at 7429(g)(6). 

CAA section 129 refers to the Solid 

Waste Disposal Act (SWDA). However, 

this act, as amended, is commonly 

referred to as RCRA. Thus, the term 

‘‘RCRA’’ is used in place of SWDA in 

this Notice. RCRA in turn defines the 

term ‘‘solid waste’’ to mean ‘‘* * * any 

garbage, refuse, sludge from a waste 

treatment plant, water supply treatment 

plant, or air pollution control facility 

and other discarded material, including 

solid, liquid, semisolid, or contained 

gaseous material resulting from 

industrial, commercial, mining, and 

agricultural operations, and from 

community activities, * * *’’ Section 

1004 (27). 

IV. Background 

The discussion below was previously 

included in the Advanced Notice of 

Proposed Rulemaking (ANPRM). 

However, because it is also pertinent to 

the development of today’s proposal, it 

also is included here for the benefit of 

the reader. The entire record for the 

ANPRM is included in the record for 

this rulemaking. To the extent there are 

any inconsistencies or differences 

between the ANPRM and this proposal, 

the statements in this proposal apply. 

A. What is the history of CISWI, CISWI 

definitions, and boiler rulemakings? 

EPA promulgated a final rule setting 

forth performance emissions standards 

for Commercial and Industrial Solid 

Waste Incineration Units (referred to as 

the ‘‘CISWI Rule’’). 65 FR 75338 

(December 1, 2000). Under CAA section 

129, the emissions standards for new 

sources must be at least as stringent as 

the emissions control achieved in 

practice by the best-controlled similar 

source. For existing sources, the 

emissions standards must be at least as 

stringent as the average emissions 

limitation achieved by the bestperforming 12 percent of units in the 

category. CAA section 129 (a)(2). This 

level of stringency is commonly referred 

to as the maximum achievable control 

technology (MACT) ‘‘floor.’’ EPA must 

also consider more stringent ‘‘beyondthe-floor’’ emissions controls, taking into 

account cost, energy, and non-air 

quality environmental impacts. The 

Administrator may also distinguish 

among classes, types (including massburn, refuse-derived fuel, modular and 

other types of units), and sizes of units 

within a category in establishing such 

standards. Id. at 7429(a)(2). 

The CISWI Rule established emission 

limitations for new and existing CISWI 

units for the following pollutants: 

Cadmium, carbon monoxide, dioxins/ 

furans, hydrogen chloride, lead, 

mercury, oxides of nitrogen (NOX), 

particulate matter (PM), sulfur dioxide 

(SO2), and opacity. In addition, the rule 

established certain monitoring and 

operator training and certification 

requirements. See 65 FR 75338 for a 

more detailed discussion of the CISWI 

Rule. 

The CISWI Rule was challenged in 

Sierra Club v. EPA (No. 01–1048) (DC 

Cir.). After promulgation of the CISWI 

Rule, the DC 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 (DC Cir. 2001) (‘‘Cement Kiln’’). 

As a result of the courts decision in 

Cement Kiln, EPA requested a voluntary 

remand of the CISWI Rule, in order to 

address concerns related to the issues 

that were raised by the court in Cement 

Kiln. The court granted EPA’s request 

for a voluntary remand and remanded, 

without vacatur, the CISWI Rule back to 

EPA. Because the CISWI Rule was not 

vacated, its requirements remain in 

effect. See Sierra Club. v. EPA, 374 F. 

Supp.2d 30, 32–33 (D.D.C. 2005). 

On September 22, 2005, EPA issued 

revised definitions of ‘‘solid waste,’’ 

‘‘commercial or industrial solid waste 

incineration unit,’’ and ‘‘commercial or 

industrial waste’’ (the ‘‘CISWI 

Definitions Rule’’). See 70 FR 55568. In 

the CISWI Definitions Rule, EPA 

defined ‘‘commercial and industrial 

solid waste’’ to exclude solid waste that 

is combusted at a facility in a 

combustion unit whose design provides 

for energy recovery or which operates 

with energy recovery. Therefore, a unit 

combusting solid waste with energy 

recovery was not considered a CISWI 

unit. 

The CISWI Definitions Rule was 

vacated by the DC Circuit in NRDC v. 

EPA (489 F.3d 1250 (DC Cir. 2007)). The 

court stated that the statute 

unambiguously requires any unit that 

combusts ‘‘any solid waste material at 

all’’—regardless of whether the material 

is being burned for energy recovery—to 

be regulated as a ‘‘solid waste 

incineration unit.’’ Id. at 1260. In the 

same decision, the court also vacated 

and remanded EPA’s emissions 

standards for commercial, industrial, 

and institutional major source boilers 

and process heaters (the Boiler MACT 

Rule), concluding that the universe of 

sources subject to that rule would be 

much smaller if it did not include units 

that combust solid waste for the 

purposes of energy recovery. 

B. Why is the court’s decision affecting 

the CAA rules relevant to RCRA? 

In responding to the court’s vacatur 

and remand of the CISWI Definitions 

Rule and the Boiler MACT Rule, EPA is 

establishing, under RCRA, which nonhazardous 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 device. If a 

non-hazardous secondary material (also 

referred to as secondary materials in this 

notice) is not a ‘‘solid waste’’ under 

RCRA, then a unit combusting that 

material must be regulated pursuant to 

CAA section 112 if it is a source of HAP. 

Alternatively, if such material is a ‘‘solid 

waste’’ under RCRA, then a unit 

combusting that material must be 

regulated under CAA section 129. 

C. What do CAA Sections 112 and 129 

require? 

CAA section 112 requires EPA to 

promulgate regulations to control 

emissions of 187 2 hazardous air 

pollutants (HAP) from sources in each 

source category listed by EPA under 

section 112(c). The statute requires the 

regulations for major sources 3 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. For existing sources, the 

emissions standards must be at least as 

stringent as the average emissions 

limitation achieved by the bestVerDate Mar<15>2010 15:08 Jun 03, 2010 Jkt 220001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 E:\FR\FM\04JNP2.SGM 04JNP2

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4An ‘‘area source’’ is any stationary source of HAP 

that is not a major source. CAA section 112(a)(2). 

Area sources may be regulated under CAA section 

112(d)(2) standards if the Administrator finds that 

the sources ‘‘presen[t] a threat of adverse effects to 

human health or the environment (by such sources 

individually or in the aggregate) warranting 

regulation under this section.’’ Section 112(c)(3). 

Certain categories of area sources must be regulated 

in accordance with section 112(c)(3) and (k)(3)(B). 

5Of 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). 

6The terms ‘‘life cycle analysis’’ and ‘‘life cycle 

assessment’’ are commonly used interchangeably. 

Life cycle assessment is a system-wide analytical 

technique for assessing the environmental (and 

sometimes economic) effects of a product, process, 

or activity across all life stages. 7Full cost accounting is an accounting system 

that incorporates economic, environmental, health, 

and social costs of a product, action, or decision. 8RCRA 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. 

9For example, the GHG rate associated with the 

combustion of scrap tires is approximately 0.081 

MTCO2E per MMBtu of scrap tires combusted, 

while the GHG emissions rate for coal is 

approximately 0.094 MTCO2E per MMBtu. 

Combined with the avoided extraction and 

processing emissions 0.006 MTCO2E/MMBtu for 

coal, the total avoided GHG is 0.019 MTCO2E per 

MMBtu. Substituting tire-derived fuel for coal 

would also avoid an estimated 0.246 Lbs/MMBtu of 

PM associated with extraction and processing of the 

coal. Please see the Materials Characterization 

Papers in the docket for further details on these 

estimates, and other estimates of avoided emissions 

associated with burning tires and other secondary 

materials as fuel. 

10For purposes of this action, we define byproduct as a secondary or incidental material 

derived from the primary use or production process 

that has value in the marketplace, or value to the 

user. 

11Opportunities for improved economic 

efficiency are recognized through the Action 

Statement of the U.S. Business Council For 

Sustainable Development: ‘‘Promoting Sustainable 

Development by Creating Value Through Action 

Establishing Networks and Partnerships, and 

Providing a Voice for Industry.’’ 

performing 12 percent of units in the 

category or subcategory for categories 

and subcategories with at least 30 

sources, and by the best-performing five 

sources in the category or subcategory 

for categories and subcategories with 

fewer than 30 sources. For new sources, 

the emissions standard must be at least 

as stringent as the emissions limitation 

achieved by the best-performing similar 

source. CAA section 112(d)(3). This 

level of stringency is commonly referred 

to as the MACT ‘‘floor.’’ 

Like the CAA section 112 standards, 

the CAA section 129 standards are 

based on a MACT floor. Also, as with 

the section 112 standards, above-thefloor standards may be established 

where EPA determines it is ‘‘achievable’’ 

taking into account costs and other 

factors. Although CAA section 129 

‘‘establishes emission requirements 

virtually identical to section [112’s],’’ 

Nat’l Lime Ass’n v. EPA, 233 F.3d at 

631, the two sections differ in three 

primary respects. First, CAA section 112 

requires that MACT standards be 

established for major sources of HAP 

emissions, but provides discretionary 

authority to establish standards based 

on ‘‘generally available control 

technology’’ (GACT) for area sources of 

HAP emissions.4 On the other hand, 

under CAA section 129, EPA must issue 

MACT standards for all solid waste 

incineration units in a given category 

regardless of size. Second, CAA section 

129 requires that numeric emission 

limitations must be established for the 

following nine pollutants, plus opacity 

(as appropriate): cadmium, carbon 

monoxide, dioxins/furans, hydrogen 

chloride, lead, mercury, NOx, 

particulate matter (total and fine), and 

SO2.5 These nine pollutants represent 

the minimum that must be regulated; 

EPA has the discretion to establish 

standards for other pollutants as well. 

Third, CAA section 129 includes 

specific requirements for operator 

training, pre-construction site 

assessments, and monitoring that are 

not included in CAA section 112. See 

CAA section 129(a)(3), (c) and (d). 

Rather, CAA section 112’s implicit 

authority and CAA sections 113 and 

114’s explicit authority is relied upon to 

include provisions as necessary to 

assure compliance with and 

enforcement of the section 112 emission 

limitations. It is important to note that 

CAA section 129(h)(2) specifies that no 

solid waste incineration unit subject to 

the performance standards under CAA 

sections 111 and 129 shall be subject to 

the standards under CAA section 

112(d). 

V. Use of Secondary Materials 

A. Introduction 

The U.S. is pursuing an approach to 

materials management that employs the 

concepts of life cycle assessment 6 and 

full cost accounting.7 Within the context 

of RCRA,8 this proposal aims to 

facilitate materials management to the 

extent allowed by the statute, through 

the establishment of a regulatory 

framework that guides the beneficial use 

of various secondary materials, while 

ensuring that such use is protective of 

human health and the environment. 

EPA, in conjunction with the states, 

seeks to further facilitate this objective 

through research, analysis, incentives, 

and communication. The Agency 

recognizes that secondary materials are 

widely used today as raw materials, as 

products, and as fuels and/or 

ingredients in industrial processes. We 

expect these uses will continue and 

expand in future years as effective 

materials management becomes more 

critical to a sustainable society. The use 

of materials from a variety of nontraditional sources, including the use of 

energy-containing secondary materials, 

is expected to play an important role in 

future resource conservation efforts. 

The use of secondary materials as 

alternative fuels and/or ingredients in 

manufacturing processes using 

combustion not only recovers valuable 

resources, it is known to contribute to 

emission reductions. For example, both 

greenhouse gas (GHG) and particulate 

matter (PM) emissions have been 

reduced as a co-benefit of the use of 

secondary materials.9 The use of 

secondary materials, such as use as a 

fuel in industrial processes may also 

result in other benefits. These may 

include reduced fuel imports, reducing 

negative environmental impacts caused 

by previous dumping (e.g., tires), and 

reduced methane gas generation from 

landfills. 

Secondary materials may, in most 

cases, be more appropriately defined as 

‘‘by-products,’’ 10 reflecting their 

inherent resource recovery value in the 

generation and production of heat, 

energy, and/or marketable products. 

These secondary materials can provide 

micro (firm level) and macroeconomic 

benefits when legitimately used as an 

effective substitute for, or supplement to 

primary materials. Economic efficiency 

can be improved with the use of 

secondary materials, when substituted 

for increasingly scarce primary 

materials, because the use of such 

materials often results in an equivalent 

level of output at lower overall resource 

use, or in turn, more output could be 

generated using the same amount of 

resource inputs. When this occurs, 

monetary savings resulting from 

reduced resources would, theoretically, 

be applied to a higher and better use in 

the economy. This helps advance 

economic growth as a result of 

improved industrial efficiency,11 which, 

in turn, helps move the country toward 

material sustainability and energy self 

sufficiency, while protecting human 

health and the environment. 

B. Secondary Materials Use and Benefits 

A wide and diverse range of 

secondary materials are currently used 

as fuels and/or ingredients in 


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12The materials characterization paper on Silica 

Fume was the only paper not requiring updating. 

manufacturing or service processes. 

Based on our research conducted in 

support of the January 2, 2009 ANPRM, 

we identified eight non-hazardous 

secondary material fuels or fuel groups 

and six non-hazardous ingredients, or 

ingredient groups. The eight fuel source 

materials were: The biomass group 

(pulp and paper residuals, forest 

derived biomass, agricultural residues, 

food scraps, animal manure, and 

gaseous fuels); construction and 

demolition materials (building related, 

disaster debris, and land clearing 

debris); scrap tires; scrap plastics; spent 

solvents; coal refuse; waste water 

treatment sludge, and used oil. The six 

secondary material ingredients were: 

blast furnace slag; cement kiln dust 

(CKD); the coal combustion product 

group (fly ash, bottom ash, and boiler 

slag); foundry sand; silica fume; and 

secondary glass material. The ANPRM 

discussed and described these key 

secondary materials. In addition, we 

developed comprehensive Materials 

Characterization Papers for each of these 

fuel and ingredient materials. These 

papers were included in the docket for 

the ANPRM, which as we note above is 

incorporated into the docket for this 

proposed rule. 

Based on our review of the public 

comments submitted in response to the 

ANPRM, plus further research, we have 

identified three additional secondary 

materials not addressed in the ANPRM. 

These additional secondary materials 

are auto shredder residue, purification 

process byproducts, and resinated wood 

products. We have prepared Materials 

Characterization Papers for these newly 

identified secondary materials, which 

are also included in the docket for 

today’s proposed rule. In addition, we 

have updated and revised nearly all 12 of 

the existing Materials Characterization 

Papers to incorporate commenter 

information, as appropriate, plus 

relevant information derived from the 

2008 combustion survey database (OMB 

Control Number 2060–0616). We believe 

that our newly defined list of secondary 

fuels and ingredients accounts for the 

vast majority of all secondary materials 

used in combustion processes in the 

U.S. However, as part of this proposal, 

we again solicit comment on these and 

any other non-hazardous secondary 

materials potentially used as fuels and/ 

or ingredients. Comments containing 

detailed, quality controlled data are 

welcome and will be very useful as we 

move forward in this rulemaking effort. 

Information on the annual quantity of 

material generated, used, and stored; 

major uses (i.e., fuel v. non-fuel); 

management practices; major markets; 

processing requirements; contaminants; 

and life cycle inventory data would be 

most helpful. 

VI. History of the Definition of Solid 

Waste 

A. Statutory Definition of Solid Waste 

RCRA defines ‘‘solid waste’’ as 

‘‘* * *any garbage, refuse, sludge from 

a waste treatment plant, water supply 

treatment plant, or air pollution control 

facility and other discarded material 

* * * resulting from industrial, 

commercial, mining, and agricultural 

operations, and from community 

activities * * *’’ (RCRA section 1004 

(27) (emphasis added)). The key concept 

is that of ‘‘discard’’ and, in fact, this 

definition turns on the meaning of the 

phrase, ‘‘other discarded material,’’ since 

this term encompasses all other 

examples provided in the definition. 

The ANPRM provides a complete 

discussion on the concept of discard, as 

well as a description of the solid waste 

program under RCRA subtitle D, and the 

hazardous waste program under RCRA 

subtitle C. We refer the reader to the 

ANPRM for a detailed discussion on 

these subjects regarding the definition of 

solid waste. The ANPRM also includes 

a detailed discussion on the case law on 

the definition of solid waste, which we 

repeat below, and on the concept of 

legitimacy, or legitimate recycling. That 

discussion is relevant to this proposal 

and is incorporated into this 

rulemaking. We are repeating parts of 

the discussion on legitimacy below to 

the extent it helps in understanding this 

proposal. 

B. Case Law on Definition of Solid 

Waste 

Partly because the interpretation of 

the definition of solid waste is the 

foundation of the hazardous waste 

regulatory program, there has been a 

great deal of litigation over the meaning 

of ‘‘solid waste’’ under RCRA subtitle C. 

From these cases, a few key principles 

emerge which guide our thinking on the 

definition of solid waste. 

First, the ordinary plain-English 

meaning of the term, ‘‘discard’’ controls 

when determining whether a material is 

a solid waste. See American Mining 

Congress v. EPA, 824 F.2d 1177 (DC Cir. 

1987) (‘‘AMC I’’). The ordinary plainEnglish meaning of the term discarded 

means ‘‘disposed of,’’ ‘‘thrown away,’’ or 

‘‘abandoned.’’ The DC Circuit in AMC I 

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 DC Circuit 

discussed the meaning of discard in 

particular cases. In American Petroleum 

Institute v. EPA, 906 F.2d 729 (DC Cir. 

1990) (‘‘API I’’), the court rejected EPA’s 

decision not to regulate recycled air 

pollution control equipment slag based 

on an Agency determination that waste 

‘‘ceases to be a ‘solid waste’ when it 

arrives at a metals reclamation facility 

because at that point it is no longer 

‘discarded material.’ ’’ 906 F.2d at 740. 

Instead, the court held that the materials 

were part of a mandatory waste 

treatment plan for hazardous wastes 

prescribed by EPA and continued to be 

wastes even if recycled. 906 F.2d at 741. 

Further, a material is a solid waste 

regardless of whether it ‘‘may’’ be reused 

at some time in the future. American 

Mining Congress v. EPA, 907 F.2d 1179 

(DC Cir. 1990) (‘‘AMC II’’). 

One of the more important holdings of 

a number of court decisions is that 

simply because a waste has, or may 

have, value does not mean the material 

loses its status as a solid waste. See API 

I, 906 F.2d at 741 n.16; United States v. 

ILCO Inc., 996 F.2d 1126, 1131–32 (11th 

Cir. 1993); Owen Steel v. Browner, 37 

F.3d 146, 150 (4th Cir. 1994). ILCO and 

Owen Steel, however, recognize that 

products made from wastes are, 

themselves, products and not wastes. 

The DC Circuit’s decision in 

Association of Battery Recyclers v. EPA, 

208 F.3d 1047 (DC Cir. 2000) (‘‘ABR’’) 

reiterated the concepts discussed in the 

previous cases. The Court held that it 

had already resolved the issue presented 

in ABR in its opinion in AMC I, where 

it found that ‘‘* * * Congress 

unambiguously expressed its intent that 

‘solid waste’ (and therefore EPA’s 

regulatory authority) be limited to 

materials that are ‘discarded’ by virtue 

of being disposed of, abandoned, or 

thrown away’’ (208 F.2d at 1051). It 

repeated that materials reused within an 

ongoing industrial process are neither 

disposed of nor abandoned (208 F.3d at 

1051–52). The court also explained that 

the intervening API I and AMC II 

decisions had not narrowed the holding 

in AMC I (208 F.3d at 1054–1056). 

Notably, the Court in ABR did not 

hold that storage before reclamation 

automatically makes materials 

‘‘discarded.’’ Rather, it held that ‘‘* * * 

at least some of the secondary material 

EPA seeks to regulate as solid waste (in 


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13On January 9, 2009, the Office of Solid Waste 

was renamed the Office of Resource Conservation 

and Recovery. 

14See 73 FR 64668. 

15The hazardous waste exclusions from the 

definition of solid waste became effective on 

December 29, 2008. On January 29, 2009, the Sierra 

Club submitted a petition under RCRA section 

7004(a), 42 U.S.C. 6974(a), to the Administrator of 

EPA requesting that the Agency repeal the revisions 

to the definition of solid waste rule and stay the 

implementation of the rule. In addition, the Sierra 

Club and the American Petroleum Institute have 

filed petitions for judicial review of a rule with the 

Continued 

the mineral processing rule) is destined 

for reuse as part of a continuous 

industrial process and thus is not 

abandoned or thrown away’’ (208 F.3d at 

1056). In this regard, the court criticized 

all parties in the case—industry as well 

as EPA—because they ‘‘presented this 

aspect of the case in broad abstraction, 

providing little detail about the many 

processes throughout the industry that 

generate residual material of the sort 

EPA is attempting to regulate * * *. ’’ 

(Ibid). 

American Petroleum Institute v. EPA, 

216 F.3d 50, 55 (DC Cir. 2000) (‘‘API II’’), 

decided shortly after ABR and 

considered by the court at the same 

time, provides further guidance for 

defining solid waste, but in the context 

of two specific waste streams in the 

petroleum refining industry. The court 

overturned EPA’s determination that 

certain recycled oil bearing wastewaters 

are wastes (216 F.3d at 55–58) and 

upheld conditions imposed by the 

Agency in excluding petrochemical 

recovered oil from the definition of 

solid waste (216 F.3d at 58–59). In the 

case of oil-bearing wastewaters, EPA 

had determined that the first phase of 

treatment, primary treatment, results in 

a waste being created. 216 F.3d at 55. 

The court overturned this decision and 

remanded it to EPA for a better 

explanation, neither accepting EPA’s 

view nor the contrary industry view. 

The court noted that the ultimate 

determination that had to be made was 

whether primary treatment is simply a 

step in the act of discarding or the last 

step in a production process before 

discard. 213 F.3d at 57. In particular, 

the court rejected EPA’s argument that 

primary treatment was required by 

regulation, instead stating that the 

Agency needed to ‘‘set forth why it has 

concluded that the compliance 

motivation predominates over the 

reclamation motivation’’ and ‘‘why that 

conclusion, even if validly reached, 

compels the further conclusion that the 

wastewater has been discarded.’’ 213 

F.3d at 58. 

The court also considered whether 

material is discarded in Safe Food and 

Fertilizer v. EPA, 350 F.3d 1263 (DC Cir. 

2003) (‘‘Safe Food’’). In that case, among 

other things, the court rejected the 

argument that, as a matter of plain 

meaning, recycled material destined for 

immediate reuse within an ongoing 

industrial process is never considered 

‘‘discarded,’’ whereas material that is 

transferred to another firm or industry 

for subsequent recycling must always be 

solid wastes. 350 F.3d at 1268. Instead, 

the court evaluated ‘‘whether the 

agency’s interpretation of * * * 

‘discarded’ * * * is, reasonable and 

consistent with the statutory 

purpose* * * .’’ Id. Thus, EPA has the 

discretion to determine that a material 

is not a solid waste, even if it is 

transferred between industries. 

We also note that the Ninth Circuit 

has specifically found that nonhazardous secondary materials may, 

under certain circumstances, be burned 

and not constitute a solid waste under 

RCRA. See Safe Air For Everyone v. 

Waynemeyer (‘‘Safe Air’’), 373 F.3d 1035 

(9th Cir., 2004) (Kentucky bluegrass 

stubble may be burned to return 

nutrients to the soil and not be a solid 

waste). 

C. The Concept of Legitimacy 

An important element under the 

RCRA subtitle C definition of solid 

waste (and an important element of 

today’s proposal) is the concept of 

legitimate use and recycling. Under 

RCRA subtitle C, some hazardous 

secondary materials that would 

otherwise be subject to regulation under 

RCRA’s ‘‘cradle to grave’’ system are not 

considered solid wastes if they are 

‘‘legitimately recycled’’ or legitimately 

used as an ingredient or substitute for a 

commercial product. The principal 

reasoning behind this construct is that 

use or recycling of such materials often 

closely resembles normal industrial 

production, rather than waste 

management. However, since there can 

be considerable economic incentive to 

manage recyclable materials outside of 

the RCRA hazardous waste regulatory 

system, there is a clear potential for and 

historical evidence of some handlers 

claiming they are recycling, when in 

fact they are conducting waste treatment 

and/or disposal in the guise of 

recycling. EPA considers such ‘‘sham’’ 

recycling to be, in fact, discard and such 

secondary materials being sham 

recycled are solid wastes. 

To guard against hazardous secondary 

materials being discarded in the guise of 

recycling, EPA has long articulated the 

need to distinguish between ‘‘legitimate’’ 

(i.e., true) recycling or other use and 

‘‘sham’’ (i.e., fake) recycling; see the 

preamble to the 1985 hazardous waste 

regulations that established the 

definition of solid waste under RCRA 

subtitle C (50 FR 638; January 4, 1985). 

A similar discussion that addressed 

legitimacy as it pertains to burning 

hazardous secondary materials for 

energy recovery (considered a form of 

recycling under RCRA subtitle C) was 

presented in the January 9, 1988 

proposed amendments to the definition 

of solid waste (53 FR 522). Then on 

April 26, 1989, the Office of Solid 

Waste 13 issued a memorandum that 

consolidated the various preamble and 

other statements concerning legitimate 

recycling into a list of questions to be 

considered in evaluating the legitimacy 

of hazardous secondary materials 

recycling (OSWER directive 

9441.1989(19)). This memorandum 

(known to many as the ‘‘Lowrance 

Memo,’’ a copy of which is included in 

the Docket to today’s preamble) has 

been a primary source of information for 

the regulated community and for 

overseeing agencies in distinguishing 

between legitimate and sham recycling. 

On October 30, 2008, EPA finalized 

several exclusions from the definition of 

solid waste for hazardous secondary 

materials being reclaimed and a nonwaste determination process for persons 

to receive a formal determination that 

their hazardous secondary materials are 

not solid wastes when legitimately 

reclaimed.14 In that action, EPA codified 

in 40 CFR 260.43 the requirement that 

materials be legitimately recycled as a 

condition for the exclusion for 

hazardous secondary materials that are 

legitimately reclaimed under the control 

of the generator (40 CFR 261.2(a)(2)(ii) 

and 40 CFR 261.4(a)(23)) and as a 

condition of the exclusion for hazardous 

secondary materials that are transferred 

for the purpose of legitimate 

reclamation (40 CFR 261.4(a)(24) and 40 

CFR 261.4(a)(25)). As part of that final 

rule, EPA also codified a legitimate 

recycling provision specifically as a 

requirement or condition of these 

exclusions and the non-waste 

determination process (40 CFR 260.34). 

Although this proposed rule does not 

address the Agency’s hazardous waste 

regulations, EPA believes the concept of 

legitimacy is an important one in 

determining when a secondary material 

is genuinely recycled and not discarded 

under the guise of recycling. Therefore, 

the Agency is including the following 

discussion in today’s preamble to 

provide the context in which EPA has 

integrated the concept of legitimacy into 

the recently promulgated hazardous 

waste exclusions from the definition of 

solid waste.15


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United States Court Of Appeals for The District Of 

Columbia Circuit. One of the issues that EPA will 

consider is the definition of legitimate recycling. 

However, until that occurs, the final rule, including 

the definition of legitimate recycling remains in 

effect until and unless EPA goes through another 

rulemaking process (proposed and final) to repeal 

or amend it. 

The legitimacy provision in the 

October 2008 final rule, which applies 

specifically to hazardous secondary 

materials excluded under the rule, has 

two parts. The first part includes two 

factors: (1) the hazardous secondary 

materials being recycled must provide a 

useful contribution to the recycling 

process or to the product or 

intermediate of the recycling process, 

and (2) the product or intermediate 

produced by the recycling process must 

be valuable. These two legitimacy 

factors make up the core of legitimacy, 

and, therefore, a process that does not 

conform to them cannot be a legitimate 

recycling process, but would be 

considered sham recycling. 

The second part of the legitimacy 

provision consists of two factors that 

must be considered when determining if 

a particular hazardous secondary 

material recycling process is legitimate 

for the purposes of the exclusion. These 

two factors are: (1) The generator and 

the recycler should manage the 

hazardous secondary material as a 

valuable commodity, and (2) the 

product of the recycling process does 

not contain significant concentrations of 

hazardous constituents that are not in 

analogous products. EPA believes these 

two factors are important in determining 

legitimacy, but has not made them 

factors that must be met because the 

Agency is aware of situations where a 

legitimate recycling process exists, but 

may not conform to one or both of these 

two factors. In making a determination 

that a hazardous secondary material is 

legitimately recycled, persons must 

evaluate all factors and consider 

legitimacy as a whole. If, after careful 

evaluation of these other considerations, 

one or both of the non-mandatory 

factors are not met, then this fact may 

be an indication that the material is not 

legitimately recycled. To evaluate the 

extent to which these factors are met 

and in determining the legitimacy of a 

recycling process that does not meet one 

or both of these factors, persons can 

consider the protectiveness of the 

storage methods, exposure from toxics 

in the product, the bioavailability of the 

toxics in the product, and other relevant 

considerations. 

EPA stated in the preamble to the 

October 2008 final rule that, although 

the Agency was only codifying the 

legitimacy provision as part of the new 

hazardous secondary materials recycling 

exclusions and non-waste determination 

process, it was stressing that EPA 

retains its long-standing policy that all 

recycling of hazardous secondary 

materials must be legitimate and that 

the four legitimacy factors codified at 40 

CFR 260.43 are substantively the same 

as the Agency’s long-standing 

legitimacy policy, as stated in the 1989 

Lowrance Memo and in various 

definition of solid waste rulemakings. 

EPA believes the same principle of 

‘‘legitimacy’’ is likewise an important 

element in the recycling of nonhazardous secondary materials. That is, 

the concept of legitimate recycling is 

crucial to determining whether a nonhazardous secondary material being 

recycled is truly being recycled or is, in 

fact, being discarded through sham 

recycling. In the January 2, 2009 

ANPRM, the Agency sought comment 

on the appropriate construct for 

determining when such non-hazardous 

secondary materials are legitimately 

burned as a fuel or used as a legitimate 

ingredient in an industrial process that 

involved combustion (see Section V, 74 

FR 53–9). A general discussion of the 

comments EPA received follows in 

Section VII.C. 

VII. ANPRM Discussion, Summary of 

the Proposed Approach, Comments 

Received on the ANPRM, and Rationale 

for and Detailed Description of the 

Proposed Rule 

A. Summary of the ANPRM Approach 

In the ANPRM, the Agency 

considered various scenarios in 

evaluating the usage of secondary 

materials (e.g., as fuels or ingredients) 

and whether these materials should be 

considered solid wastes under RCRA 

when used in combustion devices, such 

that units burning these secondary 

materials would be subject to regulation 

under CAA section 129, rather than 

subject to CAA section 112. Specifically, 

the ANPRM identified several cases 

where such non-hazardous secondary 

materials are not solid wastes when 

combusted, and thus, subject to CAA 

section 112. These were: (1) Traditional 

fuels, (2) secondary materials used as 

legitimate ‘‘alternative’’ fuels that have 

not been previously discarded, (3) 

secondary materials used as legitimate 

‘‘alternative fuels’’ resulting from the 

processing of discarded secondary 

materials, (4) secondary materials used 

as legitimate ingredients, and (5) 

hazardous secondary materials that may 

be excluded from the definition of solid 

waste under RCRA subtitle C because 

they are more like commodities than 

wastes. All other cases where nonhazardous secondary materials are 

combusted would be considered ‘‘solid 

wastes’’ and subject to CAA section 129. 

1. Traditional Fuels 

The ANPRM categorized cellulosic 

biomass (e.g., wood) and fossil fuels 

(e.g., coal, oil, natural gas) and their 

derivatives (e.g., petroleum coke, 

bituminous coke, coal tar oil, refinery 

gas, synthetic fuel, heavy recycle, 

asphalts, blast furnace gas, recovered 

gaseous butane, coke oven gas) as 

traditional fuels that have been burned 

historically as fuels and have been 

managed as valuable products, and 

stated that they are considered unused 

products that have not been discarded 

and therefore are not solid wastes. The 

ANPRM further stated that wood 

collected from forest fire clearance 

activities and trees and uncontaminated 

wood found in disaster debris would 

not be discarded if managed properly 

and burned as a legitimate fuel, and 

therefore not a solid waste. 

2. Guiding Principles Used To 

Determine if Secondary Materials Used 

in Combustion Units Are Solid Wastes 

The ANPRM explained key factors in 

determining if alternative fuels or 

ingredients are solid wastes under 

RCRA, including whether they have 

been discarded, and if they have been 

discarded, whether they have been 

processed to produce a fuel or 

ingredient product that would not be 

considered a solid waste. The ANPRM 

further explained that the plain-English 

meaning of the term discard applies to 

the RCRA definition of solid waste. That 

is, a material is discarded if it is 

disposed of, thrown away, or 

abandoned. Moreover, the ANPRM 

stated the term ‘‘discarded materials’’ 

could not include materials ‘‘ * * * 

destined for beneficial reuse or 

recycling in a continuous process by the 

generating industry itself,’’ and that 

determining whether a secondary 

material is used in a continuous process 

is important because certain materials 

under consideration are produced and 

managed in a continuous process within 

an industry (e.g., cement kiln dust that 

is recycled in cement kilns). The 

ANPRM went on to say that even if the 

secondary material is not used in a 

continuous process, if it is used as a 

legitimate fuel or ingredient, these 

secondary materials are not solid wastes 

if they were not previously discarded. 

For alternative fuels or ingredients not 

to be considered discarded, and thus not 

to be solid wastes, the ANPRM stated 

that they must be legitimate fuels or 

ingredients. It then described EPA’s 

criteria for determining if a secondary 


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16EPA 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. Extreme care 

needs to be taken to exclude specific materials in 

C&D debris, especially regulated-asbestos 

containing materials (RACM). Additionally, the 

wiring, plastics, and painted surfaces may 

contribute to emissions of concern and might not 

equate to traditional fuels. Upon publication, this 

study will be available at EPA’s National Risk 

Management Research Laboratory (NRMRL) 

publications Web site at http://www.epa.gov/nrmrl/ 

publications.html. 

17 In determining whether the concentration of 

contaminants in secondary materials is 

‘‘significantly higher,’’ the Agency stated in the 

ANPRM that it could use a qualitative evaluation 

of the potential human health and environmental 

risks posed. A contaminant concentration could be 

elevated without posing unacceptable risk, and 

therefore may not be considered ‘‘significant’’ for the 

purposes of determining whether the secondary 

material is a legitimate fuel. 

material is a legitimate fuel or 

ingredient. The Agency explained that it 

generally considers secondary materials 

to be legitimate non-waste fuels if they 

are handled as valuable commodities, 

have meaningful heating value, and 

contain contaminants that are not 

significantly higher in concentration 

than traditional fuel products. If these 

criteria are not met, sham recycling may 

be indicated and the secondary material 

might be a solid waste. Similarly, for 

non-hazardous secondary materials to 

be considered a non-waste ingredient, 

the ANPRM stated that it would 

generally consider secondary materials 

to be non-waste ingredients if the 

secondary material is handled as a 

valuable commodity, the secondary 

material provides a useful contribution, 

the recycling results in a valuable 

product, and the product does not 

contain contaminants that are 

significantly higher in concentration 

than traditional products. 

3. Secondary Materials Used as 

Legitimate ‘‘Alternative’’ Fuels That 

Have Not Been Previously Discarded 

For legitimate ‘‘alternative’’ fuels that 

have not been previously discarded, the 

ANPRM stated that the question of what 

constitutes a legitimate ‘‘fuel’’ reflects 

the availability of fuel materials 

generally, the demand for fuel, and 

technology developments. Thus, in 

addition to traditional fuels, the 

ANPRM stated that there is a category 

of secondary materials that are 

legitimate alternative fuels; that is, there 

are secondary materials that may not 

have been traditionally used as fuels, 

but that are nonetheless legitimate fuels 

today because of changes in technology 

and in the energy market. In cases 

where these legitimate alternative fuels 

have not been discarded, EPA said that 

it would not consider them to be solid 

wastes. We stated that much of the 

biomass currently used as alternative 

fuels are not solid waste since they have 

not been discarded in the first instance 

and are legitimate fuel products, noting 

that biomass can include a wide range 

of alternative fuels, and can be broken 

down into two different categories— 

cellulosic biomass and non-cellulosic 

biomass. Cellulosic biomass was 

described to include forest-derived 

biomass (e.g., green wood, forest 

thinnings, clean and unadulterated bark, 

sawdust, trim, and tree harvesting 

residuals from logging and sawmill 

materials), food scraps, pulp and paper 

mill wood residuals (e.g., hog fuel, such 

as clean and unadulterated bark, 

sawdust, trim screenings; and residuals 

from tree harvesting), and agricultural 

residues (e.g., straw, corn husks, peanut 

shells, and bagasse). Non-cellulosic 

biomass was described to include 

manures and gaseous fuels (e.g., from 

landfills and manures). 

The ANPRM stated that biomass, 

especially cellulosic biomass, has a 

comparable composition to traditional 

fuel products due to the nature of the 

plants and animals (i.e., they would not 

be considered to have additional 

‘‘contaminants’’). Thus, if they are 

managed as valuable commodities and 

have meaningful heating value, they 

would not be considered solid wastes. 

The ANPRM also noted that tires used 

as tire-derived fuel (TDF), which 

include whole or shredded tires, that 

have not been previously discarded, are 

legitimate fuels if they meet the 

legitimacy criteria i.e., they are handled 

as valuable commodities, have 

meaningful heating value, and do not 

contain contaminants that are 

significantly higher in concentration 

when compared to traditional fuel 

products (see Materials Characterization 

Paper on Scrap Tires in the docket for 

today’s rule for a complete discussion 

on contaminants in TDF [EPA–HQ– 

RCRA–2008–0329]). We noted that in 

many cases, used tires that are collected 

pursuant to state tire oversight programs 

(e.g., used tires from tire dealerships 

that are sent to used tire processing 

facilities) are handled as valuable 

commodities, and, therefore, have not 

been abandoned, disposed of, or thrown 

away. We noted that because states 

typically regulate these programs under 

their state solid waste authorities, it is 

not the Agency’s intent to undercut the 

state’s authority in this area. We 

requested comment on whether tires 

collected pursuant to state tire oversight 

programs have been discarded, and also 

requested comment on whether an EPA 

designation specifying that used tires, 

for example, managed pursuant to state 

collection programs are not solid 

wastes, would adversely impact a state’s 

ability to manage such a program. EPA 

notes that it is considering a change 

regarding the issue of tires collected 

under state programs, which is 

discussed later in the preamble. In 

particular, the Agency proposes that 

tires collected under these recycling 

programs are discarded and are solid 

wastes. EPA proposes this formulation 

for tires, but is asking for further 

comment on the ANPRM formulation 

that secondary material collected and 

sent for legitimate use as fuels are not 

discarded and are not solid wastes. For 

more discussion, see sections VII.C.5.c. 

and VII.D.2 of today’s proposal. 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. 

The ANPRM described other nontraditional alternative fuels in use today 

that we are evaluating to determine 

whether they have been discarded and 

whether they are legitimate alternative 

fuels (e.g., construction and demolition 

materials,16 scrap plastics, nonhazardous non-halogenated solvents 

and lubricants, and wastewater 

treatment sludge). The ANPRM then 

described secondary materials we 

considered to be questionable as to 

whether they are legitimate fuels 

because they lack adequate heating 

value (wet biomass), or because they 

may contain contaminants that are 

significantly higher 17 in concentration 

than those in traditional fuel products to 

the degree that sham recycling is 

indicated. The materials that were 

described in the ANPRM that could fall 

into this category include polyvinyl 

chloride (PVC), halogenated plastics, 

chromated copper arsenate (CCA) 

lumber, creosote lumber, copper-based 

treated lumber, lead-based treated 

lumber, and secondary mill residues, 

such as board, trim and breakage from 

the manufacture of reconstituted wood/ 

panel products. 

4. Secondary Materials Used as 

Legitimate ‘‘Alternative’’ Fuels Resulting 

From the Processing of Discarded 

Secondary Materials 

The ANPRM also stated that 

legitimate fuel products may be 

extracted, processed, or reclaimed from 

non-hazardous secondary materials that 

have been discarded in the first instance 

and that such products would generally 

not be considered solid waste. Once 

processed to make a legitimate nonwaste fuel product, such a product 


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18Turning 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. 

would not be discarded and therefore 

would not be a solid waste, provided it 

met the general principles discussed in 

today’s preamble for being a legitimate 

fuel. However, until a legitimate 

product has been processed, the 

secondary material that has been 

discarded is a solid waste, and must 

comply with any federal, state or local 

regulations. In addition, any waste 

generated in the ‘‘processing’’ of these 

materials would need to be managed 

properly and comply with the 

appropriate requirements. The ANPRM 

described various secondary materials 

that can be processed into fuels, 

including discarded biomass (e.g., with 

dewatering/drying techniques to 

increase the Btu/lb, or stripping the 

paint off wood to produce clean 

biomass), coal fines, used oil, tires,18

landfill ash, and secondary materials 

that are mixed and processed into 

pellets (or other forms) that have the 

consistency and handling characteristics 

of coal (e.g., K–Fuel, N–Viro). The 

ANPRM stated that the degree of 

processing necessarily will vary 

depending on the specific material, but 

the objective remains the same—the 

product from the processing must be a 

legitimate fuel (i.e., a material with 

meaningful heating value, with 

contaminants that are not present at 

significantly higher concentrations than 

those of traditional fuel products, and 

managed as a valuable commodity). 

Although the ANPRM stated that 

forest-derived biomass is not considered 

to have been discarded, we requested 

comment on whether any forest-derived 

biomass that was determined to have 

been discarded and was subsequently 

processed by chipping or sorting prior 

to use as a fuel through combustion 

would be considered to have undergone 

adequate processing to convert the 

discarded material into a fuel product. 

We also requested comment on whether 

mined landfill power plant residuals 

that is crushed, screened, and/or 

separated into its fundamental 

components through density separation 

is adequately processed to convert it 

into a fuel product or ingredient (under 

the assumption that it meets our 

previously described legitimacy 

criteria). 

With respect to used oil, the ANPRM 

stated that off-specification used oil that 

is collected from repair shops is 

generally thought to be originally 

discarded, but that on-spec used oil was 

considered to be a product fuel, not a 

waste. We also requested comment on 

whether off-specification used oil 

managed pursuant to the 40 CFR part 

279 used oil management standards 

which are burned for energy recovery 

should be considered to be discarded, 

and thus whether such off-specification 

used oil should be considered a nonwaste fuel. We stated that although offspecification used oil may contain 

contaminant levels that are higher in 

concentration than traditional (virgin) 

fossil fuels, they still are managed 

within the constraints of the used oil 

management standards, and may only 

be burned in specific types of 

combustion devices. 

5. Secondary Materials Used as 

Legitimate Ingredients 

For secondary materials used as 

ingredients, the ANPRM also stated we 

must determine whether alternative 

ingredients, such as CKD, bottom ash, 

boiler slag, blast furnace slag, foundry 

sand, and secondary glass material have 

been discarded, or whether they are 

being used as legitimate non-waste 

ingredients. For example, the ANPRM 

stated that coal fly ash is handled as a 

commodity within continuous 

commerce when it is marketed to 

cement kilns as an alternative 

ingredient, and would not be considered 

a waste if it met the legitimacy criteria. 

The ANPRM also stated that 

secondary materials used as ingredients 

that were previously discarded could be 

processed into legitimate non-waste 

ingredients. 

6. Hazardous Secondary Materials That 

May Be Excluded From the Definition of 

Solid Waste Under RCRA Subtitle C 

Because They Are More Like 

Commodities Than Wastes 

In the ANPRM, the Agency explained 

that, under the hazardous waste 

regulations, EPA has evaluated a 

number of hazardous secondary 

materials that are legitimately used or 

recycled and determined that such 

materials, while they either met a listing 

description or exhibited one or more of 

the hazardous waste characteristics, 

were not ‘‘solid wastes’’ for purposes of 

the subtitle C hazardous waste 

regulations. Specifically, black liquor, 

spent sulfuric acid, and comparable 

fuels may be burned under certain 

conditions and would not be solid 

wastes. The ANPRM discussed EPA’s 

interest in extending this determination 

so that these materials are not 

considered solid wastes under RCRA 

subtitle D as well. 

7. Additional Areas for Comment in the 

ANPRM 

a. Fuels or Materials That Have Been 

Discarded That Are Generally 

Considered To Be Solid Wastes 

The ANPRM explained that secondary 

materials that have been previously 

discarded and not subsequently 

processed into legitimate fuels or 

ingredients are considered solid wastes 

under RCRA. However, the Agency 

requested comment as to whether these 

discarded materials—once recovered 

from the discard environment—should 

no longer be considered solid waste 

(assuming they are in fact valuable fuels 

or ingredients and otherwise meet the 

legitimacy criteria once recovered). EPA 

recognized that waste can be burned for 

energy or material recovery. Such 

materials, once they have been 

discarded, generally are considered 

‘‘solid wastes’’ and units that burn these 

materials would be subject to the CAA 

section 129 incineration standards if 

they have not been processed into a 

legitimate non-waste ingredient or fuel. 

However, the ANPRM explained that as 

prices for primary materials have 

increased, in many cases, the economics 

of using secondary materials as a 

substitute for primary materials has 

shifted, changing how the secondary 

materials are considered in commerce. 

In addition, new technologies can 

expand the universe of secondary 

materials that could be considered 

legitimate fuels. 

The ANPRM therefore requested 

comment on those situations where 

discarded materials (e.g., used tires and 

coal refuse) can be directly used as a 

legitimate fuel or ingredient without 

processing because they are 

indistinguishable in all relevant aspects 

from a fuel or ingredient product. (Note 

that the Agency only requested 

comment on these secondary materials 

at the point they have been removed 

from their ‘‘discard’’ environment and 

managed as valuable commodities. 

Materials that have been disposed of in 

abandoned piles or landfills are clearly 

discarded while they remain in those 

environments and are subject to 

appropriate federal, state and local 

regulations.) 

b. Other Approaches for Determining 

Whether Secondary Materials Are Fuels 

and Not Solid Wastes 

The ANPRM requested comment on 

an approach, as presented to the Agency 

by industry representatives, for 

determining when non-hazardous 

secondary materials are fuels and thus, 

not solid waste, and how the process 


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19A 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. 

may be implemented.19 Industry 

representatives suggested that nonhazardous secondary materials should 

be evaluated, on a case-by-case basis, to 

identify which criteria have been 

satisfied and determine whether the 

material is legitimately handled as a 

fuel. Criteria identified by industry 

stakeholders include: handling and 

storage of materials to minimize loss, 

use of materials within a reasonable 

period of time, material value (e.g., 

whether there is a market for the 

material as a fuel, internal or external to 

the company), material managed and 

treated as a commodity, and processing 

of material to enhance fuel value. Under 

the industry recommended approach, 

the secondary material would not 

necessarily have to satisfy all criteria. 

To implement the aforementioned 

concepts for determining when or 

which secondary materials are fuels, the 

ANPRM described two methods 

presented by industry, which were not 

meant to be mutually exclusive. One 

method is self-implementing, by which 

an owner or operator of a combustion 

device must determine that the 

secondary material meets the criteria set 

forth and maintain records to 

demonstrate that these criteria are met. 

The other method is not selfimplementing, but would allow an 

owner or operator to petition EPA or the 

state to specifically list a secondary 

material as a legitimate non-waste fuel 

(in addition to a pre-established list of 

materials). In the petition, the owner or 

operator would use the criteria as the 

basis for proposing that EPA or the state 

list the secondary material, or the owner 

or operator could submit additional 

information to demonstrate the 

environmental equivalence of the 

material to other listed fuels. 

c. Materials for Which State Beneficial 

Use Determinations Have Been Made 

The ANPRM explained that states 

regulate the management of nonhazardous solid waste, including 

secondary industrial materials, and that 

many states have a process or 

promulgated regulations to determine 

when these materials are no longer 

wastes because they can beneficially 

and safely be used as products in 

commerce. Materials are no longer 

subject to the state’s solid waste 

regulations under the state rules when 

the state determines that the secondary 

materials are no longer solid wastes 

when beneficially used. The ANPRM 

further explained that the states are the 

lead Agencies for implementing the 

non-hazardous waste programs and, as 

such, the Agency wanted to make sure 

that state programs are not adversely 

affected by any decisions that are made 

by EPA, noting that we see a benefit to 

deferring to state decisions, which are 

able to consider site-specific 

information. As a result, the Agency 

requested comments on whether to 

consider secondary materials that 

receive a state beneficial use 

determination for use as a fuel or as an 

ingredient as not a solid waste, also not 

be considered a solid waste under 

federal law. 

d. Biofuels 

Biofuels can be generally described as 

a gas or liquid fuel made from biological 

materials, including plants, animal 

manure, and other organic sources. The 

ANPRM noted that biofuel production 

has increased dramatically in the past 

few years and is expected to continue 

increasing over the coming years, and 

stated that biofuels produced from 

secondary materials, such as ethanol 

and biodiesel, are not considered to be 

solid wastes themselves, but rather are 

viewed as legitimate fuel products. 

Secondary materials associated with 

biofuel production can be viewed to 

include both the feedstock materials 

that are used to produce biofuels, as 

well as the byproducts generated from 

the production of biofuels. The ANPRM 

stated that these materials are 

considered legitimate alternative fuels 

when they have meaningful heating 

value, do not contain contaminants that 

are significantly higher in concentration 

than traditional fuels, and are handled 

as a valuable commodity. 

B. Summary of the Proposed Approach 

1. Changes from the ANPRM Approach 

While many of the concepts and 

provisions that were discussed in the 

ANPRM are included in this proposal, 

including discard and the legitimacy 

criteria, the basic framework is different 

based partly on the approach taken in 

the Definition of Solid Waste (DSW) 

final rule promulgated on October 30, 

2008 (see 73 FR 64668) under subtitle C 

of RCRA, based partly on the comments 

received (see section VII.C for the 

comments and EPA’s response), as well 

as on our interpretation of whether 

these secondary materials are 

considered to be discarded (see section 

VII.C.2 for the comments and EPA’s 

response). 

The ANPRM indicated that there may 

be a number of secondary materials that 

would not be considered discarded even 

if the original generator sent them to 

another entity outside of its control. For 

example, used tires collected from 

automobiles at tire dealerships and 

managed pursuant to state tire 

collection programs were not viewed as 

solid wastes in the ANPRM. Comments 

received from some states suggested that 

non-hazardous secondary material fuels 

that are transferred to a third party have 

entered what is traditionally considered 

to be the ‘‘waste stream’’ (and have been 

regulated by the states as wastes) and 

therefore should appropriately be 

considered wastes (e.g., scrap tires) 

unless/until they are processed into 

non-waste fuel products. As discussed 

below, this proposal assumes that nonhazardous secondary materials that are 

used as fuels and are managed outside 

the control of the generator are solid 

wastes unless they are processed into 

non-waste fuel products. (Note: The 

same non-hazardous secondary material 

that is burned for energy recovery under 

the control of the generator and meets 

the legitimacy criteria would not be 

considered a solid waste since the nonhazardous secondary material would 

not be considered discarded.) 

We are also proposing, as discussed 

below, a non-waste determination 

petition process. That process will allow 

those persons who burn non-hazardous 

secondary material fuels that are not 

managed within the control of the 

generator (that this proposal would 

consider to be solid wastes), to petition 

EPA for a determination that such nonhazardous secondary materials are not 

discarded and therefore, are not solid 

wastes (assuming these materials have 

met the applicable legitimacy criteria). 

While the Agency recognizes that a 

petition process can be resource 

intensive, we also believe it necessary 

and appropriate to provide an 

opportunity for persons to demonstrate 

to EPA that their non-hazardous 

secondary material fuels would not be 

considered ‘‘discarded’’ under RCRA 

and therefore, not solid waste. 

Furthermore, some other important 

changes were made between the 

ANPRM and this proposal based on 

comments received and further 

investigation. One of the differences is 

the classification of ‘‘clean’’ biomass and 

on-specification used oil as a traditional 

fuel (see section VII.C.5.b.). In addition, 

EPA is only addressing non-hazardous 

secondary materials in this rulemaking, 

and thus, has decided not to address 

hazardous secondary materials that have 

been excluded from the definition of 

solid waste under subtitle C of RCRA in 

this rulemaking proceeding. Instead, 

facilities combusting hazardous 

secondary materials should refer to 


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31856 Federal Register / Vol. 75, No. 107 / Friday, June 4, 2010 / Proposed Rules 

20Bagasse is the matted cellulose fiber residue 

from sugar cane that has been processed in a sugar 

mill. For more information on bagasse, see the 

Materials Characterization Paper on BiomassAgricultural Residues and Food Scraps, which is 

located in the docket of today’s proposed rule. 

EPA’s Subtitle C hazardous waste 

regulations to determine whether the 

materials they are combusting are solid 

wastes. Each of these changes is 

discussed in detail in the referenced 

sections. 

2. General Proposed Approach 

This proposal maintains the same 

general principles for determining 

whether a non-hazardous secondary 

material is or is not a solid waste as 

expressed in the ANPRM. Under the 

proposed rule, the following are not 

solid wastes when combusted for 

purposes of the CAA: 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; nonhazardous secondary materials that 

meet the legitimacy criteria and are used 

as ingredients in a manufacturing 

process; materials that meet the 

legitimacy criteria and have been 

sufficiently processed into a fuel or 

ingredient from discarded nonhazardous secondary materials that have 

been discarded; and non-hazardous 

secondary materials used as a fuel that 

does not remain within the control of 

the generator for which EPA grants a 

facility’s petition for a ‘‘non-solid waste’’ 

determination. 

The term ‘‘discarded’’ is intended to 

encompass material handling and 

management scenarios that meet the 

plain meaning of discard (abandoned, 

disposed of, or thrown away). For 

example, a secondary material that is 

thrown away and disposed of in a 

landfill is considered to have been 

discarded in the first instance. Materials 

that have been discarded in the first 

instance are solid waste even if they 

satisfy the legitimacy criteria (unless 

they are processed into a legitimate nonwaste product) since both wastes and 

non-wastes may be legitimately 

recycled. 

3. Legitimacy Criteria 

This proposal also maintains the same 

general principles as described in the 

ANPRM for determining whether a nonhazardous secondary material is or is 

not a legitimate fuel or ingredient. 

Secondary materials used in a 

combustion unit that are not a legitimate 

fuel or ingredient would be considered 

sham recycling and thus, a solid waste. 

For legitimate fuels, non-hazardous 

secondary materials must be handled as 

a valuable commodity, have meaningful 

heating value, be used as a fuel in a 

combustion unit that recovers energy, 

and contain contaminants at levels 

comparable to those in traditional fuels. 

As used throughout today’s proposal, 

‘‘comparable’’ levels of contaminants 

refer to levels that are comparable or 

less than those in traditional fuels. For 

legitimate ingredients, the nonhazardous secondary material must be 

handled as a valuable commodity, 

provide a useful contribution, result in 

a valuable product or intermediate, and 

result in products that contain 

contaminants at levels that are 

comparable in concentration to those 

found in traditional products that are 

manufactured without the nonhazardous secondary material. As with 

fuels, contaminant levels that are 

comparable refers to levels that are 

comparable or less than contaminant 

levels found in traditional products that 

are manufactured without the nonhazardous secondary material 

ingredients. 

4. Traditional Fuels 

This proposal recognizes that 

traditional fuels are not solid wastes 

when burned in a combustion unit. 

Traditional fuels are those fuels that 

have been historically managed as 

valuable fuel products rather than being 

managed as waste materials. Traditional 

fuels include fossil fuels (e.g., coal, oil, 

including used oil meeting onspecification levels, natural gas) and 

their derivatives (e.g., petroleum coke, 

bituminous coke, coal tar oil, refinery 

gas, synthetic fuel, heavy recycle, 

asphalts, blast furnace gas, recovered 

gaseous butane, and coke oven gas). 

Clean cellulosic biomass materials are 

also traditional fuels rather than wastes 

when burned as a fuel. ‘‘Clean’’ material 

is defined as those non-hazardous 

secondary materials that have not been 

altered (either chemically or through 

some type of production process), such 

that it contains contaminants at 

concentrations normally associated with 

virgin biomass materials. Clean 

cellulosic biomass includes forestderived biomass (e.g., green wood, forest 

thinnings, clean and unadulterated bark, 

sawdust, trim, and tree harvesting 

residuals from logging and sawmill 

materials), corn stover and other 

biomass crops used specifically for 

energy production (e.g., energy cane, 

other fast growing grasses), bagasse20

and other crop residues (e.g., peanut 

shells), wood collected from forest fire 

clearance activities, trees and clean 

wood found in disaster debris, and 

clean biomass from land clearing 

operations. 

We request comment on whether 

other fuels in use today also should be 

classified as traditional fuels, and also 

whether other types of cellulosic 

biomass should be designated as clean 

biomass, and thus a traditional fuel. In 

identifying other secondary materials as 

a traditional fuel, commenters will need 

to explain why such materials should be 

considered a traditional fuel—that is, an 

explanation of how the materials have 

historically been managed as a valuable 

fuel product and not a waste. 

EPA acknowledges that changes in 

technology and in the energy market 

over time may result in additional 

secondary materials being economically 

viable to be used as ‘‘traditional’’ fuels. 

It also may not always be clear whether 

a fuel material is a traditional fuel. We 

agree with commenters to the ANPRM 

that this rulemaking should be flexible 

to account for increasing use and 

changes in commodities, technologies, 

markets, and fuel prices. We, therefore, 

request comment on whether we should 

provide a petition process that would 

allow a facility or person to request that 

EPA determine whether the fuel that 

they burn qualifies as a traditional fuel. 

If we adopt such a petition process, it 

would be implemented through the 

same process as the non-waste 

determination petition process 

discussed in section VII.D.5. 

5. Circumstances Under Which a NonHazardous Secondary Material Would 

Not Be Considered a Solid Waste 

Non-hazardous secondary materials 

used as fuels in combustion units would 

be considered solid wastes unless: (1) 

The non-hazardous secondary materials 

(not otherwise discarded) remain under 

the control of the generator as discussed 

in section VII.D.1, and meet the 

legitimacy criteria; or (2) they are 

legitimate non-waste fuels that meet the 

legitimacy criteria and are produced 

from the processing of discarded nonhazardous secondary materials as 

discussed in section VII.D.4. Nonhazardous secondary materials used as 

a fuel in combustion units that are 

transferred to a third party are 

considered solid wastes unless a nonwaste determination has been granted 

pursuant to the proposed petition 

process (discussed below). 

Non-hazardous secondary materials 

used as ingredients that are combusted 

in combustion units would not be 

considered solid waste if they have not 

been discarded in the first instance and 

if they are legitimate ingredients, 

irrespective of whether they have been 

transferred to a third party. We are not 


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21Many states regulate used tires under a 

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. 

22Subsequent 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 NonContinued 

proposing to differentiate ingredients 

that are used within the control of the 

generator from those that are not since 

we believe the use of non-hazardous 

secondary materials as ingredients is 

considered to be more integral or akin 

to use in a commercial manufacturing 

process and thus these non-hazardous 

secondary materials would not be 

considered discarded provided they 

satisfy the legitimacy criteria. 

Except for the petition process, the 

proposed criteria are designed to be selfimplementing in nature, not requiring 

Agency action. As such, we are 

proposing that it will be the facility’s 

(i.e., the facility that burns the material) 

responsibility to determine if the 

secondary material satisfies the 

proposed criteria that identifies which 

material is a solid waste when burned 

in a combustion unit. 

6. Petition Process 

EPA is also proposing to establish a 

non-waste determination petition 

process for secondary materials used as 

fuels outside the control of the 

generator. The petition process provides 

persons with an administrative process 

for a formal determination that their 

non-hazardous secondary material fuel 

has not been discarded and is 

indistinguishable in all relevant aspects 

from a fuel 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 non-hazardous 

secondary material is comparable to 

commercial fuels; (3) whether the nonhazardous secondary material will be 

used in a reasonable time frame given 

the state of the market; (4) whether the 

constituents in the non-hazardous 

secondary material will be released to 

the air, water, or land from the point of 

generation to the combustion of the 

secondary material at levels comparable 

to what would otherwise be released 

from traditional fuels; and (5) other 

relevant factors. For further information 

regarding the non-waste determination 

petition process, see section VII.D.5. 

EPA developed two flowcharts that 

generally illustrate the process of 

determining whether nonhazardous 

secondary materials burned as a fuel or 

ingredient in combustion units are or 

are not solid waste. These diagrams 

present the proposed rule’s basic 

framework as a series of questions that 

should be considered when determining 

the appropriate characterization of a 

nonhazardous secondary material (i.e. 

as a solid waste or not when burned in 

a combustion unit). See ‘‘Flow Chart for 

Determining Whether Non-Hazardous 

Secondary Material Ingredients Burned 

In Combustion Units are Solid Wastes’’, 

and ‘‘Flow Chart for Determining 

Whether Non-Hazardous Materials Used 

as Fuel In Combustion Units are Solid 

Waste’’ in the docket for today’s 

proposal. We are soliciting comments 

on whether these flow charts should be 

included in the Code of Federal 

Regulations (CFR) as part of the final 

rule. 

C. What were the major comments on 

the ANPRM? 

1. Comments from State Agencies 

EPA received comments from several 

states and state organizations in 

response to the ANPRM. Comments 

received expressed a range of 

viewpoints representing states with 

differing solid waste management 

programs and authorities. Consequently, 

it was not surprising that the comments 

received often articulated competing 

suggestions and recommendations based 

upon different state programs and 

experiences. 

Comment: Some states did not want 

EPA to define what is or is not a waste 

at the federal level if it impacts or limits 

the scope of what states currently 

regulate under their solid waste 

management authority. Some states 

noted a potential problem related to 

existing ‘‘stringency provisions’’ in some 

state laws. For example, if a solid waste 

determination is made at the federal 

level, it could be argued that the state 

is less stringent through their issued 

exemptions and the state rule must be 

rescinded. Conversely, some states 

argued they cannot, by state statute, be 

more stringent than the Federal 

regulations, and even if they don’t have 

this statutory limitation, they may feel 

pressure to not be more restrictive than 

the federal definition. Many states said 

we should defer the determination of 

whether those non-hazardous secondary 

materials used as fuels or ingredients 

are solid wastes to the states and urged 

flexibility in how each state could 

incorporate any new regulations into its 

existing solid waste management 

programs. 

EPA’s Response: The Clean Air Act 

(section 129(g)(6)) states that the term 

‘‘solid waste’’ shall have the meaning 

established by the Administrator 

pursuant to the Solid Waste Disposal 

Act. Accordingly, EPA must define 

which non-hazardous secondary 

materials used as fuels or ingredients in 

combustion units are solid waste at the 

national level in order to identify the 

universe of sources subject to the boilers 

emissions standards to be issued under 

CAA section 112 and the CISWI 

emissions standards to be issued under 

CAA section 129. See section VIII of 

today’s proposal for a discussion on the 

applicability of state solid waste 

definitions and beneficial use 

determinations, as well as a discussion 

on state adoption of this rulemaking. 

Comment: Many states commented 

that they had long-standing ‘‘waste’’ 

management programs regulating nonhazardous secondary materials, that no 

one had questioned the legitimacy of 

their regulatory programs in the past, 

and that it was inappropriate and 

contrary to the intent of RCRA for EPA 

to exclude this material, which had 

been considered ‘‘waste’’ for many 

decades, from regulation under RCRA. 

On the other hand, other states were 

concerned a federal designation that 

some of these non-hazardous secondary 

materials are ‘‘wastes’’ would disrupt 

existing recycling markets by creating a 

deterrent from using these nonhazardous secondary materials as fuels 

or ingredients. These states emphasized 

the importance of promoting beneficial 

use of non-hazardous secondary 

materials and were concerned that 

regulation of certain materials 

(especially used tires) under CAA 

section 129 would create negative 

incentives to their beneficial use and 

consequently could have negative 

environmental impacts. 

Many states explained that they 

manage/regulate many of these 

secondary materials as solid waste (e.g., 

tires), but determine they are not wastes 

(via beneficial use determinations) 

when after analysis the state has 

determined they are going to a 

legitimate use (e.g., as a fuel). These 

states recommended that these materials 

remain a solid waste until they are 

approved for, procured and delivered to 

the potential end user in order to retain 

their ability to regulate the management 

of these secondary materials, usually 

under its solid waste management 

authority.21 For example, some states 

recommended that EPA exclude whole 

tires from the definition of solid waste 

at the point of combustion.22


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Hazardous Waste Programs.’’ This resolution, which 

was revised on March 23, 2010, urges EPA to 

exclude whole tires from the definition of solid 

waste for the purposes of combustion. Both the 

original (dated September 22, 2009) and revised 

versions are included in the docket for today’s rule. 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. 

EPA’s Response: In developing this 

proposed rule, EPA attempted to 

balance and address the concerns raised 

by the states regarding potential impacts 

on their existing solid waste programs 

in determining which non-hazardous 

secondary materials are solid wastes 

when combusted, while at the same 

time, recognizing that the proposed rule 

needed to be based on whether these 

secondary materials are considered to 

have been managed in a way that meets 

the plain meaning of discard, as defined 

in AMC I. We believe we have addressed 

that balance, considering the statutory 

limitations, but also understand that 

today’s proposal could impact existing 

state solid waste management programs, 

as well as states’ beneficial use 

programs, and specifically request 

comment on how today’s proposal 

impacts or could impact such state 

programs. For example, does the 

proposed approach impact the ability of 

the states to continue to regulate the 

management of secondary materials 

prior to their final end use. 

Comment: Some state commenters 

suggested that the Agency address CAA 

section 129 implementation issues by 

subcategorizing energy recovery units 

that burn waste materials and regulate 

this combustion similarly to the CAA 

section 112 requirements.23

EPA’s Response: This comment 

relates to EPA’s regulation of solid 

waste incineration units under section 

129 and is not relevant to this action, 

which proposes to define ‘‘solid waste’’ 

under RCRA for non-hazardous 

secondary materials. 

2. Meaning of Discard 

As discussed in Section VI, RCRA 

defines ‘‘solid waste’’ as ‘‘ * * * any 

garbage, refuse, sludge from a waste 

treatment plant, water supply treatment 

plant, or air pollution control facility 

and other discarded material * * * 

resulting from industrial, commercial, 

mining, and agricultural operations, and 

from community activities * * * ’’ 

(RCRA section 1004 (27) (emphasis 

added)). The ANPRM provided a 

thorough discussion on the definition of 

solid waste, including a summary of 

relevant case law. See also Section VI.B 

in today’s preamble. Further, the 

ANPRM highlighted the importance of 

the concept of ‘‘discard,’’ noting that the 

definition of solid waste turns on the 

meaning of the phrase, ‘‘other discarded 

material,’’ as this term encompasses all 

other examples provided in the 

definition. 

Comment: Several comments stressed 

that the Agency use the plain meaning 

of discard (i.e., disposed of, abandoned, 

or thrown away) in defining the term 

‘‘solid waste’’ for the purpose of 

establishing the appropriate standards 

for combustion units under CAA 

sections 112 and 129. 

EPA’s Response: EPA agrees with the 

premise of using the ‘‘plain meaning’’ of 

discard, as this position is consistent 

with case law on the issue (for a more 

detailed discussion, please refer to the 

ANPRM and section VI.B of today’s 

preamble). 

Comment: Some commenters noted 

that the same rationale and principles 

related to ‘‘discarded materials’’ should 

apply whether these materials are 

regulated under RCRA subtitles C or D, 

as the principles related to ‘‘discarded 

materials’’ are the same. Other 

commenters argued that the subtitle C 

approach should not be used for nonhazardous secondary materials since 

these materials pose less risk relative to 

hazardous wastes. 

EPA’s Response: EPA believes it is 

appropriate to use the same general 

framework that has been used to define 

solid waste for purposes of RCRA 

subtitles C and D (albeit tailored to 

specifically address non-hazardous 

secondary materials used as fuels or 

ingredients in combustion units), noting 

that the same statutory definition of 

solid waste applies to both RCRA 

subtitles D and C. However, EPA is not 

proposing in today’s action any 

revisions to its hazardous waste 

regulations. 

Comment: Some commenters argued 

that any secondary materials that are 

beneficially reused or recycled are not 

waste, regardless of whether or not the 

reuse or recycling is conducted in the 

same or different location or industry 

(on-site and off-site). 

EPA’s Response: The Agency does not 

agree with this assertion, as this 

position is not consistent with case law. 

Again, the question of whether a 

material is or is not a solid waste 

depends on the issue of discard. In Safe 

Food and Fertilizer v. EPA, 350 F. 3d 

1263, the court rejected the argument 

that, as a matter of plain meaning, 

recycled material destined for 

immediate reuse within an ongoing 

industrial process is never considered 

‘‘discarded,’’ whereas material that is 

transferred to another firm or industry 

for subsequent recycling must always be 

solid wastes. 350 F. 3d at 1268. Instead, 

the court evaluated ‘‘whether the 

Agency’s interpretation of * * * 

‘‘discarded’’ * * * is, reasonable and 

consistent with the statutory purpose.’’ 

Id. Thus, EPA has discretion to 

determine if non-hazardous secondary 

materials are not a solid waste if it is 

managed within the control of the 

generator, as well as if it is transferred 

outside the control of the generator. As 

previously described, this proposal 

states that non-hazardous secondary 

materials used as a fuel in combustion 

units that remain under the control of 

the generator and meet the legitimacy 

criteria are not solid waste, but that nonhazardous secondary materials that are 

transferred to a third party and 

combusted are considered solid wastes, 

unless a petition for a non-waste 

determination has been granted. 

Ingredients, on the other hand, are 

determined not to be solid waste even 

if they are managed outside the control 

of the generator as long as they meet the 

legitimacy criteria. See section VII.D.6 

for a discussion on EPA’s rationale for 

these determinations. 

Comment: One commenter noted that 

EPA’s hazardous waste regulations 

under subtitle C provide that hazardous 

secondary materials ‘‘burned to recover 

energy’’ or ‘‘used to produce a fuel’’ are 

‘‘discarded’’ and, therefore, are solid 

wastes. 40 CFR.261.2(c)(2). The 

commenter went on to point out that 

under the ANPRM approach, EPA is 

interpreting the definition of solid waste 

to mean that burning of non-hazardous 

secondary material, under appropriate 

conditions, is not ‘‘discard’’ under 

RCRA. According to the comment, the 

ANPRM is inconsistent with the 

interpretation in 40 CFR 261.2. 

Regardless of whether EPA believes that 

it can issue separate definitions of solid 

waste for hazardous waste and nonhazardous 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 does not believe the 

regulations are inconsistent. The 

hazardous waste definition may be 

considered a ‘‘presumption’’ that 

secondary materials burned for energy 

recovery, or used to produce a fuel, are 

solid wastes. EPA has, through 

rulemaking, excluded from the 

definition of solid waste a number of 

materials burned for energy recovery 

under certain conditions. See 40 CFR 

261.2(c)(2)(A)(ii) (off specification 

commercial chemicals otherwise listed 

as hazardous wastes); 261.4(a)(6)(‘‘black 

liquor’’ in pulping processes); 


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24On 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. The letter highlights 

stakeholder concerns regarding the 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 

include, with certain exceptions, non-hazardous 

secondary materials that are burned as a fuel or 

used as an ingredient in the combustion process 

within the definition of solid waste. As such, units 

combusting those materials would be required to 

meet CAA section 129 standards. For more 

information on the alternative approach, see section 

VII.E of this proposed rulemaking. 

261.4(a)(7) (spent sulfuric acid); and 

261.4(a)(16) (comparable fuels). In 

addition, EPA has excluded materials 

used to produce fuels. See, 40 CFR 

261.4(a)(12) (oil bearing hazardous 

secondary material inserted into the 

petroleum refining process), and 

261.4(a)(18) (petrochemical recovered 

oil inserted into the refining process). 

Regardless of the appropriateness of 

these exclusions, or whether the Agency 

may appropriately exclude any 

secondary materials from the solid 

waste definition, consistency between 

the regulations for hazardous and nonhazardous secondary materials is not an 

issue. This proposed rule, which 

identifies certain secondary materials 

burned for energy recovery as not being 

solid wastes, is comparable to the 

conditional exclusions for the definition 

of solid waste in the hazardous waste 

regulations. Conditions apply to all of 

the secondary materials being 

considered for determinations as to 

whether they are solid wastes. The 

legitimacy criteria apply to all of the 

secondary materials. 

It is reasonable and within EPA’s 

discretion to determine that nonhazardous secondary materials may be 

burned as products and are not wastes. 

Today’s proposal acknowledges the 

difficulty that the combustion of 

secondary materials is commonly 

associated with disposal. However, this 

view does not take into account that the 

secondary material may often be used to 

produce a safe fuel product that is a 

valuable commodity and is sold in the 

marketplace no differently from 

traditional fuels. This position seems 

like a common sense interpretation of 

the term, ‘‘solid waste,’’ under RCRA. 

Another difficulty the Agency faces is 

the misconception that secondary 

material that is burned, either for 

destruction or energy recovery, by 

definition has high levels of 

contaminants. The manner in which the 

secondary material is managed is a key 

factor that determines discard. 

Contaminant levels are part of that 

consideration. If a material has high 

levels of contaminants, it would be 

considered sham recycling, which is 

one type of way a material can be 

‘‘discarded.’’ 

Hazardous secondary materials— 

those that would be hazardous wastes 

under RCRA subtitle C, if discarded— 

are more likely to contain high levels of 

contaminants. Thus, EPA could 

reasonably presume that burning such 

secondary materials, even if burned for 

energy recovery, is likely a waste 

activity. This was the Agency’s rationale 

for issuing the subtitle C rule at 40 CFR 

261.2(c)(2), which specifies that burning 

for energy recovery is a waste disposal 

activity. In EPA’s rule establishing the 

comparable fuels exclusion from the 

definition of solid waste for hazardous 

secondary materials, the Agency stated 

that these hazardous secondary 

materials (comparable fuels) are lower 

in hazardous contaminants than the 

normal hazardous wastes and that 

burning of the comparable fuels ‘‘does 

not present the element of discarding 

hazardous constituents through 

combustion that underlies the typical 

classification of hazardous wastederived fuels as a solid waste. 50 FR at 

629–630 (Jan. 4, 1985).’’ 63 FR at 33783 

(1998). We may, after looking at certain 

secondary materials, decide that they 

are not in fact solid wastes and are being 

burned as valuable commodities to 

recover energy. This interpretation, 

however, is consistent with today’s 

proposal, which also evaluates whether 

materials burned for energy recovery are 

wastes or non-wastes. 

Moreover, the case law supports the 

conclusion that materials burned for 

energy recovery or used to produce fuels 

may or may not be solid wastes. 

American Mining Congress v. EPA, 824 

F.2d 1177 (DC Cir. 1987) (‘‘AMC I’’), held 

that the term ‘‘discarded materials’’ 

could not include materials ‘‘ * * * 

destined for beneficial reuse or 

recycling in a continuous process by the 

generating industry itself. 824 F.2d at 

1190. The provision under 

consideration in this case dealt 

specifically with material ‘‘reclaimed’’ in 

a continuous process. That is, material 

is regenerated from a secondary material 

in a continuous process. However, it is 

highly likely the courts would apply 

this same reasoning to secondary 

materials that are otherwise reused or 

recycled in a continuous industrial 

process, such as material used, or 

combusted, to recover energy. Accord, 

Association of Battery Recyclers v. EPA, 

208 F.3d 1047 (DC Cir. 2000) (‘‘ABR’’). 

It is also worth noting that the Ninth 

Circuit has specifically found that nonhazardous secondary materials may, 

under certain circumstances, be burned 

and not constitute solid waste under 

RCRA. See Safe Air For Everyone v. 

Waynemeyer (‘‘Safe Air’’), 373 F.3d 1035 

(9th Cir., 2004) (Kentucky bluegrass 

stubble may be burned to return 

nutrients to the soil and not be a solid 

waste). This activity is not waste 

treatment even in the absence of energy 

recovery. We believe, therefore, that 

burning material for another useful 

purpose (e.g., energy recovery) does not 

necessarily constitute a disposal 

activity. 

With respect to materials used to 

produce fuels, in American Petroleum 

Institute v. EPA, 216 F.3d 50 (DC Cir. 

2000) (‘‘API II’’), the court overturned 

EPA’s determination that certain 

recycled oil bearing wastewaters are 

wastes (216 F.3d at 55–58) and upheld 

conditions imposed by the Agency in 

excluding petrochemical recovered oil 

from the definition of solid waste (216 

F.3d at 58–59). Both of these materials 

are returned to the petroleum refinery 

process and used to produce fuel. The 

court in this case was clearly 

considering the conditions under which 

two types of material may be excluded 

from the definition of solid waste. For 

purposes of the issue of concern in 

today’s proposal, this decision supports 

EPA’s discretion to determine whether 

or not a secondary material used as a 

fuel product is a solid waste or not, in 

light of factors relevant to determining 

whether the material is discarded. 

Therefore, EPA is not prevented from 

exercising its discretion to decide that 

issue either way. 

3. General Approach 

EPA received several comments on 

the general approach outlined in the 

ANPRM for determining which nonhazardous secondary materials used as 

fuels or ingredients in combustion units 

are or are not solid wastes. Most 

commenters supported the general 

regulatory structure that included: (1) A 

recognition that certain materials are 

inherently fuel products, (2) a selfimplementing approach for identifying 

those non-hazardous secondary 

materials that are not considered solid 

waste pursuant to general criteria and 

(3) a petition process for receiving a 

non-waste determination from the 

Agency.24

Comments: Several commenters 

discussed whether to include a list of 

wastes and/or a list of non-wastes in the 

regulations. One commenter 

recommended that a list of secondary 

materials that are considered wastes be 


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identified, rather than a list of 

secondary materials that are not 

considered wastes, while other 

commenters urged for the inclusion of a 

list of secondary materials that are not 

considered wastes when burned as a 

fuel. If EPA included a list of secondary 

materials that are not considered wastes 

when burned as a fuel in its regulations, 

one commenter also suggested that the 

Agency additionally include a list of 

secondary materials that are considered 

wastes in order to remove any 

uncertainty. Those commenters who 

urged that the regulations include a list 

of secondary materials not considered a 

waste when used as a fuel or ingredient 

also cautioned that such a list should 

not be all-inclusive in order to account 

for changes in technology and new 

secondary materials and processes that 

are not yet developed. 

EPA’s Response: In recognition of 

changes in economies, technologies, 

markets and material processes, EPA is 

not proposing to list specific nonhazardous secondary materials as either 

wastes or non-wastes in regulatory 

language, but is rather specifying the 

criteria to be used to determine if these 

secondary materials are or are not solid 

wastes. We believe that there could be 

instances where determinations of 

whether a particular non-hazardous 

secondary material meets the various 

criteria will have to be based on sitespecific information; a national 

designation that in all circumstances, a 

particular non-hazardous secondary 

material is or is not a waste may not be 

possible. However, it is EPA’s goal in 

this proposal, as well as in the pending 

final rule preamble, to indicate, as 

clearly as possible, which nonhazardous secondary materials used as 

fuels or ingredients in combustion units 

are or are not considered solid waste 

based on this criteria. As several 

commenters also noted, any approach 

must be flexible enough to account for 

changing technologies and new 

secondary materials that could, in the 

future, be viable fuels or ingredients. 

The proposed approach allows for these 

changes, not by codifying a list of 

specific non-hazardous secondary 

materials that are or not waste, but 

rather by adopting a self-implementing 

approach that can consider site-specific 

information, if necessary. 

Comments: A few commenters noted 

a preference for categorical 

determinations that certain secondary 

materials were products, not wastes 

(e.g., traditional fuels) along with clear 

criteria for solid waste determinations 

for secondary materials not falling into 

one of these categories (i.e. a petition 

process for non-waste determinations). 

EPA’s Response: EPA partially agrees 

with this approach. The proposed rule 

discusses traditional fuels as a category 

of fuel products that are not secondary 

materials and therefore, are not solid 

waste. With respect to non-hazardous 

secondary materials, although this 

proposal does not list types/categories 

of such secondary materials that are or 

are not solid waste in regulatory text (as 

discussed above), we are proposing selfimplementing regulatory criteria to be 

used by the regulated universe to 

determine whether the non-hazardous 

secondary material would or would not 

be a solid waste. The regulatory criteria 

are based on four categories of nonhazardous secondary materials that are 

managed under various scenarios, 

including: (1) Non-hazardous secondary 

materials that remain within the control 

of the generator and meet the legitimacy 

criteria and used as fuel; (2) nonhazardous secondary materials that 

meet the legitimacy criteria and are used 

as ingredients; (3) fuel or ingredient 

products that are processed from 

discarded non-hazardous secondary 

materials and that are used as fuels or 

ingredients in a combustion unit, 

provided they meet the legitimacy 

criteria; and (4) EPA has granted a nonwaste determination for non-hazardous 

secondary material fuels managed 

outside the control of the generator. 

More detailed information on these 

categories and their respective criteria 

can be found in section VII.D. of this 

proposal. 

Comments: Some commenters 

suggested that a petition process for a 

waste determination should not be 

mandatory. Proponents of this position 

urged that any regulatory construct for 

demonstrating that non-hazardous 

secondary materials qualify as 

alternative fuels should be selfimplementing and not involve the need 

for individual regulatory 

determinations. 

EPA’s Response: The non-waste 

petition process that applies to nonhazardous secondary material fuels 

managed outside the control of the 

generator is not mandatory; however, 

we note that the assumption in this 

proposed rule is that these materials 

would be a solid waste, unless they are 

granted a non-waste determination by 

EPA. Also, as explained above, we are 

proposing a self-implementing approach 

for all the other non-hazardous 

secondary material management 

categories that can consider site-specific 

information, if necessary (i.e., facilities 

will make a self-determination of 

whether the non-hazardous secondary 

material in question meets the 

regulatory criteria). We again note it is 

EPA’s intention to indicate in the 

preamble, as clearly as possible, which 

non-hazardous materials used as fuels 

or ingredients in combustion units are 

or are not considered solid waste based 

on the criteria laid out in regulatory 

text. The Agency expects this selfimplementing approach will govern for 

the majority of situations. 

4. Level of Processing Needed To 

Produce a Non-Waste Product From 

Discarded Waste Material 

In the ANPRM, we stated that if a 

non-hazardous secondary material is 

processed into a legitimate fuel or 

ingredient product, then the processed 

material would not be a discarded 

material. We listed various nonhazardous secondary materials we 

believed to have undergone adequate 

processing (e.g., tire-derived fuel), and 

requested comment on whether some of 

the materials, such as mined landfilled 

ash, should be considered to have 

undergone adequate processing, such 

that it would be rendered a non-waste. 

Comments: Most commenters 

generally agreed with the concept, but 

had differing views on what level of 

‘‘processing’’ would render a discarded 

material a legitimate non-waste product 

fuel or ingredient product. Their views 

ranged from not requiring any 

processing, to specifying a minimum 

level of processing if processing criteria 

are retained. These commenters argued 

that any management activity associated 

with recovering the non-hazardous 

secondary material would be sufficient. 

Commenters who indicated that the 

non-hazardous secondary material 

should not be required to ‘‘undergo 

processing’’ before it is considered a 

non-waste fuel or ingredient argued that 

as long as these secondary materials 

meet the legitimacy criteria, they should 

not be viewed as a solid waste once 

recovered from the discard 

environment; these commenters 

provided examples of non-hazardous 

secondary materials, such as whole 

tires, biomass, and coal fly ash. Also, 

some commenters stated that the act of 

recovering or ‘‘extracting’’ the material 

from the ‘‘discard environment’’ should 

constitute the requisite degree of 

processing needed. Commenters who 

argued that no minimum level of 

processing be specified supported their 

position by noting that procedures for 

recovering solid waste vary widely and 

that the amount of processing required 

would be dependent on the application 

for which the non-hazardous secondary 

material is being prepared. 

EPA’s Response: We disagree with the 

commenters who generally argued that 

no level of processing or even a 


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Federal Register / Vol. 75, No. 107 / Friday, June 4, 2010 / Proposed Rules 31861 

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.’’ 

minimum level of processing should be 

sufficient to produce a non-waste fuel or 

ingredient. We likewise disagree with 

those commenters who argued that the 

act of recovering or ‘‘extracting’’ 

secondary material from the discard 

environment should be sufficient to be 

considered processing. Rather, the 

Agency believes that sufficient 

processing of the secondary material 

(e.g., changing the mass, chemical makeup, or removing particular components 

from the secondary material) must be 

undertaken to transform a waste-derived 

fuel or waste-derived ingredient into a 

fuel or ingredient product. Thus, our 

position on this issue has changed from 

that discussed in the ANPRM, as 

explained below. 

For example, the Agency no longer 

believes that, in light of the proposed 

definition of processing, simply cutting 

or sizing a material is sufficient to 

produce a product fuel or ingredient. 

Specifically, under the proposed rule, 

processing ‘‘means any operations that 

transform discarded non-hazardous 

secondary material into a new fuel or 

new ingredient product. Minimal 

operations, such as operations that 

result only in modifying the size of the 

material by shredding, do not constitute 

processing for purposes of this 

definition. Processing includes, but is 

not limited to, operations that: Remove 

or destroy contaminants; significantly 

improve the fuel characteristics of the 

material, e.g., sizing or drying the 

material in combination with other 

operations; chemically improve the asfired energy content; and improve the 

ingredient characteristics.’’ See the 

proposed definition in § 241.2. 

We believe the proposed definition is 

specific enough to describe the general 

level of processing that would be 

needed, but flexible enough to apply 

broadly to the wide range of nonhazardous secondary materials that are 

currently under consideration, or that 

could be under consideration in the 

future as technologies change. We 

believe that discarded non-hazardous 

secondary materials must be sufficiently 

processed in order to render a secondary 

material into a non-waste product. 

Without sufficient processing, the nonhazardous secondary material that is 

produced would remain a waste-derived 

fuel or waste-derived ingredient, and if 

burned in a combustion unit, would be 

subject to the CAA section 129 

requirements. The Agency specifically 

requests comment on these points. 

See section VII.D.4 for a discussion of 

the processing of discarded nonhazardous secondary materials into nonwaste fuel or ingredient products. That 

section describes EPA’s rationale for 

why this processed material is no longer 

considered a solid waste, as well as 

examples of processing that EPA 

believes does or does not meet the 

requisite level to render a discarded 

secondary material into a non-waste 

product. 

5. Comments on Specific Materials Used 

as Fuels 

In the ANPRM, we listed a number of 

non-hazardous secondary materials, as 

well as traditional fuels, that we believe 

are currently being used as fuels and 

ingredients. We solicited comment on 

additional information, including: The 

composition or characteristics of nonhazardous secondary materials; how 

much of the non-hazardous secondary 

material is produced 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 nonhazardous secondary materials— 

biomass, used tires, used oil, coal 

refuse, and sewage sludge. 

a. Traditional Fuels. The ANRPM 

described traditional fuels to include: 

Coal, oil, natural gas, and their 

derivatives (e.g., petroleum coke, 

bituminous coke, coal tar oil, refinery 

gas, synthetic fuel, heavy recycle, 

asphalts, blast furnace gas, recovered 

gaseous butane, and coke oven gas), as 

well as cellulosic biomass (e.g., wood). 

We requested comment on whether 

there are other fuels that should be 

considered as traditional fuels and 

would fall within this grouping. 

Comments: A few commenters 

suggested that bagasse should be 

included in the traditional fuel group 

because it is a valuable co-product 

which is fed directly from the mill to 

the boilers and has historically been the 

source of electrical power in 

communities located near the sugar 

cane mills. In addition, cellulosic 

biomass crops similar to bagasse (e.g., 

energy cane and other fast growing 

grasses) grown specifically for fuel 

production, agricultural seeds, woody 

biomass, and wood collected from forest 

fire clearance activities, land clearing 

biomass, trees, unadulterated wood 

from pallets, and uncontaminated wood 

from disaster debris were suggested as 

materials that should qualify as 

traditional fuels. Last, several 

commenters argued that used oil, onspec and off-spec, should be listed as 

traditional fuels. Since neither type of 

used oil is discarded, the presumption 

is that it is recycled. 

EPA’s Response: We agree with 

commenters that many of the materials 

mentioned in the comments should be 

classified as traditional fuels, which are 

not solid waste. However, to further add 

clarity, we are proposing that in order 

to qualify as a traditional fuel, cellulosic 

biomass must be ‘‘clean’’—that is, must 

not be altered (either chemically or 

through some type of production 

process), such that it contains 

contaminants not normally associated 

with virgin biomass materials, to ensure 

that the material being burned does not 

introduce contaminants not normally 

associated with virgin biomass materials 

(we describe what we consider to be 

clean biomass in section VII.C.5.b). We 

believe clean biomass to include, but 

not necessarily be limited to: forestderived biomass (e.g., green wood; forest 

thinnings; clean and unadulterated bark; 

sawdust; trim; and tree harvesting 

residuals from logging and sawmill 

materials); corn stover and other 

biomass crops used specifically for 

energy production (e.g., energy cane, 

other fast growing grasses); bagasse and 

other crop residues (e.g., peanut shells, 

agricultural seeds); wood collected from 

forest fire clearance activities; trees and 

clean wood found in disaster debris; 

clean biomass from land clearing 

operations; and clean construction 

wood. 

In regard to used oil, for the reasons 

discussed later in section VII.D.4, we are 

including on-spec used oil in the list of 

traditional fuels because we believe it 

meets our view of what is a traditional 

fuel (i.e., fuels that have been 

historically managed as valuable fuel 

products rather than being managed as 

waste materials). However, off-spec 

used oil will be considered a solid 

waste, unless it is processed into a 

legitimate non-waste fuel, such as onspec oil. 

b. Biomass. Biomass includes a wide 

range of secondary materials which can 

be divided into two categories, 

cellulosic and non-cellulosic, as stated 

in the ANPRM.25 While the ANPRM 

indicated that much of the biomass 

currently used as fuels are not solid 

waste since they have not been 

discarded in the first instance and are 

legitimate fuel products, we specifically 

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, 


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31862 Federal Register / Vol. 75, No. 107 / Friday, June 4, 2010 / Proposed Rules 

26See 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. 

27National 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. 

28Primary sludges consist of wood fiber and 

inorganic materials and secondary sludges are 

primarily microbial biomass. 

29 It is worth noting that, in response to a request 

from EPA’s Office of Air and Radiation (OAR), 

EPA’s National Center for Environmental 

Assessment (NCEA) initiated an update of the 

formaldehyde IRIS assessment to address 

significant new scientific information that had 

become available on formaldehyde. EPA anticipates 

deriving an inhalation reference concentration (RfC) 

and reexamining the inhalation cancer assessment 

as part of this update. The draft assessment has 

been reviewed by scientists and managers within 

NCEA and across EPA. EPA will release a draft for 

public comment and independent expert scientific 

peer review, with a National Academy of Sciences 

(NAS) panel review expected to commence in late 

April 2010, which will coincide with a formal 

public comment process through the Federal 

Register. 

panel trim) used to manufacture 

particleboard, medium density 

fiberboard, and hardboard are not 

discarded and are typically used on-site 

to either make composites or are used as 

fuel. One commenter stated that ‘‘[i]t is 

also important to note the quantity of 

formaldehyde actually present in these 

resonated wood fuels. It is minute. As 

the resins cure, virtually all of the 

formaldehyde in the adhesive is cross 

linked into polymers and no longer 

exists as formaldehyde. Current 

extraction tests on the highest 

formaldehyde content products show 

levels to be less than 0.02%, using the 

standard industry extraction test for 

formaldehyde from composites, EN 

1203.’’ Commenters also point out that 

formaldehyde is a common product of 

incomplete combustion, suggesting that 

trace amounts of formaldehyde would 

be present in the emissions irrespective 

of whether formaldehyde was present in 

the residuals. One commenter noted 

that incomplete combustion of virtually 

all organic materials produces carbon 

monoxide and formaldehyde. 

Commenters also stated that California 

rules on product emissions will shortly 

push those numbers below 0.01%, and 

cite several studies that indicate 

emissions from burning resinated wood 

residuals are not significantly different 

than burning wood absent the resinated 

materials.26 Specific to panel trim, one 

commenter argued that emissions are 

not expected to be any different from 

those generated from unadulterated 

wood and traditional fuels like coal and 

oil that contain concentrations of part 

261, Appendix VIII constituents that are 

orders of magnitude higher than in 

panel trim. 

One commenter discussed the use of 

pulp and paper sludges as fuel. This 

commenter states that because these 

residuals are primarily composed of 

biomass, emissions from burning these 

materials are essentially the same as the 

emissions from burning other biomass 

fuels, such as bark or wood. The 

commenter cited a report that found that 

the burning of kraft pulp mill 

wastewater treatment residuals in bark 

boilers at levels below about 10 to 15 

percent of total heat input is not 

expected to lead to an increase in any 

of the criteria or criteria-related 

pollutants, such as NOX, SO2, or VOC.27

Further, the commenter states that a 

comparison of emission data for fortyeight organic compounds when burning 

wood residue and wood residue in 

combination with bleached kraft mill 

wastewater treatment residuals (around 

12 percent of total heat input) in four 

wood-fired boilers showed no 

discernible differences in emissions of 

these organics when the residuals were 

co-fired. A similar comparison was 

conducted for metals, showing no 

discernable impact when burning these 

sludges. 

Another commenter stated that 

treated wood (e.g., pentachlorophenol, 

copper-based compounds, borate based 

compounds) also should be considered 

a fuel because it is not discarded and 

can be safely burned in boilers. In 

addition, commenters stated that 

creosote treated wood is a coal 

derivative and burning creosote would 

likely result in emissions no greater 

than burning coal. Creosote is a distilled 

and homogenous product that should 

burn more thoroughly than coal and is 

not burned in its pure form. 

Commenters also noted that creosote 

treated wood is a combination of two 

materials we listed as traditional fuels. 

For these reasons, it should qualify as a 

fuel. However, the same commenter 

noted that they would not be opposed 

to EPA requiring CCA lumber to be 

removed from the fuel stream. 

EPA’s Response: Cellulosic Biomass: 

We agree that certain biomass 

(cellulosic biomass that is ‘‘clean’’ and 

non-cellulosic biomass) materials can be 

legitimate fuels. We also generally agree 

with commenters that secondary 

materials, such as secondary mill 

residues (i.e., residues such as 

sanderdust, board, trim and breakage 

from the manufacture of reconstituted 

wood/panel products) and pulp and 

paper mill residuals (i.e., primary and 

secondary wastewater treatment 

sludges) 28 are likely legitimate fuels. 

Regarding resinated wood products, 

we acknowledge that we have limited 

compositional data on these materials. 

As noted above, we did receive 

comments on the ANPRM concerning 

the contaminant data of these materials, 

specifically in regard to formaldehyde 

and emissions comparisons relative to 

burning wood that do not contain these 

resinated materials. Although emissions 

comparisons are not a direct indicator of 

whether these fuels satisfy the 

legitimacy criteria, we recognize that 

such data can be useful as an indicator 

of the contaminant levels in the 

secondary material fuels relative to 

traditional fuels. Based upon what 

limited data we do have regarding these 

materials, as well as comments received 

on the ANPRM, we have decided to 

classify resinated wood residuals as 

non-wastes for purposes of this 

proposed rule, if they are used as fuels 

within the control of the generator. (As 

we discuss in section VII.E of this 

preamble, the Agency is considering 

resinated wood residuals under the 

alternative approach as solid wastes 

when burned under the control of the 

generator for energy recovery, since as a 

matter of policy, the Agency may want 

to define a broader definition of solid 

waste.) Thus, given the general lack of 

data, we are requesting data and 

information both on the contaminant 

levels of these materials, as well as the 

appropriateness of categorizing them as 

non-wastes.29 Based on the data and 

information the Agency receives, we 

may decide that such secondary 

materials are more appropriately 

defined as solid wastes. 

We also acknowledge having limited 

data on pulp and paper sludges that are 

used as fuel. As noted above, we did 

receive comments on the ANPRM about 

contaminants associated with these 

secondary materials. Similar to 

resinated wood residuals, based on the 

limited data we have, we also have 

decided to classify pulp and paper 

sludges that are used as fuels within the 

control of the generator to be non-waste. 

(Like resinated wood residuals, the 

Agency also decided to classify pulp 

and paper sludges as solid wastes when 

burned under the control of the 

generator for energy recovery under the 

alternative approach being considered. 

See section VII.E.). Given the limited 

data we have, we also are requesting 

comment both on the contaminant 

levels of these materials, as well as the 


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Federal Register / Vol. 75, No. 107 / Friday, June 4, 2010 / Proposed Rules 31863 

30Based on data provided to EPA by USDA, 

research conducted by the Texas Agricultural 

Experiment Station and the Texas Cooperative 

Extension shows that manure has a dry, ash free 

heating value of 8,500 Btu/lb, while other research 

demonstrates the energy value of manure (as 

received) to be much lower (between 2,710–5,764 

Btu/lb). For more information, please refer to the 

background paper entitled, ‘‘USDA Response to 

EPA’s Belief that Manure that is Burned as a Fuel 

is a Solid Waste,’’ which is located in the docket 

for today’s rule. 

appropriateness of categorizing them as 

non-wastes, and may decide based on 

the comments received to classify pulp 

and paper sludges as solid waste when 

burned under the control of the 

generator in a combustion unit for 

energy recovery when the rule is 

promulgated. 

Although limited information was 

submitted in regard to painted wood or 

pentachlorophenol, copper-based and 

borate-based compound treated wood 

materials and their contaminant 

concentrations, we believe these 

secondary materials contain elevated 

levels of contaminants relative to 

traditional fuels, and thus do not meet 

legitimacy criteria and should be 

considered solid waste if burned in a 

combustion unit. (It should also be 

noted that to the extent that any of these 

treated wood materials are identified as 

a hazardous waste, it would not be 

eligible to be burned in a non-hazardous 

waste combustion unit.) In regard to 

creosote treated lumber, we believe 

there is still a fair amount of uncertainty 

associated with the level of 

contaminants (e.g., levels of polycyclic 

aromatic hydrocarbons present in 

creosote) in comparison to traditional 

fuels. We, therefore, are requesting that 

commenters provide additional data on 

contaminant levels associated with 

these non-hazardous secondary 

materials relative to traditional fuels 

that are in use today as fuels. 

Comments: Non-cellulosic Biomass: 

One commenter stated that animal 

manure should not be categorically 

excluded from the definition of solid 

waste because it is inherently wastelike, is discarded, and does not meet the 

legitimacy criteria for ‘‘handled as a 

valuable commodity.’’ The commenter 

stated that manure generated in 

concentrated Animal Feeding Operation 

(CAFO) are known to contain heavy 

metals, halogens, dioxins, etc. Manure 

from CAFOs are discarded in two ways 

after it is collected: some manure is 

recycled for land application (e.g., ‘‘used 

in a manner constituting disposal’’) and 

excess manure is simply disposed. 

The same commenter acknowledged 

that manure can be recycled for use as 

bioenergy, but cautioned that it should 

not automatically be exempt from the 

definition of solid waste. In support of 

its position that manure recycled into 

bioenergy and used as fuel is still a solid 

waste, the commenter cites the 

regulations at 40 CFR 261.2(e)(2)(ii), 

which lists materials burned for energy 

recovery, used to produce a fuel, or 

contained fuels among materials that are 

solid wastes, even if recycling of those 

materials involves use, reuse, or return 

to the original process. Overall, the 

commenter is concerned with the large 

volumes of animal manure currently 

being generated at animal feeding 

operations and the lack of oversight at 

recycling facilities to ensure that 

recovery is immediate and happens 

without releasing any pollutants into 

the environment. Based on the 

commenter’s observations, current 

regulations (i.e. the 2008 CAFO NPDES 

Rule) still are not sufficient to assure 

that CAFO operations will meet the two 

benchmarks of immediacy and 

environmental care that define a 

‘‘valuable commodity.’’ They conclude 

that for manure to be excluded from the 

definition of solid waste, it should have 

to meet numerous qualifying conditions 

to show that the manure is being 

recycled. 

EPA’s Response: Non-cellulosic 

Biomass: Because the focus of this 

rulemaking is to determine which nonhazardous secondary materials are or 

are not solid waste when burned as a 

fuel or ingredient in combustion units 

(not when utilized for other purposes, 

such as land application), we are not 

making any determination that manure 

is a solid waste for other possible 

beneficial end uses. Such beneficial use 

determinations are generally made by 

the states for these other end uses, and 

EPA will continue to look to the states 

to make such determinations. 

With respect to whether manure is a 

legitimate non-waste fuel, EPA 

recognizes that manure has been used 

previously as a fuel, and is currently 

used as a fuel source in other countries. 

In fact, some commenters have argued 

that manure should be considered a 

traditional fuel, and if not, should at 

least be considered a non-waste fuel 

since they believe that manure meets 

the legitimacy criteria. While we 

appreciate the information submitted in 

the comments, we lack data sufficient to 

evaluate the legitimacy criteria for 

manure. Therefore, we request 

information and data on how manure is 

handled from its point of generation to 

the point it is used as a fuel, in order 

that EPA can determine whether 

manure would meet this legitimacy 

criterion. 

In addition, EPA has limited data on 

the contaminant concentrations and Btu 

value of manure to determine whether 

it would meet these legitimacy criteria. 

Therefore, we are requesting that 

commenters provide additional 

information and data on the extent to 

which manure (including materials, 

such as chicken litter) is currently used 

as a fuel, as well as data to support 

whether these materials meet our 

legitimacy criteria, including the 

contaminant levels—that is, they 

contain contaminants at levels 

comparable to traditional fuels and 

heating content of the various types of 

manure.30 We will evaluate the 

information submitted during the public 

comment period and will discuss our 

determination in the final rule. 

On the other hand, if manure is 

processed into biofuels, by, for example, 

anaerobic digesters such biofuels would 

be considered a legitimate non-waste 

fuel that has been processed from a nonhazardous secondary material provided 

‘‘the biofuel’’ meets the legitimacy 

criteria—that is, managed as a valuable 

commodity, has a meaningful heating 

value and contains contaminants at 

levels that are comparable to traditional 

fuel. We again acknowledge, however, 

that we have limited data (such as how 

the biofuels are managed, once 

generated, contaminant concentrations 

and Btu value) on biofuels that are 

produced from animal manures, and 

request that commenters provide 

additional data on the extent to which 

manures are currently processed into 

biofuels, as well as data to support 

whether these materials meet our 

legitimacy criteria, including 

contaminant levels and heating content. 

c. Used Tires. We discussed in the 

ANPRM that tires used as legitimate 

alternative fuels can be categorized as a 

non-waste fuel if they have not been 

previously discarded (i.e., if the used 

tires have not been abandoned and 

thrown away). The ANPRM further 

stated that used tires collected and 

managed pursuant to a state tire 

oversight program, are not considered to 

be discarded. The ANPRM also 

explained that discarded used tires that 

have been processed to make a 

legitimate fuel product (such as TDF) 

would not be a solid waste. 

Furthermore, we requested comment on 

whether used tires that fall within the 

category of secondary materials that are 

discarded, but can be directly used as a 

legitimate fuel or ingredient without 

processing because they are 

indistinguishable in all relevant aspects 

from a fuel or ingredient product (e g., 

whole tires) should not be considered a 

solid waste. 


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31For a discussion of state comments regarding 

used tires, see section VII.C.1., ‘‘Comments from 

State Agencies.’’ 

32The petition process for a non-waste 

determination would also require the petitioner to 

describe how the non-hazardous secondary material 

satisfies the criteria outlined in the petition process, 

which includes whether it meets the legitimacy 

criteria. 

33 Devises include industrial boilers located at 

facilities that are engaged in a manufacturing 

process where substances are transformed into new 

products, utility boilers used to produce electric 

power, steam, heated or cooled air or other gases 

or fluids for sale, used oil fired space heaters 

provided the burner meets the provisions of 40 CFR 

279.23, and hazardous waste incinerators subject to 

regulation under 40 CFR subpart O of parts 264 and 

265. 

34Once used oil is claimed to be on-spec and the 

marketer complies with the requirements for 

analysis and record retention, notification, and 

record tracking shipment to on-specification 

burners, it is no longer subject to other management 

standards. We note that today’s proposed rule does 

not change any of the regulations in place that 

regulate on-spec used oil. 

35See Used Oil Final Rule, 50 FR 49181 

(November 29, 1985). 

Comments: Other than the states,31

commenters generally agreed with the 

approach outlined in the ANPRM. 

Commenters did not agree, however, 

that whole tires taken from waste tire 

piles, but not processed, should be 

considered solid wastes. Several 

commenters responded that tires should 

be excluded from the definition of solid 

waste irrespective of where they are 

generated, including from waste tire 

piles. Along the same lines, some 

commenters argued that regardless of 

the source, scrap tires are 

indistinguishable from one another in 

terms of fuel/Btu value and air 

emissions and that the only distinction 

is whether they have been previously 

discarded. Others stated that extraction 

and reclamation from a waste tire pile 

should be sufficient processing to 

classify a tire as a legitimate non-waste 

fuel. 

EPA’s Response: As discussed in 

section VII.D.2, we now believe that 

whole used tires (even if collected from 

tire dealerships and automotive shops 

and overseen by a state tire collection 

oversight program) are initially 

abandoned and thus meet the plain 

meaning of discard. As a result, whole 

used tires that are not processed into a 

legitimate fuel or ingredient (e.g., 

shredded/chipped with steel belts 

removed) would be considered a solid 

waste. We acknowledge that whole tires 

can be legitimately burned as fuel, but 

because they have been discarded, 

whole tires would be considered solid 

wastes and subject to the CAA section 

129 requirements unless processed into 

a non-waste fuel product. See section 

VII.D.2 for a more detailed discussion 

on why we now consider whole used 

tires to have been discarded by the 

original owner. 

We are also proposing a process by 

which a facility or person can apply for 

a non-waste determination for 

secondary materials that are not 

managed within the control of the 

generator. As outlined in section 

VII.D.5, the purpose of the petition 

process is to recognize that some nonhazardous secondary materials may 

remain outside the control of the 

generator and not be processed into a 

fuel product, but still be a legitimate 

non-waste fuel product. As part of this 

petition, the facility must demonstrate 

that the secondary material has not been 

discarded in the first instance.32

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 in 

this proposal), should not be considered 

solid wastes if they meet the legitimacy 

criteria and are indistinguishable in all 

relevant aspects from a product or 

intermediate. 

d. Used Oil. As indicated in the 

ANPRM, we consider off-specification 

(or ‘‘off-spec’’) used oil that is collected 

from repair shops to have been 

discarded. Used oil that meets the onspecification (or ‘‘on-spec’’) levels and 

properties of 40 CFR 279.11 is 

considered be a legitimate non-waste 

fuel product. We requested comment on 

whether off-spec used oil managed 

pursuant to the 40 CFR part 279 used oil 

management standards and which is 

burned for energy recovery in certain 

types of combustion devices 33 should 

be considered a legitimate non-waste 

fuel. 

Comments: Most commenters believe 

that off-spec (and on-spec) used oil 

should not be classified as a solid waste. 

Various reasons were provided in 

support. Specifically, one commenter 

reasoned that off-spec used oil should 

not be treated as a solid waste if it has 

been delivered to a legitimate recycler 

for processing. Designation as a solid 

waste would lead to costly burning in 

hazardous waste incinerators, burning 

in uncontrolled space heaters, and more 

undesirable disposal methods. Many 

commenters also referred to Congress’ 

intent to manage used oil differently 

and EPA’s regulatory structure for the 

management of used oil as evidence that 

used oil should not be classified as a 

solid waste. They added that used oil is 

typically neither disposed of, thrown 

away, nor abandoned, but is collected 

and contained. Used oil is a valuable 

product that is subject to EPA’s 

recycling presumption. Btu content is 

not necessarily lower than on-spec used 

oil or virgin fuel, and contaminants, 

such as water, flashpoint, and metals 

can be effectively addressed. In a 

similar, but slightly different view, a 

number of commenters argued that onspec and off-spec used oil should be 

included in the list of traditional fuels. 

Since neither is discarded, the 

presumption is that it is recycled. Only 

one commenter thought that off-spec 

used oil should continue to be 

considered a solid waste within the 

RCRA framework. 

EPA’s Response: We agree with the 

commenters who said that on-spec used 

oil should not be classified as a solid 

waste. Based upon how we define 

traditional fuels (i.e. fuels that have 

been historically managed as valuable 

fuel products rather than being managed 

as waste materials), we believe that onspec 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.34 Used oil that 

has been determined to be on-spec has 

verified that it contains contaminants at 

levels below the maximum 

concentration limits established in the 

standards, such that the emissions 

resulting from the burning of on-spec 

used oil will not pose an increased 

threat to human health or the 

environment than the emissions 

resulting from the burning of virgin oil 

or diesel. This is because the 

contaminants of concern (i.e., those for 

which maximum concentration levels 

have been set) present in on-spec used 

oil are either at the same concentration 

or a lower concentration than virgin 

refined fuel oil.35

This approach is supported by Safe 

Food and Fertilizer v. EPA, 350 F.3d 

1263 (DC Cir. 2003). The decision 

upheld an EPA rule that excluded from 

the definition of solid waste certain 

recycled materials used to make zinc 

fertilizers (and the fertilizers 

themselves) as long as they were not 

speculatively accumulated, met certain 

handling, storage and reporting 

conditions, and were ‘‘identical’’ to 

fertilizers made from raw materials, i.e., 

they had concentration levels for certain 

chemicals that fall below specified 

thresholds. 350 F.3d at 1265. We believe 

on-spec used oil satisfies these criteria. 

In regard to off-spec used oil, we 

disagree that it should not be classified 

as a solid waste. The used oil 

regulations are structured such that offspec used oil is managed within the 

constraints of the used oil management 


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36These devices, listed in 40 CFR 279.61, were 

determined to not pose significant health risks 

when burning off-spec used oil because they 

typically are equipped with particulate control 

equipment (as required by CAA permits). 

Nonindustrial boilers (e.g., those located in 

apartment and office buildings, schools, and 

hospitals), on the other hand, were found to pose 

significant risk when off-spec used oil is burned 

because they are typically very small and may not 

achieve complete combustion and do not have any 

emission control equipment. 

37Used Oil Final Rule, 50 FR 49194 (November 

29, 1985). 

38CFBs ability to achieve lower emissions levels 

is due to several factors: (1) CFB boilers are often 

newer than many existing pulverized coal utility 

boilers and may be equipped with better particulate 

matter (PM) controls; (2) CFBs utilize lower 

operating temperatures, which result in lower metal 

and NOX emissions; and (3) CFB boilers often add 

limestone to their feed to control SO2 emissions, 

which results in greater metal fixation to the ash. 

standards until it is processed into onspec used oil or it is properly disposed 

of. It may only be burned in specific 

types of combustion devices.36

Although off-spec used oil may be 

managed within the control of the 

generator, it contains contaminants at 

levels that are not comparable to 

traditional fuels, and thus would not be 

considered a legitimate non-waste fuel 

per the legitimacy criteria. Therefore, 

today’s proposed rule considers off-spec 

used oil as a solid waste subject to the 

CAA section 129 requirements, as wells 

as state, and local requirements, unless 

it is processed to meet the on-spec used 

oil limits specified in 40 CFR 279.11. 

It also should be noted that off-spec 

used oil may be burned in used oil-fired 

space heaters pursuant to 40 CFR part 

279, provided: (1) The heater burns only 

used oil that the owner or operator 

generates or used oil received from 

household do-it-yourself used oil 

generators; (2) the heater is designed to 

have a maximum capacity of not more 

than 0.5 million Btu per hour; and (3) 

the combustion gases from the heater 

are vented to the ambient air. The RCRA 

used oil regulations base this provision 

on a finding that uncontrolled emissions 

from these sources do not pose a 

significant threat to human health and 

the environment.37 However, consistent 

with our determination that off-spec 

used oil be considered a solid waste 

when burned as a fuel, we believe that 

off-spec used oil managed within the 

control of the generator would not 

qualify for the generator controlled 

exclusion when burned in a used oil 

fired-space heater, since contaminant 

levels are not comparable to traditional 

fuels. Therefore, we are proposing that 

off-spec used oil combusted at a unit 

that is within the control of the 

generator would be solid waste. We 

request comment on this approach, as 

well as any supporting information. 

e. Coal Refuse/Coal Combustion 

Residuals. The ANPRM identified coal 

refuse (i.e., mining rejects and recovered 

landfilled ash) as a solid waste because 

it has been discarded and has not been 

subsequently processed for use as a fuel. 

We solicited comment on whether there 

are circumstances under which these 

materials have been discarded, but not 

processed, and can be considered as 

non-waste fuels once they are removed 

or recovered from the ‘‘discard’’ 

environment and managed as legitimate 

fuels. 

Comments: Several commenters 

responded that coal refuse should not be 

classified as a solid waste. One 

commenter argued that there is no basis 

for continuing to classify an alternative 

fuel or ingredient as a solid waste 

merely because it does not have to 

undergo some type of processing before 

being used. The same commenter also 

indicated that the recovery of ash and 

mill rejects from disposal sites all 

involve some degree of processing. The 

materials have to be excavated, stored, 

and transported to their designated uses 

where they are also often subject to the 

same types of processing activities that 

are associated with the mining and 

management of virgin coal (i.e., 

screening, sizing, and chemical analysis 

to identify Btu, ash characteristics and 

sulfur content). Given the significant 

costs associated with the extraction of 

these materials, including excavation 

and handling, as well as the nearly 

identical nature of these materials to 

traditional fuels and ingredients, the 

extraction operations themselves 

constitute the requisite degree of 

processing necessary to be viewed as a 

non-waste. One commenter stated that 

they were aware of one electric utility 

that in the past recovered high-carbon 

content ash from a disposal facility that 

it owns, and used the ash as a fuel 

source by supplementing the coal used 

in one of their utility boilers. The same 

company today takes high-carbon fly 

and bottom ash directly from several 

existing boiler units and burns it at their 

power generating station. This 

commenter noted that there are at least 

four patented processes for removing 

unwanted carbon from fly ash that allow 

the processed ash to produce both 

technically compliant fly ash for use in 

concrete and a separate carbon stream 

that can be re-introduced into the boiler 

for its fuel value. 

One commenter contended that coal 

refuse is a solid waste due to its toxicity 

levels in comparison to normal coal. 

Specifically, waste coals can have up to 

four times more mercury and 

chromium, and three times more lead 

than other coals. 

EPA’s Response: As discussed in the 

Material Characterization Paper 

developed for this rulemaking, large 

volumes of coal refuse piles were 

accumulated at mining sites from the 

time mining first began in the 

Appalachians through the late 1970s. 

Beginning in the late 1970s, laws were 

enacted that, for the first time, required 

stabilization and reclamation of mining 

sites, including coal refuse disposal 

piles and fills. Current mining 

operations continue to generate the 

material, though likely at lower rates 

than in previous decades. 

For purposes of this proposal, we are 

therefore differentiating between coal 

refuse that was generated in the past 

and placed into ‘‘legacy’’ piles, and the 

current generation of coal refuse. Legacy 

piles of coal refuse would clearly be 

considered to be disposed of and 

abandoned, thus meeting the definition 

of a solid waste material. We would not 

consider currently generated coal refuse 

to be abandoned or disposed of and, 

therefore, would not be considered a 

solid waste. 

With regard to coal refuse from legacy 

piles, the processing of coal refuse for 

use as a fuel or ingredient involves 

separation through the use of screens or 

grizzlies, blending, crushing, and some 

drying. Although we understand that 

virgin coal is similarly processed, we 

believe that such operations would 

constitute ‘‘minimal processing’’ and 

would not meet the processing 

definition as proposed. See section 

VII.D.4 for a discussion of what does 

and does not constitute ‘‘processing’’ as 

defined in this proposal. Therefore, 

because coal refuse from legacy piles 

has been discarded and does not 

undergo a sufficient level of processing, 

it is considered a solid waste and would 

be subject to the CAA 129 requirements 

if burned in a combustion unit. 

We note that one commenter 

contended that coal refuse contained 

elevated levels of mercury, chromium, 

and lead when compared to other coals. 

We recognize that available data show 

that coal refuse generally has higher 

metals concentrations than non-refuse 

coal concentrations. Although coal 

refuse can contain metals 

concentrations that are higher than 

found in virgin coal, data also show that 

emissions levels from some facilities 

burning coal refuse (namely those 

equipped with circulating fluidized 

beds (CFBs)) are lower than most 

existing pulverized coal utility boilers.38

For the purposes of this proposal, 

however, it is not necessary to discuss 

whether coal refuse from legacy piles 


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31866 Federal Register / Vol. 75, No. 107 / Friday, June 4, 2010 / Proposed Rules 

39The ANPRM included landfill ash in its 

description of coal refuse. 

40EPA has long viewed sewage sludge generated 

from POTWs as a solid waste, beginning with the 

1980 Identification and Listing of Hazardous Waste 

rulemaking. In this final rule, EPA stated that the 

DSE is ‘‘only applicable to non-domestic wastes that 

mix with sanitary waste in a sewer system leading 

to a POTW.’’ See 45 FR 33097 (May 19, 1980). In 

the same rule, EPA further said it decided not to 

exclude sewage sludge from regulation under 

RCRA, since the statutory expressions regarding the 

definitions of ‘‘solid waste’’ and ‘‘sludge’’ was clear. 

(See 45 FR 33101). 

satisfies the contaminant requirement of 

the legitimacy criteria, given that we 

believe that such coal refuse is a solid 

waste because it is discarded and is not 

sufficiently processed into a fuel 

product. 

We are also differentiating between 

mined landfilled ash, which generally 

refers to landfilled coal ash, from coal 

refuse, which we generally characterize 

as coal mining rejects that have been 

placed in waste piles (known as gob or 

culm, for example).39 Coal combustion 

residuals (CCRs) that have been 

discarded in the first instance (e.g., coal 

ash mined from landfills) would be 

considered solid waste unless they are 

processed into legitimate non-waste fuel 

products. It appears that the patented 

processes described by the commenter 

that separates carbon from the fly ash to 

produce a fuel would satisfy the 

processing requirement included in this 

proposal. However, until the Agency 

has additional information, we are not 

in a position to indicate that such 

processing is sufficient to produce a 

non-waste fuel. Therefore, we are 

requesting that commenters provide 

additional information explaining how 

this processing is conducted, and the 

extent to which these high carbon fuels 

are produced nationwide. With respect 

to high-carbon fly and bottom ash taken 

directly from existing boiler units and 

burned at power generating stations, we 

believe that such secondary materials 

are not discarded and would not be 

considered a solid waste if it was 

managed within the control of the 

generator and satisfies the fuel 

legitimacy criteria. 

Regarding the commenter that 

indicated coal fly ash and mill rejects 

are often subjected to the same types of 

processing activities that are associated 

with the mining and management of 

virgin coal (i.e., screening, sizing, and 

chemical analysis to identify Btu, ash 

characteristics and sulfur content), we 

believe that screening, sizing, and 

chemical analysis constitutes a minimal 

level of processing, and would not 

satisfy the processing requirement of 

this proposal. Although we recognize 

that sizing of materials is an important 

processing step for fuels in order to 

improve combustion efficiency, we 

believe this represents an inadequate 

level of processing to change a 

discarded material into a product fuel 

and, therefore, these materials would be 

considered solid wastes under today’s 

proposal. However, we request that 

commenters provide additional 

information on the extent to which 

CCRs are recovered from the discard 

environment (e.g., landfills) and used as 

fuels. We also request that commenters 

provide more detailed information on 

how these secondary materials are 

processed, and whether these materials 

might satisfy the legitimacy criteria for 

fuels. 

f. Sewage Sludge. Sewage sludge or 

‘‘wastewater treatment sludge’’ as 

referred to in the ANPRM, was one of 

several non-hazardous secondary 

materials that we solicited comment as 

to whether it is a legitimate alternative 

fuel and thus would not be solid waste 

if it has not been previously discarded. 

Comments: All commenters who 

addressed this issue argued that sewage 

sludge should not be classified as a 

solid waste. One commenter specifically 

pointed to the RCRA statutory definition 

of solid waste, stating that Congress 

expressly exempts solid and dissolved 

materials in domestic sewage processed 

at Publicly Owned Treatment Works 

(POTWs). Rather, sewage sludge should 

be regulated comprehensively under the 

Clean Water Act (CWA), or to the extent 

necessary to meet CAA obligations, EPA 

should regulate the combustion of 

POTW sewage sludge under CAA 

section 112. Additionally, it was put 

forth that if the Agency disagreed with 

the assertion that the RCRA statute 

requires the Agency to exempt sewage 

sludge from the definition of solid 

waste, that the Agency provide a 

regulatory exclusion for sewage sludge 

burned in incinerators in order to 

preserve the current framework for 

regulating sewage sludge managed 

under section 405 of the CWA to avoid 

redundancy. This commenter was also 

concerned about the implications a 

determination that sewage sludge is 

solid waste when incinerated would 

have on how states regulate sewage 

sludge managed for different purposes 

(e.g., land application). 

Two commenters stated that sewage 

sludge meets all three legitimacy criteria 

for fuels. It is handled as a valuable 

commodity by virtue of it being 

continuously dewatered and directly 

injected into the incinerator; it is not 

diverted or stored and every effort is 

made to maximize the quantity of 

sludge to be combusted. One commenter 

stated these materials have meaningful 

heating value, given that it recovers a 

net energy value of 4,300,000 Btus/hour 

of useable thermal energy from its 

combustion. Also, the CWA section 405 

regulations provide risk-based limits for 

contaminants when incinerated, such 

that as long as the contaminant level is 

below the limits, it does not pose a 

significant health risk. 

EPA’s Response: We agree with 

commenters that the RCRA statutory 

definition of solid waste excludes the 

solid or dissolved material in domestic 

sewage. This is evidenced by the RCRA 

hazardous waste regulations that extend 

this exclusion to mixtures of hazardous 

waste with domestic sewage, provided 

that the mixture occurs in a pipeline en 

route to a POTW. See 40 CFR 

261.4(a)(1). However, we do not agree 

with the commenters that the Domestic 

Sewage Exemption (DSE) applies to the 

sludge generated from the treatment 

process and thus, sewage sludge is a 

solid waste if it is discarded.40 We 

believe that sewage sludge burned 

without energy recovery (i.e., burned for 

destruction) in an incinerator is 

discarded, and thus a solid waste. 

Further, the Agency is not proposing to 

provide a regulatory solid waste 

exclusion for sewage sludge burned in 

incinerators that would preserve the 

current framework for regulating sewage 

sludge managed under section 405 of 

the CWA to avoid redundancy. 

However, we request comment on 

whether such an approach is within our 

discretion. Regarding the commenter’s 

concerns about possible impacts on how 

states regulate sewage sludge managed 

for different purposes (e.g., land 

application), as discussed in more detail 

in Section VIII, through this rulemaking, 

EPA is articulating the narrow 

definition of which non-hazardous 

secondary materials are or are not solid 

waste when used as fuel for energy 

recovery or as ingredients in 

combustion units. We are not making 

solid waste determinations that cover 

other possible secondary material end 

uses. In EPA’s view, these regulations 

should have no effect on state programs 

that choose to regulate this material in 

different ways and under different 

authorities. 

Two commenters indicated that many 

POTWs recover energy in the form of 

usable heat from the incineration of 

sewage sludge via waste heat boilers. 

Although waste heat boilers are useful 

devices for providing energy in the form 

of steam for secondary processes, the 

Agency does not regard them as 

legitimate energy recovery devices 

because they receive their energy input 


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41More 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. 

from the combustion of off-gases via a 

separate combustion chamber. Under 

the RCRA program, a legitimate energy 

recovery device is one that meets the 

definition of a boiler or an industrial 

furnace (see 40 CFR 260.10). Among 

other criteria, a boiler’s combustion 

chamber and primary energy recovery 

section(s) must be of integral design, 

unless it falls under the process heater 

or fluidized bed combustion exemption. 

Thus, a combustion chamber that is 

connected by a duct to a waste heat 

boiler (or recuperator/heat exchanger) 

does not qualify as a legitimate energy 

recovery device. The CAA program 

views waste heat recovery units (i.e., 

external to the combustion chamber) 

similarly. Waste heat recovery units are 

designed to cool the exhaust gas stream, 

and/or to recover, indirectly, the useful 

heat remaining in the exhaust gas from 

a combustion unit that has some other 

primary purpose (such as an 

institutional waste incinerator). The 

presence of a waste heat recovery unit 

on the exhaust gas does not change the 

fact that the unit combusting the 

secondary material is primarily an 

incineration unit burning waste for 

disposal purposes. See Other Solid 

Waste Incinerators (OSWI) final rule at 

70 FR 74870 at 74876, (December 16, 

2005). Therefore, sewage sludge burned 

in a waste heat recovery unit would not 

satisfy the meaningful heating value 

legitimacy criteria and would thus be 

considered to be burning solid waste 

(for more discussion on the legitimacy 

criteria, see section VII.D.6). 

The Agency also notes that data 

generally shows that municipal sewage 

sludge contains metals that are typically 

higher in concentrations when 

compared to traditional fuels (e.g., coal 

and fuel oil). See the table below for a 

comparison of the concentration of 

certain toxics of municipal wastewater 

treatment sludges to coal. 

COMPARISON OF TOXICS OF MUNICIPAL WASTEWATER TREATMENT SLUDGES TO TRADITIONAL FUELS 41

Element 

Sewage sludge 

Coal 

40-City study (mg/kg) 

(mg/kg dry weight) 

National sewage 

sludge study 

(mg/kg dry weight) 

Arsenic ........................................................................................................ 9 .9 6 .7 10 

Cadmium ..................................................................................................... 69 6 .9 0.5 

Chromium .................................................................................................... 429 119 20 

Copper ........................................................................................................ 602 741 Not available. 

Lead ............................................................................................................ 369 134 .4 40 

Mercury ....................................................................................................... 2 .8 5 .2 0.1 

Molybdenum ................................................................................................ 17 .7 9 .2 Not available. 

Nickel .......................................................................................................... 135 .1 42 .7 20 

Selenium ..................................................................................................... 7 .3 5 .2 1 

Zinc ............................................................................................................. 1,594 1,202 Not available. 

Sewage sludge findings in this table are for final sludge which is defined as the liquid, solid, or semi-solid residue generated during the treatment of domestic sewage in a treatment works, receiving secondary treatment or better, and which may include sewage sludge processed to 

meet the land application standards. 

As such, the Agency does not believe 

that sewage sludge would meet the 

legitimacy criteria for contaminants. 

Therefore, the Agency is proposing that 

sewage sludge, generated from POTWs 

and when combusted, be classified as a 

solid waste, and subject to the CAA 

Section 129 requirements. 

6. Comments on Specific Materials Used 

as Ingredients 

The ANPRM identified a number of 

non-hazardous secondary materials that 

we believe are currently being used as 

ingredients in combustion processes 

(i.e., blast furnace slag; CKD; coal 

combustion residual group (fly ash, 

bottom ash, and boiler slag); foundry 

sand; silica fume; and secondary glass 

material). The ANPRM solicited 

comment on whether or not these nonhazardous secondary materials are 

legitimate ingredients per the legitimacy 

criteria, and requested additional data 

and/or information supporting whether 

these secondary materials are legitimate 

ingredients. The majority of comments 

submitted were in regard to: CKD, CCRs, 

foundry sand, and blast furnace slag/ 

steel slag. 

a. Cement Kiln Dust. For CKD, the 

ANPRM indicated that CKD is not a 

solid waste if it is recycled within the 

continuous clinker production process. 

Comments: One commenter 

responded that they strongly support 

this view, but that other CKD which 

may be available could be useful if 

industry could find a means to 

incorporate this viable ingredient into 

the process. Thus, they believe that any 

EPA interpretation regarding the use of 

CKD must allow for access of the 

material irrespective of where the 

ingredient is maintained prior to use. 

EPA’s Response: As explained in 

section VII.D.3, we are proposing that 

non-hazardous secondary materials 

used as ingredients in combustion units 

that are not discarded in the first 

instance would not be considered a 

solid waste provided they satisfy the 

legitimacy criteria for ingredients 

(discussed in section VII.D.6.b). This 

proposal does not assume that 

ingredients used in combustion units 

that are not managed within the control 

of the generator are discarded materials 

(as is the case for non-hazardous 

secondary material fuels) since we 

believe that non-hazardous secondary 

materials used as ingredients in 

manufacturing processes, such as 

cement kilns are commodities managed 

within continuous commerce and are 

used as an integral part of the 

manufacturing process. That is, 

secondary materials that are directly 

used (or in the case of previously used 

materials, reused), function as raw 

materials in normal manufacturing 

operations or as products in normal 

commercial applications, and thus, EPA 

has interpreted the definition of solid 

waste as excluding secondary materials 

recycled in ways that most closely 

resemble normal production processes. 

With respect to the comment that our 

interpretation regarding the use of CKD 

must allow for access of the material 

irrespective of where the ingredient is 

maintained prior to use, it is not clear 

what point the commenter is making. To 

the extent that the CKD has not been 


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31868 Federal Register / Vol. 75, No. 107 / Friday, June 4, 2010 / Proposed Rules 

42We note that used tires provide both fuel value 

and ingredient value in cement kilns. In this 

instance, however, we believe the primary purpose 

of using tires in a cement kiln is to recover their 

energy value, and therefore believe tires should 

satisfy the fuel criteria in determining whether the 

materials are discarded and legitimate. 

discarded in the first place, we are 

proposing that the use of CKD in a 

cement kiln would not be considered a 

solid waste whether it remains under 

the control of the generator or is 

transferred to another person, so long as 

it meets the legitimacy criteria. 

However, if CKD has been discarded, its 

use as an ingredient in the cement kiln 

would be considered combustion of a 

solid waste, (and the cement kiln would 

be subject to the CAA section 129 

requirements), unless it has been 

processed (as defined in section VII.D.4) 

to produce a non-waste ingredient. 

b. Coal Combustion Residuals. The 

ANPRM identified what was considered 

to comprise the CCR group: Fly ash, 

bottom ash, and boiler slag. Similar to 

CKD, it was stated that coal fly ash that 

is handled as a commodity within 

continuous commerce when it is 

marketed to cement kilns as an 

alternative ingredient is not discarded. 

Under the ANPRM approach, if the CCR 

product was previously discarded, such 

non-hazardous secondary materials 

would be solid wastes, unless they were 

processed into a legitimate ingredient 

product. However, we solicited 

comment on the situation where a 

discarded material is recovered from the 

environment and directly used as an 

ingredient (i.e. without processing). 

Additionally, we solicited comment on 

the extent to which non-hazardous 

secondary materials that have already 

been discarded (e.g., coal fly ash that 

has been landfilled) are later processed 

and used as ingredients in combustion 

units, as well as requested descriptions 

of the types of processing that these 

secondary materials undergo. 

Comments: Several commenters 

believe CCRs can be either legitimate 

fuels or ingredients when used in a 

combustion unit. One commenter stated 

that there are a number of cement kilns 

that use or have used high carbon fly 

ash as a fuel and ingredient. As an 

ingredient, the constituents within the 

fly ash are similar to those required 

from natural materials (such as shale, 

marl or limestone) in that they contain 

fractions of silica, iron and aluminum 

needed in the kiln. As a fuel, the 

relatively high carbon content imparts 

energy through its combustion, reducing 

the need for some portion of fossil or 

other fuels for the kiln. 

EPA’s Response: As discussed above 

(and as further discussed in Section 

VII.D.6.b), we are proposing that nonhazardous secondary materials used as 

ingredients in combustion units that are 

not discarded in the first instance would 

not be considered a solid waste 

provided they satisfy the legitimacy 

criteria for ingredients. Commenters 

point out that CCRs can serve both as 

ingredients, as well as fuel supplements. 

This raises the question of whether 

these types of secondary materials 

should be treated like non-hazardous 

secondary materials used as fuels 

(where we assume they are discarded if 

they are managed outside the control of 

the generator), as opposed to ingredients 

(in which case they are not solid waste 

even if they are managed outside the 

control of the generator provided they 

satisfy the legitimacy criteria and have 

not been discarded in the first instance). 

It also raises the question as to whether 

these materials should be required to 

satisfy the legitimacy criteria for fuels or 

for ingredients, or both. We do not 

believe it would be appropriate to 

require these types of secondary 

materials to satisfy the criteria of both 

fuels and ingredients. As a result, we are 

proposing that the decision to treat them 

as fuels or ingredients should be based 

on the primary purpose of using the 

non-hazardous secondary material in 

the cement kiln. With respect to CCRs, 

we believe the primary purpose of their 

use is as an ingredient; thus, provided 

the CCRs satisfy the legitimacy criteria 

for ingredients and are not discarded in 

the first instance, they would not be 

considered solid waste.42 However, we 

specifically solicit comment on this 

point, and in particular, whether the use 

of CCRs is primarily used for their 

ingredient value as opposed for their 

fuel value. 

Comment: With respect to the extent 

that CCRs have been discarded, but are 

later processed, one commenter noted 

that there are at least four patented 

processes for removing unwanted 

carbon from fly ash that would allow 

the processed ash to produce both 

technically compliant fly ash for use in 

concrete and a separate carbon stream 

that can be re-introduced into the boiler 

for fuel value. Another commenter 

stated that coal fly ash (and mill rejects) 

recovered from disposal sites all involve 

some degree of processing, in that the 

materials have to be excavated, stored, 

and transported to their designated uses. 

The materials are also often subject to 

the same types of processing activities 

that are associated with the mining and 

management of virgin coal (i.e., 

screening, sizing, and chemical analysis 

to identify Btu, ash characteristics and 

sulfur content). Finally, one commenter 

disagreed with our position on CCRs. 

The commenter believes that CCRs are 

wastes due to their high concentration 

of contaminants, predominantly 

mercury. 

EPA’s Response: In regard to when a 

discarded material is recovered from the 

environment and directly used as a fuel 

or ingredient, we are proposing that the 

secondary material is a solid waste, 

unless it undergoes a sufficient level of 

processing to produce a legitimate fuel 

product or ingredient. As discussed in 

detail in section VII.D.4, when a nonhazardous secondary material has been 

discarded, unless sufficient processing 

occurs to change the material to produce 

a legitimate fuel product or ingredient, 

it would remain a solid waste under this 

proposal. However, we are also 

requesting comment on whether such 

non-hazardous secondary materials that 

have been discarded and shown to be a 

legitimate fuel or ingredient product, 

should nevertheless be considered a 

legitimate non-waste fuel or ingredient, 

even if the non-hazardous secondary 

material does not undergo processing at 

all or an adequate amount of processing. 

As previously described for processed 

CCR’s that are used as fuels, it appears 

that the patented processes described by 

the commenter that separates carbon 

from the fly ash to produce technically 

compliant fly ash for use in concrete 

would satisfy the processing 

requirement included in this proposal; 

however, we are requesting that 

commenters provide additional 

information explaining how this 

processing is conducted, and whether 

this type of fly ash is used as an 

ingredient in the clinker production 

process. 

Regarding the commenter that 

indicated that coal fly ash and mill 

rejects are often subject to the same 

types of processing activities that are 

associated with the mining and 

management of virgin coal (i.e., 

screening, sizing, and chemical analysis 

to identify Btu, ash characteristics and 

sulfur content), we do not believe that 

screening, sizing, and chemical analysis 

by itself is a sufficient level of 

processing that would render a 

discarded material into a non-waste 

ingredient product. As we noted 

previously in Section VII.C.5.e., while 

we recognize that screening, sizing, and 

chemical analysis can be important for 

producing traditional fuels, we also are 

proposing that such processing is not 

sufficient to change a waste-derived fuel 

into a product fuel. Thus, such 

secondary materials that undergo such 

minimal processing are still considered 

waste-derived fuels because such 

processing of CCRs, even with screening 

and chemical analyses, would not be 


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43For more information on the different types, or 

ranks, of coal, please refer to the Materials 

Characterization Paper on Traditional Fuels and 

Key Derivatives, which is located in the docket of 

today’s proposed rule. 

44Listed 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. 

45 ‘‘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. 

46 Id at 4–4. 

47A 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 MultiPollutant Control Technology—Leaching and 

Characterization Data.’’ EPA–600/R–09/151. 

December 2009. 

sufficient to produce a non-waste 

ingredient. However, we request that 

commenters provide additional 

information as to the extent to which 

CCRs are recovered from the discard 

environment (e.g., landfills) and used as 

ingredients in cement kilns, and if so, 

we request commenters provide more 

detailed information on the extent to 

which these CCRs are processed, and 

thus, might satisfy our proposed 

definition of processing in section 

VII.D.4. 

In addressing the commenter who 

argued that CCRs are solid wastes due 

to their high concentration of 

contaminants, we begin by noting that 

the chemical properties of CCRs are 

influenced to a great extent by those of 

the coal burned, the type of combustion 

unit, and the air pollution controls 

applied.43 We are also aware that fly ash 

may contain various levels of metals, 

such as vanadium, zinc, copper, 

chromium, nickel, lead, arsenic, and 

mercury.44 However, in a recent Report 

to Congress that addressed the use of 

these secondary materials as ingredients 

in cement and concrete applications, the 

overall conclusion reached with respect 

to the perceived safety health risk 

barriers was a positive one, in that the 

risk analyses did not identify significant 

risks to human health and the 

environment associated with these 

uses.45

The Report to Congress also identifies 

several industry stakeholders and state 

agencies that have recognized that 

regulatory programs for the control of 

mercury and NOX in electric utility air 

emissions (and the necessary new 

emission control technologies and 

configurations necessary to achieve 

emissions reductions) can potentially 

result in increased carbon levels in coal 

fly ash that impact the ability to use the 

ash as a supplementary cementitious 

material.46 Consequently, EPA is 

studying the possible effects of new air 

emission control technologies and 

configurations on the composition of 

CCRs and publishing its findings in a 

series of reports.47 Thus, we request 

comment on whether advanced 

emission control technologies, such as 

carbon control technologies for mercury 

and NOX, are resulting or will result in 

increased levels of contaminants in coal 

ash to the extent that coal ash would not 

satisfy our legitimacy criteria. 

c. Foundry Sand. Similar to the 

previously discussed ingredients, we 

requested data and/or information 

supporting whether foundry sand is 

discarded and if not discarded, whether 

it meets the legitimacy criteria. 

Comment: One commenter responded 

and stated that foundry sand meets all 

four legitimacy criteria for ingredients. 

The commenter offered several 

examples of applications for foundry 

sand in support of why it should not be 

a solid waste; however, very little 

information was provided in the context 

of utilizing foundry sand as an 

ingredient in a combustion process. 

EPA’s Response: Since this proposal 

is limited to those situations where the 

non-hazardous secondary material is 

used as a fuel or ingredient in a 

combustion process, examples of using 

foundry sand in other applications is 

not directly relevant. However, as 

previously explained, we are proposing 

that non-hazardous secondary materials 

used as ingredients in combustion units 

that are not discarded in the first 

instance would not be considered a 

solid waste provided they satisfy the 

legitimacy criteria for ingredients 

(discussed in section VII.D.6.b). 

d. Blast Furnace Slag/Steel Slag. The 

ANPRM also requested data and/or 

information regarding blast furnace slag 

and steel slag and their use as legitimate 

ingredients and thus, whether they are 

or are not considered solid waste. 

Comments: Two commenters 

responded that steelmaking slag and 

mill scale should be excluded from the 

definition of solid waste because they 

meet all four legitimacy criteria for 

ingredients. With respect to our 

solicitation for comment on when a 

material is previously discarded and has 

been processed into a legitimate 

ingredient product, one commenter 

responded that current practice to 

obtain these materials requires the 

procurement of a mining license and 

operating practices that are similar to 

processing of natural aggregates (though 

drilling and blasting practices are not 

required for recovery). In particular, 

iron and steel slag aggregates are 

removed by ripping and digging, 

followed by magnetic separation, 

crushing, further magnetic separation 

and finally sized by screening. They are 

then loaded and weighed in customer 

trucks subject to quality assurance and 

quality control for comparable virgin 

aggregate intended for the same use. 

EPA’s Response: As with the previous 

ingredients, we are proposing that blast 

furnace and steel slag used as 

ingredients in combustion units that are 

not discarded in the first instance would 

not be considered a solid waste 

provided they satisfy the legitimacy 

criteria for ingredients. If these 

materials, as described by the 

commenter, are considered to have been 

discarded in the first instance, then they 

would have to be sufficiently processed 

into ingredient products that satisfy the 

legitimacy criteria in order to be 

classified as a non-waste ingredient. 

Based on the processing operations 

described above, it appears that blast 

furnace and steel slag undergo sufficient 

processing; however, before the Agency 

concludes this to be the case, we request 

that commenters provide more detailed 

information regarding the level of 

processing that occurs. 

7. Legitimacy Criteria 

The ANPRM discussed the following 

legitimacy criteria specific to fuel 

products that are used in combustion 

processes: (1) Handled as valuable 

commodities; (2) have meaningful 

heating value; (3) and contain 

contaminants that are not significantly 

higher in concentration than traditional 

fuel products. Likewise, for ingredients, 

the ANPRM listed the following criteria: 

(1) Handled as a valuable commodity; 

(2) the non-hazardous secondary 

material provides a useful contribution; 

(3) the recycling results in a valuable 

product; and (4) the product does not 

contain contaminants that are 

significantly higher in concentration 

than traditional products. We requested 


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48 In EPA’s final definition of solid waste rule 

regarding hazardous secondary materials, EPA 

codified a ‘‘legitimate recycling provision.’’ See 40 

CFR 260.43. This legitimacy provision has two 

parts. The first part includes two factors that must 

be considered and met, which are considered the 

core of the legitimacy factors. The second part of 

the legitimacy provision consists of two factors that 

must be considered, but need not be met because 

the Agency is aware of situations where a legitimate 

recycling process exists, but may not conform to 

one or both of these factors. For further discussion 

of the legitimacy factors in the hazardous waste 

rules, see section VII.C.7 of this preamble and the 

final definition of solid waste rule (October 30, 

2008 beginning on 73 FR 64700). Thus, the 

application of the legitimacy provision proposed in 

this rule is different than that promulgated in the 

final definition of solid waste rule in that all of the 

criteria to be considered in today’s proposed rule 

must both be considered and met. 

comment on the criteria themselves and 

whether they are reasonable for nonhazardous secondary materials. 

a. General 

Comments: Application of Legitimacy 

Criteria: Commenters provided various 

viewpoints on the appropriateness of 

the legitimacy criteria for nonhazardous secondary materials that are 

used as fuels or ingredients. Several 

commenters disagreed with the 

application of the same subtitle C 

legitimacy definition for determining 

whether non-hazardous secondary 

materials are solid waste under RCRA 

subtitle D because non-hazardous 

secondary materials do not pose the 

same hazards. However, many of the 

commenters agreed with the application 

of the subtitle C legitimacy principles, 

but also argued that the criteria must be 

flexible to account for increasing use 

and changes in commodities, 

technologies, markets, and fuel prices 

and should not be more onerous than 

the legitimacy test codified at 40 CFR 

260.43. Commenters also requested 

clarification as to whether all criteria 

need to be met, but urged EPA to 

recognize that legitimate uses are 

possible even if not all criteria are met. 

EPA’s Response: Application of 

Legitimacy Criteria: First, we would 

note that there are two questions that 

the Agency needs to answer: (1) 

Whether or not the non-hazardous 

secondary material is a fuel product or 

ingredient product, or whether the 

material has been discarded and is 

therefore a solid waste, which includes 

waste-derived fuels or ingredients and 

(2) whether the non-hazardous 

secondary material is being legitimately 

and beneficially used or recycled. 

With respect to the legitimacy 

question, EPA believes it important and 

crucial to develop a set of legitimacy 

criteria to make sure that the fuel 

product and ingredient product are 

being legitimately and beneficially used 

and not simply being discarded via 

sham recycling. The definition of 

legitimate recycling developed for 

subtitle C hazardous secondary 

materials carefully considered the 

history surrounding the uses of 

materials, as well as the applicable case 

law with respect to the meaning of 

discard. Likewise, those same principles 

are pertinent to how a non-hazardous 

secondary material is determined not to 

be a solid waste. Therefore, we are 

proposing to codify general legitimacy 

criteria that use the same basic 

framework that has been established for 

the subtitle C hazardous waste 

regulations, but that are also tailored 

specifically for application to nonhazardous secondary materials that are 

used as fuels or ingredients in 

combustion units. See 40 CFR 241.3(d) 

for the proposed regulatory text of the 

legitimacy criteria and, for comparison 

see 40 CFR 260.43 in final regulations 

for the DSW hazardous waste legitimacy 

provisions. The rationale for the nonhazardous secondary materials 

legitimacy provisions (including 

comparisons to the DSW legitimacy 

provision) is discussed in section 

VII.D.6. 

Commenters also suggested that the 

legitimacy criteria must be flexible to 

account for increasing use and changes 

in commodities, technologies, markets, 

and fuel prices and should not be more 

onerous than the legitimacy definition 

codified at 40 CFR 260.43. We agree 

with these commenters and have 

proposed qualitative criteria that we 

believe provide the flexibility needed in 

evaluating these secondary materials 

that will accommodate such changes. 

The legitimacy criteria are structured to 

distinguish between legitimate reuse/ 

recycling and disposal (i.e., sham 

recycling), while at the same time not 

impose restrictions on the types of nonhazardous secondary materials that may 

be of value in the future. For a detailed 

discussion of the proposed legitimacy 

criteria, see section VII.D.6. 

In regard to the commenters who 

requested clarification on whether all 

criteria need to be met, we believe that 

each of the criteria is important and 

addresses certain issues that need to be 

assessed. Therefore, each criterion must 

be met in order for the non-hazardous 

secondary material to be considered to 

be a legitimate non-waste fuel or 

ingredient. Thus, today’s proposal 

requires that in evaluating the 

legitimacy criteria, the owner/operator 

of the combustion unit must assure that 

the non-hazardous secondary material 

meets all of the criteria.48 See section 

VII.D.6 for additional discussion. 

Comment: Ingredients (General): We 

also received one general comment 

regarding the legitimacy criteria for 

ingredients. The commenter argued that 

the determination is not applicable for 

any material that is within a process and 

is being recycled in that process, and 

should not have to be justified as a 

secondary material, since closed-loop 

systems do not manage solid waste. 

EPA’s Response: Ingredients 

(General): We generally agree with the 

commenter. That is, to the extent that 

the non-hazardous secondary material 

has not been discarded in the first 

instance, which we presume it would 

not be as part of a closed-loop system, 

and such secondary material meets the 

legitimacy criteria, it would not be 

considered a solid waste when 

combusted. Thus, as an example, where 

CKD is recycled back into the cement 

kiln, and meets the legitimacy criteria, 

it is not solid waste. 

b. Fuels or Ingredients Being Managed 

as Valuable Commodities 

Comments: For this criterion, most 

commenters generally agreed with the 

Agency that such non-hazardous 

secondary materials should be managed 

as a valuable commodity, but argued 

that a specified containment system 

should not be a mandatory part of the 

criteria. One commenter suggested that 

rather than focus on containment, the 

focus should be on whether the nonhazardous secondary material has value 

for future use. Another commenter 

suggested that a more appropriate 

requirement is that the non-hazardous 

secondary material should be stored in 

a manner that preserves their economic 

value and avoids damaging releases to 

the environment. Another commenter 

thought that EPA should look to state 

requirements for containment, handling, 

and storage. Similarly, another 

commenter suggested that EPA should 

recognize that if a non-hazardous 

secondary material is managed pursuant 

to federal requirements that also apply 

to raw materials (e.g., coal refuse 

compared to coal), the criteria are 

satisfied. Lastly, one commenter argued 

that the concept of ‘‘speculative 

accumulation’’ of one year can prevent 

accumulation of enough non-hazardous 

secondary materials to make recovery 

economical and thus, is not an 

appropriate criterion to conclude that a 

non-hazardous secondary material isn’t 

being reused and is a solid waste. 

EPA’s Response: We generally agree 

with those commenters who argued that 

a specific containment system should 

not be required and, therefore, are 

proposing a qualitative approach in line 

with the same principle as the 


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commenter who suggested that nonhazardous 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 non-hazardous secondary 

materials be ‘‘contained’’ in the same 

manner as its analogous fuel or raw 

ingredient. Thus, we are proposing that 

where there is an analogous fuel or 

ingredient, the non-hazardous 

secondary material used would be 

required to be managed in a manner 

consistent with the management of the 

analogous fuel or ingredient or 

otherwise must be adequately contained 

so as to prevent releases to the 

environment. As explained in section 

VII.D.6, an analogous ingredient or fuel’’ 

is an ingredient or fuel for which the 

non-hazardous secondary material 

substitutes and which serves the same 

function and has similar physical and 

chemical properties as the nonhazardous secondary material. Where 

there is no analogous fuel or ingredient, 

the non-hazardous secondary material 

must be adequately contained so as to 

prevent damaging releases to the 

environment. ‘‘Adequately contained’’ is 

when a non-hazardous secondary 

material is stored in a manner that 

adequately prevents releases to the 

environment considering the nature and 

toxicity of the non-hazardous secondary 

material. In regard to the comment on 

speculative accumulation, we are not 

proposing a specific timeframe, because 

states already require varied timeframes 

and we will leave this up to the state’s 

discretion. 

c. Fuels Must Have Meaningful 

Heating Value. The ANPRM discussed 

the meaningful heating value criterion 

for legitimate alternative fuel, and 

outlined a qualitative approach rather 

than a ‘‘bright-line’’ cutoff for heating 

value. The ANPRM requested comment 

as to whether it was possible or 

appropriate to establish a specific 

heating value cutoff. 

Comments: Several commenters 

favored the ANPRM approach, while 

others recommended either a lower Btu 

benchmark or replacing the Btu 

benchmark with a case-by-case analysis. 

No commenters recommended deleting 

the criterion. Commenters emphasized 

that innovations and advancements in 

technology can efficiently produce 

energy from non-hazardous secondary 

materials with lower heating value 

content. 

EPA’s Response: We are proposing a 

qualitative approach for a meaningful 

heating value criterion as outlined in 

the ANPRM. The proposed regulatory 

text specifies that ‘‘the material must 

have a meaningful heating value and be 

used as a fuel in a combustion unit that 

recovers energy’’. See proposed 

241.3(d)(1)(ii). We are clarifying in this 

proposal, that non-hazardous secondary 

materials with a heating value of greater 

than 5,000 Btu/lb, as fired, would be 

considered to satisfy the criterion. 

However, non-hazardous secondary 

materials with a heating value lower 

than 5,000 Btu/lb, as fired, may also be 

considered to have a meaningful heating 

value if the unit can cost-effectively 

recover meaningful energy. See section 

VII.D.6.a. for an explanation of the 

factors that may be considered in 

determining whether an energy recovery 

unit can cost-effectively recover energy 

from a non-hazardous secondary 

material. Also, as outlined in the same 

section, this criterion is an appropriate 

factor, since it expresses the principle 

that non-hazardous secondary materials 

used as a fuel with a meaningful heating 

value provides a useful contribution to 

the manufacturing process. The Agency 

believes a 5,000 Btu/lb benchmark, as 

fired, identifying when a non-hazardous 

secondary material, by definition, 

provides fuel value is appropriate since 

it is consistent with determinations 

expressed in previous RCRA and CAA 

rulemakings, including the RCRA 

comparable fuels rule (63 FR 33781), the 

RCRA subtitle C boilers and industrial 

furnaces rule (48 FR 11157–59), and the 

CAA NESHAP for Hazardous Waste 

Combustors NODA (62 FR 24251). 

We request comment on whether it 

would be appropriate to also identify a 

lower Btu/lb threshold, below which 

non-hazardous secondary materials 

would not be considered to have 

meaningful heating value and thus, 

would be a solid waste by definition. 

d. Fuel/Ingredient Contaminant 

Levels. To address the possible presence 

of waste-like contaminants in nonhazardous secondary materials, the 

ANPRM stated that such secondary 

materials used as fuels should not 

contain contaminants that are 

significantly higher than those 

contained in traditional fuels. For 

ingredients, the ANPRM stated that 

products that use non-hazardous 

secondary materials as ingredients in 

combustion units should not contain 

contaminants that are significantly 

higher in concentration than the 

product produced without the nonhazardous secondary material. For both 

ingredients and fuels, the ANPRM 

suggested that a qualitative approach 

may be more appropriate to use than 

numerical specifications. In addition, 

we requested comment on whether the 

contaminants evaluated should be the 

hazardous constituents listed in 

Appendix VIII to 40 CFR part 261, or 

whether a different list of contaminants 

would be more appropriate. 

Comments: Commenters were evenly 

divided on whether the presence of 

contaminants was an appropriate 

legitimacy criterion. For commenters 

favoring the criterion, most believed 

that a qualitative approach was 

preferable; stating that little risk exists 

for environmental exposure and 

numerical specifications may be 

impractical due to the multiplicity of 

fuels or ingredients. However, a 

minority of commenters favored a 

quantitative approach. For commenters 

recommending that the presence of 

contaminants not be included as a 

criterion, most emphasized that 

emissions will be controlled under 

either CAA sections 112 or 129. They 

stated that comparative contaminant 

concentrations are inappropriate, and 

that the Agency should recognize the 

lower risks posed by non-hazardous 

secondary materials. One commenter 

stated that the amount of contamination 

acceptable in an alternative fuel 

depends on how much is fired with the 

main boiler fuel, the type of 

contaminant (organic vs. inorganic), and 

the emission controls used. 

Specifically with respect to the use of 

ingredients in combustion units, one 

commenter agreed that the assessment 

should involve the final recycled 

product and not the ingredient itself. 

However, another commenter countered 

that the assessment should be a 

comparison of post combustion 

emission levels, not the product made 

with non-hazardous secondary materials 

to those in a product made with virgin 

materials. This commenter reasoned 

that combustion will destroy many of 

the substances that EPA considers 

possible contaminants and basically 

eliminates any environmental concern. 

Another commenter recommended an 

analysis of appropriate total constituent 

concentrations, leachable constituent 

concentrations, and a comparison to 

traditional ingredients (as outlined in 

the Solid Waste RCRA subtitle D 

groundwater protection constituent list). 

EPA’s Response: Based on our 

assessment of all of the comments, we 

believe it appropriate to include 

contaminant levels as a legitimacy 

criterion. Thus, we do not agree with 

those commenters’ that assert that 

contaminant comparisons are not 

appropriate to require as part of the 

legitimacy criteria. The Agency believes 

the criterion is necessary because nonhazardous secondary materials that 

contain contaminants that are not 

comparable in concentration to those 

contained in traditional fuel products or 


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49The five ways include: (i) The secondary 

material contributes valuable ingredients to a 

product or intermediate; or (ii) replaces a catalyst 

or carrier in the recycling process; or (iii) is the 

source of a valuable constituent recovered in the 

recycling process; or (iv) is recovered or regenerated 

by the recycling process; or (v) is used as an 

effective substitute for a commercial product. 

ingredients would suggest that these 

contaminants are being combusted as a 

means of discarding them, and thus the 

non-hazardous secondary material 

should be classified as a solid waste. In 

some cases, this can also be an indicator 

of sham recycling. For example, nonhazardous secondary materials that may 

not contain comparable concentrations 

of contaminants include chromium-, 

copper-, and arsenic (CCA)-treated 

lumber, polyvinyl chloride (PVC) 

plastics which can contain up to 60 

percent halogens (chlorine), lead-based 

painted wood, and fluorinated plastics. 

Also, we disagree with the commenter 

who argued that any assessment should 

only include a comparison of postcombustion emission levels because the 

combustion unit will destroy many of 

the substances that EPA considers 

possible contaminants (and thereby 

eliminate any environmental concern). 

The Agency believes that this postcombustion assessment of contaminants 

further supports the principle that 

contaminant levels (before and after 

combustion) are important indicators of 

legitimacy. 

The legitimacy criterion for fuel/ 

ingredient contaminants outlined in 

today’s rule has changed from the 

criterion outlined in the ANPRM. In the 

ANPRM, non-hazardous secondary 

materials used as fuel could not contain 

contaminants that were significantly 

higher than traditional fuel products. 

For ingredients, the non-hazardous 

secondary material could not result in 

products that contain contaminants that 

are significantly higher in concentration 

than found in traditional products. 

Under today’s proposed rule, nonhazardous secondary material used as 

fuels in combustion units must contain 

contaminants (defined as HAP listed 

under CAA section 112(b) and the nine 

pollutants listed under CAA section 

129) at levels ‘‘comparable’’ to those in 

traditional fuels which the combustion 

unit is designed to burn. For use as an 

ingredient, the non-hazardous 

secondary material must result in 

products that contain contaminants at 

levels that are ‘‘comparable’’ in 

concentration to those found in 

traditional products that are 

manufactured without the nonhazardous secondary material 

ingredients. 

As discussed in section VII.C.7., 

requiring that the secondary material 

have contaminants at levels comparable 

to traditional fuels would ensure that 

the burning of any secondary materials 

in combustion units will not result in 

discard of materials and will not result 

in increased releases to the environment 

that could impact the health and 

environment of the local community. 

Ensuring that the level of contaminants 

in the non-hazardous secondary 

material is comparable to traditional 

fuels would prevent secondary materials 

from being discarded and be the most 

protective of human health and the 

environment. Today’s proposed rule 

also requests comment on an approach, 

consistent with the ANPRM approach, 

which would only compare 

contaminants at levels that are 

significantly higher than traditional fuel 

products. 

Similar to the ANPRM, the 

assessment of whether the nonhazardous secondary material used as a 

fuel has contaminants comparable to 

traditional fuel products is to be made 

by directly comparing the numerical 

contaminant levels in the nonhazardous secondary material to the 

contaminant levels in traditional fuels. 

See section VII.C.7., for a complete 

discussion of contaminant assessments. 

The assessment of whether products 

produced from the use of non-hazardous 

secondary material ingredients in 

combustion units that have 

contaminants that are comparable in 

concentration to traditional products 

can be made by a comparison of 

contaminant levels in the ingredients 

themselves to traditional ingredients 

they are replacing, or by comparing the 

contaminant levels in the product itself 

with and without use of the nonhazardous secondary material 

ingredient. See section VII.D.6.b. 

e. Ingredients Must Provide Useful 

Contribution. The ANPRM cited (from 

the October 2008 DSW Final Rule for 

hazardous waste) five ways 49 in which 

a secondary material can add value and 

usefully contribute to a recycling 

process and solicited comment on 

whether they are appropriate for nonhazardous secondary materials. 

Comment: Only one commenter 

responded and indicated that the five 

criteria are too narrow and should be 

broadened to apply to the nonhazardous secondary material uses (i.e., 

processes not considered recycling) 

since using the criteria for hazardous 

waste as a model is too limiting. 

EPA’s Response: After review of the 

comment, we understand that there is 

some interest in broadening those 

criteria for non-hazardous secondary 

material use, but the commenter did not 

provide any information to merit the 

development of a separate or additional 

criteria for non-hazardous secondary 

material use to describe how they can 

‘‘add value and usefully contribute to a 

recycling process’’ (or broaden to nonrecycling uses as suggested by the 

commenter). However, the Agency 

solicits comments on this point; in 

particular, what the separate criteria 

would be and how a non-hazardous 

secondary material would or can ‘‘add 

value and usefully contribute to a 

recycling process.’’ 

f. Ingredients Must Produce a 

Valuable Product. For this criterion to 

be met, the ANPRM indicated that a 

product or intermediate is valuable if it 

is (i) sold to a third party or (ii) used by 

the recycler or generator as an effective 

substitute for a commercial product or 

as an ingredient or intermediate in an 

industrial process. We then requested 

comment on whether this description of 

valuable product/intermediate is an 

appropriate way to consider this 

criterion in the context of nonhazardous secondary materials used as 

ingredients. 

Comments: One commenter 

responded that they support this 

criterion, but caution that it be broad 

enough so that it addresses the value 

obtained by both its use on-site and offsite by a third party. The commenter 

also suggested that the provision be 

interpreted broadly to also include 

traditional recycling markets and the 

products generally in which such 

secondary materials are utilized. 

EPA’s Response: We believe that the 

criteria described in the ANPRM are 

broad enough to address the value 

obtained by both its use on-site and offsite by a third party. With regard to 

interpreting the criterion broadly 

enough to include traditional recycling 

markets and the products in which the 

secondary materials are utilized, we do 

not agree that it would be appropriate. 

Specifically, this rule is addressing a 

particular issue within the context of 

RCRA—that is, which non-hazardous 

secondary materials are or are not solid 

wastes when used in a combustion unit. 

We have tailored the legitimacy criteria 

to apply specifically to the use of these 

non-hazardous secondary materials as 

fuels or ingredients in combustion units 

only. An assessment of uses beyond 

those in combustion units is beyond the 

scope of this rulemaking. 

8. De Minimis Concept 

Although we did not discuss the 

concept of de minimis in the ANPRM, 

commenters argued strongly that EPA 

allow for de minimis amounts of solid 


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50As 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. 

51Black liquor is burned in a pulping liquor 

recovery furnace and then reused in the pulping 

process, while spent sulfuric acid is used to 

produce virgin sulfuric acid; in both these 

instances, these hazardous secondary materials are 

considered to be an integral part of the 

manufacturing process. With respect to comparable 

fuel, these hazardous secondary materials are 

considered a legitimate non-waste fuel because they 

meet the chemical and physical specifications of a 

traditional benchmark fuel. Commercial chemical 

products that are themselves fuels, such as offspecification fuels, including gasoline, jet fuel, 

kerosene, diesel, etc., are not solid wastes when 

burned as fuels if that is their intended purpose (40 

CFR 261.2(c)(2)(ii)). 

52See Definition of Solid Waste Final Rule, 

January 4, 1985 at 50 FR 641–642, covering both 

black liquor and spent sulfuric acid. 

53See ‘‘RCRA Comparable Fuels Exclusion’’ Final 

Rule, June 19, 1998, 63 FR 33782. 

54See 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. 

waste to be burned without being 

subject to the CAA 129 requirements. 

Comments: Several commenters 

believe that any regulatory construct 

should include a de minimis exemption 

that excludes from the definition of 

solid waste for purposes of CAA section 

129, those materials (i.e., solid waste) 

that, when combusted, result in de 

minimis emissions. An example 

provided by the commenters of a waste 

material is boiler chemical cleaning 

waste, which consists primarily of 

water, but also includes metal deposits 

from the boiler tubes, as well as spent 

solvent. Another example is oily rags 

which are generated in small quantities 

during routine maintenance activities. 

Air emissions associated with these 

practices is a small fraction compared to 

the emissions generated from fossil fuel 

combustion. Commenters also cited 

several court decisions that held that 

EPA retains the legal authority to 

promulgate de minimis exceptions for 

regulatory schemes. 

EPA’s Response: The issue of whether 

the burning of de minimis amounts of 

solid waste (i.e., because it results in de 

minimis emissions) can be exempted 

from CAA 129 regulation is outside the 

scope of this rulemaking, which is only 

concerned with identifying which nonhazardous secondary materials burned 

as fuels or ingredients in combustion 

units are or are not solid waste. 

D. Rationale for, and Detailed 

Description of, Proposed Approach 

Under this proposal, non-hazardous 

secondary materials used as fuels in 

combustion units would be considered 

solid waste unless: (1) The nonhazardous secondary materials remain 

under the control of the generator as 

discussed in section VII.D.1, and are 

legitimate fuels; or (2) they are 

legitimate fuels that are produced from 

the processing of discarded nonhazardous secondary materials as 

discussed in section VII.D.4. Nonhazardous secondary materials used as 

a fuel in combustion units that are 

transferred to a third party (and not 

considered to be managed within the 

control of the generator) are considered 

solid wastes unless a non-waste 

determination has been made pursuant 

to the proposed petition process 

(discussed below in section VII.D.5).50

Non-hazardous secondary materials 

used as ingredients in combustion units 

would not be considered solid waste if 

they have not been discarded in the first 

instance and if they are legitimate 

ingredients, irrespective of whether they 

have been transferred to a third party 

outside the control of the generator. 

Non-hazardous secondary materials that 

have been discarded may be processed 

into a non-waste ingredient that meets 

the legitimacy requirements as 

discussed in VII.D.4. 

The ANPRM also discussed another 

possible exclusion from being a solid 

waste—that is, hazardous secondary 

materials that are excluded from the 

definition of solid waste under RCRA 

subtitle C when combusted. However, 

EPA has concluded that it does not need 

to include this exclusion since these 

materials have already been excluded 

from the definition of solid waste as 

hazardous secondary materials and, 

therefore, are not subject to this rule, 

which deals with the definition of solid 

waste for non-hazardous secondary 

materials used in combustion units. As 

noted in the ANPRM, under the 

hazardous waste regulations, the 

Agency has evaluated a number of 

hazardous secondary materials that are 

recycled and determined that such 

materials, while they either met a listing 

description or exhibited one or more of 

the hazardous waste characteristics, 

were not ‘‘solid wastes’’ for purposes of 

the RCRA Subtitle C hazardous waste 

regulations when they were combusted. 

Specifically, the following materials 

may be burned under certain conditions 

and are not defined as solid wastes for 

purposes of the hazardous waste 

regulations—black liquor, spent sulfuric 

acid, comparable fuels and commercial 

chemical products that are themselves 

fuels.51 These secondary materials are 

not solid wastes provided they are 

handled under the applicable 

conditions of the exclusions specified 

under the RCRA subtitle C hazardous 

waste regulations, and are not 

considered solid wastes for purposes of 

CAA section 129. The rules covering the 

determinations for black liquor, spent 

sulfuric acid,52 comparable fuels,53 and 

commercial chemical products that are 

themselves fuels 54 are not being 

reopened in this proceeding and EPA is 

no longer requesting comment on those 

solid waste definitions for purposes of 

this rule. 

Except for the petition process, the 

proposed criteria are designed to be self 

implementing in nature, i.e. they do not 

require prior Agency approval. 

1. Non-Hazardous Secondary Materials 

Used as Fuel Within the Control of the 

Generator 

We are proposing to use the general 

framework finalized in the Definition of 

Solid Waste Rule to determine 

circumstances under which nonhazardous secondary materials 

remaining under the control of the 

generator that are used as fuels in 

combustion units are not considered to 

have been discarded. 

a. Scope and Applicability. EPA is 

proposing that non-hazardous 

secondary materials used as fuels in 

combustion units that remain within the 

control of the generator and that meet 

the legitimacy criteria specified in 

section VII.D.6 would not be solid 

waste. Non-hazardous secondary 

materials that remain within the control 

of the generator and meet these criteria 

are referred to as legitimate (non-waste) 

fuel products. The proposed conditions 

that must be satisfied to qualify as 

‘‘under the control of the generator’’ are 

found in proposed 40 CFR part 241.3. 

Nevertheless, EPA is seeking comment 

on whether such secondary materials 

should be considered solid wastes and 

thus, be subject to the CAA section 129 

requirements if combusted. 

There are two scenarios where nonhazardous secondary materials used as 

fuels can be demonstrated to remain 

within the control of the generator. As 

such, the proposal consists of two parts 

in determining whether these secondary 

materials qualify for being ‘‘under the 

control of the generator.’’ The first part 

applies to non-hazardous secondary 

material generated and used as fuels at 

the generating facility. For purposes of 

this proposed criteria, ‘‘generating 

facility’’ means all contiguous property 

owned, leased, or otherwise controlled 

by the secondary material generator, and 


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‘‘secondary material generator’’ means 

any person whose act or process 

produces non-hazardous secondary 

materials at the generating facility. A 

facility that collects non-hazardous 

secondary materials from other persons 

(for example, used tires collected 

through a collection program) is not the 

secondary material generator of those 

materials. This is consistent with the 

approach taken in the DSW final rule, 

which specified that a facility that 

collects hazardous secondary materials 

from other persons (for example, when 

mercury-containing equipment is 

collected through a special collection 

program), would not be considered the 

hazardous secondary material generator 

for purposes of eligibility for the 

generator-controlled exclusion. See 73 

FR at 64715. 

If a generator hires or contracts with 

a different company to use the nonhazardous secondary materials at the 

generator’s facility as fuel, either 

temporarily or permanently, these 

materials remain under the control of 

the generator. However, generators 

sometimes contract with a second 

company to collect non-hazardous 

secondary materials at the generating 

facility and such materials are 

subsequently used as fuels in a 

combustion unit at another facility. In 

that situation, if the facility that burns 

the non-hazardous secondary material is 

not ‘‘within the control of the generator’’ 

as defined below in the second part of 

the definition, then the non-hazardous 

secondary material fuel would be 

considered a solid waste unless a nonwaste determination has been granted 

pursuant to the petition process. 

The second part of the proposed 

definition applies to non-hazardous 

secondary material generated and used 

as fuels at a different facility that is 

controlled by the generator (or if a 

person as defined in proposed § 241.2 

controls both the generator and the 

facility using the fuel in a combustion 

unit). For purposes of this proposed 

criteria, ‘‘control’’ means the power to 

direct the policies of the facility, 

whether by ownership of stock, voting 

rights, or otherwise, except that 

contractors who operate facilities on 

behalf of a different person as defined 

in proposed § 241.2 shall not be deemed 

to ‘‘control’’ such facilities. Thus, when 

a contractor operates two facilities, each 

of which is owned by a different 

company, non-hazardous secondary 

materials generated at the first facility 

and used as a fuel at the second facility 

is not considered ‘‘under the control of 

the generator.’’ 

We note that the DSW final rule 

includes a third part of the definition 

that applies to hazardous secondary 

materials that are generated pursuant to 

a written contract between a tolling 

contractor and a toll manufacturer and 

legitimately reclaimed by the tolling 

contractor. For purposes of that 

exclusion, a tolling contractor is a 

person who arranges for the production 

of a product or intermediate made from 

specified raw or virgin materials 

through a written contract with a toll 

manufacturer. The toll manufacturer is 

the person who produces the product or 

intermediate made from the specified 

raw or virgin materials pursuant to a 

written contract with a tolling 

contractor. We view this as a very 

specific type of arrangement where, for 

example, a chemical manufacturer 

outsources a step in the manufacturing 

process to another company (typically a 

‘‘batch’’ manufacturer), and then the 

batch manufacturer sends both the 

product and the residuals back to the 

main company (and the residuals are 

then reclaimed by the main company). 

Although there are two companies, 

there is only one manufacturing 

operation, and the main company keeps 

control over (and liability for) 

everything through the tolling contract. 

We do not believe that tolling 

contracts are relevant to non-hazardous 

secondary materials used as fuels in 

combustion units as we are unaware of 

these types of contractual arrangements 

where both products and secondary 

material fuel are sent to what we are 

calling tolling contractors. As a result, 

we are not including this type of 

arrangement under the proposed 

definition for non-hazardous secondary 

material fuels that remain under the 

control of the generator. However, the 

Agency requests comments on whether 

to include this option in the final rule; 

those persons who provide comments 

supporting the addition of this option to 

the final rule should provide specific 

instances or examples of where nonhazardous secondary materials are 

managed under tolling arrangements 

and the frequency that such 

arrangements are used, and how these 

arrangements remain ‘‘under the control 

of the generator.’’ 

b. Restrictions and Requirements 

Legitimate Use. Under this proposed 

rule, non-hazardous secondary materials 

used as fuels in combustion units that 

remain under the control of the 

generator must meet the legitimacy 

criteria proposed in § 241.3(d). To 

satisfy the legitimacy criteria, the nonhazardous secondary material (nonwaste) fuel must be handled as a 

valuable commodity, have meaningful 

heating value and be used as a fuel, in 

a combustion unit that recovers energy, 

and contain contaminants at levels 

comparable to those in traditional fuels 

which the combustion unit is designed 

to burn. The details of the legitimacy 

criteria are discussed in Section VII.D.6. 

of this proposal. 

Notification. We are not proposing to 

require facilities that use non-hazardous 

secondary material fuels within the 

control of the generator to notify EPA as 

part of this proposal. We believe this 

would be duplicative of the CAA 112 

regulatory notification and record 

keeping requirements being proposed 

for boilers and process heaters today. 

That proposal would require specific 

notifications from sources subject to the 

standards including notifications of 

compliance status, test results and 

descriptions of applicable air pollution 

control devices. In addition, for sources 

that have made a non-waste selfdetermination under § 241.3, the 

proposal for boilers and process heaters 

requires that records be maintained 

which document how the fuel meets 

legitimacy criteria and the definition of 

processing as appropriate. However, we 

solicit comment on this and specifically 

request comment on whether the 

Agency should require, at least initially, 

if not on a periodic basis, notification 

and recordkeeping under RCRA by 

those persons who both generate or 

combust non-hazardous secondary 

materials that are not solid wastes, 

including documentation that explains 

or provides the basis for the nonhazardous secondary material meeting 

the legitimacy criteria, and thus, is not 

a solid waste. 

2. Non-Hazardous Secondary Materials 

Used as Fuel Outside the Control of the 

Generator 

Non-hazardous secondary materials 

used as a fuel in combustion units that 

are not considered to be managed 

within the control of the generator 

would be considered solid wastes 

unless they have been processed into a 

legitimate non-waste fuel product 

(discussed in section VII.D.4. below) or 

unless a non a non-waste determination 

has been made pursuant to the proposed 

petition process (discussed in section 

VII.D.5. below). 

This proposed approach differs from 

the ANPRM approach, which specified 

that non-hazardous secondary materials, 

such as used tires collected at tire 

dealerships and transferred to a third 

party would not be considered 

discarded if, for example, they were 

managed pursuant to state tire 

collection programs. As previously 

discussed, comments received from the 

states suggested that non-hazardous 


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55U.S. EPA An Assessment of Environmental 

Problems Associated With Recycling of Hazardous 

Secondary Materials (Docket # EPA–HQ–RCRA– 

2002–0031–0355), January 2007. 

56See 51 FR 21054, June 10, 1986. 

57U.S. EPA Scrap Tire Clean-Up Handbook: A 

Resource for Solid Waste Managers Across the 

United States EPA–905–B–06–001, January 2006. 

58U.S. EPA Description of Non-Hazardous 

Secondary Material Events that Resulted in Adverse 

Environmental Impacts (Docket # EPA–HQ–2008– 

0329), September 2009. 

59U.S. EPA A Study of the Potential Effects of 

Market Forces on the Management of Hazardous 

Secondary Materials Intended for Recycling (Docket 

# EPA–HQ–RCRA–2002–0031–0358), November 

2006. While the study focuses on hazardous 

secondary materials, the underlying economic 

theory would apply equally to non-hazardous 

secondary materials. 

secondary material fuels that are 

transferred to a third party have entered 

what is traditionally considered to be 

the ‘‘waste stream’’ (and have been 

regulated by the states as wastes) and 

therefore should appropriately be 

considered to be solid wastes (e.g., scrap 

tires) unless/until they are processed 

into non-waste fuel products. However, 

the Agency seeks comment on whether 

the approach described in the ANPRM 

would be more appropriate. In 

submitting comments supporting a 

broader approach, we request that 

commenters provide the basis for why 

such secondary materials have not been 

discarded. 

When non-hazardous secondary 

material fuels are transferred to another 

party, we generally believe that the 

material is discarded since the generator 

has relinquished control of the 

secondary material and the entity 

receiving such materials may not have 

the same incentives to manage them as 

a useful product, which results in the 

materials being discarded. (Note: As 

indicated above, the Agency is 

proposing a petition process to allow 

any person to demonstrate that nonhazardous secondary material fuels 

transferred to another party outside the 

control of the generator have not been 

discarded, and thus, are not a solid 

waste. See section VII.D.5. below for 

details on the petition process.) 

This lack of incentive to manage as a 

useful product has been welldocumented 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.55 (This scenario does not apply to 

transfers taking place under the transferbased exclusion for hazardous 

secondary materials that are generated 

and then transferred to another 

company for the purpose of 

reclamation.) However, this finding also 

holds true for non-hazardous secondary 

materials that are used as fuel. 

For example, the over-accumulation 

of scrap tires is well known and has 

resulted in massive piles of discarded 

tires that have contributed to the overall 

solid waste management problem due to 

the threat of fires, such as the Rhinehart 

Tire Fire Dump,56 and because they 

provide an ideal breeding ground for 

mosquitoes and rodents. It is estimated 

that 275 million tires remained in 

stockpiles across the United States in 

2003 and that approximately 290 

million new scrap tires are generated 

each year.57 Other non-hazardous 

secondary materials destined for use as 

a fuel that were accumulated, but then 

discarded have similarly contributed to 

the overall solid waste management 

problem.58

As discussed in the DSW final rule,59

this pattern of discard at off-site, third 

party reclaimers appears to be a result 

of inherent differences between 

commercial recycling and normal 

manufacturing. As opposed to 

manufacturing, where the cost of raw 

materials or intermediates (or inputs) is 

greater than zero and revenue is 

generated primarily from the sale of the 

output, secondary materials recycling, 

including when used as a fuel, can 

involve generating revenue primarily 

from receipt of the secondary materials. 

Recyclers of secondary materials in this 

situation may thus respond differently 

than traditional manufacturers to 

economic forces and incentives, 

accumulating more inputs (secondary 

materials) than can be processed and 

generating stockpiles with sometimes 

little incentive to perform actual 

recycling. 

However, this pattern of discard does 

not hold true for materials that are more 

commodity-like than waste like, such as 

traditional fuels and non-hazardous 

secondary materials used as ingredients 

in manufacturing processes that utilize 

combustion systems. As previously 

discussed, traditional fuels have been 

burned historically as fuels and have 

been managed as valuable products, are 

considered unused products and 

therefore are not solid wastes. Also see 

discussion in section VIII.D.6.b below 

that explains EPA’s rationale as to why 

ingredients that are not managed within 

the control of the generator are 

determined not to be discarded. 

In some cases, a non-hazardous 

secondary material may be transferred 

to another entity to be burned for energy 

and still more closely resemble a 

product than a waste, despite the fact it 

is neither a traditional fuel nor has it 

been processed into a legitimate fuel. In 

such cases, the Agency has included a 

petition process where a person may 

petition EPA for a case-specific 

determination that the non-hazardous 

secondary materials are not discarded 

and therefore not solid wastes. See 

section VIII.D.5. for a more detailed 

discussion of the petition process. 

In the proposed regulatory language, 

EPA is not specifying whether particular 

materials are or are not solid wastes. 

However, as discussed previously, 

whole tires that originate from tire 

dealerships and automotive shops (that 

are overseen by state tire collection 

oversight programs) would be 

considered to be discarded unless and 

until they are processed into TDF that 

has removed the steel belts and wire, or 

a case-specific non-waste determination 

petition is granted. EPA believes tires 

that are collected from tire dealerships 

and automotive shops, especially if 

overseen by a state tire collection 

oversight program that collects fees and 

regulates the process under state ‘‘waste’’ 

authorities, generally meet the plain 

meaning of discard; such materials can 

be considered as having been 

‘‘discarded’’ by the original owner of the 

tire. 

This is further supported by the fact 

that many state agencies regulate tires as 

wastes, either pursuant to their solid 

waste authority or pursuant to statutory 

authority that specifically addresses the 

management of used tires (some use 

both authorities). The level of regulation 

ranges from state to state, but many 

states directly regulate used tires, for 

example, with storage requirements, 

such as speculative accumulation and 

fire suppression requirements, up until 

their final use as a fuel in combustion 

units. In addition, many states subsidize 

certain end-use applications, suggesting 

that used tires, even if managed 

pursuant to state oversight programs, are 

discarded materials once they are 

generated at tire collection points, such 

as tire dealerships. 

3. Non-Hazardous Secondary Materials 

Used as Ingredients in Combustion 

Units 

Non-hazardous secondary materials 

used as ingredients in combustion units 

would not be solid wastes provided they 

satisfy the legitimacy criteria discussed 

in section VIII.D.6.b below. We are not 

differentiating between ingredients that 

are used within the control of the 

generator from those that are not since 

we believe that the use of nonhazardous secondary materials as 

ingredients is considered to be more 

integral or akin to use in a commercial 

manufacturing process and thus, these 

non-hazardous secondary materials 


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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 nonhazardous secondary materials are not 

solid wastes. Of course, the legitimacy 

criteria specified in section VII.D.6. 

below must be met. Because the fuel/ 

ingredient products meeting these 

legitimacy criteria are, in effect, 

reclaimed products from a recycling 

process, EPA considers such materials 

to be new products that have not been 

discarded and therefore are not solid 

wastes. Until the non-hazardous 

secondary materials have been 

processed into a non-waste fuel or 

ingredient product meeting the 

legitimacy criteria, the discarded nonhazardous secondary material are 

considered solid wastes and would be 

subject to all appropriate federal, state 

and local requirements. 

Similar to the proposed approach for 

non-hazardous secondary materials that 

are used as fuels within the control of 

the generator, we are not proposing to 

require facilities that combust nonhazardous secondary materials that have 

been processed into non-waste fuel/ 

ingredient products to notify EPA as 

part of this proposal. We believe this 

would be duplicative to the CAA 112 

regulatory notification and record 

keeping requirements being proposed 

for boilers and process heaters today. 

That proposal would require specific 

notifications from sources subject to the 

standards including notifications of 

compliance status, test results and 

descriptions of applicable air pollution 

control devices. In addition, for sources 

that have made a non-waste 

determination under 40 CFR 241.3, the 

proposal for boilers and process heaters 

requires that records be maintained 

which document how the fuel meets 

legitimacy criteria and the definition of 

processing as appropriate. However, we 

solicit comment on this and specifically 

request comment on whether the 

Agency should require, at least initially, 

if not on a periodic basis, notification 

and recordkeeping under RCRA by 

those persons who both generate or 

combust non-hazardous secondary 

materials that are not solid wastes, 

including documentation that explains 

or provides the basis for the nonhazardous secondary material meeting 

the legitimacy criteria, and thus, is not 

a solid waste. 

a. Proposed Definition of Processing. 

The proposed definition of processing 

means any operations that transform 

discarded non-hazardous secondary 

material into a new fuel or new 

ingredient product. Minimal operations, 

such as operations that result only in 

modifying the size of the material by 

shredding, do not constitute processing 

for purposes of this definition. 

Processing includes, but is not limited 

to, operations that: remove or destroy 

contaminants; significantly improve the 

fuel characteristics of the material, e.g., 

sizing or drying the material in 

combination with other operations; 

chemically improve the as-fired energy 

content; and improve the ingredient 

characteristics. While today’s rule 

proposes a definition of operations that 

constitute processing, the level of 

processing that is necessary to render a 

discarded non-hazardous secondary 

material into a non-waste product is 

dependent on the material. We note, 

however, that discarded non-hazardous 

secondary materials that are not 

processed or minimally processed (as 

discussed above i.e., processed in a 

manner that does not meet our 

definition of processing) would be 

considered a waste-derived fuel or 

ingredient, and thus a solid waste, no 

matter how legitimate their use is as a 

fuel or ingredient. In addition, nonhazardous secondary materials that are 

processed and used as fuels or 

ingredients in combustion units, but do 

not meet the legitimacy criteria, would 

be considered to be sham use and thus 

a solid waste. The Agency seeks 

comment on the proposed definition of 

processing, including whether such 

definition provides sufficient clarity 

that it can be implemented under the 

self-implementing provision in today’s 

proposed rule (this approach is 

discussed further in this section). 

b. Rationale for Processing Discarded 

Material Into Non-Waste Products. 

Today’s proposed rule identifies 

circumstances where materials that have 

been discarded in the first instance, and 

are thus solid wastes, can be rendered 

into new non-waste products through 

legitimate processing consistent with 

the definition outlined above. The basic 

principle that must be satisfied is that 

the discarded material must undergo 

sufficient processing that produces 

either a new fuel or ingredient product. 

The new product must have properties 

that provide the end user the assurance 

that the material consistently satisfies 

the fuel/ingredient product criteria 

based on the type of combustion unit 

the secondary material is used in (e.g., 

as a fuel in a boiler or as an ingredient 

in a cement kiln). 

The principle that products can be 

produced from a waste is common to 

industrial processes and commercial 

recycling markets. Newspaper and 

aluminum cans discarded by consumers 

are then collected, sorted and processed 

into new recycled paper and aluminum 

products that are not considered solid 

waste. Collected plastic is generally sent 

to a reclaimer, who will sort, grind, and 

clean the plastic. The cleaned and 

sorted plastic is sent to a manufacturer 

who will use it as feedstock. These are 

clear examples where discarded 

materials are processed into legitimate 

non-waste products. 

Recycled fuel products are no 

different from recycled paper and 

aluminum cans with respect to discard. 

If non-hazardous secondary materials 

that are discarded by being abandoned, 

disposed of or thrown away, but are 

later collected, segregated, and 

processed into a homogenous fuel 

product that is marketed and sold as a 

valuable commodity and are no 

different that traditional fuels used 

today, then they should no longer be 

considered solid waste, just as recycled 

paper is not a solid waste. 

There are other examples beyond 

consumer recycled materials where 

discarded materials are processed into 

new products. These examples include 

specific exclusions from the hazardous 

waste regulations, which provide 

insight into how secondary materials 

can be processed into valuable products. 

For instance, discarded spent solvents 

are commonly recycled via distillation 

into legitimate, newly usable solvents. 

These regenerated solvents are clearly 

considered to be products, not wastes. 

See 50 FR 634, January 4, 1985. Scrap 

metal that has been discarded is another 

example of a non-hazardous secondary 

material that is processed into a nonwaste. (EPA specifically exempted scrap 

metal that has been processed from the 

definition of solid waste (see 

261.4(a)(13).) For scrap metal to be 

considered ‘‘processed,’’ it must have 

been ‘‘manually or physically altered to 

either separate it into distinct materials 

to enhance the economic value or 

improve the handling of these materials. 

Processed scrap metal includes * * * 

scrap metal which has been baled, 

shredded, chopped, crushed, flattened, 

cut, melted, or separated by metal type 

(i.e. sorted) * * * ’’ (see 40 CFR 

261.1(c)(10)). We believe this is a good 

example of where the level of 

processing necessary to convert a waste 

material to a non-waste material is 

dependent on the material itself. 


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60Once 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. 

61As discussed previously, today’s proposal only 

addresses non-hazardous secondary materials that 

are used in combustion process, and not in other 

applications. 

62We note that most cement kilns use whole tires 

as fuels, as opposed to TDF chips, because their 

process does not require the TDF to be in the form 

of small chips to use it as a fuel, and does not 

require removal of the metal (since they use the 

metal as an ingredient). Under today’s proposal, 

cement kilns that burn whole tires would be subject 

to the CAA section 129 requirements, unless the 

tires were processed to produce TDF or a non-waste 

determination was issued by EPA regarding the 

burning of whole tires. 

63With regard to the legitimacy criteria discussed 

in Section VII.B.3, the heating value of scrap tires 

(12,000 Btu/lb to 16,000 Btu/lb) is the highest of all 

secondary materials, except used oil (17,800 Btu/ 

lb), and higher than typical coal values. 

Contaminants of potential concern have been 

measured for both materials: Mercury is below 

detectable levels for TDF, and average 0.11 ppm for 

coal; barium is also below detectable levels in TDF; 

cadmium, chromium, lead and manganese levels 

are comparable; zinc is present in higher 

concentrations in TDF than coal. 

Off-spec used oil is another example 

of a secondary material which we 

believe is discarded, but can be 

processed into a non-waste product (see 

section VII.C.5.d.). Once used oil is 

determined to be on-spec, we do not 

view it to be a solid waste since it is no 

longer regulated under the used oil 

management standards of 40 CFR part 

279 and can be managed as a traditional 

fuel.60

One of the difficulties the Agency 

faces with determining whether nonwaste fuels can be processed from 

discarded materials is that the 

combustion of materials is commonly 

associated with disposal, whether it is 

waste disposal in incinerators or waste 

disposal in energy recovery devices 

(e.g., municipal waste combustors that 

recover energy by producing electricity). 

Therefore, many equate the burning of 

any secondary material to discard, as 

some commenters have argued. This 

approach does not take into account that 

the secondary material has in fact been 

produced in a process that uses the 

discarded material as a feed stream to 

produce a safe fuel product that is a 

valuable commodity and sold in the 

marketplace no differently than 

traditional fuels. We view such an 

approach being a common sense 

interpretation of the statutory definition 

of solid waste under RCRA. Again, fuel 

produced from discarded nonhazardous secondary materials should 

not be considered solid waste just as 

recycled newspapers are not considered 

solid waste, since the material has been 

processed or ‘‘manufactured’’ into a new 

fuel product. The use of these energy 

containing secondary materials can be 

an effective substitute for traditional 

fuels. Such materials can provide 

economic efficiencies due to lower 

overall resource use, while still 

protecting human health and the 

environment. 

Another difficulty the Agency faces is 

the misconception that discarded 

material that is burned, either for 

destruction or energy recovery, by 

definition has high levels of 

contaminants. We do not believe this is 

the case for many of the non-hazardous 

secondary materials we are assessing. 

The manner in which the secondary 

material is managed is a key factor that 

determines discard (abandoned, 

disposed of, or thrown away); 

contaminant levels are part of that 

consideration, such that if a secondary 

material has high levels of 

contaminants, it would be considered 

sham recycling, which is one type of 

way a material can be ‘‘disposed of.’’ 

Clean materials can be discarded just 

like contaminated materials can. This, 

combined with the perception that 

combustion of secondary materials is 

equated to discard, results in the 

perception that there needs to be a very 

high threshold with respect to the level 

of processing that must take place to 

render a discarded material into a nonwaste product. We believe, however, 

that a strict, but appropriate level of 

processing is necessary which is 

reflected in the processing definition 

outlined in today’s proposed rule. We 

also note that in order for any secondary 

material to be considered a non-waste 

fuel, it must contain contaminants at 

levels that are comparable to traditional 

fuels in use today. 

To put this into context, we believe it 

would help to include examples of 

processing of discarded non-hazardous 

secondary materials—those which we 

believe are clearly adequate processing 

to render the material into a non-waste 

fuel or ingredient product in accordance 

with the definition of processing in 

§ 241.2 and those that do not. 

c. Examples of Adequate Processing 

Examples of non-hazardous secondary 

materials that have been discarded, but 

can be processed into a non-waste fuel 

or ingredient product include, but are 

not limited to, used tires, solid waste 

processed in gasifiers to produce 

synthesis gas, off-spec used oil 

(discussed above), sewage sludge 

processed into pellets, painted wood, 

and coal fines and biomasss processed 

into pellets with the impurities 

removed. Each of these are described in 

more detail below. 

Used Tires. EPA views used tire 

processers as facilities that take solid 

waste that can produce valuable nonwaste products. Used tires undergo 

various processing steps to meet certain 

specifications that are necessary for a 

particular end use, whether it be for use 

as TDF, or for use in other noncombustion applications, such as 

ground rubber applications (e.g., for use 

in sidewalks).61 Used tire processors 

typically enter into contracts with the 

end users of these tire derived products 

that specify that the processed tires 

meet certain specifications (i.e. size of 

tire pieces, wire content) to ensure the 

material consistently meets the needs of 

that particular end use. This is common 

for TDF. 

Used tires are often processed by 

shredding and removing dirt or other 

contaminants to produce TDF. 

Processing scrap tires into TDF can 

involve two physical processing steps: 

chipping/shredding (usually ranging in 

size from 1 to 4 inches) and (in some 

cases) metal removal, with the amount 

of metal in TDF varying depending on 

how much of the tires have been 

processed. For some units, such as 

cement kilns, metal in the wire can be 

used in the manufacturing process.62

However, most other units benefit from 

TDF that has been processed to 

minimize the amount of metal and 

improve heating efficiency. 

EPA considers used tires that have 

been shredded/chipped into TDF and 

with the metal belts or wire removed, to 

meet the definition of processing 

discussed above. Thus, used tires that 

have been shredded/chipped without 

the removal of the metal belts or wire 

would not be considered to have been 

sufficiently processed, and any TDF that 

is generated in such a fashion would be 

considered a waste-derived fuel. 

Removing the metal belts or wire will 

help reduce metal contaminants in the 

emissions and ash, and may improve 

the burning characteristics for some 

uses of the TDF. As is the case for all 

types of solid fuel, proper 

characterization of the size and 

composition of TDF are important 

factors that combustion unit operators 

assess to determine if TDF is a suitable 

fuel for their specific combustion unit 

design.63 For example, ASTM Standard 

6700–01, describes standard practices 

for using TDF as fuels, and also 

specifies sampling and analysis 

methods and procedures that apply to 

TDF that cover composition, and fuel 

characterization analyses. The standards 

also address the size of the tire pieces 


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31878 Federal Register / Vol. 75, No. 107 / Friday, June 4, 2010 / Proposed Rules 

64Evergreen Energy Company Web site. http:// 

www.evgenergy.com/k_fuel.php. 

and metal content in order to optimize 

combustion. The standards for metals 

range from wire free, to relatively wire 

free to no wire removed. To meet the 

processing definition for combusting 

scrap tires, those materials should have 

the metal belts or wire removed 

consistent with the ASTM standard for 

relatively wire free. However, as noted 

in footnote 62, certain types of 

combustion units, such as cement kilns 

also use the wire in the tire as an 

ingredient to producing cement clinker. 

Therefore, we are soliciting comment on 

whether to adopt an additional 

definition for processing that would not 

require the metal belts or wire to be 

removed for those combustion units, 

such as cement kilns where the metals 

serve a useful purpose in the process of 

making clinker. 

Syngas Produced from Gasification of 

Solid Waste. Although not specifically 

discussed in the ANPRM, synthesis gas 

(or syngas as it is commonly referred) 

produced from the gasification of solid 

waste is a material that can also meet 

the requirements of a fuel product 

produced from processing discarded 

non-hazardous secondary materials, 

provided the syngas has been 

adequately processed to remove 

contaminants. 

A variety of solid waste streams are 

available for conversion to energy, 

including conversion through 

gasification technologies. Gasification is 

a chemical production process that 

converts carbonaceous material into a 

synthesis gas that can be used for energy 

production (or as a building block for 

other chemical manufacturing 

processes). In general, gasification 

systems are designed to react carboncontaining materials and steam at high 

temperatures to produce a synthesis gas 

composed mainly of carbon monoxide 

and hydrogen. 

Gasification systems include two 

basic components. The first is the 

reactor or gasifier and the second is a 

gas cleanup or polishing system used to 

remove various contaminants from the 

raw (un-polished) synthesis gas. At a 

minimum, syngas cleanup generally 

includes removal of sulfur and metals. 

These two components work together 

producing a synthesis gas that can be 

used as a fuel in a combustion turbine. 

Other Non-Hazardous Secondary 

Materials That are Processed. Sewage 

sludge can be processed into fuel pellets 

by biosolid drying that destroys 

pathogens and bacteria. Specifically, 

raw sewage sludge is moved to digesters 

where microbes decompose the organic 

solids. The resulting biosludge is 

pressed with wide fabric belts into 

sheets and water is removed. This 

sludge cake is then baked in ‘‘tumbledrying’’ ovens that destroy the 

pathogens and bacteria, removing any 

remaining water, and rotate the sludge 

into the final pelletized product. 

Although we consider this to meet our 

definition of processing, the fuel pellets 

would still have to meet the legitimacy 

criteria to be considered a non-waste 

fuel. As discussed in section VII.C.5.f., 

we generally believe sewage sludge 

itself has contaminant levels that are 

higher than traditional fuels in use 

today, and thus would not satisfy the 

contaminant part of the legitimacy 

criteria. 

Wood with lead-based paint that is 

shaved to remove the lead-based paint 

is another example of processing a 

discarded non-hazardous secondary 

material to produce a legitimate 

product; in this case, the underlying 

wood can be used as a non-waste, 

traditional fuel, and the lead-based 

paint can be safely disposed of or sent 

for lead recovery. 

Coal fines, biomass, and other 

materials can be mixed and processed 

into pellets (or other forms) that have 

the consistency and handling 

characteristics of coal. For example, the 

K-Fuel process employs heat and 

pressure to transform coal into a 

cleaner, more efficient fuel by removing 

water and polluting impurities, thus 

increasing combustion efficiency. When 

applied to different lower-rank subbituminous and lignite coals, the 

K-Fuel process removes, on average, 

almost 70 percent of the coal’s 

elemental mercury.64

In the examples above, we view the 

non-hazardous secondary materials to 

have been sufficiently processed to 

produce a fuel product that would not 

be a solid waste if it met the legitimacy 

criteria specified in section VII.D.6; 

however, as noted previously, the nonhazardous secondary materials would 

be considered solid wastes prior to 

processing and would be subject to 

appropriate federal, state, and local 

requirements. 

d. Examples of Minimal Processing That 

Would Not Meet Proposed Definition of 

Processing. 

Sewage sludge, and other nonhazardous secondary materials that have 

a high moisture content can be 

dewatered to effectively increase the 

Btu/lb of the material prior to burning 

as a fuel. We do not consider 

dewatering, by itself, to meet our 

definition of adequate or sufficient 

processing. For example, dewatering 

sewage sludge would likely be required 

processing as part of normal waste 

management activities (e.g., prior to 

landfilling, or prior to burning the 

sludge for disposal in an incinerator). 

As such, we do not view this to be 

sufficient processing to convert 

discarded materials into non-waste fuel 

products. 

Whole tires that are, for example, 

removed from waste tire piles or 

collected and managed pursuant to state 

tire collection programs, that are 

marketed to cement kilns or other 

industrial furnaces and used as fuels 

absent processing into what we consider 

processed TDF would be another 

example of insufficient processing to 

produce a non-waste fuel. However, we 

are also requesting comment on whether 

discarded materials that have been 

collected and that otherwise have not 

been processed (as defined in this 

proposal), should not be considered 

solid wastes if they are 

indistinguishable in all relevant aspects 

from a product (again, of course they 

must be legitimate), and such whole 

tires are marketed to cement kilns or 

other industrial furnaces and are used as 

fuels. For example, if a discarded nonhazardous secondary material that has 

not been processed based on our 

proposed definition can be shown to be 

no different than other non-waste fuels 

in use today, could that secondary 

material be considered a non-waste fuel/ 

ingredient product even though it was 

discarded in the first instance? 

Commenters should provide the 

rationale supporting this approach. 

e. Alternative Approach for Addressing 

Non-Hazardous Secondary Materials 

That Are Processed Into Non-Waste 

Fuels or Ingredients 

As proposed, this particular provision 

is self-implementing, where each person 

would make the determination whether 

or not the non-hazardous secondary 

material has been ‘‘sufficiently 

processed’’ to produce a non-waste fuel 

or ingredient. The Agency believes that 

such an approach is appropriate 

considering the large number of nonhazardous secondary materials that are 

generated that may be processed into a 

non-waste fuel or ingredient. However, 

there is also the question of whether the 

definition of processing is sufficiently 

clear so that the regulated community 

can appropriately apply the definition. 

Therefore, the Agency is also 

considering and requests comment on 

whether this particular provision should 

be addressed through the non-waste 

determination process under § 241.3(c) 

(rather than as a self-implementing 

provision), such that the Agency would 


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65 40 CFR 260.20 allows any person to petition 

the Administrator of EPA to modify or revoke any 

provision of the hazardous waste rules. A similar 

‘‘general rulemaking authority’’ could also be 

promulgated under RCRA subtitle D. 

consider and evaluate each type of 

processing activity on a case-by-case 

basis and approve it before the 

processed fuel or ingredient would be 

considered a non-waste fuel or 

ingredient. We also request comment on 

whether the Agency should promulgate 

a general rulemaking provision, similar 

to 40 CFR 260.20,65 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 

non-waste fuel or ingredient. While 

such an approach would put a much 

greater burden on EPA, it would also 

provide greater certainty to the 

regulated community as to which nonhazardous secondary materials have 

been sufficiently processed to produce a 

non-waste fuel or ingredient. 

5. Non-Waste Determination Process 

This proposal would establish a nonwaste determination process that 

provides persons with an administrative 

process for receiving a formal 

determination from EPA that nonhazardous secondary material fuel that 

has not been managed within the 

control of the generator has not been 

discarded, and is indistinguishable in 

all relevant aspects from a fuel product, 

and thus, is not a solid waste when used 

as a fuel in a combustion unit. For 

example, a facility that is not affiliated 

with the generator of the non-hazardous 

secondary material fuel (and thus is 

‘‘outside the control of the generator’’) 

can petition EPA to determine that the 

secondary material they burn as fuel is 

not a solid waste because the material 

has not been discarded and is 

indistinguishable in all relevant aspects 

from a fuel. 

This proposed process would be 

voluntary. The non-waste determination 

process would require the petitioner to 

request such a case-specific non-waste 

determination from EPA. Any petition 

that is submitted to EPA that requests 

that the non-hazardous secondary 

material be considered a non-waste fuel 

would need to demonstrate that the 

material has not been discarded in the 

first instance, as well as describe how 

the non-hazardous secondary material 

satisfies the five proposed criteria 

outlined in § 241.3(c). 

To demonstrate that the nonhazardous secondary material used a 

fuel has not been discarded in the first 

instance, the petitioner would need to 

demonstrate that the non-hazardous 

secondary material was not initially 

abandoned or thrown away by the 

generator of the material. It may not 

always be clear whether secondary 

materials would be considered to be 

discarded in the first instance. For 

example, secondary material retrieved 

from a landfill or tires retrieved from 

waste tire piles would be considered 

materials that are discarded in the first 

instance. We may not, however, 

consider used tires collected from tire 

dealerships and managed pursuant to 

state tire collection programs to be 

discarded in the first instance, 

depending on how they are managed. 

After demonstrating that the material 

has not been discarded in the first 

instance, the petitioner must then 

demonstrate that the material is 

indistinguishable in all relevant aspects 

from a fuel product by showing that it 

satisfies the following five criteria: (1) 

Whether market participants handle the 

non-hazardous secondary material as a 

fuel rather than a waste; (2) whether the 

chemical and physical identify of the 

non-hazardous secondary material is 

comparable to a commercial fuel; (3) 

whether the capacity of the market 

would use the non-hazardous secondary 

material in a reasonable timeframe; (4) 

whether the constituents in the nonhazardous secondary material are 

released to the air, water or land from 

the point of generation to the 

combustion of the secondary material at 

levels comparable to what would 

otherwise be released from traditional 

fuels; and (5) other relevant factors. 

Specifically, the first criterion for a 

non-waste determination is whether 

market participants handle the nonhazardous secondary material as a fuel 

rather than a solid waste. This would 

include consideration of likely markets 

for the non-hazardous secondary 

materials used as fuels (e.g., based on 

the current positive value of the 

secondary material, stability of demand, 

and any contractual arrangements). This 

evaluation of market participation is a 

key from a fuel products standpoint 

rather than as negatively-valued wastes. 

The second criterion for a non-waste 

determination is the chemical and 

physical identity of the non-hazardous 

secondary material and whether it is 

comparable to commercial fuels. This 

‘‘identity principle’’ is a key factor that 

the Court of Appeals for the DC Circuit 

cited in Safe Foods in determining 

whether a material is indistinguishable 

from a product. It is important to note 

that the identity of a material can be 

comparable to a fuel product without 

being identical. However, to qualify for 

a non-waste determination, any 

differences between the non-hazardous 

secondary material in question and the 

commercial fuel should not be 

significant from a health and 

environmental risk perspective. 

The third criterion for making a nonwaste determination is the capacity of 

the market to use the non-hazardous 

secondary material as a fuel in 

combustion units in a reasonable time 

frame and ensure that it will not be 

abandoned. For the non-waste 

determination, a person will need to 

provide sufficient information about the 

non-hazardous secondary material and 

the market demand for it to demonstrate 

that such non-hazardous secondary 

materials will in fact be 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 non-hazardous 

secondary material and industry 

involved, and therefore determining this 

time frame should be made on a casespecific basis. However, the Agency 

solicits comments on whether it should 

propose a specific timeframe as part of 

this criterion. 

The fourth criterion for a non-waste 

determination is whether the 

constituents in the non-hazardous 

secondary material fuels are released to 

the air, water, or land water at 

concentrations comparable to what 

would otherwise be released from 

traditional fuels. The process that the 

Agency would be considering would 

encompass the point of generation of the 

material, management and storage prior 

to use through combustion and the end 

use of the secondary material. The 

Agency believes that to the extent the 

constituents are an extension of the 

original secondary material, their 

release to the environment is a possible 

indicator of risk and discard. The 

Agency recognizes that combustion 

using traditional fuels also result in a 

certain level of release and, in 

evaluating this criterion, would not 

deny a non-waste determination if the 

increase in release is not significant 

from either a statistical or a health and 

environmental risk perspective. 

However, when relatively high levels of 

the constituents in the non-hazardous 

secondary material are released to the 

environment in looking from the point 

of generation of the secondary material 

to its combustion, then that may be an 

indication that the non-hazardous 

secondary material is not being handled 

as a commercial fuel. 

The fifth and final criterion for a nonwaste determination includes any other 

relevant factors that demonstrate that 

the non-hazardous secondary material is 


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31880 Federal Register / Vol. 75, No. 107 / Friday, June 4, 2010 / Proposed Rules 

66We note, however, that non-hazardous 

secondary materials that satisfy the legitimacy 

criteria would still be considered a solid waste if 

they were discarded (abandoned, disposed of, or 

thrown away), unless they were processed into 

legitimate non-waste fuel products. 

not a solid waste. This catch-all 

criterion is intended to allow the person 

to provide any case-specific information 

considered important and relevant in 

making the case that its non-hazardous 

secondary material used as a fuel in a 

combustion unit is not a solid waste. 

Any non-hazardous secondary 

material used as a fuel must also satisfy 

our proposed legitimacy criteria in order 

to be considered a non-waste fuel. In 

order for a non-waste determination to 

be granted, the applicant must also 

therefore show that the material satisfies 

the proposed legitimacy criteria. We 

note that there is overlap between the 

legitimacy criteria and the five petition 

criteria discussed above. Thus, the same 

rationale used to demonstrate that the 

non-hazardous secondary material 

contains contaminants at levels 

comparable to traditional fuels in 

combination with the argument that 

such secondary material contains 

meaningful heating value can be used to 

satisfy petition criterion number 2 

above. Similarly, the rationale used to 

demonstrate that the secondary material 

contains contaminants at levels 

comparable to traditional fuels can be 

used as the rationale for petition 

criterion number 4 above. 

Non-Waste Determination Process. 

EPA is proposing that the process for 

the non-waste determination be similar 

to that for the solid waste variances 

found in § 260.33, except that such 

requests can only be addressed by EPA. 

In order to obtain a non-waste 

determination, a facility that manages 

non-hazardous secondary materials that 

would otherwise be regulated must 

apply to the Regional Administrator per 

the procedures described in proposed 

§ 241.3(c). The application must address 

the relevant criteria discussed above. 

The Regional Administrator for the EPA 

Region where the facility combusting 

the material will evaluate the 

application and issue a draft notice 

tentatively granting or denying the 

application. Notification of this 

tentative decision will be provided by 

newspaper advertisement or radio 

broadcast in the locality where the 

recycler is located. The Regional 

Administrator will accept comment on 

the tentative decision for at least 30 

days, and may also hold a public 

hearing upon request or at his 

discretion. The Regional Administrator 

will issue a final decision after receipt 

of comments and after the hearing (if 

any). 

The Agency recognizes that many 

states have programs in place to make 

such determinations under state statute, 

and EPA would support the states to 

also make such determinations—that is, 

allow the states to act on behalf of EPA 

in making such case-specific 

determinations. Therefore, we are 

specifically soliciting comment as to 

whether the Agency can (and if so) 

should allow a state, for example, under 

a state’s beneficial use program, to also 

make case-specific determinations 

without EPA’s approval. We note that 

under the Revisions to the Definition of 

Solid Waste Rule (70 FR 64668), a nonwaste determination may be granted by 

the state if the state is either authorized 

for this provision or if the following 

conditions are met: (1) The state 

determines the hazardous secondary 

material meets the applicable criteria for 

the non-waste determination; (2) the 

state requests that EPA review its 

determination; and (3) EPA approves 

the state determination. Should EPA 

allow this type of non-waste 

determination process in determining 

whether or not such non-hazardous 

secondary material is or is not a solid 

waste? 

We note that states may submit these 

determinations on behalf of the 

petitioner for EPA to evaluate under the 

proposed non-waste determination 

criteria in proposed § 241.3(c)(1). If EPA 

determines through the petition process 

that the secondary material in the state 

determinations are not solid waste, then 

they would not be subject to the CAA 

section 129 standards, but instead 

would be subject to the CAA section 112 

standards. Conversely, EPA may make a 

non-waste determination for nonhazardous secondary materials under 

the Federal regulations that still remains 

subject to the state solid waste 

regulations. 

After a formal non-waste 

determination has been granted, if a 

change occurs that affects how a nonhazardous secondary material meets the 

relevant criteria contained in proposed 

§ 241.3(c)(1), persons must re-apply to 

the Regional Administrator for a formal 

determination that the non-hazardous 

secondary material continues to meet 

the relevant criteria and is not discarded 

and therefore, not a solid waste. 

6. Legitimacy Criteria 

a. Legitimacy Criteria for Fuels. This 

notice is proposing that non-hazardous 

secondary materials used as fuels in 

combustion units must meet the 

legitimacy criteria specified in proposed 

§ 241.3(d)(1) in order to be considered a 

non-waste fuel.66 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 contain contaminants at 

levels comparable to those in traditional 

fuels which the combustion unit is 

designed to burn. These criteria are 

discussed below. 

Manage as a Valuable Commodity. 

We are proposing to require that nonhazardous secondary materials used as 

fuels be managed as valuable 

commodities, including being stored for 

a reasonable timeframe. See proposed 

241.3(d)(1)(i). Where there is an 

analogous fuel, the secondary material 

used as a fuel must be managed in a 

manner consistent with the management 

of the analogous fuel or otherwise be 

adequately contained so as to prevent 

releases to the environment. Where 

there is no analogous fuel, the 

secondary material must be adequately 

contained so as to prevent releases to 

the environment. An ‘‘analogous fuel’’ is 

a traditional fuel for which the nonhazardous secondary material 

substitutes and which serves the same 

function and has similar physical and 

chemical properties as the nonhazardous secondary material. 

With respect to how long a nonhazardous secondary material can be 

stored before the material is not 

considered to be ‘‘managed as a valuable 

commodity,’’ we are not specifying a 

specific timeframe, but requiring that 

the non-hazardous secondary material 

be stored for a reasonable timeframe. 

EPA is not proposing to specifically 

define ‘‘reasonable timeframe’’ because 

such timeframes could vary according to 

the non-hazardous secondary material 

and industry involved. On the other 

hand, the Agency also recognizes that 

with this flexibility, also comes the 

potential for non-hazardous secondary 

materials to be over-accumulated, which 

has been demonstrated to be a problem 

with hazardous secondary materials. It 

also could raise questions from an 

implementation standpoint since the 

question of ‘‘reasonable timeframe’’ may 

differ depending on each person’s 

perspective. Thus, while we think that 

‘‘reasonable timeframe’’ is an 

appropriate standard, considering the 

large number of non-hazardous 

materials that may be subject to this 

rule, and is flexible enough to allow 

accumulation to be cost-effective, the 

Agency solicits comment on whether it 

should define a specific timeframe or 

range of timeframes as part of this 

criterion. For example, one approach is 

to adopt the speculative accumulation 

provision (see 40 CFR 261.1(c)(8)) that 


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67Examples of materials that are adequately 

contained would include liquid fuels stored in a 

tank. Examples of other hazards include tire fires 

resulting from improper storage of scrap tires (see 

section VII.D.2.). 68See October 30, 2008; 73 FR 64681. 

69We note that incinerators that burn waste for 

purposes of destruction that have a waste heat 

recovery boiler would not be considered a 

combustion unit that satisfies this legitimacy 

criterion. 

is defined in the hazardous waste 

regulations for determining how much 

secondary material must be recycled 

within a specific timeframe before the 

material is considered to have been 

discarded. Another approach would be 

for the Agency to determine how long 

fuels are generally held before they are 

used, and adopt such a standard. To this 

end, the Agency specifically solicits 

comment on the time period or range of 

time periods that fossil fuels are 

typically held before they are used as a 

fuel. 

We are proposing that this legitimacy 

factor apply to both the nonhazardous 

secondary materials burned under the 

generator-controlled exclusion, as well 

as to materials that have been processed 

into a product fuel. For the generatorcontrolled provision, the non-hazardous 

secondary material must be managed as 

a valuable commodity upon generation 

through its end use as a fuel—that is, 

from the initial point of generation of 

the non-hazardous secondary material 

to the time it is actually burned as a fuel 

either on-site or at another facility that 

is under the control of the generator. For 

non-hazardous secondary materials that 

are processed to produce a fuel product, 

the processed material must be managed 

as a valuable product from the point 

that it is first produced through its end 

use. As noted previously, before the fuel 

product is produced, the non-hazardous 

secondary materials are solid wastes, 

and must comply with any federal, 

state, or local requirements. 

This criterion requires that the nonhazardous secondary material be 

managed appropriately before its end 

use as a fuel. In EPA’s view, a company 

will value non-hazardous secondary 

materials used as fuels that provide an 

important contribution and, therefore, 

will manage those secondary materials 

in a manner consistent with how it 

manages traditional fuels. If, on the 

other hand, a company does not manage 

the non-hazardous secondary material 

as it would a traditional fuel, that 

behavior may indicate that the nonhazardous secondary material is being 

discarded. 

This factor addresses the management 

of non-hazardous secondary materials 

used as fuels in two distinct situations. 

The first situation is when the nonhazardous 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. For 

example, for liquid non-hazardous 

secondary materials that are used as a 

fuel that are similar to liquid fossil 

fuels, the Agency would expect that 

such non-hazardous secondary 

materials would be managed in tanks or 

similar type devices to control the 

release of the secondary materials. The 

Agency would also expect that the types 

of controls that would typically be part 

of a tank or similar type device for fossil 

fuels would also be part of any tank 

system that is used to manage nonhazardous secondary material. The 

second situation the factor addresses is 

the case where there is no analogous 

traditional fuel that otherwise could be 

burned. This could be either because the 

process is designed around a particular 

non-hazardous secondary material fuel, 

or because physical or chemical 

differences between the secondary 

material and the traditional fuel are too 

significant for them to be considered 

‘‘analogous.’’ 

Non-hazardous secondary materials 

that have significantly different physical 

or chemical properties when compared 

to traditional fuels would not be 

considered analogous even if they serve 

the same function because it may not be 

appropriate to manage them in the same 

way. In this situation, the nonhazardous 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 both adequately prevents releases 

or other hazards to human health and 

the environment, considering the nature 

and toxicity of the secondary material.67

We note that this definition of 

‘‘contained’’ differs slightly from the 

description used in the DSW final rule 

preamble, which defined ‘‘contained’’ to 

mean placing the material in a unit that 

controls the movement of that material 

out of the unit.68 We believe this 

slightly revised definition is appropriate 

because of the wide range of nonhazardous secondary materials that are 

used as fuels, some of which may not 

need to be ‘‘contained’’ in a dedicated 

storage unit. However, the Agency 

solicits comment on this aspect of this 

criterion, including whether a 

‘‘contained’’ standard, which is a general 

performance standard, provides 

sufficient direction to the regulated 

community. Other approaches that EPA 

is considering is whether to provide a 

more specific definition of ‘‘contained’’ 

in the rules, or whether the Agency 

should include specific technical 

standards or limit the types of units that 

such non-hazardous secondary 

materials may be managed, in order for 

them to be considered to be ‘‘managed 

as a valuable commodity.’’ 

The definition of legitimacy in the 

DSW final rule required that this factor 

be considered, but not necessarily met. 

Under that rule, the Agency was aware 

of situations in which the contained 

factor is not met, but the secondary 

material is still being managed as a 

valuable commodity. One example 

given was a hazardous secondary 

material that is a powder-like material 

that is shipped in a woven super sack 

and stored in an indoor containment 

area that has an analogous raw material 

that is shipped and stored in drums. A 

strict reading of this factor may 

determine that the hazardous secondary 

material is not being managed in a 

manner consistent with the analogous 

secondary material even if the 

differences in management are not 

actually impacting the likelihood of a 

release. 

This proposal includes a requirement 

for analogous raw materials to ‘‘* * * be 

managed in a manner consistent with 

the analogous fuel or otherwise be 

adequately contained to prevent releases 

to the environment’’ (§ 241.3(d)(1)(i)(B)). 

This is similar to the DSW final rule 

provision, but is also different in that 

the requirement in today’s proposal has 

to be met (not just considered). Thus, 

today’s proposal would require that this 

factor be met (not optional) because we 

believe that in all situations where the 

factors in § 241.3(d)(1)(i) are not met, 

the material would be discarded. 

Meaningful Heating Value and Use as 

a Fuel. We are proposing that nonhazardous secondary materials have a 

meaningful heating value and be used as 

a fuel in a combustion unit that recovers 

energy. See proposed § 241.3(d)(1)(ii). 

We are proposing the requirement for 

the non-hazardous secondary material 

to be used as a fuel in a combustion unit 

that recovers energy for two reasons. 

First, we want to be clear that nonhazardous secondary materials having a 

meaningful heating value, but that are 

not burned in a combustion device 

specifically for energy recovery (e.g., are 

burned in an incinerator) are solid 

wastes.69 We recognize that incinerators 

and similar type units may accept nonhazardous secondary materials with a 

meaningful heating value and use that 


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fuel value to limit the other types of 

fuels it needs to burn. However, the 

intent of an incinerator, and similar type 

units, is to destroy wastes, and thus, 

such non-hazardous secondary 

materials that are burned in such units 

are considered discarded, and thus a 

solid waste. Second, since these 

provisions are intended to apply only to 

non-hazardous secondary materials that 

have a specific end use (in this case, use 

as a fuel in an energy recovery device), 

we believe it appropriate to highlight 

that point by adding that restriction 

directly to this legitimacy criteria. 

With respect to the requirement that 

the non-hazardous secondary material 

have a meaningful heating value, in the 

context of the hazardous waste 

regulations, EPA addressed this 

concept—that is, whether a hazardous 

secondary material has an adequate, 

meaningful heating value, in the socalled ‘‘comparable fuels’’ rule (63 FR 

33781) by defining it with a benchmark 

Btu content of 5,000 Btu/lb. EPA has 

also previously stated that industrial 

furnaces (i.e., cement kilns and 

industrial boilers) burning hazardous 

wastes with an energy value greater than 

5,000 Btu/lb may generally be said to be 

burning for energy recovery; however, 

we have also indicated that hazardous 

wastes with a lower Btu content could 

conceivably be burned for energy 

recovery due to the devices’ general 

efficiency of combustion. ‘‘Thus, the 

5,000 Btu level is not an absolute 

measure of burning for energy recovery 

***’’ (see 62 FR 24251, May 2, 1997). 

We believe these same concepts may 

also be appropriate in 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 costeffectively produce energy from 

secondary materials with lower energy 

content. As a result, for purposes of 

meeting the legitimacy criteria for fuels, 

we would consider non-hazardous 

secondary materials with an energy 

value greater than 5,000 Btu/lb, as-fired, 

to have a meaningful heating value, and 

satisfy this legitimacy criterion. For 

facilities with energy recovery units that 

use non-hazardous secondary materials 

as fuels with an energy content lower 

than 5,000 Btu/lb, as fired, it may also 

be appropriate to allow a person to 

demonstrate that a meaningful heating 

value is derived from the non-hazardous 

secondary material if the energy 

recovery unit can cost-effectively 

recover meaningful energy from the 

non-hazardous secondary materials 

used as fuels. Factors that may be 

important in determining whether an 

energy recovery unit can cost-effectively 

recover energy from the non-hazardous 

secondary material include, but are not 

limited to, whether the facility 

encounters a cost savings due to not 

having to purchase significant amounts 

of traditional fuels they otherwise 

would need, whether they are 

purchasing the non-hazardous 

secondary material to use as a fuel, 

whether the secondary material they are 

burning can self-sustain combustion, 

and whether their operation produces 

energy that is sold for a profit (e.g., a 

utility boiler that is dedicated to 

burning a specific type of nonhazardous secondary material that is 

below 5,000 Btu/lb could show that 

their operation produces electricity that 

is sold for a profit). 

However, the Agency requests 

comment on whether it should 

promulgate a bright-line test for 

determining what is considered a 

meaningful heating value in an effort to 

provide greater certainty to both the 

regulated community and regulatory 

officials. For example, the Agency could 

establish 5,000 Btu/lb or some other 

value as the bright-line test. 

Commenters that suggest that the 

Agency establish a bright-line test 

should indicate what value the Agency 

should select, as well as the basis or 

rationale for selecting that value. We 

also request comment on whether we 

should identify a Btu/lb cutoff below 

which the Agency would assume that 

the non-hazardous secondary material is 

burned for destruction as opposed to 

energy recovery. Under this approach, 

non-hazardous secondary materials 

between this lower level and 5,000 Btu/ 

lb (assuming there is a difference) could 

pass this criterion provided the facility 

demonstrates the energy recovery unit 

can cost-effectively recover meaningful 

energy from the non-hazardous 

secondary materials used as fuels. 

EPA views this proposed legitimacy 

criterion to encompass the useful 

contribution and valuable product 

legitimacy factors used to evaluate 

hazardous secondary materials in the 

DSW final rule. In that rule, with 

respect to useful contribution, EPA said 

that legitimate recycling must involve a 

hazardous secondary material that 

provides a useful contribution to the 

recycling process or to a product of the 

recycling process. See § 260.43(b)(1). 

This factor expresses the principle that 

the non-hazardous secondary materials 

should contribute value to the 

manufacturing process—legitimate use 

is not occurring if the secondary 

materials being used do not add 

anything to the process. This factor is 

intended to prevent the practice of using 

secondary materials in a manufacturing 

operation simply as a means of 

disposing or discarding them. We 

believe that non-hazardous secondary 

materials that are used as a fuel in a 

combustion unit that have meaningful 

heating value provide a useful 

contribution. 

With respect to the other mandatory 

legitimacy factor, the DSW final rule 

stated the recycling process must 

produce a valuable product or 

intermediate. The product or 

intermediate is valuable if it is (i) sold 

to a third party or (ii) used by the 

recycler or the generator as an effective 

substitute for a commercial product or 

as an ingredient or intermediate in an 

industrial process.’’ See § 260.43(b)(2). 

This factor expresses the principle that 

the secondary material should be a 

material of value, as demonstrated by 

someone purchasing the material, or 

using it as an effective substitute for a 

commercial product that it would 

otherwise have to buy or obtain for its 

industrial process. We believe nonhazardous secondary materials that have 

meaningful heating value that are used 

as fuels in combustion units are 

valuable products since they would be 

replacing traditional fuels that 

otherwise would have to be burned. 

Contaminant Levels. We are 

proposing a legitimacy criterion under 

which non-hazardous secondary 

materials used as fuels in combustion 

units must contain contaminants at 

levels that are comparable to those in 

traditional fuel products which the 

combustion unit is designed to burn 

(e.g., cellulosic biomass, fossil fuels and 

their derivatives, as identified elsewhere 

in this preamble). See proposed 

§ 241.3(d)(1)(iii). This criterion is 

important to ensure that a nonhazardous secondary material being 

used as a fuel is not being combusted or 

otherwise released to the environment 

wholly or in part for the purpose of 

disposing of or discarding of unwanted 

materials. Combustion of non-hazardous 

secondary material with elevated levels 

of contaminants results in the 

contaminants being discarded either 

through incineration, or by being 

released to the environment. We also 

believe that requiring that the secondary 

material have contaminants at levels 

comparable to traditional fuels would 

ensure that the burning of any 

secondary materials in combustion units 

will not have increased releases to the 

environment that could impact the 

health and environment of the local 

community. Thus, ensuring that the 

level of contaminants in the nonVerDate Mar<15>2010 15:08 Jun 03, 2010 Jkt 220001 PO 00000 Frm 00040 Fmt 4701 Sfmt 4702 E:\FR\FM\04JNP2.SGM 04JNP2

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70See 40 CFR 261.38 as an example of maximum 

contaminant levels EPA has promulgated to 

determine whether a material is a comparable fuel 

for purposes of EPA’s subtitle C hazardous waste 

regulations. 

hazardous secondary material is 

comparable would be the most 

protective of human health and the 

environment. 

We are proposing to define the term 

‘‘contaminants’’ to mean the HAP listed 

under CAA section 112(b), as well as the 

nine pollutants required to be regulated 

under CAA section 129. We believe this 

is reasonable because this legitimacy 

criterion is intended to ensure that 

materials are not being combusted as a 

means of disposing of them, so the 

health and environmental impacts of 

concern will be those resulting from air 

emissions, and the air emissions of 

concern identified in the CAA include 

the listed HAP, as well as the section 

129 pollutants. However, the Agency 

solicits comment on whether the list of 

contaminants should be narrower or 

broader, or whether the Agency should 

look at other possible lists. In particular, 

since the Agency is determining which 

non-hazardous secondary materials are 

considered solid waste under RCRA, the 

Agency could consider the list of 

hazardous constituents promulgated in 

Appendix VIII of part 261, which is a 

list of hazardous constituents that have 

been shown in scientific studies to have 

toxic, carcinogenic, mutagenic or 

teratogenic effects on humans and other 

life forms. 

In determining which traditional 

fuel(s) the owner or operator of the 

boiler unit would make a comparison 

with respect to contaminant levels, the 

Agency is proposing to allow any 

traditional fuel(s) that can be or is 

burned in the particular type of boiler. 

For example, if the boiler burns fuel oil, 

the level of contaminants to be 

compared would be the level of 

contaminants in fuel oil or other liquid 

traditional fuels that is or can be burned 

in such unit, while for gas-fired boilers, 

the level of contaminants in the nonhazardous secondary material fuels 

would be compared to natural gas. The 

Agency believes that this approach is 

most appropriate since the nonhazardous secondary material would be 

replacing the use of a particular type(s) 

of fuel. In addition, as discussed in the 

preamble to the proposed boiler MACT, 

boilers designed to combust different 

types of fuels (e.g., coal vs. oil) cannot 

easily be modified to burn another fuel. 

Therefore it would not be appropriate to 

compare the contaminants in a 

secondary material that is to be 

combusted in a boiler designed to burn 

oil to the contaminant levels of coal. 

EPA is not proposing to establish 

specific numerical maximum 

contaminant levels that a non-hazardous 

secondary material would have to meet, 

but rather the proposal allows the owner 

or operator to make the comparison 

based on information he has or can 

acquire regarding the level of 

contaminants found in traditional fuels 

he burns. However, the Agency solicits 

comment on whether it would be more 

appropriate for the Agency to establish 

bright-line levels of various 

contaminants in the various traditional 

fuels or a single set of contaminant 

levels that would apply regardless of the 

type of traditional fuel that is burned (as 

EPA promulgated in the hazardous 

waste Comparable Fuel Rule 70) so that 

the regulated community would have 

certainty as to whether a particular nonhazardous secondary material met this 

legitimacy criterion. 

The assessment of whether the nonhazardous secondary material has 

contaminants comparable to traditional 

fuel products is to be made by directly 

comparing the numerical contaminant 

levels in the non-hazardous secondary 

material to the contaminant levels in 

traditional fuels. In making this 

comparison, the Agency solicits 

comment on whether the comparison 

should be based upon the total level of 

contaminants, or on the level of 

contaminants per Btu of heat value. In 

either case, we believe that a direct 

numerical comparison is necessary 

since the level of contaminants must be 

comparable to the level of contaminants 

in traditional fuels. The Agency also 

solicits comments on how EPA should 

interpret ‘‘comparable.’’ For example, 

should comparable mean the same as or 

lower, taking into consideration natural 

variations in sampling events? 

The Agency recognizes that there may 

be instances where the contaminant 

levels in non-hazardous secondary 

materials may be somewhat higher than 

found in traditional fuels, but the 

resulting air pollutant emissions would 

be inconsequential in terms of risks to 

human health and the environment in 

relation to the burning of traditional fuel 

products and thus possibly not 

indicative of discard. Therefore, the 

Agency requests comment on whether, 

instead of requiring that contaminant 

levels in non-hazardous secondary 

materials be comparable to traditional 

fuels, the Agency should adopt a 

criterion under which contaminants in 

non-hazardous secondary material used 

as a fuel in combustion units could not 

be significantly higher in concentration 

than contaminants in traditional fuel 

products. Under such an approach, the 

Agency believes that a qualitative 

approach would be appropriate in 

determining whether such secondary 

materials contain ‘‘significantly higher 

concentrations of contaminants’’ 

compared to traditional fuels. That is, a 

contaminant concentration could be 

elevated without indicating the 

secondary material is discarded and 

without posing an unacceptable risk, 

and therefore, may not be considered 

‘‘significantly higher’’ for the purposes of 

determining whether the non-hazardous 

secondary material is legitimately being 

burned as a fuel in a combustion unit. 

The proposed rule contemplates that 

this legitimacy criterion must be met, 

rather than merely considered. The 

proposed legitimacy criterion is tailored 

specifically to the use of these nonhazardous secondary materials as fuels 

in combustion units. As a result, we 

believe that contaminant levels in 

secondary materials must be comparable 

to be legitimately used as a non-waste 

fuel product. We are therefore proposing 

that this legitimacy criterion be a 

requirement for the secondary material 

to be considered a legitimate fuel. 

Since these requirements are self 

implementing in nature (i.e., they do not 

need up front approval from the 

regulatory agency), facilities may choose 

to keep supporting documentation onsite in the event they are inspected by 

regulatory officials. EPA is not 

proposing to require that such 

documentation be maintained, since the 

proposed definition of non-hazardous 

solid waste is intended to be selfimplementing. However, the Agency 

solicits comment on whether we should 

require owners and operators of 

combustion units to prepare and 

maintain documentation that this 

particular legitimacy criterion has been 

met. 

b. Legitimacy Criteria for Ingredients. 

Today’s notice is proposing that nonhazardous secondary materials used as 

ingredients in combustion units meet 

the legitimacy criteria specified in 

proposed 40 CFR 241.3(d)(2). An 

ingredient used in a combustion unit 

must be managed as a valuable 

commodity, provide a useful 

contribution, be used to produce a 

valuable product or intermediate, and 

must result in products that contain 

contaminants at levels that are 

comparable in concentration to those 

found in traditional products that are 

manufactured without the nonhazardous secondary material. These 

criteria are discussed below. 

Managed as Valuable Commodities. 

We are proposing to require that nonhazardous secondary materials used as 

ingredients in combustion units be 

managed as valuable commodities and 


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be stored for a reasonable timeframe. 

See proposed 241.3(d)(2)(i). Where there 

is an analogous ingredient, the nonhazardous secondary material used as 

an ingredient must be managed in a 

manner consistent with the management 

of the analogous ingredient, or 

otherwise be adequately contained so as 

to prevent releases to the environment. 

Where there is no analogous ingredient, 

the non-hazardous secondary material 

must be adequately contained so as to 

prevent releases to the environment. An 

‘‘analogous ingredient,’’ is a 

manufacturing process ingredient for 

which the secondary material 

substitutes and which serves the same 

function and has similar physical and 

chemical properties as the nonhazardous secondary material. 

We are proposing the same storage 

time and containment requirements that 

were discussed earlier for the legitimacy 

criteria for fuels, and are also proposing 

that this criterion be met. Consistent 

with the legitimacy criteria for fuels, 

this criterion addresses the management 

of non-hazardous secondary materials 

used as ingredients in two distinct 

situations. The first situation is when 

the non-hazardous secondary material is 

analogous to an ingredient that 

otherwise would be used in the 

production process. In this case, the 

non-hazardous secondary material 

should be managed prior to use as an 

ingredient similarly to the way 

analogous ingredients are managed in 

the course of normal manufacturing, or 

otherwise be adequately contained. 

The second situation this criterion 

addresses is the case where there is no 

analogous ingredient that otherwise 

would be used in the production 

process. This could be either because 

the process is designed around a 

particular non-hazardous secondary 

material, or because physical or 

chemical differences between the nonhazardous secondary material and the 

ingredient are too significant for them to 

be considered ‘‘analogous.’’ See 

Managed as a Valuable Commodity 

under the legitimacy criteria for fuels for 

additional discussion of this criterion, 

as well as the specific issues on which 

EPA is soliciting comment. That is, to 

the extent that changes are made to this 

criterion with respect to those nonhazardous secondary materials that are 

used as fuels, we would likewise make 

the same changes with respect to those 

non-hazardous secondary materials 

used as an ingredient, unless comments 

are submitted which explain, and 

provide appropriate data and 

information, on why this criterion 

should be different between those nonhazardous secondary materials that are 

used as a fuel and those that are used 

as ingredients. 

Useful Contribution. We are 

proposing that the non-hazardous 

secondary materials used as ingredients 

in combustion units provide a useful 

contribution to the production/ 

manufacturing process. See proposed 

241.3(d)(2)(ii). A non-hazardous 

secondary material used as an 

ingredient in combustion systems 

provides a useful contribution if it 

contributes valuable ingredients to the 

production/manufacturing process or to 

the product or intermediate of the 

production/manufacturing process. This 

criterion is an essential element in the 

determination of legitimate use as an 

ingredient because legitimate use is not 

occurring if the non-hazardous 

secondary materials being added do not 

add anything to the process. This 

criterion is intended to prevent the 

practice of adding non-hazardous 

secondary materials to a manufacturing 

operation simply as a means of 

disposing of them, which EPA would 

consider sham recycling. 

The ANPRM listed five ways in which 

a non-hazardous secondary material can 

add value and usefully contribute to a 

recycling process: (i) The secondary 

material contributes valuable 

ingredients to a product or intermediate; 

or (ii) replaces a catalyst or carrier in the 

recycling process; or (iii) is the source 

of a valuable constituent recovered in 

the recycling process; or (iv) is 

recovered or regenerated by the 

recycling process; or (v) is used as an 

effective substitute for a commercial 

product. Since today’s proposal 

addresses non-hazardous secondary 

materials that are used as ingredients in 

combustion units, we believe that only 

items (i) and (v) are specifically relevant 

to our assessment of whether these nonhazardous secondary materials provide 

a useful contribution in combustion 

scenarios. We request comment, 

however, on whether this is correct, or 

whether the secondary materials we are 

assessing as ingredients can provide 

useful contribution in other ways. 

For purposes of satisfying this 

proposed criterion, not every 

constituent or component of the nonhazardous secondary material has to 

make a contribution to the production/ 

manufacturing activity. That is, nonhazardous secondary materials used as 

ingredients may contain some 

constituents that are needed in the 

manufacturing process, such as, for 

example, zinc in non-hazardous 

secondary materials that are used to 

produce zinc-containing micronutrient 

fertilizers, and satisfy this criterion 

(although we would also note that the 

constituents not directly contributing to 

the manufacturing process could still 

result in the material failing the 

contaminant part of the legitimacy 

criteria). The Agency is not defining 

quantitatively how much of the nonhazardous secondary material needs to 

provide a useful contribution for this 

criterion to be met, since we believe that 

defining such a level would be difficult 

and is likely to be different, depending 

on the non-hazardous secondary 

material. The Agency recognizes, 

however, that this could be an issue if 

persons argue that a material is being 

legitimately used as an ingredient, but 

in fact, only a small amount or 

percentage of it is used. Because of the 

differences in the emission standards 

that the non-hazardous secondary 

material would be subject to—between 

CAA section 112 and 129, persons may 

argue that such non-hazardous 

secondary materials are not wastes, 

when in fact, the operation is really 

discard—that is sham recycling. 

Therefore, the Agency solicits comment 

on whether the Agency should 

quantitatively define how much of the 

non-hazardous secondary material must 

provide a useful contribution, or 

alternatively, how much constituents or 

components in a non-hazardous 

secondary material there would need to 

be, before the material would not be 

considered to provide a useful 

contribution. 

Valuable Product. We are proposing 

that the non-hazardous secondary 

materials used as ingredients in 

combustion units must be used to 

produce a valuable product or 

intermediate. See proposed 

241.3(d)(2)(iii). The product or 

intermediate is valuable if it is (i) sold 

to a third party or (ii) used as an 

effective substitute for a commercial 

product or as an ingredient or 

intermediate in an industrial process. 

This criterion expresses the principle 

that the product or intermediate of the 

manufacturing/production process 

should be a material of value, either to 

a third party who buys it from the 

manufacturer, or to the same 

manufacturer that subsequently uses it 

as a substitute for another material that 

it would otherwise have to buy or obtain 

for its industrial process. This criterion 

is an essential element of the concept of 

legitimate use of secondary materials as 

ingredients because legitimate use 

cannot be occurring if the product or 

intermediate is not of use to anyone 

and, therefore, has no real value. This 

criterion is intended to prevent the 

practice of running a non-hazardous 

secondary material through an 

industrial process to make something 


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just for the purpose of avoiding the costs 

of disposal. Such a practice would be 

sham recycling. 

One way that the use of the nonhazardous secondary material as an 

ingredient in the production/ 

manufacturing process that involves a 

combustion unit can be shown to 

produce a valuable product would be to 

have documentation on the sale of the 

product to a third party. Such 

documentation could be in the form of 

receipts or contracts and agreements 

that establish the terms of the sale or 

transaction. This transaction could 

include money changing hands or, in 

other circumstances, may involve trade 

or barter. A manufacturer that has not 

yet arranged for the sale of its product 

to a third party could establish value by 

demonstrating that it can replace 

another product or intermediate that is 

available in the marketplace. 

Production/manufacturing processes 

that use non-hazardous secondary 

materials as ingredients in combustion 

systems may produce outputs that are 

not sold to another party, but are instead 

used by the same manufacturer. These 

products or intermediates may be used 

as a feedstock in a manufacturing 

process, but have no established 

monetary value in the marketplace. 

Such products or intermediates would 

be considered to have intrinsic value, 

though demonstrating intrinsic value 

may be less straightforward than 

demonstrating value for products that 

are sold in the marketplace. 

Demonstrations of intrinsic value could 

involve showing that the product or 

intermediate of the production/ 

manufacturing process replaces another 

material that would otherwise have to 

be purchased or could involve a 

showing that the non-hazardous 

secondary material meets specific 

product specifications or specific 

industry standards. Another approach 

could be to compare the non-hazardous 

secondary material’s physical and 

chemical properties or efficacy for 

certain uses with those of comparable 

products or intermediates made from 

raw materials. 

Some production/manufacturing 

processes that use non-hazardous 

secondary materials as ingredients in 

combustion systems may consist of 

multiple steps that may occur at 

separate facilities. In some cases, each 

processing step will yield a valuable 

product or intermediate. When each 

step in the process yields a valuable 

product or intermediate that is salable 

or usable in that form, the activity 

would conform to this criterion. 

Contaminant Levels. We are 

proposing that the non-hazardous 

secondary material used as an 

ingredient must result in products that 

contain contaminants at levels that are 

comparable in concentration to those 

found in traditional products that are 

manufactured without the nonhazardous secondary material. See 

proposed § 241.3(d)(2)(iv). The term 

‘‘contaminants’’ refers to constituents in 

non-hazardous secondary materials that 

will result in emissions of the air 

pollutants identified as HAP listed 

under CAA section 112(b) and the nine 

pollutants listed under CAA section 

129(a)(4)) when such secondary 

materials are burned as fuel or used as 

ingredients, including those 

constituents that could generate 

products of incomplete combustion. The 

Agency requests comments on whether 

we should have a different definition of 

contaminants that applies specifically to 

ingredients. Since contaminant 

comparisons for the contaminant 

legitimacy criterion apply to a 

comparison of the products rather than 

to the secondary material, we request 

comment on whether a different list of 

contaminants should apply, or whether 

we should generically define 

contaminants to be constituents that 

may be a concern with respect to the 

product that is produced (e.g., clinker). 

The assessment of whether products 

produced from the use of non-hazardous 

secondary material ingredients in 

combustion units that have 

contaminants that are comparable in 

concentration to traditional products 

can be made by a comparison of 

contaminant levels in the ingredients 

themselves to traditional ingredients 

they are replacing, or by comparing the 

contaminant levels in the product itself 

with and without use of the nonhazardous secondary material 

ingredient. 

The Agency recognizes that there may 

be instances where the contaminant 

levels in the products manufactured 

from non-hazardous secondary material 

ingredients may be somewhat higher 

than found in the traditional products 

that are manufactured without the nonhazardous secondary material, but the 

resulting concentrations would not be 

an indication of discard and would not 

pose a risk to human health and the 

environment. Therefore, the Agency 

requests comment on whether, instead 

of requiring that contaminant levels in 

products manufactured from secondary 

material ingredients be comparable in 

concentration, the Agency should adopt 

a criterion under which contaminants in 

the product could not be significantly 

higher than found in the traditional 

products that are manufactured without 

the non-hazardous secondary material. 

Under such an approach, the Agency 

believes that a qualitative approach 

would be appropriate in determining 

whether such products contain 

‘‘significantly higher concentrations of 

contaminants.’’ That is, a contaminant 

concentration could be elevated without 

indicating the secondary material is 

discarded and without posing an 

unacceptable risk, and therefore, may 

not be considered ‘‘significantly higher’’ 

for the purposes of determining whether 

the non-hazardous secondary material is 

legitimately used as an ingredient in a 

combustion unit. 

Similar to fuels, we are proposing that 

the legitimacy criterion addressing 

contaminant levels in non-hazardous 

secondary materials used as an 

ingredient in combustion systems be 

one that must be met, as opposed to one 

that must only be considered. As we 

noted in the legitimacy criteria for fuels, 

this criterion is tailored specifically to 

the use of these non-hazardous 

secondary materials in combustion 

units, and thus, we do not believe that 

there are case-specific situations where 

this criterion could not be met, but the 

material would still be considered 

legitimately used as an ingredient. 

E. Alternative Approach 

In addition to the proposed approach 

described in Section VII.D., the Agency 

is identifying an alternative approach 

for consideration and comment. As 

explained below, this alternative 

approach, which is broader than the 

proposed solid waste definition 

discussed above, we believe could be 

constructed in a manner consistent with 

RCRA and relevant caselaw although it 

may raise important policy questions. 

This alternative may be adopted by the 

Agency in the final rule if warranted by 

information presented during the public 

comment period or otherwise available 

in the rulemaking record. Under this 

alternative, traditional fuels that we 

have identified earlier, which includes 

clean biomass, and that have been 

burned historically as fuels and 

managed as valuable products (as 

discussed in section VII.C.5.) would not 

be solid wastes. In addition, nonhazardous secondary materials used as 

fuels or ingredients are excluded from 

the definition of solid waste if they both 

remain within the control of the 

generator and meet the legitimacy 

criteria. 

In contrast to the proposed approach 

described above, all other nonhazardous secondary materials that are 

burned as a fuel or used as an ingredient 

in the combustion process would be 

solid wastes subject to the CAA section 

129 standards if burned in a combustion 


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unit. Also, all materials that result from 

processing of discarded non-hazardous 

secondary materials would be solid 

wastes. As with the proposed approach, 

wastes would include those secondary 

materials used as a fuel or ingredient 

not passing the legitimacy criteria, and 

those secondary materials used as a fuel 

that are managed outside the control of 

the generator. This solid waste 

designation would include materials, 

such as secondary wood products 

combusted on-site, coal refuse, and tires 

processed into TDF, on-spec used oil, 

and all secondary materials used as 

ingredients managed outside the control 

of the generator in combustion units. No 

petition process would be offered under 

this alternative. 

We request comment on all aspects of 

this alternative. Comments are 

specifically requested related to the 

potential impact this alternative may 

have on traditional non-combustion 

recycling activities, potential changes in 

the quantity of non-hazardous 

secondary materials that may be 

landfilled, and any collateral regulatory 

impacts, such as the impact on the 

MACT floors proposed today for the 

Commercial and Industrial Solid Waste 

Incinerators if a significant number of 

additional sources are subject to that 

rule. 

This alternative approach is closer to 

the views expressed by some 

commenters that any secondary material 

combusted for energy recovery is a solid 

waste and should be regulated under 

CAA section 129. Thus, only traditional 

fuels and clean biomass may be burned 

in a combustion unit under CAA section 

112. These commenters believe that the 

combustion of non-hazardous secondary 

materials by definition constitutes 

discard, and therefore all such materials 

are solid wastes. They have also 

expressed concerns that section 129 

mandates stringent requirements for 

emissions control, monitoring and 

reporting for all sources irrespective of 

size, while section 112 allows EPA 

discretion to treat smaller sources 

differently by setting standards based on 

generally available control technology 

for sources emitting less than 10 tons 

per year or more of any single HAP or 

25 tons per year or more of any 

combination of HAPs (i.e. area sources). 

If non-hazardous secondary materials 

burned on site for energy recovery are 

excluded from the definition of solid 

waste, these commenters argue that 

many smaller facilities that burn such 

materials will not be subject to any 

significant pollution control, 

monitoring, or reporting requirements. 

As a result, they believe such an 

exclusion could have significant adverse 

health and welfare effects on 

communities across the country that are 

located near area sources burning such 

secondary materials on site for energy 

recovery. 

We solicit comment on whether EPA 

should include such non-hazardous 

secondary materials as solid waste, and 

whether such a definition is consistent 

with or required by RCRA and/or the 

CAA. Further, as explained below, 

while we believe that the approach 

favored by the commenters may raise 

legal concerns as to the definition of 

‘‘discard,’’ as we have discussed 

previously and further discuss in this 

section of the preamble, we solicit 

comment on whether the Agency has 

the authority to regulate all nonhazardous secondary materials that are 

burned in combustion units either as a 

fuel or ingredient as solid wastes. In 

providing comments on this approach, 

we specifically request that commenters 

provide the basis for their recommended 

position in light of the existing case law 

on the issue of ‘‘discard.’’ 

Some commenters have also argued 

that, as more non-hazardous secondary 

materials would be subject to CAA 

section 129 standards when combusted, 

this option would help promote 

traditional recycling, while ensuring 

more stringent emissions standards 

under CAA section 129 for those 

sources that elect to continue to burn 

these secondary materials. Depending 

upon local disposal and virgin material 

costs, increased recycling may occur as 

a result of market adjustments in 

response to higher materials 

management costs. 

EPA wishes to clarify, however, that 

simply because a waste has, or may 

have, value does not mean the material 

loses its status as a solid waste. See API 

I, 906 F.2d at 741 n.16; United States v. 

ILCO Inc., 996 F.2d 1126, 1131–32 (11th 

Cir. 1993); Owen Steel v. Browner, 37 

F.3d 146, 150 (4th Cir. 1994). Wastes 

may be used beneficially. Even 

assuming beneficial reuse takes place, 

therefore, a material once discarded 

cannot cease to be a waste solely by 

being beneficially reused. In the case of 

this rule, beneficial resuse would be, for 

example, use as a fuel—as opposed to 

incineration, where the material is 

combusted primarily to be destroyed. 

It is also important to note that a 

secondary material could still be a waste 

even if it is recycled on site or under the 

control of the generator. See ‘‘API II,’’ 

216 F.3d at 55–58, where the DC Circuit 

overturned EPA’s determination that 

certain recycled oil bearing wastewaters 

are wastes. The court overturned this 

decision and remanded it to EPA for a 

better explanation. Importantly for the 

rule we are considering today, the court 

neither accepted EPA’s view nor the 

contrary industry view, noting that the 

relevant determination that had to be 

made was whether primary treatment of 

wastewater is simply a step in the act of 

discarding or the last step in a 

production process before discard. 213 

F.3d at 57. The court rejected both 

EPA’s and industry’s views because 

they were only stated in broad 

generalities. Relevant for today’s 

alternative approach, we note that oil 

bearing wastewaters discussed in API II 

were in fact recycled on-site, but that 

the court could not determine whether 

they were wastes or not. Clearly, the 

issue was not whether the recycling 

occurred on site, or even under the 

control of the generator. Rather, the 

relevant determination is whether the 

material is discarded or not. 

To remedy the ‘‘on-site’’ problem 

raised by API II, EPA for this proposed 

rule also requires that for the material 

not to be a waste it must be a legitimate 

fuel or ingredient. This means, to 

summarize the legitimacy criteria very 

generally, if used as a fuel, it is handled 

as though it is a valuable product (loss 

must be minimal), it is a true fuel with 

legitimate heating value, and the 

material has comparable levels of 

contaminants to those contained in 

traditional fuels. In particular, if there 

are higher than comparable levels of 

contaminants, that would be an 

indication that the material is really a 

waste and it is being combusted to 

destroy the waste materials. If the 

material is used as an ingredient, under 

the proposed rule it must be managed as 

a valuable commodity, must provide a 

useful contribution to the production or 

manufacturing process, must be used to 

produce a valuable product or 

intermediate, and cannot result in 

products that contain contaminants that 

are not comparable to the 

concentrations found in traditional 

products. For details on the legitimacy 

requirement, see section VII.D.6, above. 

In fact, as noted below, EPA has 

determined, for purposes of this 

alternative approach, that certain 

secondary materials [see wood residuals 

and pulp and paper sludge below], even 

though they are recycled on-site or 

under the control of the generator, they 

are still considered solid wastes. 

The key point regarding the legal 

basis of this alternative approach is that 

EPA is accounting for the likelihood 

that material recycled within a 

continuous industrial process by being 

burned for energy recovery or as an 

ingredient is not a solid waste. The 

alternative approach, accordingly, 

requires that the secondary material 


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material is both recycled under the 

control of the generator and complies 

with the legitimacy criteria to ensure 

that it is in fact not handled as a waste 

and is a truly beneficial fuel or 

ingredient product. An example of a 

material burned for energy recovery 

under the control of the generator and 

meeting the legitimacy requirements is 

on-spec used oil generated on-site and 

combusted in an industrial boiler. 

With respect to other examples, such 

as pulp and paper sludge and wood 

manufacturing residuals burned on-site 

for energy recovery, the Agency may 

reach a different conclusion. 

Specifically, commenters to the ANPRM 

indicated that these materials are 

primarily composed of biomass and that 

emissions from burning these materials 

are essentially the same as emissions 

from burning other biomass fuels, such 

as bark or unadulterated wood (see 

section VII.C.5.). For purposes of the 

primary proposal, EPA has determined 

that wood residuals and pulp and paper 

sludge are not wastes based on limited 

contaminant data collected to date and 

the on-site use of the secondary 

material. However, for this alternative 

approach, for the reasons described 

below, EPA is proposing to classify 

these materials as solid waste. 

This alternative acknowledges that for 

some categories of secondary materials, 

it is difficult to determine whether those 

materials may or may not be discarded. 

The DC Circuit has also acknowledged 

the ambiguity of the term ‘‘solid waste’’ 

under RCRA as applied to particular 

situations. Specifically, the court stated 

that ‘‘[the] term may be ambiguous as 

applied to some situations, but not as 

applied to others.’’ ABR at 1056. Thus, 

there could be some secondary materials 

that are clearly legitimately recycled 

within a continuous industrial process 

and others that are less clear. EPA 

believes that wood residuals and pulp 

and paper sludges are just the kinds of 

materials that present this kind of 

ambiguity. 

Based on information the Agency has 

received, pulp and paper sludges are 

generally used on-site by generators to 

fuel their boilers and are treated like 

valuable commodities. However, there 

appear to be questions with respect to 

contaminants in the sludges that give 

EPA pause as to whether the 

combustion of these materials is 

primarily a waste treatment activity— 

specifically because of levels of chlorine 

in pulp and paper sludge. The Agency 

has similar concerns with levels of 

formaldehyde in wood residuals. 

Accordingly, EPA believes that with 

respect to contaminant levels the wood 

residuals and pulp and paper sludge 

present a situation in which reasonable 

persons can disagree as to whether they 

are discarded materials or not. EPA 

solicits comments on whether these 

secondary materials should be classified 

as wastes or non-wastes. 

EPA believes that its formulation that 

secondary material recycled or reused 

legitimately under the control of the 

generator will cover all, or almost all, 

secondary material recycled or reused in 

a continuous industrial process. The 

Agency requests comment on the 

adequacy of this formulation and any 

data commenters may have indicating 

whether particular secondary materials 

that will fall within or outside of this 

framework and whether, and why, those 

materials are discarded or not. 

Comments are specifically requested 

related to the potential impact this 

alternative may have on traditional noncombustion recycling activities and 

potential changes in the quantity of nonhazardous secondary materials that may 

be landfilled. In addition, we request 

comment as to whether this alternative 

approach should include a petition 

process that provides persons with an 

administrative process for a formal 

determination that their non-hazardous 

secondary material fuel or ingredient is 

indistinguishable in all relevant aspects 

from a fuel or ingredient, and thus is not 

discarded and not a solid waste. 

EPA believes that an even more far 

reaching regulatory approach, as 

suggested by some comments, in which 

only traditional fuels are not solid 

wastes and all secondary materials 

burned for energy recovery or as an 

ingredient are considered discarded 

may not be legally acceptable in that the 

approach provides too broad a 

definition of solid waste in light of the 

RCRA case law on the definition of solid 

waste. Specifically, EPA is concerned 

about the case law holding that, the 

RCRA definition of solid waste does not 

extend to secondary material 

beneficially reused in a continuous 

industrial process, as that material 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 

(DC Cir. 2000) (‘‘ABR’’). The provisions 

under consideration in AMC I and ABR 

dealt specifically with material 

‘‘reclaimed’’ in a continuous process— 

that is, material regenerated from a 

secondary material in a continuous 

process. It seems highly likely the courts 

would extend this same reasoning to 

secondary materials that are otherwise 

reused or recycled in a continuous 

industrial process, such as material 

used, or combusted, to recover energy or 

as an ingredient. Thus, EPA is hesitant 

to define all reused or recycled 

secondary materials as solid waste 

under RCRA. 

F. Effect of Today’s Proposal on Other 

Programs 

The construct of this proposed rule 

for determining when non-hazardous 

secondary materials are legitimately 

burned as non-waste fuels or ingredients 

has applicability to the universe of 

facilities subject to CAA sections 112 

and 129, as well as other rules and 

agency regulatory programs. 

1. Clean Air Act 

As discussed in Section IV, the CAA 

section 129 definition of solid waste 

incineration unit states that the term 

‘‘solid waste’’ will have the meaning 

established by the Administrator of EPA 

under RCRA. Today’s proposed rule 

would establish under RCRA which 

non-hazardous secondary materials 

constitute ‘‘solid waste.’’ This proposed 

definition of ‘‘solid waste’’ has been 

used by EPA in its concurrent proposed 

CAA emissions standards for CISWI 

units (under CAA section 129) and 

boilers and process heaters (under CAA 

section 112). Any unit combusting 

‘‘solid waste’’ under today’s proposed 

definition would be regulated as a ‘‘solid 

waste incineration unit’’ under CAA 

section 129. If a non-hazardous 

secondary material is not a ‘‘solid waste’’ 

under the proposed definition and such 

material is burned as a legitimate fuel or 

used as a legitimate ingredient in a 

manufacturing process, the combustion 

unit would be regulated pursuant to 

CAA section 112 (by statute, a source 

cannot be regulated under both CAA 

sections 112 and 129). 

2. Renewable Energy 

This proposal may impact how some 

non-hazardous secondary materials 

could be used to help supply renewable 

energy to the U.S. and through state 

programs. Given the Congressional 

mandate for renewable energy, it is 

important to assess the impact of this 

proposed regulation on those programs. 

Congress has passed several laws, such 

as the Energy Independence and 

Security Act of 2007 (Pub. L. 110–140), 

that support the development and use of 

renewable sources of energy, both for 

power generation and for the production 

of transportation fuels. Qualified 

sources would include wind, solar, and 

geothermal power, but could also 

include power generated by the 


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71 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. 

combustion of biogenic materials, which 

may include some non-hazardous 

secondary materials burned for energy 

recovery. Biogenic materials are 

materials that result from the activity of 

living organisms. A number of nonhazardous secondary materials are 

partially or completely biogenic. For 

example, woody biomass contains 

recoverable energy and would be 

considered biogenic in origin. Energy 

from biogenic sources is generally 

preferable to fossil fuels. 

In addition to these federal programs 

that may be impacted, Renewable 

Portfolio Standards (RPS) currently 

provide states with a mechanism to 

increase renewable energy generation 

using renewable energy sources 

(including biofuels) and a cost-effective, 

market-based approach. An RPS 

requires electric utilities and other retail 

electric providers to supply a specified 

minimum amount of customer load with 

electricity from eligible renewable 

energy sources. The goal of an RPS is to 

stimulate market and technology 

development so that, ultimately, 

renewable energy will be economically 

competitive with conventional forms of 

electric power. States create RPS 

programs because of the energy, 

environmental, and economic benefits 

of renewable energy and sometimes 

other clean energy approaches, such as 

energy efficiency and combined heat 

and power. Today’s proposed rule 

determining which non-hazardous 

secondary materials constitute solid 

waste may impact the requirements for 

secondary materials that may be burned 

for energy generation under the RPS 

program. 

3. Subtitle C Hazardous Waste Program 

The result of this rulemaking effort 

will have no effect on the subtitle C 

Hazardous Waste Program. The RCRA 

subtitle C hazardous waste federal 

program has a long regulatory history in 

defining ‘‘solid waste’’ for purposes of 

the hazardous waste regulations. 

However, the 40 CFR 261.2 definition of 

solid waste explicitly applies only to 

wastes that also are hazardous for 

purposes of the subtitle C regulations 

(see 40 CFR 261.1(b)(1)). CAA section 

129 also specifically excludes subtitle C 

units from coverage under that section. 

EPA emphasizes that it is not modifying 

or reopening its hazardous waste 

regulations; EPA does not intend to 

respond to any comments directed to 

those regulations. 

RCRA section 7003 gives EPA the 

authority to compel actions to abate 

conditions that may present an 

‘‘imminent and substantial 

endangerment’’ involving both solid and 

hazardous wastes. EPA uses this 

authority on a case-by-case basis. The 

Agency can determine in a specific 

factual context whether a secondary 

material which causes an endangerment 

is discarded. RCRA Sections 3007 and 

3008 establish EPA’s inspection and 

Federal enforcement authority to 

address violations of the Subtitle C 

hazardous waste regulations. Nothing in 

this proposed rule shall impact EPA’s 

ability to act pursuant to RCRA sections 

3007, 3008 and 7003. The proposed rule 

also does not limit or otherwise affect 

EPA’s ability to pursue potentially 

responsible persons under section 107 

of CERCLA for releases or threatened 

releases of hazardous substances. 

VIII. State Authority 

Subtitle D of RCRA establishes a 

framework for state, federal, and local 

government cooperation in controlling 

the management of non-hazardous solid 

waste. The federal role in this 

arrangement is to establish the overall 

regulatory direction, by providing 

minimum nationwide standards for 

protecting human health and the 

environment, and to provide technical 

assistance to states for planning and 

developing their own solid waste 

management practices. The actual 

planning and direct implementation of 

solid waste programs under RCRA 

subtitle D, however, remains largely a 

state and local function, and states have 

authority to devise programs to deal 

with state specific conditions and 

needs. 

EPA has not promulgated detailed 

regulations of what is included in the 

definition of solid waste for the RCRA 

subtitle D (non-hazardous) programs. 

States have promulgated their own laws 

and regulations as to what constitutes 

solid waste and have interpreted those 

laws and regulations to determine what 

types of non-hazardous secondary 

material activities involve the 

management of a solid waste. Many 

states have a process or promulgated 

regulations to determine when these 

materials are wastes, and when they can 

be used beneficially and safely in 

products in commerce. 

Through this rulemaking, EPA is 

articulating the narrow definition of 

which non-hazardous secondary 

materials are or are not solid waste 

when used as fuel for energy recovery 

or as ingredients in combustion units. 

We are not making solid waste 

determinations that cover other possible 

secondary material end uses. 

A. Applicability of State Solid Waste 

Definitions and Beneficial Use 

Determinations 

CAA Section 129 states that the term 

‘‘solid waste’’ shall have the meaning 

‘‘established by the Administrator 

pursuant to the Solid Waste Disposal 

Act’’ Id. at 7429(g)(6). Accordingly, the 

state’s definitions of solid waste would 

not be applicable in determining 

whether the section 129 standards 

apply. Specifically, state determinations 

regarding a material’s beneficial use that 

may exempt that non-hazardous 

secondary material from the state solid 

waste standards would not necessarily 

impact the status of that secondary 

material under EPA’s solid waste 

definition as it relates to which 

combustion units are subject to the CAA 

section 129 standards, except perhaps as 

discussed in section VII.D.5, where we 

discuss a state’s ability to submit, on 

behalf of the petitioner, a petition for 

EPA to evaluate under the proposed 

non-waste determination criteria.71

Likewise, non-hazardous secondary 

materials that are exempted from being 

a solid waste by EPA’s proposed rule, if 

finalized, would be exempt from the 

CAA section 129 standards, even though 

the state standards may define the nonhazardous secondary material as a solid 

waste. 

The language in CAA section 129, 

however, may be interpreted to provide 

the Administrator with flexibility in 

determining the meaning of solid waste 

under that section. EPA is requesting 

comment on an option where, to 

determine applicability of the CAA 

section 129 requirements, the Agency 

would rely on a determination through 

a state’s beneficial use program that 

certain secondary materials are or are 

not solid waste. Such state programs are 

meant to encourage the use of nonhazardous secondary materials, 

provided that the uses maintain the 

specified state’s acceptable level of risk, 

protect human health and the 

environment, and are managed in 

accordance with the conditions of the 

determination. Generally, for a 

secondary material to be beneficially 

used and thus no longer a solid waste, 

it would have chemical and physical 

properties similar to the raw material it 

is replacing or, when incorporated into 

another product, its use would be 

beneficial to the final product. Relying 

on these beneficial use determinations 


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72See AMC II, 907 F.2d at 1186; API I, 906 F.2d 

at 741 n.16; United States v. ILCO Inc., 996 F.2d 

at 1131–32; Owen Steel v. Browner, 37 F.3d at 150. 

73Excluding minor administrative burden/cost 

(e.g. rule familiarization) and voluntary petition 

costs. 

74National Emission Standards for Hazardous Air 

Pollutants for Area Sources: Industrial, Commercial, 

and Institutional Boilers; National Emission 

Standards for Hazardous Air Pollutants for 

Industrial/Commercial/Institutional Boilers and 

Process Heaters; and, Standards of Performance for 

New Stationary Sources and Emission Guidelines 

for Existing Sources: Commercial and Industrial 

Solid Waste Incineration (CISWI) Units. 

would recognize state interests in 

defining solid waste in the context of 

their own solid waste program, as well 

as help to mitigate potential 

inconsistencies between federal and 

state solid waste determinations. 

Consideration of this option, however, 

where the Agency could rely on 

determinations by a state’s beneficial 

use program in deciding whether certain 

materials are solid wastes when used as 

fuels or ingredients in combustion units, 

must take into account the current legal 

rationale for defining solid waste under 

EPA authority. Specifically, the courts 

have held that a secondary material that 

has been discarded is a solid waste 

regardless of whether it may be reused 

at some time in the future and simply 

because a waste has, or may have, 

beneficial value does not mean the 

secondary material loses its status as a 

solid waste.72

See the ANPRM for this rulemaking 

for the complete discussion of case law 

pertaining to the solid waste definition 

(74 FR 51). 

B. State Adoption of the Rulemaking 

No federal approval procedures for 

state adoption of today’s proposed rule 

are included in today’s proposal under 

RCRA subtitle D. Although EPA does 

promulgate criteria for solid waste 

landfills and approves state municipal 

solid waste landfill permitting 

programs, RCRA does not provide EPA 

any additional authority to approve 

state programs beyond municipal solid 

waste. While states are not required to 

adopt today’s rule, some states 

incorporate federal regulations by 

reference or have specific state statutory 

requirements that their state program 

can be no more stringent than the 

federal regulations. In those cases, EPA 

anticipates that the changes in today’s 

rule will be adopted by these states, 

consistent with state laws and state 

administrative procedures. 

IX. Costs and Benefits of the Proposed 

Rule 

The value of any regulatory action is 

traditionally measured by the net 

change in social welfare that it 

generates. This action alone does not 

directly invoke any costs 73 or benefits. 

This proposal is being developed and 

published in conjunction with the 

upcoming Boiler MACT and CISWI 

proposed rules.74 Costs to the regulated 

community and corresponding benefits 

to human health and the environment 

fall under the jurisdiction of these rules. 

As such, the Agency has not prepared 

a separate economic assessment in 

support of this proposal. However, we 

recognize that this action, as proposed, 

may affect various State materials 

management programs, and we are 

sensitive to these concerns. The Agency 

encourages comment on any potential 

direct impacts this action may have on 

State materials management programs. 

The costs and benefits indirectly 

associated with this action are the 

corresponding impacts assessed in the 

regulatory impact analyses prepared in 

support of the CAA proposed rules. 

These independent regulatory impact 

analyses measure, among other factors, 

the estimated net change in social 

welfare associated with these actions. In 

the development of these analyses, EPA 

worked to ensure that the 

methodologies and data applied in these 

assessments captured appropriate RCRA 

related costs (e.g., secondary material 

diversions). These assessments were 

designed to adhere to Agency and the 

Office of Management and Budget 

(OMB) guidelines and procedures. The 

Agency has also prepared a general 

executive summary document that 

addresses overall impacts of this 

rulemaking package. These documents 

are available in the docket established 

for today’s action. The reader is 

encouraged to review and comment on 

all aspects of these documents. 

X. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

Under Executive Order (EO) 12866 

(58 FR 51735, October 4, 1993), this 

action is a ‘‘significant regulatory 

action.’’ Pursuant to the terms of 

Executive Order 12866, the Agency, in 

conjunction with the Office of 

Management and Budget (OMB) has 

determined that this proposed rule is a 

significant regulatory action because it 

contains novel policy issues, as defined 

under part 3(f)(4) of the Order. 

Accordingly, EPA submitted this action 

to OMB for review under EO 12866. 

Any changes made in response to OMB 

recommendations have been 

documented in the docket for this 

action. 

B. Paperwork Reduction Act 

The information collection 

requirements in this proposed rule have 

been submitted for approval to the 

Office of Management and Budget 

(OMB) under the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq. The 

Information Collection Request (ICR) 

document prepared by EPA has been 

assigned EPA ICR number 2382.01. 

This proposal establishes a voluntary 

non-waste determination petition 

process for materials identified as solid 

wastes. Facilities claiming this nonhazardous solid waste exclusion are 

required to seek approval from the 

Agency through the submission of a 

petition prior to operating under this 

exclusion. Sufficient information about 

the secondary material and the market 

demand for this material will be 

necessary to demonstrate that the nonhazardous secondary material will in 

fact be used as a fuel or ingredient in the 

combustion process. Specifically, the 

petition will need to contain 

information to assess the following 

criteria: (1) Whether market participants 

handle the non-hazardous secondary 

material as a fuel rather than a waste; 

(2) whether the chemical and physical 

identify of the non-hazardous secondary 

material is comparable to a commercial 

fuel; (3) whether the capacity of the 

market would use the non-hazardous 

secondary material in a reasonable 

timeframe; (4) whether the constituents 

in the non-hazardous secondary 

material are not discarded to the air, 

water or land from the point of 

generation through combustion of the 

secondary material at significantly 

higher levels from either a statistical or 

from a health and environmental risk 

perspective than would otherwise be 

released; and (5) other relevant factors. 

The facility-level burden associated 

with this voluntary petition option is 

uncertain. However, we estimate an 

average total one-time burden of 

approximately 700 hours per facility, 

with a total cost per facility of 

approximately $71,400. The total 

number of facilities likely to take 

advantage of this option is 

undetermined, but we would expect 

that only a limited number of facilities 

may submit such a petition. The Agency 

requests comment on the number of 

petitions that are likely to be submitted 

to EPA for consideration. Burden is 

defined at 5 CFR 1320.3(b). 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to a collection of information 

unless it displays a currently valid OMB 


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75National Emission Standards for Hazardous Air 

Pollutants for Area Sources: Industrial, Commercial, 

and Institutional Boilers; National Emission 

Standards for Hazardous Air Pollutants for 

Industrial/Commercial/Institutional Boilers and 

Process Heaters; and, Standards of Performance for 

New Stationary Sources and Emission Guidelines 

for Existing Sources: Commercial and Industrial 

Solid Waste Incineration (CISWI) Units. 

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 EPA–HQ–RCRA–2008–0329. 

Submit any comments related to the ICR 

to EPA and OMB. See the ADDRESSES

section at the beginning of this notice 

for where to submit comments to EPA. 

Send comments to OMB at the Office of 

Information and Regulatory Affairs, 

Office of Management and Budget, 725 

17th Street, NW., Washington, DC 

20503, Attention: Desk Office for EPA. 

Since OMB is required to make a 

decision concerning the ICR between 30 

and 60 days after June 4, 2010, a 

comment to OMB is best assured of 

having its full effect if OMB receives it 

by July 6, 2010. The final rule will 

respond to any OMB or public 

comments on the information collection 

requirements contained in this proposal. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small governmental 

jurisdictions. 

For purposes of assessing the impacts 

of today’s rule on small entities, small 

entity is defined as: (1) A small 

business, as defined by the Small 

Business Administration’s (SBA) 

regulations at 13 CFR 121.201; (2) a 

small governmental jurisdiction that is a 

government of a city, county, town, 

school district or special district with a 

population of less than 50,000; and 

(3) a small organization that is any notfor-profit enterprise which is 

independently owned and operated and 

is not dominant in its field. 

After considering the economic 

impacts of today’s proposed rule on 

small entities, I certify that this action 

will not have a significant economic 

impact on a substantial number of small 

entities. No small entities are directly 

regulated by this proposed rule (see 

discussion above under costs and 

benefits). Small entities potentially 

affected indirectly by this action 

include: major source industrial, 

commercial, and institutional boilers 

and process heaters, area source 

industrial, commercial, and institutional 

boilers and commercial and industrial 

solid waste incineration units. We 

estimate that these units operate in 

approximately 50 different industry 

categories based on the NAICS three 

digit sector code level. These sectors 

include: crop production; forestry and 

logging; support activities for 

agriculture and forestry; oil and gas 

extraction; mining (except oil and gas); 

utilities; heavy and civil engineering 

construction; food manufacturing; 

beverage and tobacco product 

manufacturing; textile mills and textile 

product mills; wood product 

manufacturing; paper manufacturing; 

petroleum and coal products 

manufacturing; chemical 

manufacturing; plastics and rubber 

products manufacturing; nonmetallic 

mineral product manufacturing; primary 

metal manufacturing; fabricated metal 

product manufacturing; machinery 

manufacturing; computer and electronic 

product manufacturing; transportation 

equipment manufacturing; furniture and 

related product manufacturing; 

merchant wholesalers; motor vehicle 

and parts dealers; air, rail, and pipeline 

transportation; warehousing and 

storage; waste management and 

remediation services; educational 

services; hospitals; accommodation; 

repair and maintenance; and public 

administration. Any potential impacts 

to small entities under these and any 

other potentially affected sectors are 

addressed in the regulatory flexibility 

analysis prepared in support of the CAA 

proposed rules that are linked to this 

action.75

We have determined that, because no 

small entities are directly impacted by 

this proposed action, there will not be 

a significant economic impact on a 

substantial number of small entities. 

This determination is based on the 

findings, as discussed above. 

Although this proposed rule will not 

have a significant economic impact on 

a substantial number of small entities, 

EPA nonetheless has tried to reduce the 

(indirect) impact of this rule on small 

entities through the careful and targeted 

identification of solid waste materials. 

We continue to be interested in the 

potential impacts of the proposed rule 

on small entities and welcome 

comments on issues related to such 

impacts. 

D. Unfunded Mandates Reform Act 

This proposed rule does not contain 

a Federal mandate that may result in 

expenditures of $100 million or more 

for State, local, and tribal governments, 

in the aggregate, or the private sector in 

any one year. Because this action is 

linked to the CAA rules (see footnote 

under section C), this rule alone will not 

result in significant economic impacts 

on States, local and tribal governments, 

in the aggregate, or the private sector in 

any one year. Thus, this rule is not 

subject to the requirements of sections 

202 or 205 of UMRA. 

This proposed rule is also not subject 

to the requirements of section 203 of 

UMRA because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. As 

described above, this action alone does 

not result in unique effects, or 

significant economic impacts. 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. This action, 

independent of the CAA rules, as 

proposed (see footnote 81), will not 

result in substantial direct effects on the 

states. Furthermore, this action will not 

preempt state laws related to the 

affected materials. States will remain 

free to manage these materials as 

appropriate under their Subtitle D 

programs. Thus, Executive Order 13132 

does not apply to this action. 

Although we believe that this action, 

as proposed, will not result in 

substantial direct effects on the states, 

we are sensitive to the perceptions 

States may have of this action in regard 

to their solid waste management 

programs. On January 2, 2009 we 

published an ANPRM (Identification of 

Non-Hazardous Materials That Are 

Solid Waste) that presented the 

Agency’s anticipated approach for this 

action. We received numerous 

comments on this ANPRM, many of 

which came from States. Furthermore, 

we have reached out to the States with 

various informational conference calls 

throughout the development of this 

proposal. . 

In the spirit of Executive Order 13132, 

and consistent with EPA policy to 

promote communications between EPA 


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and State and local governments, EPA 

specifically solicits comment on this 

proposed action from State and local 

officials. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

Subject to the Executive Order 13175 

(65 FR 67249, November 9, 2000) EPA 

may not issue a regulation that has tribal 

implications, that imposes substantial 

direct compliance costs, and that is not 

required by statute, unless the Federal 

government provides the funds 

necessary to pay the direct compliance 

costs incurred by tribal governments, or 

EPA consults with tribal officials early 

in the process of developing the 

proposed regulation and develops a 

tribal summary impact statement. 

EPA has concluded that this action 

may have tribal implications. However, 

it will neither impose substantial direct 

compliance costs on tribal governments, 

nor preempt Tribal law. The proposed 

rule may have minor tribal implications 

to the extent that entities generating or 

burning solid wastes on tribal lands 

could be affected. 

EPA consulted with tribal officials 

early in the process of developing this 

regulation to permit them to have 

meaningful and timely input into its 

development. EPA specifically solicits 

additional comment on this proposed 

action from tribal officials. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

This action is not subject to EO 13045 

(62 FR 19885, April 23, 1997) because 

it is not economically significant as 

defined in EO 12866, and because the 

Agency does not believe the 

environmental health or safety risks 

addressed by this action present a 

disproportionate risk to children. This 

action’s health and risk assessments 

related to this action are contained in 

the support documents prepared for the 

CAA section 129 CISWI and section 112 

boiler MACT proposed rules. 

H. Executive Order 13211: Actions that 

Significantly Affect Energy Supply, 

Distribution or Usage 

This action is not a ‘‘significant energy 

action’’ as defined in Executive Order 

13211 (66 FR 28355 (May 22, 2001)), 

because it is not likely to have a 

significant adverse effect on the supply, 

distribution, or use of energy. This 

action, independent of the CAA rules, as 

proposed, is not expected to directly 

affect energy use or use patterns. Energy 

impacts resulting for the CAA (see rule 

identification in footnote 72) 

application of this action are assessed 

and discussed in the preambles and 

supporting materials for those rules. 

I. National Technology Transfer 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, 12(d) (15 U.S.C. 272 note) 

directs EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. NTTAA directs EPA to provide 

Congress, through OMB, explanations 

when the Agency decides not to use 

available and applicable voluntary 

consensus standards. 

This proposed rulemaking does not 

involve technical standards. Therefore, 

EPA is not considering the use of any 

voluntary consensus standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order (EO) 12898 (59 FR 

7629 (Feb. 16, 1994)) establishes federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA is evaluating the question of 

whether this proposed rule will or will 

not have disproportionately high and 

adverse human health or environmental 

effects on minority or low-income 

populations. We have completed 

preliminary environmental justice 

analyses, in conjunction with the Boiler 

MACT and CISWI proposed rules (see 

section IV.A.). These preliminary 

environmental justice analyses are 

compiled in the ‘‘Review of 

Environmental Justice Impacts’’ for both 

this proposal and the Boiler MACT and 

CISWI proposed rules. This document is 

available in the docket for today’s rule 

(Docket ID No: EPA–HQ–RCRA–2008– 

0329). 

EPA is committed to addressing 

environmental justice concerns and has 

assumed a leadership role in 

environmental justice initiatives to 

enhance environmental quality for all 

citizens of the United States. The 

Agency’s goals are to ensure that no 

segment of the population, regardless of 

race, color, national origin, income, or 

net worth, bears disproportionately high 

and adverse human health and 

environmental impacts as a result of 

EPA’s policies, programs, and activities. 

Our goal is to ensure that all citizens 

live in clean and sustainable 

communities. In response to Executive 

Order 12898, and to the concerns voiced 

by many groups outside the Agency, 

EPA’s Office of Solid Waste and 

Emergency Response (OSWER) formed 

an Environmental Justice Task Force to 

analyze the array of environmental 

justice issues specific to waste programs 

and to develop an overall strategy to 

identify and address these issues 

(OSWER Directive No. 9200.3–17). 

The Environmental Justice analysis in 

today’s proposal includes two main 

parts: (1) Demographic analysis and 

environmental impacts; and 

(2) outreach. 

Demographics Analysis and 

Environmental Impacts 

For this proposal, the demographic 

analysis focuses on the management of 

secondary materials that have been 

proposed to be solid waste under this 

proposed rule (versus the emissions 

from the combustion of the nonhazardous secondary materials which 

will be covered in the Boiler MACT and 

CISWI proposed rules). Specifically, the 

analysis focuses on the populations 

around the facilities accepting nonhazardous 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 

non-wastes according to today’s 

proposed rulemaking. The analysis 

includes a demographic evaluation 

(focusing on the presence of low-income 

and minority populations) and possible 

impacts associated with solid waste 

being sent to municipal waste 

combustors and landfills (which are 

projected to receive the majority of the 

diverted materials as assessed by the 

impacts of the CISWI and Boiler MACT 

proposed rules using the least cost 

approach). The analysis also covers 

additional diversion implications. The 

assessment includes impacts on the 

abatement of scrap tire piles, stockpiling 

of secondary materials, and the disposal 

of used oil not in compliance with 

applicable standards. 

The impacts of the new proposed 

emissions standards are included in the 


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31892 Federal Register / Vol. 75, No. 107 / Friday, June 4, 2010 / Proposed Rules 

Boiler MACT and CISWI proposed 

rules. The analysis in those proposals 

includes the following efforts: 

identification of sources, identification 

of demographic characteristics near 

sources, evaluation of area wide air 

quality, estimation of Boiler MACT/ 

CISWI emission reductions of HAPs 

from the proposed standards and work 

practices. 

Outreach 

The outreach aspect of the 

environmental justice analysis will help 

stakeholders participate in the 

rulemaking process and build a dialog 

during the comment period for the 

proposed rule. The first step in the 

outreach process took place at the EPA 

Community Engagement in Rulemaking 

Roundtable Discussion in New Orleans, 

LA on January 28, 2010. This discussion 

was held concurrently with the National 

Environmental Justice Advisory Council 

public meeting. At the roundtable 

meeting, the basics of the advanced 

notice of proposed rulemaking were 

discussed, including how it interacts 

with EPA’s upcoming CAA section 112 

and section 129 rulemakings, and 

provided an educational forum to bring 

together EPA technical experts, 

community leaders, nonprofit groups, 

and others to discuss key themes of the 

proposed rulemaking. Based on the 

results of the roundtable meeting, the 

Agency developed an approach for 

public participation and outreach 

during the comment period for the 

proposal (including planned forums to 

discuss the proposed rules and/or learn 

more about environmental impacts of 

the rule). The activities associated with 

the outreach are posted at http:// 

www.epa.gov/waste/nonhaz/ 

definition.htm. 

List of Subjects in 40 CFR Part 241 

Environmental protection, Air 

pollution control, Waste treatment and 

disposal. 

Dated: April 29, 2010. 

Lisa P. Jackson, 

Administrator. 

For the reasons stated in the 

preamble, title 40, chapter I of the Code 

of Federal Regulations, is proposed to be 

amended by adding part 241 to read as 

follows: 

PART 241—SOLID WASTES USED AS 

FUELS OR INGREDIENTS IN 

COMBUSTION UNITS 

Subpart A—General 

Sec. 

241.1 Purpose. 

241.2 Definitions. 

Subpart B—Identification of Non-Hazardous 

Secondary Materials That Are Solid Wastes 

When Used as Fuels or Ingredients in 

Combustion Units 

241.3 Standards and procedures for 

identification of non-hazardous 

secondary materials that are solid wastes 

when used as fuels or ingredients in 

combustion units. 

Authority: 42 U.S.C. 6903, 6912, 7429. 

Subpart A—General 

§ 241.1 Purpose. 

This part identifies the requirements 

and procedures for the identification of 

solid wastes used as fuels or ingredients 

in combustion units under section 1004 

of the Resource Conservation and 

Recovery Act and section 129 of the 

Clean Air Act. 

§ 241.2 Definitions. 

For the purposes of this subpart: 

Contained means the non-hazardous 

secondary material is stored in a manner 

that both adequately prevents releases 

or other hazards to human health and 

the environment considering the nature 

and toxicity of the material. 

Contaminants means any constituent 

in non-hazardous secondary materials 

that will result in emissions of the air 

pollutants identified in CAA section 

112(b) and the nine pollutants listed 

under CAA section 129(a)(4)) when 

such secondary materials are burned as 

fuel or used as ingredients, including 

those constituents that could generate 

products of incomplete combustion. 

Control means the power to direct the 

policies of the facility, whether by the 

ownership of stock, voting rights, or 

otherwise, except that contractors who 

operate facilities on behalf of a different 

person as defined in this section shall 

not be deemed to ‘‘control’’ such 

facilities. 

Generating facility means all 

contiguous property owned, leased, or 

otherwise controlled by the nonhazardous secondary material generator. 

Intermediate product means a 

finished product traded usually among 

producers or suppliers rather than end 

users. 

Non-hazardous secondary material 

means a secondary material that, when 

discarded, would not be identified as a 

hazardous waste under part 261 of this 

chapter. 

Person is defined as an individual, 

trust, firm, joint stock company, Federal 

agency, corporation (including 

government corporation), partnership, 

association, State, municipality, 

commission, political subdivision of a 

state, or any interstate body. 

Processing means any operations that 

transform discarded non-hazardous 

secondary material into a new fuel or 

new ingredient product. Minimal 

operations, such as operations that 

result only in modifying the size of the 

material by shredding, do not constitute 

processing for purposes of this 

definition. Processing includes, but is 

not limited to, operations that: remove 

or destroy contaminants; significantly 

improve the fuel characteristics of the 

material, e.g., sizing or drying the 

material in combination with other 

operations; chemically improve the asfired energy content; and improve the 

ingredient characteristics. 

Secondary material means any 

material that is not the primary product 

of a manufacturing or commercial 

process, and can include post-consumer 

material, off-specification commercial 

chemical products or manufacturing 

chemical intermediates, post-industrial 

material, and scrap. 

Solid waste means the term solid 

waste as defined in 40 CFR 258.2. 

Within control of the generator means 

that the non-hazardous secondary 

material is generated and burned in 

combustion units at the generating 

facility; or that such material is 

generated and burned in combustion 

units at different facilities, if the facility 

combusting the material is controlled by 

the generator; or if both the generating 

facility and the facility combusting the 

material are under control of the same 

person as defined in this section. 

Subpart B—Identification of NonHazardous Secondary Materials That 

Are Solid Wastes When Used as Fuels 

or Ingredients in Combustion Units 

§ 241.3 Standards and procedures for 

identification of non-hazardous secondary 

materials that are solid wastes when used 

as fuels or ingredients in combustion units. 

(a) Except as provided in paragraph (b) 

of this section, non-hazardous 

secondary materials that are combusted 

are solid wastes, unless a petition is 

submitted to, and a determination 

granted by, the Regional Administrator 

pursuant to paragraph (c) of this section. 

The criteria to be addressed in the 

petition, as well as the process for 

making the non-waste determination, 

are specified in paragraph (c) of this 

section. 

(b) The following non-hazardous 

secondary materials are not solid wastes 

when combusted: 

(1) Non-hazardous secondary 

materials used as a fuel in a combustion 

unit that remains within the control of 

the generator (as defined in § 241.2) and 

that meets the legitimacy criteria 

specified in paragraph (d)(1) of this 

section. 


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(2) Non-hazardous secondary 

materials used as an ingredient in a 

combustion unit and that meets the 

legitimacy criteria specified in 

paragraph (d)(2) of this section. 

(3) Fuel or ingredient products that 

have undergone processing (as defined 

in § 241.2) from discarded nonhazardous secondary materials and that 

are used as fuels or ingredients in a 

combustion unit, and that meet the 

legitimacy criteria specified in 

paragraph (d)(1) of this section, with 

respect to fuels, and paragraph (d)(2) of 

this section, with respect to ingredients. 

(c) The Administrator may grant a 

non-waste determination that a nonhazardous secondary material used as a 

fuel is not discarded and therefore not 

a solid waste when combusted. The 

criteria and process for making such 

non-waste determinations includes the 

following: 

(1) Submittal of an application to the 

Regional Administrator for the EPA 

Region where the facility combusting 

the non-hazardous secondary material is 

located by an applicant for a 

determination that the non-hazardous 

secondary material, even though it has 

been transferred to a third party, has not 

been discarded and is indistinguishable 

in all relevant aspects from a product 

fuel. The determination will be based on 

whether the non-hazardous secondary 

material has been discarded, is a 

legitimate fuel as specified in paragraph 

(d)(1) of this section and on the 

following criteria: 

(i) Whether market participants treat 

the non-hazardous secondary material 

as a fuel rather than a solid waste; 

(ii) Whether the chemical and 

physical identity of the non-hazardous 

secondary material is comparable to 

commercial fuels; 

(iii) Whether the non-hazardous 

secondary material will be used in a 

reasonable time frame given the state of 

the market; 

(iv) Whether the constituents in the 

non-hazardous secondary material are 

released to the air, water or land from 

the point of generation to the 

combustion of the secondary material at 

levels comparable to what would 

otherwise be released from traditional 

fuels; and 

(v) Other relevant factors. 

(2) The Regional Administrator will 

evaluate the application based on the 

following procedures: 

(i) The applicant must apply to the 

Regional Administrator for the nonwaste determination addressing the 

relevant criteria in paragraphs (c)(1)(i) 

through (v) of this section. 

(ii) The Regional Administrator will 

evaluate the application and issue a 

draft notice tentatively granting or 

denying the application. Notification of 

this tentative decision will be published 

in a newspaper advertisement or radio 

broadcast in the locality where the 

facility combusting the non-hazardous 

secondary material is located, and be 

made available on EPA’s Web site. 

(iii) The Regional Administrator will 

accept comment on the tentative 

decision for at least 30 days, and may 

also hold a public hearing upon request 

or at his discretion. The Regional 

Administrator will issue a final decision 

after receipt of comments and after the 

hearing (if any). 

(iv) If a change occurs that affects how 

a non-hazardous secondary material 

meets the relevant criteria contained in 

paragraphs (c)(1)(i) through (v) of this 

section after a formal non-waste 

determination has been granted, the 

applicant must re-apply to the Regional 

Administrator for a formal 

determination that the non-hazardous 

secondary material continues to meet 

the relevant criteria and is not discarded 

and is thus not a solid waste. 

(d) Legitimacy criteria for nonhazardous secondary materials. 

(1) Legitimacy criteria for nonhazardous secondary materials used as 

fuels in combustion units include the 

following: 

(i) The non-hazardous secondary 

material must be managed as a valuable 

commodity based on the following 

factors: 

(A) The storage of the non-hazardous 

secondary material prior to use must not 

exceed reasonable time frames; 

(B) Where there is an analogous fuel, 

the non-hazardous secondary material 

must be managed in a manner 

consistent with the analogous fuel or 

otherwise be adequately contained to 

prevent releases to the environment; 

(C) If there is no analogous fuel, the 

non-hazardous secondary material must 

be adequately contained so as to prevent 

releases to the environment; 

(ii) The non-hazardous secondary 

material must have a meaningful 

heating value and be used as a fuel in 

a combustion unit that recovers energy. 

(iii) The non-hazardous secondary 

material must contain contaminants at 

levels comparable or lower to those in 

traditional fuels which the combustion 

unit is designed to burn. Such 

comparison is to be based on a direct 

comparison of the contaminant levels in 

the non-hazardous secondary material 

to the traditional fuel itself. 

(2) Legitimacy criteria for nonhazardous secondary materials used as 

an ingredient in combustion units 

include the following: 

(i) The non-hazardous secondary 

material used as an ingredient must be 

managed as a valuable commodity based 

on the following factors: 

(A) The storage of the non-hazardous 

secondary material prior to use must not 

exceed reasonable time frames; 

(B) Where there is an analogous 

ingredient, the non-hazardous 

secondary material must be managed in 

a manner consistent with the analogous 

ingredient or otherwise be adequately 

contained to prevent releases to the 

environment; 

(C) If there is no analogous ingredient, 

the non-hazardous secondary material 

must be adequately contained to prevent 

releases to the environment; 

(ii) The non-hazardous secondary 

material used as an ingredient must 

provide a useful contribution to the 

production or manufacturing process. 

The secondary material provides a 

useful contribution if it contributes a 

valuable ingredient to the product or 

intermediate or is an effective substitute 

for a commercial product. 

(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 must 

result in products that contain 

contaminants at levels that are 

comparable or lower in concentration to 

those found in traditional products that 

are manufactured without the nonhazardous secondary material. 

[FR Doc. 2010–10837 Filed 6–3–10; 8:45 am] 

BILLING CODE 6560–50–P 


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