[Federal Register: January 2, 2009 (Volume 74, Number 1)]
[Proposed Rules]
[Page 41-61]
[DOCID:fr02ja09-11]

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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 257

[EPA-HQ-RCRA-2008-0329; FRL-8758-5]
RIN 2050-AG44

Identification of Non-Hazardous Materials That Are Solid Waste

AGENCY: Environmental Protection Agency (EPA).

ACTION: Advanced notice of proposed rulemaking (ANPRM).

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SUMMARY: The Environmental Protection Agency (EPA or Agency) is seeking
comment on which non-hazardous materials are or are not solid waste
under the Resource Conservation and Recovery Act (RCRA). The Agency is
also seeking comment on a number of specific questions concerning the
meaning of ``solid waste'' under RCRA, as it applies to non-hazardous
waste programs. We are issuing this ANPRM to assist the Agency in
developing certain standards under sections 112 and 129 of the Clean
Air Act (CAA). The meaning of ``solid waste'' as defined under RCRA is
of particular importance since CAA section 129 states that the term
``solid waste'' shall have the meaning ``established by the
Administrator pursuant to [RCRA].''

DATES: Comments must be received on or before February 2, 2009.

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<EMAIL_ADDRESS>Attention Docket ID No. EPA-HQ-RCRA-2008-0329.
In contrast to EPA's electronic public docket, EPA's e-mail system is
not an ``anonymous access'' system. If you send an e-mail comment
directly to the docket without going through EPA's electronic public
docket, EPA's e-mail system automatically captures your e-mail address.
E-mail addresses that are automatically captured by EPA's e-mail system
are included as part of the comment that is placed in the official
public docket, and made available in EPA's electronic public docket.
     Fax: Comments may be faxed to<PHONE_NUMBER>, Attention
Docket ID No. EPA-HQ-RCRA-2008-0329.
     Mail: Advanced Notice of Proposed Rulemaking--
Identification of Non-Hazardous Materials That Are Solid Waste,
Environmental Protection Agency, Mail code: 2822T, 1200 Pennsylvania
Ave., NW., Washington, DC 20460. Please include a total of two copies.
Attention Docket ID No. EPA-HQ-RCRA-2008-0329.
     Hand Delivery: Deliver two copies of your comments to the
Advanced Notice of Proposed Rulemaking--Identification of Non-Hazardous
Materials That Are Solid Waste, EPA/DC, EPA West, Room 3334, and 1301
Constitution Ave., 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 (8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding legal holidays), 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. We also request that interested parties who would
like information they previously submitted to EPA to be considered as
part of this action, identify the relevant information by docket entry
numbers and page numbers.
    Docket: All documents in the docket are listed in the 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 OSWER 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<PHONE_NUMBER>, and the telephone number for the
OSWER Docket is<PHONE_NUMBER>.

FOR FURTHER INFORMATION CONTACT: For questions regarding the
development of this ANPRM, contact Michael Galbraith, Office of Solid
Waste (5302P), U.S. Environmental Protection Agency, Ariel Rios
Building, 1200 Pennsylvania Avenue, NW., Washington, DC 20460-0002,
telephone<PHONE_NUMBER>, e-mail address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. General Information

A. Does This Action Apply to Me?

    Categories and entities potentially affected by this action
include:

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

B. What Should I Consider as I Prepare My Comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through
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
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, avoiding the
use of profanity or personal threats.
     Make sure to submit your comments by the comment period
deadline identified.

II. Background

    The United States Court of Appeals for the District of Columbia
Circuit vacated and remanded two Agency rules promulgated under the
CAA--The Commercial and Industrial Solid Waste Incineration (CISWI)
definitions rule (``CISWI Definitions Rule''), issued under CAA section
129, and the Industrial Boilers Maximum Achievable Control Technology
(MACT) standards rule (``Boilers Rule''), issued under CAA section 112.
The court concluded that EPA erred by excluding units that combust
solid waste for the purposes of energy recovery from the Definitions
Rule and including such units in the Boilers Rule. In response to the
court's decision, EPA is preparing to establish new standards under CAA
sections 112 and 129 for the various units subject to each section.
    Congress added section 129 to the CAA in 1990 specifically to
address emissions from solid waste combustion. CAA section 129 directs
EPA to promulgate emission standards for ``solid waste incineration
units.'' 42 U.S.C. 7429(a)(1). The term ``solid waste incineration
unit'' is defined, in pertinent part, to mean ``any facility which
combusts any solid waste material from commercial or industrial
establishments * * *'' Id. at section 7429(g)(1). However, the CAA
excludes the following types of units from classification as solid
waste incineration units that are subject to the section 129 standards:
(1) Incinerators or other units required to have a permit under section
3005 of RCRA; (2) materials recovery facilities (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 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. CAA section 129 also 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).\1\ RCRA 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, but does not
include solid or dissolved material in domestic sewage, or solid or
dissolved materials in irrigation return flows or industrial discharges
which are point sources subject to permits under section 402 of the
Federal Water Pollution Control Act, as amended (86 Stat. 880), or
source, special nuclear, or byproduct material as defined by the Atomic
Energy Act of 1954, as amended (68 Stat. 923).'' Section 1004 (27).
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    \1\ CAA section 129 refers to the Solid Waste Disposal Act
(SWDA). However, this act, as amended is commonly referred to as
RCRA. Thus, the term, ``RCRA'' is used in place of SWDA in this
Notice.
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A. CISWI Rule/CISWI Definitions Rule/Boiler Rule

    EPA fulfilled its statutory obligation under CAA section 129 when
it promulgated a final rule setting forth performance standards and
emission guidelines (EG) 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 New Source Performance
Standards (NSPS) and EG adopted for CISWI units must reflect the
maximum degree of reduction in emissions of air pollutants that the
Administrator determines is achievable, taking into consideration the
cost of achieving such emission reduction, and any non-air quality
health and environmental impacts and energy requirements. This level of
control is commonly referred to as MACT. The Administrator may also
distinguish among classes, types (including mass-burn, refuse-derived
fuel, modular and other types of units), and sizes of units within a
category in establishing such standards. Id. at 7429(a)(2).
    NSPS apply to new stationary sources--that is, sources whose
construction begins after the NSPS is proposed or sources that are
reconstructed or modified on or after a specified date. The EG are
similar to the NSPS, except that they apply to existing sources--that
is, sources whose construction begins on or before the date the EG are
proposed, or sources that are reconstructed or modified before a
specified date. Unlike NSPS, the EG are not enforceable until EPA
approves a state plan or adopts a federal plan for implementing and
enforcing them, and the state or federal plan becomes effective.
    The CISWI Rule established emission limitations for new and
existing CISWI units for the following pollutants (or surrogates):
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 subject to judicial challenge in Sierra Club v.
EPA (No. 01-1048) (D.C. Cir.) and a separate petition for
reconsideration of the final rule. The petition argued that the final
rule was procedurally defective because EPA had failed to provide
adequate notice and an opportunity to comment on the definitions
adopted in the final rule. Also, after promulgation of the CISWI Rule,
the court issued its decision in Cement Kiln Recycling Coalition v.
EPA, 255 F.3d 855 (D.C. Cir. 2001) (``Cement Kiln''). In this decision,
the court rejected certain common elements of EPA's MACT methodology.
As a result, 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 the voluntary remand and
remanded, without vacatur, the CISWI Rule back to EPA, thereby
terminating the case (see Order dated September 6, 2001). Because the
CISWI Rule was not vacated, its requirements remain in effect. See
Sierra Club. v. EPA, 374 F. Supp.2d 30, 32-33 (D.D.C. 2005). In
addition to taking a voluntary remand of the CISWI Rule, EPA also
granted an administrative petition for reconsideration on February 17,
2004 related to the definitions of ``solid waste,'' ``commercial or
industrial

waste'' and ``commercial and industrial solid waste incineration unit''
in the CISWI Rule.
    EPA responded to the petition for reconsideration on September 22,
2005, by re-promulgating the definitions of ``solid waste,''
``commercial or industrial solid waste incineration unit'' and
``commercial or industrial waste'' (the CISWI Definitions Rule). See 70
FR 55568. In the CISWI Definitions Rule, EPA distinguished solid waste
incinerators from boilers/furnaces based on the function of the units.
Solid waste incinerators included units designed and operated to
discard materials through high temperature combustion, but excluded
units designed and operated to recover energy for a useful purpose.
    The CISWI Definitions Rule was the subject of judicial challenge in
NRDC v. EPA (489 F.3d 1250 (D.C. Cir. 2007)) where the court vacated
the definitions of ``commercial or industrial solid waste incineration
unit'' and ``commercial or industrial waste.'' The court observed that,
although the functional distinction EPA drew between boilers/furnaces
and incinerators ``may well be reasonable,'' the statute unambiguously
requires any unit that combusts ``any solid waste material at all''--
regardless of whether the material is being burned as a fuel--to be
regulated as a ``solid waste incineration unit.'' Id. at 1260. The
court also vacated and remanded the Boilers Rule, concluding that EPA
erred by excluding units that combust solid waste for the purposes of
energy recovery from the CISWI Rule and including such units in the
Boilers Rule.
    Therefore, the critical issue in responding to the court's decision
is for EPA to establish, under RCRA, which non-hazardous secondary
materials \2\ constitute ``solid waste.'' This is necessary because,
under the court's decision, any unit combusting any ``solid waste'' at
all must be regulated as a ``solid waste incineration unit,''
regardless of the function of the combustion device. If a non-hazardous
material is not a ``solid waste'' under RCRA and such material is
burned for fuel value or used as an ingredient in a manufacturing
process, then under the court's decision, the combustion unit would
properly be regulated pursuant to CAA section 112. Alternatively, if
such material is a ``solid waste'' under RCRA and is burned for fuel
value or used as an ingredient in a manufacturing process and such
ingredient is combusted, then the unit must be regulated under CAA
section 129.
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    \2\ A secondary material is any material that is not the primary
product of a manufacturing or commercial process, and can include
post-consumer material, post-industrial material, and scrap. Many
types of secondary materials have Btu or material value, and can be
reclaimed or reused in industrial processes. For purposes of this
notice, the term secondary materials include only non-hazardous
secondary materials.
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B. Sections 112 and 129 of the CAA

    CAA section 112 requires EPA to promulgate regulations to control
emissions of 187 \3\ hazardous air pollutants (HAP) from major sources
\4\ in each source category listed by EPA under section 112(c). The
statute requires the regulations to reflect the maximum degree of
reduction in emissions of HAP that is achievable taking into
consideration the cost of achieving the emission reduction, any non-air
quality health and environmental impacts, and energy requirements. As
noted previously, this level of control is commonly referred to as
MACT.
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    \3\ EPA has delisted 3 of the 190 HAP initially listed in
section 112(b)(1): Methyl ethyl ketone, glycol ethers, and
caprolactam.
    \4\ A ``major source'' is any stationary source that emits or
has the potential to emit considering controls, in the aggregate, 10
tons per year or more of any HAP or 25 tons per year or more of any
combination of HAP. CAA section 112(a)(1).
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    For new sources, MACT standards cannot be less stringent than the
emission control achieved in practice by the best-controlled similar
source (see CAA section 112(d)(3)). The MACT standards for existing
sources cannot be less stringent than the average emission limitation
achieved by the best-performing 12 percent of existing sources for
categories and subcategories with 30 or more sources, or the best-
performing 5 sources for categories or subcategories with fewer than 30
sources (Id). This level of control is usually referred to as the MACT
``floor,'' the term used in the Legislative History.
    Like the CAA section 112 standards, the CAA section 129 standards
are based on a MACT floor. Also, as with the section 112 standards,
above-the-floor standards may be established where EPA determines it is
``achievable'' taking into account costs and other factors. Although
CAA section 129 ``establishes emission requirements virtually identical
to section [112's],'' Nat'l Lime Ass'n v. EPA, 233 F.3d at 631, the two
sections differ in three primary respects. First, CAA section 112
requires that MACT standards be established for major sources of HAP
emissions, but provides discretionary authority to establish MACT
standards for area sources of HAP emissions.\5\ On the other hand, the
CAA section 129 MACT standards apply across the board to all solid
waste incineration units in a given category regardless of size.
Second, CAA section 129 requires that emission standards be set for
specific HAP and certain pollutants that are not classified as CAA
section 112 HAP.\6\ Specifically, CAA section 129 requires numeric
emission limitations for the following nine pollutants: Cadmium, carbon
monoxide, dioxins/furans, hydrogen chloride, lead, mercury,
NOX, particulate matter (total and fine), opacity (as
appropriate), and SO2.\7\ The CAA section 129 pollutants
listed above represent the minimum that must be regulated; EPA has the
discretion to establish standards for other pollutants as well. Third,
CAA section 129 includes requirements for operator training, pre-
construction site 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 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).
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    \5\ An ``area source'' is any stationary source of HAP that is
not a major source. CAA section 112(a)(2). Area sources may be
regulated under CAA section 112(d)(2) standards if the Administrator
finds that the sources ``presen[t] a threat of adverse effects to
human health or the environment (by such sources individually or in
the aggregate) warranting regulation under this section.'' Section
112(c)(3). Certain categories of area sources must be regulated in
accordance with section 112(c)(3) and (k)(3)(B).
    \6\ This is in reference to the initial list of 190 HAPs
provided by Congress.
    \7\ Of these nine pollutants, cadmium, dioxins/furans, hydrogen
chloride, lead, and mercury are also regulated HAP pursuant to CAA
section 112, and particulate matter and carbon monoxide are commonly
used as surrogate emission standards to control specific CAA section
112 HAP (e.g., CAA section 112 HAP metal and organic emissions).
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III. Beneficial Use of Secondary Materials

A. Introduction

    EPA supports exploring regulatory alternatives that achieve the
following goals: Maximizing the usefulness of secondary materials in
production, reducing or eliminating waste, conserving energy, and
reducing harmful air emissions. Such alternatives should ensure
protection of human health and the environment, and one alternative
would be an integrated management approach that includes emissions and
source reduction and

recycling, as well as energy capture and resource recovery from
secondary materials. For example, within the context of RCRA,\8\ the
Agency seeks to achieve these goals through promotion of the use or
reuse of various secondary materials, provided such reuse activity is
protective of human health and the environment. EPA seeks to accomplish
this in conjunction with our state partners through research, analysis,
communication, and outreach.
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    \8\ RCRA Section 6901(c)--Materials: The Congress finds with
respect to materials, that--(1) Millions of tons of recoverable
material which could be used are needlessly buried each year; (2)
methods are available to separate usable materials from solid waste;
and (3) the recovery and conservation of such materials can reduce
the dependence of the United States on foreign resources and reduce
the deficit in its balance of payments.
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    To help put this discussion into context, the Agency notes that
non-hazardous secondary materials are widely used today as fuels or
ingredients in industrial processes. We expect this trend will continue
with higher prices for energy and materials and advancing technology in
secondary material use.
    The nature of what constitutes a legitimate fuel or ingredient
reflects the availability of natural resources and technology
development. The use of materials from a variety of non-traditional
sources, including the use of energy-containing secondary materials,
may have a significant role to play in our resource conservation
efforts.
    The use of non-hazardous secondary materials as alternative fuels
and ingredients in manufacturing processes using combustion has a long
history, and is increasingly becoming an accepted characteristic of the
modern industrial economy.\9\ Under conditions in the past, many
secondary materials may have been managed as wastes--that is, they were
discarded. However, if the cost of fossil fuel increases and technology
advances, such materials become comparatively more valuable as an
energy source, ingredient, or both. Furthermore, the use of some of
these materials is likely to contribute to certain emission reductions
and may increase other emissions.\10\
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    \9\ For example, use of tire-derived fuel in the cement industry
began in Japan and Germany in the 1970s. See docket item titled
``Scrap Tire Markets in the United States,'' RMA, November 2006.
Also, the market for woody biomass is strong in Europe, where this
material sells for $100 to $125 per ton. See docket item titled
``Biocycle, Advancing Composting, Organics Recycling and Renewable
Energy,'' July 2008.
    \10\ See the Materials Characterization Papers in the docket
established for this action for examples of emission comparisons.
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    The reuse of secondary materials may result in other benefits.
First, the use of secondary materials could result in reduction of
imported fuel. Second, using secondary materials for fuel or ingredient
value has an additional benefit of reducing the environmental impacts
caused by the disposal of such materials, if such disposal has
environmental impacts. For example, use of tires as a fuel source means
that those tires are no longer accumulated in huge piles where there
are known incidents of them catching fire and serving as breeding
grounds for disease carrying mosquitoes.11 12
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    \11\ Although this notice highlights the benefits of using
secondary materials as fuels, EPA recognizes that there may be other
uses of secondary materials that in some cases are preferable from
an energy perspective. For example, re-refining used oil is reported
to save more energy content of the used oil than burning for energy
recovery.
    \12\ See docket entry titled ``Scrap Tire Cleanup Guidebook,
January 2006,'' for more discussion on hazards associated with tire
piles.
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    The remainder of this section first presents an overview of the
secondary materials and their contribution to improved economic
efficiency. Then, we briefly summarize selected materials management
programs and successes. Finally, we discuss known use patterns for
selected secondary materials and briefly summarize some economic and
environmental benefits derived from the use of such materials.

B. Overview of Secondary Materials and Their Contribution to Economic
Efficiency

    There exists a wide and diverse range of secondary materials used
as fuels and/or ingredients, or otherwise beneficially used. Although
sometimes referred to as wastes, these secondary materials may, in most
cases, be more appropriately defined as ``by-products,'' \13\
reflecting their inherent resource recovery value in the generation/
production of heat, energy, and/or marketable products. This inherent
value exists with or without processing, depending upon the material.
These secondary materials commonly include, but are not limited to, the
following: scrap tires; scrap plastics; the biomass group (pulp and
paper residuals, forest derived biomass,\14\ agricultural residuals,
food scraps, animal manure, gaseous fuels); the construction and
demolition material group (building related, disaster debris, and land
clearing debris); spent solvents; coal refuse; waste water treatment
sludge; used oil; blast furnace slag; cement kiln dust (CKD); coal
combustion products (e.g., fly ash, bottom, ash, boiler slag); foundry
sand; silica fume; and secondary glass material. These secondary
materials can provide significant and widespread environmental and
economic benefits when legitimately used/reused as an effective
substitute for, or supplement to, primary materials.
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    \13\ For purposes of this action, we define by-product as a
secondary or incidental material derived from the primary use or
production process that has value in the marketplace, or value to
the user.
    \14\ More commonly referred to as scrap wood materials.
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    As certain primary materials become costly, the use of secondary
materials is likely to become more economical. Managers of
manufacturing or energy-production units that use secondary materials
as a substitute for primary fuels or ingredients are obviously doing so
for their own interests, including short and/or long-term competitive
advantage. In general, industry will use secondary materials so long as
the final price to the user is equivalent or less than the price for
comparable primary material(s), and the product(s) derived from these
materials is of equal (or better) quality. Provided industry is able to
continue to safely use secondary materials, economic efficiency may be
improved. While the issue raised in this ANPRM is whether specific
secondary materials are properly considered legitimate products, or
RCRA solid wastes, EPA notes that the regulatory status of the fuel or
ingredient may, as mentioned above, potentially affect choices made by
industrial concerns in selecting raw materials.

C. Materials Management Programs and Successes

    EPA, like environmental agencies in other countries, is exploring
approaches to waste management that employs the concepts of life cycle
assessment \15\ and full cost accounting.\16\ The life cycle approach
has been advanced in the EU where, for the past several years, the EU
has been focused on developing a strategy designed to minimize and
recycle secondary materials,\17\ while recognizing the importance of
full life cycle analysis within a comprehensive materials management
program. Japan has gone even further, passing ambitious laws and
establishing an

effective initiative \18\ focused on creating a ``closed loop''
economy.
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    \15\ Note: The terms, ``life cycle analysis'' and ``life cycle
assessment'' are commonly used interchangeably. Life cycle
assessment is a system-wide analytical technique for assessing the
environmental (and sometimes economic) effects of a product,
process, or activity across all life stages.
    \16\ Full cost accounting is an accounting system that
incorporates economic, environmental, health, and social costs of a
product, action, or decision.
    \17\ For example, The Closed Substance Cycle and Waste
Management Act of 1994 (Germany), the German Auto Recycling Law,
Directive 2006/66/EC of the European Parliament (EU battery
recycling law).
    \18\ The Japanese law Promoting the Utilization of Recyclable
Resources, 1991, the Japanese Recycling Law, 2001 (the world's first
``take back'' law), and The Ecofactory initiative (Ministry of
International Trade and Industry).
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    EPA's materials management approach is focused on the three R's:
Reduce, reuse, and recycle.\19\ This approach helps ensure more
efficient resource and material use through the integration of both
environmental and economic components in the management of materials.
In 2002, EPA initiated the Resource Conservation Challenge (RCC). This
program was designed to help implement the Agency's approach to
materials management. The RCC Program is currently focused on four
specific material groups: Municipal solid waste; green initiatives,
such as electronics; industrial materials; and priority and toxic
chemicals. The Agency also has materials management programs focused
specifically on used oil and scrap tires.\20\ Other more broadly
focused EPA programs include the Office of Solid Waste's (OSW's)
Product Stewardship Program and the Comprehensive Procurement
Guidelines. In addition, several states have also established life
cycle approaches to materials management (e.g., California, Minnesota,
Washington, and Vermont).
---------------------------------------------------------------------------

    \19\ See: http://www.epa.gov/epawaste/rcc/basic.htm.
    \20\ See: http://www.epa.gov/waste/conserve/materials/usedoil/
index.htm, and, http://www.epa.gov/waste/conserve/materials/tires/
index.htm.
---------------------------------------------------------------------------

    The Agency has an interest in understanding the environmental and
economic tradeoffs associated with life cycle implications of our
materials management programs. For example, we have conducted
preliminary life-cycle analyses of beneficial impacts associated with
recycling of foundry sand and selected coal combustion products.\21\ It
is also one of our mandates under RCRA Subtitle F--Federal
Responsibilities, which states the ``Administrator shall provide
information on the technical and economic aspects of developing
integrated resource conservation or recovery systems * * *'' (Sec.
6003). For the examples cited above, the Agency used a rigorous
analytical approach to evaluate the environmental and economic benefits
associated with the management of those materials. This rigorous
analytical approach to the development of materials management programs
helps to ensure that we are not promoting economically or
environmentally inefficient programs. Where we have evaluated the
benefits of secondary materials management programs, such as the RCC's
Program as described above for uses of foundry sand and selected coal
combustion products, our analyses have shown those programs provide
benefits.
---------------------------------------------------------------------------

    \21\ See docket items titled ``Waste and Materials-Flow
Benchmark Sector Report: Beneficial Use of Secondary Materials--Coal
Combustion Products, Final Report,'' USEPA, February 12, 2008 and
``Waste and Materials-Flow Benchmark Sector Report: Beneficial Use
of Secondary Materials--Foundry Sand, Final Report,'' USEPA,
February 12, 2008.
---------------------------------------------------------------------------

    We believe that it is critical to interpret which secondary
materials are not ``solid wastes'' pursuant to RCRA to ensure the
continued legitimate use of secondary materials in combustion
processes. This, in turn, will maintain the continued environmental and
economic benefits from these programs.

D. Secondary Materials Use and Benefits

    This part builds on the discussion in part ``B'' of this section
and provides greater detail on some of the non-hazardous secondary
materials that are commonly used by the industrial community. We
summarize key information that is available on the known generation,
use, and benefits of these secondary materials. The purpose of this
part is to describe the Agency's understanding regarding the wide-scale
acceptance, use, and value of these secondary materials in U.S.
industrial markets. More detailed information on a wide array of
secondary materials potentially affected by this action is presented in
the Materials Characterization Papers, which can be found in the Docket
established for today's action.
    The Materials Characterization Papers outline publicly and readily
available information concerning material characteristics relevant to
this ANPRM. Specifically, for each material group, the papers endeavor
to: (a) Provide a clear definition of the material; (b) identify annual
quantities generated and used; (c) outline current combustion and non-
combustion uses, along with current quantities landfilled or otherwise
stored; (d) discuss management and combustion processes utilized; and
(e) summarize potential environmental and economic impacts from the use
of each material. The available information across these components of
each paper and the individual materials is often limited or uncertain.
Thus, these papers represent our initial effort to gather and present
relevant data. The Agency seeks comment on additional data sources that
may enhance its understanding and knowledge of these materials.
    Non-hazardous secondary materials are widely used as fuels and/or
ingredients in virtually all types of boilers (e.g., industrial,
commercial, institutional), cement kilns, lightweight aggregate kilns
(LWAKs), and other industrial furnaces (e.g., glass furnaces). These
facilities burn or otherwise use in the production process hundreds of
millions of tons of secondary materials each year. The total number of
facilities using secondary materials each year as a substitute for
primary fuels and/or ingredients is unknown, but our best estimate
indicates that approximately 200,000 units use secondary materials as a
substitute for primary fuels and/or ingredients.\22\
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    \22\ Identification of Non-Hazardous Materials That Are Solid
Waste. EPA Exhibit 1: Preliminary Estimate of Total Nonhazardous
Secondary Materials Used Annually in Boilers and Kilns. Sept. 24,
2008.
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    The manner in which non-hazardous secondary materials are
processed, the nature of the materials, and the ways in which they are
used or recycled generally establishes whether such materials are
wastes or ``by-products.'' Based on our research for the Materials
Characterization Papers, we have identified eight non-hazardous
secondary material fuels or fuel groups and six non-hazardous
ingredients, or ingredient groups. The eight fuel source materials are:
The biomass group (pulp and paper residuals, forest derived biomass,
agricultural residues, food scraps, animal manure, gaseous fuels);
construction and demolition materials (building related, disaster
debris, and land clearing debris); scrap tires; scrap plastics; spent
solvents; coal refuse; waste water treatment sludge, and used oil. The
six secondary material ingredients are: Blast furnace slag; CKD; coal
combustion product group (fly ash, bottom ash, and boiler slag);
foundry sand; silica fume; and secondary glass material.
    Based on publicly available information, we believe that these
materials account for the vast majority of all non-hazardous secondary
materials used as fuels and/or ingredients in the U.S. However, the
Agency solicits comment on whether there are other non-hazardous
secondary materials that are also used as a fuel or ingredient that we
have not identified, either in this notice or in the Materials
Characterization Papers. If so, the Agency requests that commenters
provide information on such materials, including the composition or
characteristics of such materials, how much of the secondary material
is produced and utilized, how it is utilized--that is, is it a fuel or
an

ingredient, and how is it generally handled. Detailed information will
be the most useful as we move forward in the rulemaking effort.
    The annual use patterns, quantities, and benefits associated with
some of these secondary materials are well established, while less is
known about other secondary materials. Presented below are brief
summaries of the documented usage, trends in usage, and benefits
associated with some of these widely used secondary materials. As
mentioned above, the Materials Characterization Papers, available in
the docket established for today's action, present more detailed
information on the quantities and use patterns, characteristics,
composition, management and benefits associated with all eight
secondary fuel materials/groups and the six secondary ingredient
materials/groups we have identified.
    Biomass \23\--When used as a secondary material fuel, biomass
consists primarily of pulp and paper mill residuals, forest derived
biomass, agricultural residuals, food scraps, animal manure, and
gaseous fuels. Sectors that generate and/or use these valuable biomass
commodities include: Crop production; support activities for crop
production; food manufacturing; beverage and tobacco product
manufacturing; logging; pulp, paper, and paperboard mills; sawmills and
wood preservation; veneer, plywood, and engineered wood product
manufacturing; cattle ranching and farming; hog and pig farming;
poultry and egg production; sheep and goat farming; horses and other
equine production; and, sewage treatment facilities.
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    \23\ Source: Materials Characterization Paper in Support of the
Advanced Notice of Proposed Rulemaking: Identification of Non-
Hazardous Materials That Are Solid Waste--Biomass.
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    Timber harvesting and the manufacture of lumber generate large
amounts of forest-derived biomass used as secondary material fuels.
These woody materials may originate directly from the forest as logging
residues (e.g., tree limbs, tops, needles, leaves), or from timber
processing mills (e.g., clean and unadulterated bark, sawdust, trim,
screenings, tree harvesting residuals). Logging and other forest
harvesting removal residues are estimated to range from 62 million tons
per year (tpy) to 103 million tpy, with an estimated 42 to 93 million
tpy available for recovery and beneficial use. Total primary mill \24\
residue production is estimated to range from 87 to 91 million tpy.
Experts predict that by 2050, logging and other forest harvesting
removal residues will increase by 23 million tpy and availability of
secondary mill residues (i.e., residues such as board, trim and
breakage from the manufacture of reconstituted wood/panel products)
will increase by 16 million tpy.
---------------------------------------------------------------------------

    \24\ Lumber and veneer mills.
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    Available information indicates that logging residues, although a
good potential source for secondary material fuel, are not currently
collected for use as a fuel on any large scale. Primary mill residues,
however, are highly valuable as feedstocks in combustion, as well as
for non-combustion purposes.\25\ Approximately 42 percent of all
primary mill residues are used as a fuel, including 76 percent of bark
residues, 12 percent of coarse residues, and 56 percent of fine
residues. These materials are burned in a variety of boilers, including
Dutch ovens, fuel cell ovens, spreader stokers, suspension-fired
boilers, and fluidized bed combustion boilers. Forest-derived materials
may also be co-fired with other fuels, primarily solid fuels such as
coal. Logging and primary milling residues may be chipped or sorted
before being used, but otherwise generally undergo minimal processing.
The use of forest-derived materials has been found to result in
generally higher PM emissions than natural gas or distillate oil, but
lower PM emissions than coal or residual oil systems. Estimated
NOX emissions associated with the use of wood are similar to
those associated with distillate and lower than the NOX
emissions for other conventional fuels, while wood combustion results
in lower SO2 emissions than most conventional fuels.
Finally, the use of forest-derived materials results in reduced fuel
costs to the user and may provide environmental benefits associated
with avoided virgin material \26\ extraction and, in some cases,
avoided transportation.
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    \25\ Primary mill residues tend to be clean, uniform,
concentrated, and with a low-moisture content. As a result, these
materials generally require little processing.
    \26\ The term ``Virgin material,'' as used in this Notice means
resources extracted from nature in their raw form, such as timber,
metal ore, coal, petroleum, etc.
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    The forest products industry generates large quantities of
secondary material biomass fuels in the form of pulp and paper
residues, including sludges and black liquor.\27\ However, black
liquors that are reclaimed in a pulping liquor recovery furnace and
then reused in the pulping process are excluded from the definition of
solid waste under Subtitle C of RCRA, unless speculatively accumulated,
as defined in 261.1(c), or reclaimed in another manner. Pulp and paper
mills produce the dry biomass equivalent of between 4.2 and 5.8 million
tons of wastewater treatment sludges. In 2002, approximately 22 percent
of all pulp and paper mill sludges were used in hog fuel boilers as a
supplementary or stand-alone fuel. An undetermined amount was used as a
cement kiln feedstock and as a fuel pellet ingredient. Anaerobic sludge
production also generates methane. Sludges typically undergo mechanical
dewatering before being combusted. The use of mill sludges in onsite
boilers results in reduced fuel costs for the facility, and may provide
environmental benefits associated with avoided virgin material
extraction and transportation.
---------------------------------------------------------------------------

    \27\ See 40 CFR 261.4(a)(6).
---------------------------------------------------------------------------

    Agricultural residuals include crop residues remaining in the
fields after harvest (primary residues) and processing residues
generated from the harvested portions of crops during food, feed, and
fiber production (secondary residues). Current annual production of
agricultural residues from major crops is estimated to be around 500
million dry tpy. These primary biomass crops include barley, canola,
corn, cotton, dry beans, flax, oats, peanuts, peas, potatoes, rice,
rye, safflower, sorghum, soybeans, sugarcane, sunflowers, and wheat.
Anywhere from 113 million tpy to 173 million tpy is estimated to be
available for removal from the fields in a sustainable manner (i.e.,
while maintaining cropland fertility and quality). However, the total
quantity of agricultural residues actually used for fuel on an annual
basis is difficult to determine from the available literature. Total
primary agricultural residue production fluctuates with the amount of
U.S. land in crop production and the relative proportion of crops on
this land. In 2007, we estimate that approximately 6.0 million tons of
agricultural residues were burned, 92 percent of which [on a British
thermal unit (Btu) basis] provided useful thermal output. The remaining
8 percent was used to produce electricity. Around 71 percent of total
agricultural residues burned (Btu basis) were secondary residues used
in the food processing industry, mostly sugarcane bagasse at sugar
mills. The remaining 29 percent was used in the Agriculture, Forestry,
and Mining, and the Paper and Allied Products industries. Corn stover
and other agricultural residues can be used as a heat and power source
for the production of corn and cellulosic ethanol. Agricultural
residues are generally burned as fuel in fuel cells, horseshoe boilers,
and spreader stoker boilers. Aside from occasionally drying,

agricultural residues do not generally require processing prior to
being utilized as a fuel. The use of agricultural residues as a
substitute for coal in an existing power plant reduces SO2,
NOX, and other emissions and eliminates the environmental
impacts associated with the extraction and processing of the
traditional fuels.
    Food scraps are generated at all stages of the food production
system, including farming, storage, processing, wholesaling, retail,
and consumption. Food scraps, broadly defined, include both the portion
of harvested crops and livestock that does not enter the retail market
and the portion of food discarded by retailers and consumers. This
ANPRM is concerned only with industrial food scraps; food scraps
generated by retailers and consumers are not considered because they
enter the waste stream as municipal solid waste. The total quantity of
industrial food scraps produced on an annual basis is not readily
accessible from publically available information. Industrial food
scraps are known to be burned in lodging and restaurant boilers.
However, the annual quantities burned and the distribution of this use
is unknown. The use of food scraps with meaningful fuel value in
lodging and restaurant boilers eliminates the environmental impacts
associated with the extraction and processing of the traditional fuels.
    Animal manure is the excrement of livestock reared in agricultural
operations. Animal manure may also include straw, sawdust, and other
residues used as animal bedding. Gaseous fuels may be derived from
landfills (landfill gas) or from animal manure and solid biomass
(biogas), such as crop silage. Biogas is generated via anaerobic
digestion, a multi-stage process whereby bacteria convert
carbohydrates, fats, and proteins to methane. Domestic livestock
production generates over a billion tons of manure annually, which if
used to produce biogas would yield approximately 19.4 million tons of
methane. Anaerobic digestion of current manure production managed in
ponds, anaerobic lagoons, and holding tanks could yield a maximum of
about 2.4 million tpy of methane. Current production, however, is about
0.07 million tons from 111 operating digesters.
    We estimate that about 35 million dry tons of current manure
production could be used for bioenergy purposes. Livestock production
has become increasingly concentrated in recent years, facilitating the
collection of manure for bioenergy purposes. As bioenergy conversion
technologies improve, the opportunity for utilizing animal manure for
bioenergy production may likely increase. Biogas produced on dairy
farms is typically used to heat water for purposes of cleaning and
sanitizing milking pipelines and equipment in dairy operations. Biogas
generated on farms is typically burned on-site directly in boilers and,
to a lesser extent, is burned in space heating. Biogas benefits include
displacement of fossil fuels, primarily natural gas. Furthermore, the
use of biogas as a replacement for natural gas avoids the emissions
associated with the extraction and processing of natural gas.
    Scrap tires \28\--Scrap tires are used tires that are recycled when
they can no longer be used as tires. This may occur because of normal
tread wear, punctures, destruction in accidents, or any number of other
reasons. Scrap tires are generated from the replacement of tires on
passenger and commercial vehicles. Consumers and industry in the U.S.
generated 299.6 million tires in 2005; this represents approximately
4.9 million tons of tires, assuming an average of 33 pounds per tire.
Approximately 52 percent of the total number of scrap tires generated
in 2005 went for tire-derived fuel (TDF).\29\ Although energy recovery
is the most common use of scrap tires, there are many non-fuel uses for
scrap tires, including: Civil engineering (i.e., construction of
landfills and roads); cut/punched/stamped into other products (i.e.,
floor mats); and, rubber modified asphalt. While some facilities are
capable of burning whole tires, a large percentage of tires are sent to
processors where they are shredded or chipped prior to being sent to
plants for use as TDF. Facilities that burn whole tires often charge a
tipping fee for acceptance of these tires, while chipped tires must be
purchased. TDF is used in a variety of units, including boilers and
industrial furnaces, such as kilns. It can be used to supplement and/or
replace a wide range of fuels including coal, coke, fuel oil, natural
gas, and wood. The use of tires for fuel has increased from 24.5
million tires in 1990 to 155.1 million tires in 2005. During this same
period, the number of tires in stockpiles declined by nearly 82
percent, going from approximately one billion tires to just under 200
million, a significant environmental accomplishment. The majority of
tires that have been removed from these piles have been used in
industrial boilers and kilns for energy recovery. This trend may
increase if the cost of conventional fossil fuels increases.
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    \28\ Source: Materials Characterization Paper in Support of the
Advanced Notice of Proposed Rulemaking: Identification of Non-
Hazardous Materials That Are Solid Waste--Scrap Tires.
    \29\ TDF has a heating value of around 13,000 to 16,000 Btu/lb.
---------------------------------------------------------------------------

    Emissions test data compiled by EPA in 1997 suggest that
substituting scrap tires for coal in electric utility boilers may lead
to reductions in NOX and particulate matter emissions,\30\
but show no clear pattern for SOX and zinc emissions.\31\
Studies indicate that there is an increase in zinc emissions when TDF
is used at industrial boilers and pulp and paper mills, while zinc
emission data are inconclusive for cement kilns and utility boilers.
Finally, as referenced above, the use of TDF as a replacement for
traditional primary fuels eliminates the environmental impacts
associated with the extraction and processing of the traditional fuels.
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    \30\ United States Environmental Protection Agency (EPA). 1997,
``Air Emissions from Scrap Tire Combustion''.
    \31\ See also the Nebraska Department of Environmental Quality,
Applicability Determination for Combusting Tire Derived Fuel in
Humboldt Wedag Kiln (Kiln 2), indicates that emissions of
SO2, NOX, and CO decreased while TDF was used.
(see: http://www.deq.state.ne.us/Press.nsf/pages/AGFactsheet1)
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    Used Oil \32\--Used oil is defined as petroleum-based or synthetic
oil that has been used and has been contaminated from use (see 40 CFR
279.1 for the specific definition). To meet EPA's regulatory
definition, contamination includes residues and contaminants generated
from the handling, storing, use, and processing of oil.\33\ Physical
contaminants from use include metal shavings, high water content, or
dirt, while chemical contaminants from use include solvents, halogens,
or lead. To meet EPA's regulatory definition, used oil must have been
refined from crude oil or made from synthetic materials; animal and
vegetable oils are excluded from EPA's regulatory definition of used
oil. Generators of used oil include businesses that handle oil through
commercial or industrial operations or from the maintenance of vehicles
and equipment. The oil may have been used as a lubricant, hydraulic
fluid, heat transfer fluid, buoyant, and for other similar purposes.
---------------------------------------------------------------------------

    \32\ Source: Materials Characterization Paper in Support of the
Advanced Notice of Proposed Rulemaking: Identification of Non-
Hazardous Materials That Are Solid Waste--Used Oil.
    \33\ Used oil processing is defined as a chemical or physical
operation designed to produce from used oil, or to make used oil
more amenable for production of fuel oils, lubricants, or other used
oil-derived products. Processing includes, but is not limited to:
blending used oil with primary petroleum products, blending used
oils to meet the fuel specification, filtration, simple
distillation, chemical or physical separation and re-refining.

---------------------------------------------------------------------------

    Recent estimates indicate that approximately 1.35 billion gallons
of used oil are collected each year. Depending upon the year, our
estimates indicate that as much as 90 percent of all collected used oil
is burned for energy recovery. Both on-specification and off-
specification \34\ used oil may be used as a source of fuel in
combustion units. However, off-specification used oil may only be
burned in the following types of boilers: industrial boilers 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 that the burner meets
the provisions of 40 CFR 279.23; and hazardous waste incinerators
subject to regulation under 40 CFR subpart O of parts 264 or 265.
National information on the distribution between on-specification and
off-specification used oil used as a fuel is not readily available.
However, asphalt plants appear to be the largest users of used oil,
followed by space heaters, and industrial boilers. We estimate that
approximately 73 percent of all used oil generated and used each year
is on-specification.
---------------------------------------------------------------------------

    \34\ The Agency makes a distinction between on-specification and
off-specification used oil. Only certain contaminants in used oil
pose a significant threat to human health or the environment. As a
result, EPA has established maximum concentration limits for these
constituents of concern. These limits are set such that the
emissions resulting from the burning of used oil containing these
contaminants, at or below established ``on-spec'' limits, will pose
no more threat to human health or the environment than the emissions
resulting from the burning of virgin oil or diesel. See 68 FR 44662
(July 30, 2003). Also see Section V.A.4. for more discussion of used
oil.
---------------------------------------------------------------------------

    The long-term trend in used oil generation is undetermined.
However, during the 1997-2005 time period, the recycling rate for used
oil generated by service stations increased from 66 percent to almost
100 percent.
    The principal environmental benefits of burning used oil for energy
recovery are associated with upstream production offsets and include
substantial reductions of NOX and carbon monoxide (CO)
emissions. In terms of combustion-specific emissions, use of used oil
results in notably lower NOX emissions, in particular when
compared to residual fuel oil. However, PM and lead emissions may be
higher than for primary fuel oil, depending upon the extent of
processing.
    Coal Fly Ash \35\--Exhaust gases leaving the combustion chamber of
a power plant entrain particles during the coal combustion process. Fly
ash is the finest of coal ash particles. To prevent this fly ash from
entering the atmosphere, power plants use various collection devices to
remove it from the gases that are leaving the stack. The coal-fired
power industry is the largest generator of coal fly ash in the U.S and
other industries that use coal as a fuel, such as commercial boilers
and mineral and grain processors, also produce coal fly ash. In 2006,
the coal-fueled electric power industry generated approximately 72.4
million tons of fly ash. This figure was estimated at 70.8 million tons
for 2004 and 71.7 million tons for 2007.\36\ Electricity demand is
projected to increase in coming years.\37\ Because coal is expected to
continue to be an important fuel source, it is likely that the quantity
of coal fly ash generated will also remain significant.
---------------------------------------------------------------------------

    \35\ Source (unless otherwise noted): Materials Characterization
Paper in Support of the Advanced Notice of Proposed Rulemaking:
Identification of Non-Hazardous Materials That Are Solid Waste--Coal
Combustion Products--Includes Coal Fly Ash, Bottom Ash, and Boiler
Slag.
    \36\ ACAA. 2004 and 2007 Coal Combustion Product (CCP)
Production and Use Survey Results (Revised for 2007).
    \37\ See United States Department of Energy, Energy Information
Administration (EIA). 2008, ``Annual Energy Outlook 2008 with
Projections to 2030,'' Publication DOE/EIA-0383 (2008), June 2008.
---------------------------------------------------------------------------

    Coal fly ash can be added to the raw material feed in clinker
manufacturing to contribute specific required elements, such as silica,
alumina, and calcium, in the final cement composition. Coal fly ash
with relatively high unburned carbon content can also be re-burned in
cement kilns for energy recovery at the same time as it provides
ingredient value. The use of coal fly ash as an ingredient in cement
kilns does not require processing. However, levels of key metals in
coal fly ash must be carefully calibrated with other ingredients to
ensure that the final cement product has the correct mineral and metal
content. In clinker manufacture, coal fly ash partially offsets the
need for raw materials, such as silica, iron, and alumina sources.
Thus, using coal fly ash in the cement kiln can reduce the unit
consumption of raw feed stock materials, which results in reduced
emissions of certain pollutants.\38\ Furthermore, when coal fly ash
with relatively high unburned carbon content is introduced to the
cement kiln during clinker manufacture, the primary fuel supply may be
reduced to accommodate the additional energy provided by the carbon in
the fly ash.
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    \38\ For more detailed information on the benefits of using coal
fly ash and other recovered mineral components in manufacturing
processes, please see: ``Study on Increasing the Usage of Recovered
Mineral Components in Federally Funded Projects Involving
Procurement of Cement or Concrete to Address the Safe, Accountable,
Flexible, Efficient Transportation Equity Act: A Legacy for Users.''
June 23, 2008. (EPA530-R-08-007)
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    Cement Kiln Dust (CKD) \39\--Generated by the cement manufacturing
industry, CKD is a fine-grained, solid, highly alkaline low organic
content material removed from the cement kiln exhaust gas by scrubbers.
Much of the material comprising CKD is incompletely reacted raw
material, including a raw mix at various stages of burning, and
particles of clinker. There is an estimated 13 to 17 million short tons
of CKD generated per year in the U.S. CKD can be directly reused in a
closed-loop process back into the cement kiln as an ingredient for
clinker manufacture. The cement industry is estimated to recycle more
than 75 percent of its CKD each year. Significant increases in U.S.
clinker capacity are expected over the 2008 to 2012 period resulting in
an anticipated increase in CKD production and usage. In clinker
manufacture, CKD partially offsets the need for raw material feed, such
as limestone and natural constituents (rock), thus avoiding the energy
usage and emissions related to their extraction and processing.
---------------------------------------------------------------------------

    \39\ Source (unless otherwise noted): Materials Characterization
Paper in Support of the Advanced Notice of Proposed Rulemaking:
Identification of Non-Hazardous Materials That Are Solid Waste--
Cement Kiln Dust (CKD).
---------------------------------------------------------------------------

    Coal Refuse \40\--Coal refuse refers to any by-product of coal
mining or coal cleaning operations. Coal refuse is generally defined by
a minimum ash content combined with a maximum heating value, measured
on a dry basis. Coal refuse consists primarily of non-combustible rock
with attached coal that could not be effectively separated in the era
in which it was mined. Coal refuse includes mining rejects and
recovered landfill ash. Coal mine rejects are generated by bituminous
coal and lignite surface mining, bituminous coal underground mining,
and anthracite mining. Recovered landfill ash is generated by fossil
fuel electric power generation facilities. Specific data on the
quantity of mining rejects generated is not available. However, we
estimate that up to 1,145 million tons of coal refuse may have been
generated \41\ in 2007. Generation of mining rejects, as well as the
availability of recoverable

landfill ash, correlates with the production and use of coal. Coal
production is projected to increase in the coming decades in response
to increased demand for electricity. Increasing coal use for
electricity generation at existing plants and projected construction of
new coal-fired plants is estimated to lead to coal production increases
that average 1.1 percent per year from 2005 to 2015, with 1.8 percent
annual growth projected over the 2015 to 2030 period. Based on our
review of publicly available information, circulating fluidized bed
(CFB) combustion units and pulverized coal power plants are currently
the units that use coal refuse.
---------------------------------------------------------------------------

    \40\ Source (unless otherwise noted): Materials Characterization
Paper in Support of the Advanced Notice of Proposed Rulemaking:
Identification of Non-Hazardous Materials That Are Solid Waste--Coal
Refuse.
    \41\ The term ``generated'' in this context refers to the
quantity of coal mining rejects produced from the total quantity of
U.S. coal mined in 2007. (Please see the coal refuse Materials
Characterization Paper for a more detailed discussion.)
---------------------------------------------------------------------------

    CFB is an integrated technology for reducing SO2 and
NOX emissions during the combustion of coal. In addition to
reduced SO2 and NOX emissions, use of coal refuse
as a replacement for traditional primary fuels eliminates the
environmental impacts associated with the extraction and processing of
traditional fuels, and reduces the environmental impacts that may be
associated with the piles of coal refuse (e.g., potential fire hazards
and sources of surface and groundwater pollution).
    The Agency seeks comment, with supporting data, on the secondary
materials information provided in this ANPRM and in the Materials
Characterization Papers. We also request comment, with supporting data,
on any unidentified non-hazardous secondary fuel and/or ingredient
materials used in combustion units.

IV. What Is the History of the Definition of Solid Waste Rules?

A. Statutory Definition of Solid Waste

    RCRA defines ``solid waste'' as ``* * * any garbage, refuse, sludge
from a waste treatment plant, water supply treatment 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.

B. Solid Waste Program, RCRA Subtitle D

    The regulations that pertain to non-hazardous solid waste (RCRA
Subtitle D) contain five definitions of the term ``solid waste.'' (See
40 CFR 240.101(y); 40 CFR 243.101(y); 40 CFR 246.101(bb); 40 CFR 257.2;
and 40 CFR 258.2.) These regulatory definitions largely mirror the
statutory definition of solid waste with some clarifications applicable
to the specific regulatory section. The RCRA statutory definition of
solid waste has also been repeated in the CAA emission guidelines for
other solid waste incineration units (e.g., see 40 CFR 60.2977 and
60.3078).
    EPA has not focused on the specific parameters of the definition of
solid waste as it applies to non-hazardous solid waste programs under
RCRA Subtitle D primarily because while, under RCRA Subtitle D, EPA
promulgates criteria for municipal solid waste landfills and approves
state solid waste landfill permitting programs, it is the states that
fully implement those programs. EPA does not have the same role in
these programs as it does in the hazardous waste programs established
under RCRA Subtitle C. As a result, EPA has not promulgated detailed
regulations of what is included in the definition of solid waste for
the Subtitle D (non-hazardous) programs. States have promulgated their
own laws and regulations regarding what constitutes solid waste and
have interpreted those laws and regulations to determine what types of
secondary materials management activities constitute discard (and
therefore involve the management of a solid waste). However, EPA now
needs to articulate which non-hazardous secondary materials constitute
solid wastes under RCRA Subtitle D so that EPA can establish
appropriate standards under CAA sections 112 and 129 for units that
combust secondary materials for the purposes of energy recovery or when
used as an ingredient. We envision that a Subtitle D definition of
solid waste that could result from this rulemaking effort would not
impact/affect any other types of management activities for these
materials, such as landfilling, composting, etc., and as such, would
have no impact at the Federal level on the Subtitle D program.

C. Hazardous Waste Program, RCRA Subtitle C

    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)).
    EPA emphasizes that it is not requesting comment on any of its
Subtitle C regulations or on any of the issues involved in its
hazardous waste regulations regarding whether secondary materials are
hazardous wastes for purposes of its RCRA Subtitle C regulations. The
Agency is not reopening its hazardous waste regulations in any way
whatsoever; EPA does not intend to respond to any comments directed to
its hazardous waste regulations.
    The following discussion provides the context in which EPA's
hazardous waste regulations exclude certain materials that would
otherwise be hazardous waste from the definition of solid waste. In 40
CFR 261.2, EPA defines solid waste for purpose of the hazardous waste
regulations as ``any discarded material that is not excluded * * *'' by
other provisions of Part 261.
    For context, however, the Agency describes its hazardous waste
regulations and the exclusions, themselves. First, a ``discarded
material'' is defined in relevant part as a hazardous material which is
abandoned, recycled, or considered inherently waste-like. A hazardous
material is considered to be ``abandoned'' if it is disposed of, burned
or incinerated, or accumulated, stored, or treated before or in lieu of
being disposed of, burned, or incinerated. A hazardous material is
considered to be a solid waste when recycled (or when accumulated,
stored or treated prior to recycling) if it is: (a) Used in a manner
constituting disposal (i.e., placed on the land or used to produce
products that are placed on the land); (b) burned for energy recovery
or used to produce a fuel; \42\ (c) reclaimed; or (d) accumulated
speculatively.
---------------------------------------------------------------------------

    \42\ Commercial chemical products listed in 40 CFR 261.33 are
not solid wastes if they themselves are fuels. Also, all commercial
chemical products that are fuels are not solid waste, regardless of
whether they are listed as a hazardous waste (see 50 FR 14219, April
11, 1985).
---------------------------------------------------------------------------

    While 40 CFR 261.2 sets out the basic regulatory definition of
solid waste as it applies to hazardous waste, the regulations also
exclude a number of specific hazardous secondary materials from the 40
CFR 261.2 definition of solid waste, and therefore, from the hazardous
waste regulations. In general, these exclusions involve hazardous
secondary materials that are products, co-products, or intermediates or
other hazardous secondary materials that are reused/recycled/returned
to the original process or hazardous secondary materials that meet fuel
specifications. For example, hazardous secondary materials are not
solid waste when used or reused as ingredients to make a product
(provided the material is not reclaimed), used or reused as effective
substitutes for commercial products, or are returned to the original
process

without first being reclaimed (40 CFR 261.2(e)(1)). In addition, EPA
has developed many case-specific solid waste exclusions (see 40 CFR
261.4(a)). For example, hazardous secondary materials that are
comparable fuels or comparable syngas fuels are excluded even when
recycled by being burned for energy recovery. (See 40 CFR
261.4(a)(16).) Also, EPA has recently finalized revisions to the
definition of solid waste specifying that hazardous secondary materials
being reclaimed under the control of the generator and hazardous
secondary materials being transferred for reclamation are not solid
wastes, provided certain restrictions and conditions are met.\43\
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    \43\ See ``Revisions to the Definition of Solid Waste,'' Final
Rule, October 30, 2008, at 73 FR 64667.
---------------------------------------------------------------------------

D. 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. See American Mining Congress v. EPA, 824 F.2d 1177 (D.C. Cir.
1987) (``AMC I''). The ordinary plain-English meaning of the term
discarded means ``disposed of,'' ``thrown away,'' or ``abandoned.'' The
court 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 court discussed the meaning of discard in
particular cases. In American Petroleum Institute v. EPA, 906 F.2d 729
(D.C. Cir. 1990) (``API I''), the court rejected EPA's decision not to
regulate recycled air pollution control equipment slag based on an
Agency determination that waste ``ceases to be a `solid waste' when it
arrives at a metals reclamation facility because at that point it is no
longer `discarded material.' '' 906 F.2d at 740. Instead, the materials
were part of a mandatory waste treatment plan for hazardous wastes
prescribed by EPA and continued to be wastes even if recycled. 906 F.2d
at 741. Further, a material is a solid waste regardless of whether it
``may'' be reused at some time in the future. American Mining Congress
v. EPA, 907 F.2d 1179 (D.C. Cir. 1990) (``AMC II'').
    One of the more important holdings of a number of court decisions
is that simply because a waste has, or may have, value does not mean
the material loses its status as a solid waste. See API I, 906 F.2d at
741 n.16; United States v. ILCO Inc., 996 F.2d 1126, 1131-32 (11th Cir.
1993); Owen Steel v. Browner, 37 F.3d 146, 150 (4th Cir. 1994). ILCO
and Owen Steel, however, seem to recognize that products made from
wastes are, themselves, products and not wastes.
    Association of Battery Recyclers v. EPA, 208 F.3d 1047 (D.C. Cir.
2000) (``ABR'') reiterated the concepts discussed in the previous
cases. The Court 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). It 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 did not hold that storage before reclamation
automatically makes materials ``discarded.'' Rather, it held that ``* *
* at least some of the secondary material EPA seeks to regulate as
solid waste (in the mineral processing rule) is destined for reuse as
part of a continuous industrial process and thus is not abandoned or
thrown away'' (208 F.3d at 1056). In this regard, the court criticized
all parties in the case--industry as well as EPA--because they
``presented this aspect of the case in broad abstraction, providing
little detail about the many processes throughout the industry that
generate residual material of the sort EPA is attempting to regulate *
* *. '' (Ibid).
    American Petroleum Institute v. EPA, 216 F.3d 50, 55 (D.C. Cir.
2000) (``API II''), decided shortly after ABR and considered by the
court at the same time, provides further guidance for defining solid
waste, but in the context of two specific waste streams in the
petroleum refining industry. The court overturned EPA's determination
that certain recycled oil bearing wastewaters are wastes (216 F.3d at
55-58) and upheld conditions imposed by the Agency in excluding
petrochemical recovered oil from the definition of solid waste (216
F.3d at 58-59). In the case of oil-bearing wastewaters, EPA had
determined that the first phase of treatment, primary treatment,
results in a waste being created. 216 F.3d at 55. The court overturned
this decision and remanded it to EPA for a better explanation, neither
accepting EPA's view nor the contrary industry view. The court noted
that the ultimate determination that had to be made was whether primary
treatment is simply a step in the act of discarding? Or is it the last
step in a production process before discard? 213 F.3d at 57. In
particular, the court rejected EPA's argument that primary treatment
was required by regulation, instead stating that the Agency needed to
``set forth why it has concluded that the compliance motivation
predominates over the reclamation motivation'' and ``why that
conclusion, even if validly reached, compels the further conclusion
that the wastewater has been discarded.'' 213 F.3d at 58.
    The court also considered whether material is discarded in Safe
Food and Fertilizer v. EPA, 350 F.3d 1263 (D.C. Cir. 2003) (``Safe
Food''). In that case, among other things, the court rejected the
argument that, as a matter of plain meaning, recycled material destined
for immediate reuse within an ongoing industrial process is never
considered ``discarded,'' whereas material that is transferred to
another firm or industry for subsequent recycling must always be solid
wastes. 350 F.3d at 1268. Instead, the court evaluated ``whether the
agency's interpretation of * * * `discarded' * * * is, reasonable and
consistent with the statutory purpose. * * *'' Id. Thus, EPA has the
discretion to determine if material is not a solid waste, even if it is
transferred between industries.
    We also note that the Ninth Circuit has specifically found that
non-hazardous secondary materials may, under certain circumstances, be
burned and not constitute a solid waste under RCRA. See Safe Air For
Everyone v. Waynemeyer (``Safe Air''), 373 F.3d 1035 (9th Cir., 2004)
(Kentucky bluegrass stubble may be burned to return nutrients to the
soil and not be a solid waste).

E. Regulatory Interpretations Regarding the Recycling of Hazardous
Secondary Materials and the Concept of Legitimacy

    As over twenty-five years of experience in implementing the
hazardous waste regulations has demonstrated, drawing the line between
materials that are part of a

manufacturing process or are more commodity-like rather than waste-like
(and therefore not discarded) from those that are discarded (and
therefore are being disposed) is a difficult one and depends on a
number of factors, including how the materials are managed.
    For example, it is clear that the distillation of hazardous waste
solvents or the neutralization of contaminated acids (while the
hazardous secondary material itself may be regulated under the RCRA
hazardous waste regulations) can produce products which are not
considered wastes. Similarly, under 40 CFR 260.31(c), EPA may grant a
variance from classifying as a solid waste those hazardous secondary
materials that have been reclaimed, but must be reclaimed further. In
order for such a variance to be granted, the resulting material must be
commodity-like (even though it may not be a commercial product) based
on a series of specific factors. Under one such variance, World
Resources Company (WRC) accepts shipments of metal bearing sludges
(principally sludges from electroplating operations, a listed hazardous
waste under RCRA), and then dries and blends the sludges with other
shipments to achieve concentrates that meet the contractual
specifications of its customers (smelters that recover metals contained
in the concentrates). Under the variance, the incoming electroplating
sludges are regulated as hazardous waste until they are processed, but
the resulting product is no longer a solid waste, and it can be shipped
to smelters for further reclamation as a product in commerce and not as
a waste. EPA is aware that several authorized states have made
comparable determinations, as part of the state authorized RCRA
hazardous waste program.
    An important element under the RCRA Subtitle C definition of solid
waste is the concept of legitimate recycling, including the legitimate
use of hazardous secondary materials. Under RCRA Subtitle C, some
hazardous secondary materials that would otherwise be subject to
regulation under RCRA's ``cradle to grave'' system are not considered
solid wastes if they are ``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 materials being sham recycled to be 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 and ``sham''
(i.e., fake) recycling, beginning with the preamble to the 1985
hazardous waste regulations that first 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). On
April 26, 1989, the Office of Solid Waste 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 a hazardous secondary materials recycling
process (OSWER directive 9441.1989(19)). This memorandum (known to many
as the ``Lowrance Memo'') has been a primary source of information for
the regulated community and for overseeing agencies in distinguishing
between legitimate and sham recycling.
    As discussed above, on October 30, 2008, EPA finalized several
exclusions from the definition of solid waste for hazardous secondary
materials being reclaimed and a non-waste determination process for
persons to receive a formal determination that their hazardous
secondary materials are not solid wastes when legitimately reclaimed.
As part of that final rule, EPA codified a legitimate recycling
provision specifically as a condition of these exclusions and the non-
waste determination process.
    As discussed earlier, EPA emphasizes that it is not requesting
comment on any Subtitle C regulation or any of the issues involved in
its hazardous waste regulations. EPA does not intend to respond to any
comments directed to its hazardous waste regulations.
    However, because the concept of legitimacy is a useful one in
determining when a secondary material is genuinely recycled and not
discarded under the guise of recycling, the Agency is including the
following discussion in today's preamble to provide the context in
which EPA has integrated the concept of legitimacy into the latest
hazardous waste exclusions from the definition of solid waste.
    The legitimacy provision in the October 2008 final rule, which
applies specifically to the 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 that a legitimate recycling process 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
existing legitimacy policy, as stated in the 1989 Lowrance Memo and in
various definitions of the solid waste rulemakings.
    The same principle of ``legitimacy'' is likewise an important
element in the recycling of non-hazardous secondary materials. That is,
the concept of legitimate recycling is crucial to determining whether a
non-hazardous secondary material being recycled is truly being recycled
or is, in fact, being discarded through sham recycling. In this notice,
the Agency is addressing the same basic concept of legitimate recycling
by discussing when a non-hazardous secondary material that is not
discarded is legitimately recycled or is a legitimate ingredient in an
industrial process. Obviously, a secondary material that is not
discarded and is combusted can only be a fuel or ingredient, and not a
solid waste, if the material is being legitimately used as a fuel or
ingredient.
    Consequently, the Agency is seeking comment on the appropriate
construct for determining when non-hazardous secondary materials are
legitimately burned as fuel or used as a legitimate ingredient in an
industrial process. This is explained in detail in the following
Section V: Preliminary EPA Approach to Determine if Materials Are
Considered Solid Wastes.

V. Preliminary EPA Approach To Determine if Materials Are Considered
Solid Wastes

A. Materials That Are Not Solid Wastes

    EPA is providing advanced notice of its intent to develop a
definition of the term ``solid waste'' under RCRA for non-hazardous
secondary materials that are used as a fuel or ingredient in a
manufacturing process. As noted previously, the purpose of this notice
is to assist EPA in developing emissions standards under sections 112
and 129 of the CAA, because the CAA states that the term ``solid
waste'' shall have the meaning ``established by the Administrator
pursuant to [RCRA].'' 42 U.S.C. 7429(g)(6). The Agency is considering
various 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
materials would be subject to regulation under CAA section 129, rather
than potentially subject to CAA section 112. EPA has identified several
cases where we believe secondary materials are not solid wastes when
combusted. These include:
     Traditional fuels;
     Secondary materials used as legitimate ``alternative''
fuels that have not been previously discarded;
     Secondary materials used as legitimate ``alternative
fuels'' resulting from processing of discarded secondary materials;
     Secondary materials used as legitimate ingredients; and
     Hazardous secondary materials that may be excluded from
the definition of solid waste under RCRA Subtitle C because they are
more like commodities than wastes.
1. Traditional Fuels
    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 well as cellulosic biomass (e.g.,
wood) are traditional fuels which have been burned historically as
fuels and have been managed as valuable products. These traditional
fuels are unused products that have not been discarded and therefore
are not solid wastes. (However, certain ``alternative'' fuels, such as
coal refuse, have in some cases been abandoned, and therefore
discarded--see discussion of coal refuse in section VI.A.) EPA also
believes that wood collected from forest fire clearance activities and
trees and uncontaminated wood found in hurricane debris is not
discarded if managed properly and burned as a legitimate fuel, and
therefore is not a solid waste. We request comment on whether there are
other traditional fuels that would fall within this grouping.
    It should be understood that cellulosic biomass, as described
above, includes unadulterated or clean wood, but that other forms of
wood, such as reconstituted wood/panel products (e.g., medium density
fiberboard, particle board, and laminated lumber) or painted and
chemically treated wood, would need to be evaluated as to whether they
would qualify as a legitimate alternative fuel pursuant to the criteria
described in the following section.
2. Guiding Principles Used To Determine if Secondary Materials Used in
Combustion Units Are Solid Wastes
    For these various secondary materials that are used either as
ingredients or alternative fuels, EPA is examining the principles
expressed in the various court decisions on previous rulemakings. In
addition, we are considering the overall principle in our hazardous
waste regulations that materials treated as a commodity, rather than as
a waste, are not discarded and are not solid wastes so long as they are
legitimately recycled. We are soliciting comments on the
appropriateness of the principles as applied to non-hazardous secondary
materials and on how best to structure the criteria for when a non-
hazardous secondary material is or is not a solid waste. To this end,
the same secondary material could be a solid waste or not depending on
how it has been handled and managed because handling and management
factors into whether or not the secondary material has been discarded.
Key factors in determining if these alternative fuels or ingredients
are solid wastes under RCRA are: (1) Whether they have been discarded,
which includes how they are managed and whether they are being used as
legitimate fuels and ingredients; and (2) if they have been discarded,
whether they have been processed to produce a fuel or ingredient
product that would not be considered a solid waste.
    As noted above in the discussion of AMC I, as well as other
consistent cases, 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 term
``discarded materials'' could not include materials ``* * * destined
for beneficial reuse or recycling in a continuous process by the
generating industry itself.''
    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.,
bagasse and cement kiln dust that is recycled in cement kilns). In
looking at the recently promulgated Subtitle C non-waste determination
petition process under 40 CFR 260.34, to determine whether hazardous
secondary materials are used in a continuous process, EPA would
evaluate whether the hazardous secondary material is part of the
continuous primary production process and is not waste treatment. If
the hazardous secondary material is handled in a manner identical to
virgin feedstock, then it would appear to be fully integrated into the
production process. At the other end of the spectrum, however,
hazardous secondary materials indisputably discarded prior to being
reclaimed are not a part of the continuous primary production process.
See API I, ILCO and

Owen Steel, cited previously. Moreover, hazardous secondary materials
are likely discarded in the case where industry may reuse materials in
the future and it is not clear that reuse will occur. See AMC II, cited
previously. By similar logic, EPA believes that non-hazardous
alternative fuels or ingredients that are produced and used as a
legitimate fuel or ingredient in a continuous process would not be
considered to have been discarded.
    Furthermore, even if the material is not used in a continuous
process, if it is used as a legitimate fuel or ingredient, these
secondary materials are likely not solid wastes if they were not
previously discarded. See API II and Safe Food, previously cited. Many
materials, such as coal fly ash and biomass are intended for legitimate
reuse and therefore are not discarded. EPA believes these materials, if
used as legitimate fuels or ingredients (as discussed in more detail
below) would likely not be solid wastes if they have not been
previously discarded (however, as discussed later in this section,
previously discarded materials that are processed into a legitimate
fuel product or ingredient would also likely not be solid wastes).
    However, for alternative fuels or ingredients to not be considered
discarded, and thus not solid wastes, they must be legitimate fuels or
ingredients. Below we first discuss the legitimacy criteria for
alternative fuels, followed by a discussion of the legitimacy criteria
for materials used as ingredients.
    a. Legitimate Alternative Fuels. Specifically, the Agency generally
considers secondary materials to be a legitimate fuel 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. EPA is interested in receiving comments on these principles.
Specifically:
     Handled as a Valuable Commodity. For hazardous secondary
materials, EPA has previously said, with respect to whether something
is managed as a valuable commodity, that where there is an analogous
raw material, the hazardous secondary material should be managed, at a
minimum, in a manner consistent with the management of the analogous
raw material.\44\ Where there is no analogous raw material, the
hazardous secondary material should be contained. Hazardous secondary
materials that are released to the environment and are not recovered
immediately are considered to be discarded. We request comment on
whether similar criteria should be used to determine if non-hazardous
secondary materials used as alternative fuels are being managed as
valuable commodities and thus are not solid waste, or whether more
tailored criteria are more appropriate for non-hazardous secondary
materials. For example, in situations where there is no analogous raw
material, the Agency is interested in what type of containment would be
necessary for non-hazardous secondary materials, particularly whether
materials that are physically solid, such as tires, require
containment.
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    \44\ See ``Revisions to the Definition of Solid Waste,'' Final
Rule, October 30, 2008, at 73 FR 64667.
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     Meaningful Heating Value: EPA is seeking comment on how to
define meaningful heating value for materials that are used as
alternative fuels. Because of the wide variety of materials in
question, and because of technology advances and the fact that fuel
values vary, EPA questions whether it is possible or appropriate to
establish a specific heating value cutoff for ``legitimate'' fuel. In
the context of the hazardous waste regulations, EPA addressed the
concept of whether a hazardous secondary material has an adequate,
meaningful heating value in the so-called ``comparable fuels'' rule (63
FR 33781) with a benchmark Btu content of 5,000 Btu/lb (see section
V.A.6 for more on the comparable fuels rule).\45\ However, given
improved combustion processes that have been developed that cost-
effectively produce energy from lower rank materials (e.g., circulating
fluidized bed combustion units), and given the fact that lower Btu
content non-hazardous materials are frequently combusted for fuel
value, EPA is requesting comment on whether a Btu content is needed,
and if so whether a lower Btu content may be appropriate. Alternative
fuel materials have a wide range of heating values that range from
2,600 Btu/lb for food; to 3,000 Btu/lb for yard trimmings; to 3,750
Btu/lb for sludge; to 5,000 Btu/lb for wood; and to 13,450 BTU/lb for
rubber.\46\ We request comment on whether we should develop a specific
minimum Btu value on an ``as-fired'' basis that would qualify a
secondary material as having meaningful heating content, or whether we
should define meaningful heating value more qualitatively based on
general principles.
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    \45\ In addition, EPA has previously stated that Subtitle C
industrial furnaces (i.e., cement kilns and industrial boilers)
burning wastes with energy value greater than 5,000 Btu may
generally be said to be burning for energy recovery, however, lower
energy wastes could conceivably be burned for energy recovery due to
the devices' general efficiency of combustion. ``Thus, the 5,000 Btu
level is not an absolute measure of burning for energy recovery * *
*'' (see 62 FR 24251, May 2, 1997).
    \46\ See background document titled ``Methodology for Allocating
Municipal Solid Waste to Biogenic and Non-Biogenic Energy, Energy
Information Administration (U.S.DOE), May, 2007.
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     Presence of Non-fuel Contaminants: In the hazardous waste
comparable fuels rule, EPA established numerical specifications for
toxic organics, toxic metals, sulfur, nitrogen, halogens, and
polychlorinated biphenyls (PCBs). To address the possible presence of
waste-like contaminants in non-hazardous secondary materials, EPA
believes a qualitative approach is more appropriate and can be used to
identify waste materials containing contaminants that are significantly
higher in concentration than those contained in traditional fuel
products to the degree that sham recycling is indicated. The term
``contaminants'' refers to constituents in secondary materials that may
be of a concern when burned as a fuel. For example, secondary materials
that could contain contaminants that are significantly higher in
concentration than those contained in traditional fuel products include
chromium-, copper-, and arsenic (CCA)-treated lumber, secondary mill
residues (i.e., residues such as board, trim and breakage from the
manufacture of reconstituted wood/panel products), polyvinyl chloride
(PVC) plastics which can contain 60 percent halogens (chlorine),\47\
lead-based painted wood, fluorinated plastics, and non-hazardous
halogenated solvents. In determining whether the concentration of
contaminants in secondary materials is ``significantly higher,'' the
Agency could include 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. We request comment on whether
a qualitative approach to defining fuels as solid waste because they
are too contaminated (indicating sham recycling) is an appropriate
option. In any case, given the multiplicity of fuel materials, we
believe that numerical specifications are likely to be

impractical. We also request comment on whether the contaminants
evaluated for the comparable fuels rule,\48\ which mostly includes
Appendix VIII constituents, should also be used for non-hazardous
secondary materials used as fuels, or whether a different of list
contaminants is appropriate.
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    \47\ Constituents, such as chlorine in PVC are relevant because
of the potential for chlorinated combustion by-products to be
emitted (e.g., dioxins, hydrogen chloride).
    \48\ See RCRA Comparable Fuel Exclusion Final Rule, June 19,
1998 at 40 CFR 261.38.
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    b. Legitimate Alternative Ingredients. For non-hazardous secondary
materials to be used as legitimate ingredients, the Agency would use a
similar legitimacy analysis as was developed in the hazardous waste
program. Specifically, the Agency would generally consider secondary
materials to be a legitimate ingredient 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. If these criteria are not
met, sham recycling may be indicated and the secondary material may be
a solid waste. For use as an ingredient, EPA would not be looking at
fuel value since the secondary materials are being used as an
ingredient and not a fuel. Instead, the Agency would look at useful
contribution and valuable product, as described below. The Agency is
interested in receiving comments on these principles, including whether
the following principles are reasonable for non-hazardous secondary
materials used as ingredients:
     Handled as a Valuable Commodity. For hazardous secondary
materials, EPA has previously said, with respect to whether a secondary
material is managed as a valuable commodity, that where there is an
analogous raw material, the hazardous secondary material should be
managed, at a minimum, in a manner consistent with the management of
the analogous raw material. Where there is no analogous raw material,
the hazardous secondary material should be contained. Hazardous
secondary materials that are released to the environment and are not
recovered immediately are discarded, and thus would be regarded as a
waste and not a commodity. We request comment on whether similar
criteria should be used to determine if non-hazardous secondary
materials used as ingredients are being managed as valuable commodities
and thus are not solid waste, or whether more tailored criteria are
more appropriate for non-hazardous secondary materials.
     Useful Contribution: For hazardous secondary materials,
EPA has previously stated that a secondary material must provide a
useful contribution to the recycling process or to the product of the
recycling process.\49\ The ways in which a secondary material can add
value and usefully contribute to a recycling process are: (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. We request comment on whether this description is
applicable for non-hazardous secondary materials used as ingredients in
a combustion process.
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    \49\ See ``Revisions to the Definition of Solid Waste,'' Final
Rule, October 30, 2008, at 73 FR 64667.
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     Valuable Product or Intermediate: Similarly, for hazardous
secondary materials, EPA has stated that the recycling process must
produce a valuable product or intermediate.\50\ The Agency believes 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. The Agency believes this description is broad
enough to incorporate both products that are valuable from a monetary
standpoint and products or intermediates that have intrinsic value to
the generator or the recycler. We are seeking comment on whether this
description of valuable product/intermediate is an appropriate way to
consider this criterion in the context of non-hazardous secondary
materials used as ingredients.
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    \50\ See ``Revisions to the Definition of Solid Waste,'' Final
Rule, October 30, 2008, at 73 FR 64667.
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     Presence of Contaminants: As mentioned above under
legitimate fuel criteria, EPA is suggesting a qualitative approach may
be more appropriate to use in identifying waste materials containing
contaminants that are significantly higher in concentration than those
contained in traditional products to the degree that sham recycling is
indicated. In the context of hazardous secondary materials, EPA expects
those making a legitimate recycling determination to look at the
concentrations of hazardous constituents found in the product made from
hazardous secondary materials and compare them to the concentrations of
hazardous constituents in analogous products to determine if the
concentrations are significantly higher.\51\ In determining whether the
concentration of contaminants in secondary materials is ``significantly
higher,'' the Agency could include 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 ingredient.
EPA concluded in the most recent hazardous secondary material
rulemaking that the complexities of defining ``significant'' via a
bright-line quantitative test that would also still be appropriate for
all industries, all recycling processes, and all recycled hazardous
secondary materials were too great for the Agency to be able to design
as a simple and straightforward system of tests to be used in making
such determinations.\52\ We request comment on whether a similar
qualitative approach to defining ingredients used in a manufacturing
process involving combustion as solid waste because they are too
contaminated (indicating sham recycling) is the preferred option or
whether numerical specifications is a better approach. In addition, the
Agency is requesting comment on whether the contaminants evaluated
should be the hazardous constituents listed in Appendix VIII to 40 CFR
Part 261 or whether a different list of contaminants is more
appropriate for non-hazardous secondary materials used as ingredients.
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    \51\ See ``Revisions to the Definition of Solid Waste,'' Final
Rule, October 30, 2008, at 73 FR 64667.
    \52\ See ``Revisions to the Definition of Solid Waste,'' Final
Rule, October 30, 2008, 73 FR at 64745.
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    c. Discarded Secondary Materials That Have Been Processed. In many
cases, the secondary material may have been discarded, but later
processed to produce a legitimate fuel product or ingredient, ready for
direct use in an industrial process. In such cases, the processed
material that is extracted or reclaimed as a legitimate fuel or
ingredient would not be a waste, but rather a product of the processing
activity. In general, the products from the recycling of solid wastes
are not themselves wastes--for example, paper that is made from
recycling used paper and then sold in stores is a product, not a waste.
EPA believes that if a secondary material is processed into a
legitimate fuel or ingredient material, the processed material would
not be a discarded material. Of course, these

products still must qualify as legitimate fuels or ingredients, as
previously discussed. Otherwise, sham recycling may be indicated and
the materials may be a solid waste. For example, used oil that is
processed to produce ``on-spec fuel'' and that meets the standards of
40 CFR 279.11 would be considered a product, not a waste. See section
V.A.4 for more discussion of used oil.
    In the following sections, we discuss three groupings (previously
listed) where we believe secondary materials are not solid wastes, but
rather are non-discarded products that are legitimate fuels or
ingredients when used in combustion units. We are soliciting comment on
our interpretation of these materials as not being solid wastes under
RCRA.
3. Secondary Materials Used as Legitimate ``Alternative'' Fuels That
Have Not Been Previously Discarded
    As we discussed previously, EPA believes 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 Agency also believes 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 would not consider them to be solid wastes.
    Alternative fuels consisting of biomass represent a large
percentage of the alternative fuels in use today. We generally believe
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 (i.e., they have been managed as
valuable commodities, have meaningful heating value and do not contain
contaminants that are significantly higher in concentration than those
in traditional fuel products). Thus, when burned, it would not be
considered ``sham'' combustion. See previous discussion in section
V.A.2. Biomass can include a wide range of alternative fuels, and can
be broken down into two different categories--cellulosic biomass and
non-cellulosic biomass. Cellulosic biomass includes 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, and pulp and paper mill residuals
(e.g., spent pulping liquors; 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 includes manures and gaseous fuels
(e.g., from landfills and manures).
    EPA generally considers biomass as described above, especially
cellulosic biomass, to have comparable composition when compared to
traditional fuel products due to the nature of the plants and animals
(i.e., they would not be considered to have additional
``contaminants''). Thus, if they are managed as valuable commodities
and have meaningful heating value, then we do not believe that they
should be considered solid wastes. We request comment on whether
biomass as described above contains contaminants that are significantly
higher in concentration when compared to traditional fuel products. In
determining whether the concentration of contaminants in biomass is
``significantly higher,'' the Agency could include 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. We also request comment on the impact of a solid waste
determination, one way or the other, on the inclusion of biomass
materials in the many state-initiated renewable fuels specifications
whereby such materials (e.g., manures, forest thinnings) are required
to be used in the electric generation portfolio within the state.
    EPA also believes that tires used as TDF, which include whole or
shredded tires, that have not been previously discarded, are legitimate
fuels that meet our previous described 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). EPA's 1997 study on ``Air
Emissions from Scrap Tire Combustion'' \53\ concluded that potential
emissions from TDF are often less than and generally within the same
range as, emissions from conventional fossil fuels. Thus, if the tires
have not been abandoned and thrown away, we would not consider them to
be solid wastes. For example, approximately 130 million tires per year
are obtained from tire dealerships and used directly as a fuel. In many
cases, these tires are collected pursuant to state tire programs and
handled as valuable products, and, therefore, they have not been
abandoned, disposed of, or thrown away.\54\ In other cases, they are
transferred to brokers or directly to industrial operations through
standard commercial transactions. In contrast, tires that have
accumulated in tire piles over the years (i.e., those tires in tire
piles that have been abandoned) have been discarded, and thus
considered to be solid waste (although they may later be processed into
a legitimate fuel product).\55\
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    \53\ This study was published by EPA's Office of Research and
Development and produced as part of EPA's National Risk Management
Research Laboratory strategic long-term research plan for the
prevention and control of pollution to air, land, water, and
subsurface resources; protection of water quality in public water
systems; remediation of contaminated sites and groundwater; and
prevention and control of indoor air pollution.
    \54\ States typically regulate these programs under their state
solid waste authorities. It is not the Agency's intent to undercut
state authorities in this area. We request comment on whether tires
collected pursuant to state tire programs have been discarded. We
also request comment on whether an EPA designation specifying that
used tires, for example, managed pursuant to state collection
programs are not solid wastes, would adversely impact a states
ability to manage such programs. This similarly would apply to used
oil as well.
    \55\ For example, as noted below, whole tires can be processed
(shredded) into fuel products after they have been discarded.