contaminant legitimacy criterion be added to each option for
demonstrating that NHSMs are non-wastes when used in combustion units,
whether it is the on-site documentation, the EPA petition process or
the categorical non-waste determination process proposed in 40 CFR
241.4.
    Response: Revisions to the contaminant legitimacy criterion
codified today in 40 CFR 241.3(d)(1) apply to all options for
demonstrating that a NHSM is not a solid waste when used as a fuel in a
combustion unit. The revised legitimacy criterion is embedded in the
self-implementing options outlined in 40 CFR 241.3(b)(1) for use within
the control of the generator and 40 CFR 241.3(b)(4) for NHSMs that are
processed and then used in a combustion unit. The revised legitimacy
criterion is also embedded in the optional EPA petition process
outlined in 40 CFR 241.3(c). The revised legitimacy criterion is also
referenced as a factor to be considered in the categorical non-waste
determination process outlined in 40 CFR 241.4.
    Comment: Several commenters expressed concern that the proposed
revisions to the contaminant legitimacy criterion, although an
improvement over the 2011 Final NHSM Rule, may not provide the
regulated community with enough information to be confident in their
compliance status. Two commenters noted that the EPA has overlooked the
analytical complexities inherent in the contaminant legitimacy
criterion and the many opportunities it creates for disagreement
between facility operators and regional and state regulators. One of
these commenters asked the EPA to both define the term `comparable' and
clarify sampling and analytical methodologies to be used when measuring
contaminant levels. Other commenters advised the EPA to increase
predictability as much as possible by developing a disciplined process
for making contaminant comparisons and providing real time transparency
for such decisions.
    Similarly, two commenters expressed concern that even after a
source makes a fuel determination, the EPA could take a different view
of the NHSMs and conclude that they were solid wastes. The risk sources
face is noncompliance with the CAA and these commenters contended that
the issue is too critical for the EPA to leave the contaminant
legitimacy criterion so vague. Over time, as the EPA develops a record
for decisions (particularly comparable contaminant determinations), one
of these commenters urged the EPA to establish a database and
immediately post determinations for other sources to review.
    Other commenters supported the proposed revisions to the
contaminant legitimacy criterion and indicated that they provided
sufficient clarification. One commenter noted that changes to the
language of the criterion and the additional clarification provided in
the preamble to the December 2011 proposed rule provide key additional
detail on making contaminant comparisons and allow additional
flexibility where appropriate. The same commenter urged the EPA to
maintain

that flexibility if the agency develops additional guidance on making
contaminant comparisons in the future.
    Response: The EPA has retained the approach included in the
proposed rule that provides information on how contaminant comparisons
can be made and the agency will continue to make its traditional fuel
data and legitimacy determinations transparent through the EPA Web
site.\42\
---------------------------------------------------------------------------

    \42\ The EPA maintains a NHSM Web page with current information
on contaminant levels in traditional fuels, examples of legitimacy
determinations and other information at http://www.epa.gov/epawaste/nonhaz/define/index.
---------------------------------------------------------------------------

    The agency recognizes the need for regulatory certainty, a need
that has been addressed by revisions to the definition of contaminants
and the contaminant legitimacy criterion in today's final rule.
Contaminants have been specifically listed, additional clarity on
NHSMs/traditional fuel comparisons has been provided and several
comparison methodologies have been provided in the preamble as examples
that could be used by the regulated community. Comments from the
regulated community have been supportive both of these changes and of
the agency's efforts to update traditional fuel data that can be used
for contaminant comparisons.\43\ In addition, a number of
interpretative letters have been written that address specific fact
situations as presented by a specific facility and these letters have
been posted on the EPA's Web site.\44\ These letters serve as examples
of acceptable ways to demonstrate legitimacy.
---------------------------------------------------------------------------

    \43\ Contaminant Concentrations in Traditional Fuels: Tables for
Comparison, November 29, 2011, can be found at http://www.epa.gov/epawaste/nonhaz/define/index.
    \44\ See NHSM rule Web site http://www.epa.gov/epawaste/nonhaz/define/index.htm.
---------------------------------------------------------------------------

    The EPA must balance the need for regulatory certainty, however,
with the need for flexibility, which many commenters also believe is
important. As the agency has previously discussed, the legitimacy
criteria must be flexible enough to account for future changes in
commodities, technologies, markets and fuel prices.\45\ Previous
comments have stressed the preference for a qualitative approach, and
the agency has agreed, noting that numerical specifications may be
impractical due to the multiplicity of fuels and ingredients.\46\ The
agency has also previously discussed that a numerical definition of
`comparable' would be impractical given differences in the typical
concentration levels of various contaminants, choosing instead to offer
several examples.\47\ While the agency will consider future guidance on
contaminant comparisons, it has determined that no one approach is
appropriate for every legitimacy determination given the variety of
traditional fuels, NHSMs and combustion units that currently exist and
will likely increase in the future.
---------------------------------------------------------------------------

    \45\ See 75 FR 31870.
    \46\ See 75 FR 31871.
    \47\ See 76 FR 15524 and 15542.
---------------------------------------------------------------------------

    Comment: One commenter noted that both the March 2011 NHSM final
rule and the proposal implicitly place the burden on the combustion
facility to determine if a fuel derived from NHSMs meets the legitimacy
criteria. In the utility industry, the commenter explained, it is
common practice for utilities to rely on fuel marketers to establish
and verify fuel quality, and the regulatory burden on utilities
combusting such secondary materials as fuels could be reduced if the
EPA clarified the circumstances under which a facility would be
entitled to rely on the fuel quality representations of its suppliers.
The commenter suggested that the EPA clarify that a utility may rely in
good faith on the representations of its suppliers that NHSMs meet the
codified legitimacy criteria, or, alternatively, that utilities be
required only to periodically test the quality of NHSM-derived fuels
obtained from third parties to rely on their suppliers'
representations.
    Response: The EPA notes that while fuel suppliers may provide their
customers with documentation supporting a legitimacy determination,
persons who burn NHSMs are ultimately responsible for the materials
burned at their units. As stated in the proposed rule, however, the
agency adopts as its decision for this final rule that initial
assessments would not need to be repeated as long as the facility
continues to operate in the same manner and use the same type of NHSM
as when the original assessment was made.\48\
---------------------------------------------------------------------------

    \48\ See 76 FR 80481.
---------------------------------------------------------------------------

b. Grouping of Contaminants
    The December 2011 proposed revision to the contaminant legitimacy
criterion for NHSMs used as a fuel began with the following sentence:
``The non-hazardous secondary material must contain contaminants or
groups of contaminants at levels comparable in concentration to or
lower than those in traditional fuel(s) which the combustion unit is
designed to burn.'' The phrase `or groups of contaminants' was not
present in the language from the March 2011 NHSM Final Rule but was
included in the December 2011 NHSM Proposed Rule to clarify that groups
of contaminants could be evaluated in determining whether a NHSM meets
the contaminant legitimacy criterion.
    In particular, the proposed rule noted that groups of contaminants
in NHSMs could be compared to similar groups in traditional fuels where
the grouped contaminants shared physical and chemical properties that
influence their behavior in the combustion unit prior to the point
where emissions occur. Volatility, the presence of specific elements
and compound structure were three such properties identified in the
proposal and one approach to grouping contaminants was shown that
included groups for TOX, nitrogenated HAP, VOCs, SVOCs, dioxins and
furans, PCBs, PAHs and radionuclides. The agency also noted that
persons may consider other groupings that they can show are technically
reasonable.
    Grouping of contaminants is a standard practice often employed by
the agency as it develops regulations. In fact, the monitoring
standards included in the CAA sections 112 and 129 regulations also
utilize the grouping concept and they apply to the same combustion
units impacted by the NHSM rule (i.e., industrial, commercial and
institutional boilers and process heaters and CISWI units). For
example,
     Volatile hydrocarbons and semi-volatile hydrocarbons can
both be expected to result from incomplete combustion; therefore, the
emission standards promulgated under the CAA regulations are grouped
into one category: CO.\49\
---------------------------------------------------------------------------

    \49\ Area Source Boilers NESHAP, Major Source Boilers NESHAP,
and Commercial and Industrial Solid Waste Incinerators NESHAP.
---------------------------------------------------------------------------

     Halogenated organics are expected to contribute to
emissions of dioxin and acid gases (HCl and HF); therefore, the
emission standards promulgated under the CAA are grouped into two
categories: D/F and HCl.\50\
---------------------------------------------------------------------------

    \50\ Major Source Boilers NESHAP and Commercial and Industrial
Solid Waste Incinerators NESHAP.
---------------------------------------------------------------------------

     Nitrogenated compounds are expected to contribute to
emissions of NOX; therefore, the emission standards
promulgated under the CAA are grouped into one category:
NOX.\51\
---------------------------------------------------------------------------

    \51\ Commercial and Industrial Solid Waste Incinerators: NESHAP.
---------------------------------------------------------------------------

    In addition, a number of the seemingly ``individual'' pollutants
listed in sections 112 and 129 of the CAA are actually classes of
structurally-related compounds (e.g, PCBs, POM, D/F, cyanide compounds,
cresols, glycol ethers, radionuclides, xylenes, antimony compounds,
arsenic compounds, beryllium compounds and cadmium compounds).

    All comments discussing the agency's proposal to expressly allow
the grouping of contaminants supported the agency's position. Thus, the
EPA is adopting the language from the proposal and revising the
contaminant legitimacy criterion for NHSM used as a fuel to allow
contaminants to be compared on a contaminant-by-contaminant basis or,
where reasonable, on a group of contaminants-by-group of contaminants
basis. Any additional reasoning for keeping the revision as proposed,
without modification, is described in the responses to comments below.
    Comment: In general, comments overwhelmingly supported the ability
to group contaminants when making contaminant comparisons in accordance
with the legitimacy criteria. Commenters stated that codification of
this concept would provide regulatory certainty and allow for more
meaningful comparisons, similar to the manner in which the EPA measures
emissions at combustion units. Commenters noted that the ability to
group contaminants will facilitate compliance because most existing
test methods, including the EPA methods, call for the grouping of
analytes. Commenters believed that the grouping concept is an
appropriate mechanism to recognize the variability in contaminant
levels inherent in fuels. Commenters also appreciated the examples of
appropriate contaminant groups provided in the proposed rule along with
the ability to compare other technically reasonable groups (76 FR
80477-80480).
    Two commenters stated that each mention of the word
``contaminants'' should be changed to ``contaminants or groups of
contaminants'' in the regulatory text to further clarify that a
comparison to groups of contaminants is intended.
    Response: The EPA has retained the language specifically allowing
grouping in the contaminant legitimacy criterion for NHSMs used as a
fuel. The EPA adopts the reasoning in the December 2011 rule as its
final reasoning, as further supported with reasoning discussed in the
comment responses below. While the EPA has retained the language
allowing the grouping of contaminants, the agency does not consider it
necessary to change every instance of ``contaminant levels'' and
``contaminants'' to ``contaminants or groups of contaminants'' in order
to make it sufficiently clear that contaminant grouping is allowed. The
agency also notes that not all contaminants are necessarily intended to
be grouped, including individual elemental contaminants, asbestos, CO
and phosphine.\52\
---------------------------------------------------------------------------

    \52\ See 76 FR 80478, Tables 7 and 8.
---------------------------------------------------------------------------

    Comment: The ability to group metal contaminants was suggested by
several commenters. One commenter held that all 11 metals should be
specifically included as one group. Another commenter noted that with
the exception of Hg, all metals should be grouped. Yet another
commenter suggested that metals could be grouped into a volatile metals
group and a non-volatile metals group.
    Response: First, we would note that the agency is not limiting
groups to the specific approach suggested in the proposed rule. The
tables in the proposed rule suggest, but do not limit persons to, an
approach, including groups for TOX, nitrogenated HAPs, VOCs, SVOCs,
dioxins/furans, PCBs, PAHs and radionuclides, with other contaminants
left to be evaluated on an individual contaminant-by-contaminant basis.
Flexibility exists for persons to consider other appropriate groups
that they can show are technically reasonable, with additional text in
the proposal stating that other groups should share physical and
chemical properties that influence behavior in the combustion unit
prior to the point where emissions occur. Volatility, the presence of
specific elements and compound structure are three such properties.\53\
---------------------------------------------------------------------------

    \53\ See 76 FR 80477.
---------------------------------------------------------------------------

    However, we do not consider the grouping of total metals to be
appropriate. Specifically, metals vary across all three parameters--
volatility, the presence of specific elements and compound structure--
that were discussed as appropriate to consider when constructing
contaminant groups. First, many factors influence metal volatility in
combustion units, and to the extent that trends in metal volatility
have been recognized, a wide disparity exists between metals. Mercury,
as one commenter noted, is highly volatile, more so than any other
metals listed in the contaminants definition. Metals can be grouped
into volatile, semi-volatile and low-volatile categories, but it is
important to note that these distinctions can vary based on design
differences in combustion units, operating temperatures, the physical
form and species of the metal and the presence of chlorine.\54\ \55\
Second, each metal clearly contains different elements. Finally, each
metal is already a group of any compound containing the particular
element, encompassing a wide array of compound structures. In the
absence of other suggested grouping criteria or information, the EPA
does not consider total metals to be an appropriate group.
---------------------------------------------------------------------------

    \54\ EPA. 2001. ``Risk Burn Guidance for Hazardous Waste
Combustion Facilities.'' EPA530-R-01-001. July.
    \55\ Clarke, L.B. and L.L. Sloss, 1992. ``Trace Elements--
Emissions from Coal Combustion and Gasification.'' IEACR/49. IEA
Coal Research, London. July.
---------------------------------------------------------------------------

    Comment: One commenter provided a numerical example of VOC
contaminant levels in fuel oils to illustrate the importance of
grouping. The commenter cited the traditional fuel tables provided on
the EPA Web site, stating that toluene and xylenes are present in fuel
oils at concentrations up to 380 ppm and 3,100 ppm, respectively. If a
NHSM had the concentrations reversed, explained the commenter (380 ppm
xylene and 3,100 ppm toluene), the ability to group VOCs would then
allow the NHSM to meet the contaminant legitimacy criterion. The
commenter reasoned that this is appropriate because both toluene and
xylenes are beneficial components of fuel.
    Response: The EPA disagrees with this interpretation of the
grouping concept. Unless concentration data for a group of contaminants
(e.g., VOCs) come from the same fuel source, adding together the
concentrations of individual constituents (e.g., toluene and xylene)
within that group may yield a total concentration beyond what would be
considered a normal part of a legitimate fuel. Using the example cited
by the commenters, some fuel oils have been found to have up to 380 ppm
toluene and other fuel oils have been found to have up to 3,100 ppm
xylene. Because the toluene and xylene concentrations were taken from
different fuel oils, however, this does not prove that a single fuel
oil in existence actually has VOC levels as high as 3,480 ppm (380 +
3,100).
    The agency notes that VOC levels higher than 3,480 ppm, have been
found in fuel oil--concentrations of one VOC alone (hexane) have been
found as high as 10,000 ppm--and the point of this discussion is to
clarify a methodology rather than a number for acceptable VOC levels in
NHSMs.\56\
---------------------------------------------------------------------------

    \56\ Contaminant Concentrations in Traditional Fuels: Tables for
Comparison, November 29, 2011 can be found at http://www.epa.gov/epawaste/nonhaz/define/index. EPA intends to update this document as
additional data becomes available, and if persons have data
measuring traditional fuels for groups of VOCs, or for other
contaminant groups, they are encouraged to provide the agency with
such data.
---------------------------------------------------------------------------

    We would also note that while the agency considers VOCs to be an
appropriate contaminant group to use when making contaminant
comparisons, it does not base that decision on

whether or not toluene, xylenes and other VOCs are ``beneficial
components of fuel.'' The decision that toluene, xylene and other VOCs,
which the agency notes are pollutants listed in CAA section 112(b), are
an appropriate group is based on the fact that they share similar
physical and chemical properties that influence their behavior in the
combustion unit prior to the point where emissions occur.
c. Meaning of Designed to Burn
    The December 2011 proposed revision to the contaminant legitimacy
criterion for NHSMs used as a fuel included the following statement:
``In determining which traditional fuel(s) a unit is designed to burn,
persons can choose a traditional fuel that can be or is burned in the
particular type of boiler, whether or not the combustion unit is
permitted to burn that traditional fuel.'' The idea that ``designed to
burn'' means ``can burn or does burn'' was included in preamble text to
the March 2011 final rule. The December 2011 rule proposed to include
this concept, which is only applied under the NHSM rule to aid in the
selection of appropriate traditional fuel(s) for contaminant
comparisons, in regulatory language.
    The March 2011 final rule explained that in determining which
traditional fuel(s) the owner or operator of the boiler unit would make
a comparison to with respect to contaminant levels, the agency would
allow any traditional fuel(s) that can be or is burned in the
particular type of boiler. The agency reasoned that this approach was
the most appropriate since the NHSM would be replacing the use of
particular type(s) of fuel that could otherwise be burned.\57\
---------------------------------------------------------------------------

    \57\ See 76 FR 15542.
---------------------------------------------------------------------------

    The December 2011 proposal further explained that contaminants are
compared between NHSMs and traditional fuels to assist in making a
determination whether or not the NHSM is being discarded when
combusted, not to regulate which traditional fuel a combustor should
choose to burn. For the purposes of making a discard determination, the
proposal reasoned that differentiating between ``can burn'' and ``does
burn'' was not relevant.
    The agency did note in the proposed rule, however, that for a unit
to be able to burn a traditional fuel, it would need an appropriate
feed mechanism (e.g., a way to load solid fuel of a particular size
into the unit) and the ability to adjust physical parameters to ensure
spatial mixing and flame stability per unit specifications.
    Because most combustion units can burn different--but related--
traditional fuels, the agency discussed in the proposal that broad
groups of similar traditional fuels may be used when comparing
contaminants. The most common traditional fuel categories burned at
major source boilers are coal, wood, oil and natural gas, as evidenced
by data submitted to the EPA's OAQPS.\58\ \59\
---------------------------------------------------------------------------

    \58\ EPA, Office of Air Quality Planning and Standards (OAQPS),
Emissions Database for Boilers and Process Heaters Containing Stack
Test, CEM & Fuel Analysis Data Reported Under ICR No. 2286.01 and
ICR No. 2286.03 (Version 7). December 2011. http://www.epa.gov/ttn/atw/boiler/boilerpg.html#TECH.
    \59\ The fuel analysis information in this OAQPS database is one
example of a ``national survey'' of traditional fuel information, as
referenced in the final contaminant legitimacy criterion issued
today at Sec.  241.3(d)(1)(iii).
---------------------------------------------------------------------------

    To further clarify the impact of the proposed ``designed to burn''
language on contaminant comparisons, potential categories for coal,
wood and oil were further described in the proposal. A coal group was
proposed that could include data on anthracite, lignite, bituminous and
sub-bituminous coal. A wood or biomass group was proposed that could
include data on unadulterated lumber, timber, bark, biomass and hogged
fuel. An oil group was proposed that could include data on fuel oils 1-
6, diesel fuel, kerosene and other petroleum based oils.\60\ In cases
where a unit can burn traditional fuels from several categories, such
as a boiler that can burn coal or biomass, the proposal noted that
contaminant comparisons could be made using data from either fuel
category.
---------------------------------------------------------------------------

    \60\ EPA has determined that an oil group should not include
unrefined crude oil or gasoline, as neither is typically burned in
combustion units subject to the CAA sections 112 or 129 standards.
---------------------------------------------------------------------------

    The ability to compare contaminants in a NHSM, under the NHSM rule,
to contaminants in any traditional fuel that could be burned does not
change the fact that once burning occurs, emissions standards are
determined under the Boiler MACT or CISWI rule by the particular fuel
(or fuel blend) that is burned. Whether each rule focuses on what
`could be burned' or on what `is burned' is determined by the rule's
purpose and the order in which decisions must be made. Together, these
factors explain why the NHSM, Boiler MACT, and CISWI rules take
different approaches to account for individual combustion units that
burn multiple fuels.
    Specifically, the NHSM rule must first determine which NHSMs can be
burned in CAA section 112 units (i.e., boilers) and which can only be
burned in CAA section 129 units (i.e., incinerators). When making such
a waste or non-waste determination, the NHSM rule cannot always predict
what fuel would otherwise be burned (multiple options may exist).
Accordingly, the rule allows contaminant comparisons to be made to any
traditional fuel the unit could burn. The Boiler MACT or CISWI rule
must then determine how to regulate emissions from the unit, by which
point it is clear what fuel is actually being burned. Accordingly,
these rules can and do establish subcategories of units, each with
different emissions standards.
    The EPA has considered the comments received, as explained below,
but has not changed the basis for its interpretation of the ``designed
to burn'' concept. Thus, the EPA is adopting the language from the
proposal and revising the contaminant legitimacy criterion for NHSMs
used as a fuel to allow persons making contaminant comparisons to
choose a traditional fuel that can be or is burned in the particular
type of boiler, whether or not the combustion unit is permitted to burn
that traditional fuel. Any additional reasoning for keeping the
revision as proposed, without modification, is described in the
responses to comments below.
    Comment: Industry commenters generally supported the agency's
proposal to codify the previously stated meaning of ``designed to
burn'' within the contaminant legitimacy criterion for NSHMs used as
fuels. These commenters welcomed the regulatory certainty provided by
the revision and described it as a practical and appropriate
recognition that some units can burn multiple traditional fuels.
    Environmental groups, on the other hand, expressed concern that the
proposed definition of designed to burn would allow contaminants in C&D
wood to be compared to those in coal instead of virgin wood.
    One state commenter also expressed concern that allowing
comparisons to any fuel the unit could burn, including fuels they are
not permitted to burn, would weaken the states' permitting authorities
and create an incentive for combustors to burn dirtier traditional
fuels so that they could compare NHSMs to fuels with higher contaminant
levels. An industry commenter also mentioned that such an approach
would reward facilities that burn dirtier fuel and suggested that the
agency remove the entire ``designed to burn'' concept from the rule.
    Response: Based on a review of the comments, the EPA has retained
the proposed revision to the contaminant legitimacy criterion for NHSMs
used as fuels clarifying that, for the purpose of determining
traditional fuel(s) to which

a NHSM may be compared, the meaning of ``designed to burn'' may be
broadly interpreted to include any traditional fuel that could be
burned, regardless of facility permit status. The agency disagrees that
this interpretation of ``designed to burn'' would incentivize the
burning of dirtier fuels or weaken the states' permitting authorities.
    The EPA finds that allowing combustors to compare NHSMs to any
traditional fuel a unit can or does burn is both practical and
appropriate under the statutory definition of solid waste. Although not
all combustion units can burn multiple traditional fuels, some units
can and, indeed, do rely on different fuel types at different times
based on availability of fuel supplies, market conditions, power
demands and other factors. Under these circumstances, it would be
arbitrary to restrict the combustion for energy recovery of NHSMs with
contaminant levels comparable to or lower than that of one traditional
fuel the unit could choose to burn solely because contaminant levels
are higher than that of a second traditional fuel the unit could also
choose to burn if fuel supplies, market conditions, power demands, or
other factors change. Such an approach would be impracticable and not
consistent with the agency's intent. It would also be inconsistent with
the concept of discard, since a facility burning a NHSM with the same
contaminants as another fuel it could also be burning should not be
considered to discard that NHSM based on its contaminant levels.
    The agency has also determined that restricting comparisons to
traditional fuels the unit is permitted to burn is unnecessary. The
fact that a facility is not currently permitted to burn a particular
traditional fuel does not mean it could not be permitted to burn that
traditional fuel in the future. For this reason, we do not believe it
is reasonable to limit the comparison to permitted traditional fuels.
Furthermore, such a restriction could have the unintended consequence
of combustion facilities across the country seeking permit
modifications solely to facilitate contaminant comparisons for this
rule. State permitting authorities must still approve permit changes
and this final rule does not affect the discretion of the permitting
authorities in acting on requests for permit modifications.
    In addition, the EPA has determined that restricting contaminant
comparisons to traditional fuels the unit currently burns could provide
an incentive for the facility to burn traditional fuel with high
contaminant levels. When facilities do not actually have to burn that
traditional fuel to make comparisons, that incentive is effectively
removed.
    Comment: One commenter asked the agency to specifically acknowledge
that certain categories of boilers are designed to burn a variety of
fuels, noting that stoker boilers, fluidized bed combustors and boilers
with suspension burners, in particular, should be on such a list.
    Response: The agency has decided not to specifically list which
combustion units are designed to burn which fuels for two reasons.
First, the owner or operator of a combustion unit has a better
understanding than the agency does of what that particular unit is
designed to burn. Second, the agency is concerned that creating such a
list will limit the flexibility of combustors with other types of
units.
    Comment: One commenter noted that if the EPA considers it
inappropriate to compare liquid fuels to solid fuels, the agency offers
no justification for its position. The commenter argued that liquid to
solid comparisons should be allowed because most cement kilns and many
other industrial furnaces have the capacity to burn either solid or
liquid fuels. The commenter described the December 2011 proposed rule
as ambiguous with regard to this issue and recommended that if a
combustion unit is designed to burn both a liquid fuel and a solid
fuel, then the liquid to solid comparison should be ``appropriate.''
    Response: EPA agrees with the commenter that if a unit can burn
both a liquid traditional fuel and a solid traditional fuel, then
comparison of an NHSM to either fuel would be appropriate. The revised
contaminant legitimacy criterion clarifies how the ``designed to burn''
concept may be interpreted for the purposes of determining traditional
fuel(s) to which a NHSM may be compared, and the Agency has determined
that this revision is sufficient to allow appropriate comparisons to be
made between solid NHSMs and liquid traditional fuels, and vice versa.
The agency does not expect these circumstances to hold true for all
combustion units, however, and reiterates that this would only be
appropriate when the unit can in fact burn multiple traditional fuels
used to make such comparisons.
    Comment: Several industry commenters addressed the topic of what it
means to be able to burn a traditional fuel in a combustion unit. The
preamble to the recent proposed rule noted that combustion units would
need an appropriate feed mechanism, as well as the ability to ensure
the fuel is well mixed and keep flame temperatures within unit
specifications, to be able to burn a traditional fuel.\61\ Two
commenters opposed the agency's interpretation of what it means to be
able to burn a traditional fuel in a combustion unit, stating that the
agency provides no explanation of why feed mechanisms are relevant to
whether or not a unit can burn a particular fuel. Both commenters also
noted that when NHSMs are used as a fuel in combustion units, the focus
on what a unit is ``designed to burn'' in the first place is irrelevant
to whether discard is occurring. Another commenter explained that the
same exact material could then be a solid waste in one case and a fuel
in another case, depending on who is using the material.
---------------------------------------------------------------------------

    \61\ See 76 FR 80481.
---------------------------------------------------------------------------

    A third commenter supported the agency's interpretation of what
`can burn' means, stating that the fate and emissions of a contaminant,
whether it is contained in a traditional fuel or a material being
considered for legitimacy, are as dependent on the design of the
combustion unit as they are on the fuel matrix. The commenter explained
further that units should be considered able to burn several types of
fuels as long as each type is within the design criteria of the feed
system, the combustion chamber and any downstream pollution control
device.
    Response: The EPA disagrees with those commenters questioning the
relevance of what fuels combustion units are designed to burn in the
context of the legitimacy criteria. If a NHSM does not contain
contaminants at levels that are comparable to or lower than those found
in any traditional fuel that a combustion unit could burn, then it
follows that discard could be occurring if the NHSM were combusted.
Whether contaminants in these cases would be destroyed or discarded
through releases to the air, they could not be considered a normal part
of a legitimate fuel and the NHSM would be considered a solid waste
when used as a fuel in that combustion unit.\62\
---------------------------------------------------------------------------

    \62\ See 76 FR 15523.
---------------------------------------------------------------------------

    The reason we analyze what a unit is designed to burn is to decide
the traditional fuel(s) to which contaminants should be compared. This
comparison is then used as an aid to decide whether the NHSM is being
legitimately used as a fuel or whether excess contaminants show that
the burning is waste treatment. If a facility compared contaminants to
a traditional fuel it cannot burn and that fuel is highly contaminated,
a facility would then be able to burn excessive levels of

waste components in NHSMs as a means of discard. Regardless of any fuel
value in the material, it would be a waste.
    Once this concept is established, certain factors are relevant to
how we decide what a facility is designed to burn. The ability to burn
a fuel in a combustion unit does have a basic set of requirements, the
most basic of which is being able to get the material into the
combustion unit. The agency reaffirms in today's final rule its
interpretation from the proposal that to be able to burn NHSMs, a
combustion unit should also be able to ensure the material is well
mixed and maintain temperatures within unit specifications. Without
these basic limits, there would be no point in distinguishing between
fuels a unit is or is not ``designed to burn,'' and every combustion
unit would be considered ``designed to burn'' any combustible material.
Clearly, that is not the agency's intent. As illustrated by one of the
commenters, when a unit cannot burn a fuel according to its own design
specifications, excess air pollutants form and are likely to be
discarded as emissions. Thus, the agency acknowledges that whether or
not a NHSM is a waste may depend on the unit burning the material.
    Comment: One commenter asked for clarification on the issue of unit
modifications. If a boiler hypothetically could be modified in any way
to combust a different traditional fuel, the commenter noted, then a
comparison to that fuel should be permissible to demonstrate that the
NHSM is not a waste.
    Response: The EPA disagrees with this comment. As long as the
modification remains hypothetical in nature, it stands to reason that
the unit cannot yet burn the additional traditional fuel and the only
reason it is comparing a NHSM to the dirtier fuel is to allow more
waste input into the combustion unit. However, if the unit is actually
modified to accept additional types of traditional fuels, then the
owner or operator of the combustion unit can consider those traditional
fuels in evaluating the NHSM for the contaminant legitimacy criterion.
In this situation, such behavior shows that the combustor is serious
about burning the other fuel and is willing to make the investment so
that it can be burned properly instead of simply trying to gain
comparison to a dirtier material.
    Comment: In the proposed rule, EPA specifically addressed used oil
stating: ``Used oil is a special case and does not need to undergo the
contaminant comparison. If it meets the specifications in 40 CFR
279.11, it is a traditional fuel. If it does not meet the
specifications (i.e., it is ``off-spec'' oil), it is a solid waste
under the 2011 NHSM final rule.'' 76 FR 80481, fn. 44. Some commenters
argued that off-spec used oil fuel, however, could satisfy all of EPA's
legitimacy criteria, including a contaminant comparison with coal, a
traditional fuel. Thus, if a combustion unit is ``designed to burn''
both coal and oil, the facility should be able to use coal as the
traditional fuel for the purposes of determining whether the
contaminants are comparable--even when the NHSM at issue is off-spec
used oil, as defined in 40 CFR 279.11.
    Response: The Agency agrees with the commenter that contaminants in
off-spec used oil burned for energy recovery in facilities that are
designed to burn coal may be compared to coal for purposes of
determining whether the off-spec used oil is a waste or non-waste
product fuel. Accordingly, for purposes of waste/non-waste
determinations, coal or oil, including on-spec used oil can be used as
the traditional fuel identified for comparison of contaminants to meet
the legitimacy criterion for units designed to burn both fuels. Some
combustion units are designed to burn multiple fuels, such as both coal
and oil, including on-spec used oil. Under these circumstances, the
Agency agrees that the rules allow the comparison of contaminant levels
to either traditional fuel. That is, to be designated as a non-waste,
the off-spec used oil contaminant levels must be comparable to or lower
than coal when coal is the traditional fuel used for comparison.
    EPA no longer finds, as stated in Footnote 44 of the proposed rule,
that off-spec used oil is always a waste for facilities that are
designed to burn coal. Off-spec used oil continues to be a waste,
however, for facilities that are not designed to burn coal because off-
spec used oil contains contaminant levels that are not comparable to
on-spec used oil. EPA also notes that in the preamble to the March 2011
rule (p. 15506), the Agency specifically rejected the comparison of
off-specification used oil contaminants to coal. That discussion,
however, was in the context of a general contaminant comparison for
units that burn only fuel oil. Coal may not be the comparison material
for all off-specification used oil, but only for those facilities that
are designed to burn coal as provided in the definition of this rule.
Finally, we want to make clear that EPA has not modified the part 279
regulations for management of used oil, and thus, burning of off-spec
used oil for energy recovery is still subject to those rules, including
the requirement that off-spec used oil can only be burned in certain
units (see 40 CFR 279.61(a)).\63\
---------------------------------------------------------------------------

    \63\ Off-specification used oil can only be burned in the
following types of units: (1) Industrial furnaces, as defined in 40
CFR 260.10; (2) the following boilers, as defined in 40 CFR 260.10--
industrial boilers located on the site of a facility engaged in a
manufacturing process where substances are transformed into new
products, including the component parts of products, by mechanical
or chemical processes, utility boilers used to produce electric
power, steam, heated or cooled air, or other gases or fluids for
sale, and used oil fired space heaters provided that the burner
meets the provisions of 40 CFR 279.23; and (3) hazardous waste
incinerators subject to regulation under subpart O of 40 CFR parts
264 or 265.
---------------------------------------------------------------------------

    Comment: Commenters argue that the EPA has not adequately addressed
how units designed to burn only NHSMs are to comply with the
contaminant legitimacy criterion. The commenters explained that, under
the rule structure as proposed, a NHSM may be classified as a waste
simply due to a lack of a traditional fuel for comparison purposes.
Comments acknowledge that the agency discussed the issue in the
preamble to the proposed rule but the commenters disagree that the
discussion provided any solution. Finally, commenters specifically
requested that the EPA acknowledge the fact that a combustor designed
for a particular NHSM fuel is dispositive that the NHSM is being
legitimately burned for energy recovery.
    Response: The EPA disagrees with the assertion that the agency has
failed to provide a solution for units designed only to burn NHSMs. The
EPA also disagrees with the assertion made by commenters that the fact
that a combustor has designed a combustion unit for a particular NHSM
fuel is dispositive that the NHSM is being legitimately burned for
energy recovery.
    The EPA acknowledges and is aware of units built specifically to
burn NHSMs. One example is facilities built to burn resinated wood. The
EPA notes that units built to burn such NHSMs are likely to be able to
burn similar traditional fuels. Using the example of units built to
burn resinated wood, the EPA considers it reasonable to assume that
these units could also burn clean wood and, therefore, could make
comparisons to that traditional fuel. The agency also notes that it is
not aware of any units--and commenters have not identified any such
units--that can burn only NHSMs.
    The EPA has nonetheless provided what it considers to be a
reasonable solution. As explained in the preamble to the proposed rule,
the EPA advises combustors faced with such a situation to compare solid
NHSMs to solid traditional fuels, such as coal or biomass, liquid NHSMs
to liquid

traditional fuels, such as oil, and gaseous NHSMs to gaseous
traditional fuels, such as natural gas.\64\ In light of the explanation
of ``designed to burn'' codified in the final contaminant legitimacy
criterion, as well as industry comments that many combustion units can
burn multiple types of fuel, the agency believes that its suggested
approach adequately addresses the issue.
---------------------------------------------------------------------------

    \64\ See 76 FR 80481.
---------------------------------------------------------------------------

    Finally, the EPA acknowledges that combustion units can and have
been designed specifically to burn NHSMs and that such units can
recover energy. The agency notes, however, that persons can and have
also designed incinerators to dispose of certain waste materials and
that such units can also recover energy. The agency, therefore, does
not consider it dispositive that if combustion units are designed to
burn a specific material, that material must be a legitimate non-waste
fuel.
d. Contaminant Comparisons Allowed
    The proposed revision to the contaminant legitimacy criterion for
NHSMs used as a fuel included the following statement: ``In comparing
contaminants between traditional fuel(s) and a non-hazardous secondary
material, persons can use ranges of traditional fuel contaminant levels
compiled from national surveys, as well as contaminant level data from
the specific traditional fuel being replaced.'' The March 2011 final
rule did not discuss the use of ranges when evaluating contaminant
data, nor did it discuss the use of traditional fuel data from national
surveys.
    The December 2011 proposed rule included these concepts to clarify
that persons are not required to adhere to a single comparison
methodology, nor are they required to compare contaminants in their
NHSMs to contaminants in the specific traditional fuel source they burn
(or would otherwise burn). In both instances, the additional language
clarifies, but does not change the intent, of the March 2011 final
rule.
    Regardless of the specific methodology chosen, a comparison will
have to be made for each contaminant or group of contaminants between
the NHSM and a traditional fuel or traditional fuel group. Generators
or combustors can use either traditional fuel data collected by the EPA
or their own data for traditional fuel comparison values.\65\
Generators or combustors are responsible, however, for providing NHSM
comparison values in cases where testing is conducted. Examples of
acceptable NHSM data could include both laboratory test results from a
specific generator or combustor and industry-recognized values provided
by a national trade organization.
---------------------------------------------------------------------------

    \65\ The EPA maintains an NHSM Web page with current information
on contaminant levels in traditional fuels, examples of legitimacy
determinations, and other information at http://www.epa.gov/epawaste/nonhaz/define/index.
---------------------------------------------------------------------------

    Given data for a particular traditional fuel, the EPA noted in the
proposal that many combustors would choose to base the traditional fuel
comparison value on the upper end of its statistical range and that
this approach was reasonable. Anything less could result in
``traditional fuel'' samples being considered solid waste if burned in
the very combustion units designed to burn them. This was not the
agency's intent in the March 2011 final rule.\66\ Given that selection
(i.e., the range for traditional fuel contaminant values), the agency
noted that acceptable NHSM comparison values would include the upper
end of a statistical range, a calculation involving the mean and
standard deviation or perhaps a single data point in situations where
data are limited. The proposal reasoned that it would not be
appropriate to compare an average NHSM contaminant value to the high
end of a traditional fuel range, as the existence of an average implies
multiple data points from which a more suitable statistic (e.g., range
or standard deviation) could have been calculated.
---------------------------------------------------------------------------

    \66\ Traditional fuels, as defined in Sec.  241.2, are not
required to meet the legitimacy criteria, and this scenario is only
used to explain the logic behind basing a traditional fuel
comparison value on the upper end of a statistical range.
---------------------------------------------------------------------------

    If each NHSM comparison value is comparable to or lower than its
corresponding traditional fuel value, the material would be considered
to meet the contaminant legitimacy criterion. An initial assessment
would not need to be repeated, explained the proposal, provided the
facility continues to operate in the same manner and use the same type
of NHSMs as when the original assessment was made.
    Despite presenting several approaches for calculating NHSM
comparison values, such as the upper end of a statistical range or a
calculation involving the mean and standard deviation, the proposal did
not preclude other reasonable methodologies. In the context of an
inspection or enforcement action, the agency will evaluate the
appropriateness of alternative methodologies and data sources on a
case-by-case basis when determining whether the contaminant legitimacy
criterion has been met.
    The EPA noted in the proposal that contaminant testing is not
required and that process knowledge may be sufficient for particular
contaminants in particular NHSMs. Even when analytical testing is not
necessary, the EPA's regulations governing recordkeeping for units
subject to emissions standards for boilers and process heaters issued
pursuant to CAA section 112 require keeping a record to document the
basis of non-waste determinations under the part 241 criteria
(including the contaminant legitimacy criteria). See 40 CFR 40 CFR
63.11225(c)(2)(ii) for area source boilers and 40 CFR 40 CFR
63.7555(d)(2) for major source boilers.
    The EPA believes that the comments have not changed the basis for
its decision to allow the use of ranges and surveys of traditional fuel
contaminant levels. Nor have comments changed the agency's position
that similar traditional fuels may be grouped for comparison purposes
and that testing is not required in all cases. Thus, the EPA is
adopting the reasoning from the proposal and adjusting the contaminant
legitimacy criterion accordingly for NHSM used as a fuel.
    The EPA has decided, however, to make a modification to the
regulatory language of the December 2011 proposed rule based on
comments received. The final criterion issued today includes additional
language clarifying the appropriate use of ranges when making
contaminant comparisons between NHSMs and traditional fuels. Consistent
with the rationale provided in the preamble to the proposed rule,
additional language now states that in order to use the full range of
contaminant values in traditional fuels, persons should also account
for the variability in NHSM contaminant levels. Any additional
reasoning for finalizing the revision with or without suggested
modifications is described in the responses to comments below.
    Comment: Industry comments supported the proposed changes expressly
allowing the use of ranges and national surveys of traditional fuel
data, as did one state comment. One commenter stated that these changes
provide a more practical approach to meeting the contaminant legitimacy
criterion that recognizes the inherent variation of contaminants in
NHSMs and traditional fuels. Several commenters supported the use of
ranges by repeating the EPA's rationale from the proposal that using
anything lower would logically result in a determination that some
traditional fuels should not be burned in combustion units designed to
burn those fuels. Another commenter stated that these clarifications
describe appropriate methods of handling data

that are naturally variable and will result in fewer non-waste
materials being arbitrarily identified as wastes.
    Environmental groups opposed the use of ranges to evaluate
contaminants, expressing concern that C&D wood contaminant levels would
be compared to the highest contaminant levels for coal. These
commenters suggested that averages or medians be used instead.
    Response: Based on our review of the comments received, the EPA is
retaining the approach outlined in the proposed rule to expressly allow
the use of ranges and traditional fuel data from national surveys. As
discussed in the proposed rule, the EPA considers it reasonable to
allow combustors to use the range of contaminant levels present in
traditional fuels because anything less could result in ``traditional
fuel'' samples being considered solid waste if burned in the very
combustion units designed to burn them. For this reason, the agency
disagrees with comments stating that combustors should be limited to
use of the average or median concentrations.
    The EPA acknowledges that the revisions adopted as final in today's
rule would allow C&D wood contaminant levels to be compared to the
highest contaminant levels for coal. The commenters do not specify,
however, what C&D wood contaminant levels (averages or ranges) they are
concerned would be compared to the highest levels in coal. The agency
points out that the proposed revisions were not intended to allow
average C&D wood contaminant levels to be compared to the highest
levels in coal. In light of the concerns expressed by these commenters,
the EPA has modified the proposed language to provide additional
assurance that such average-to-maximum comparisons, which the agency
has already determined are inappropriate, will not be allowed under
today's final rule. The EPA has decided that such comparisons are
inappropriate because, following the logic stated in the March 2011
final rule, average-to-maximum comparisons do not demonstrate that
contaminants in these cases could be considered a normal part of a
legitimate fuel and are not being discarded.\67\
---------------------------------------------------------------------------

    \67\ See 76 FR 15523.
---------------------------------------------------------------------------

    Today's final criterion makes clear that the full range of
traditional fuel contaminant values can only be used if persons also
consider some measure of variability in the NHSM contaminant data. This
will help to ensure that average to maximum comparisons will not be
used to justify the combustion of NHSMs as non-waste fuels.
    Comment: Industry comments supported the concept discussed in the
proposed rule that the contaminant legitimacy criterion does not
require the testing of contaminant levels in NHSMs in all cases. The
proposal noted that persons can instead use expert or process knowledge
to justify decisions to rule out certain constituents. The proposal
also noted that initial assessments would not need to be repeated,
provided the facility continues to operate in the same manner and use
the same type of NHSMs as when the original assessment was made. One
commenter asked the EPA to confirm these statements, explaining that
this policy will result in fewer NHSMs being arbitrarily identified as
wastes. Another commenter stated that the flexibility provided by this
policy will help ensure that regulated entities with varying levels of
sophistication can better document that their NHSMs are non-waste
fuels.
    Environmental groups, on the other hand, commented that the EPA
must require testing for contaminants, citing the extremely variable
nature of C&D wood as a problem. Commenters expressed concern that a
large amount of material is going to be generated as abandoned and
foreclosed housing is torn down, and the potential for liberating vast
amounts of lead and other urban toxics, to say nothing of arsenic and
chromium from pressure-treated wood, has never been higher.
    Response: Based on a review of the comments received, the EPA is
maintaining its position that contaminant testing is not required in
all situations. Requiring testing in some situations is unnecessary.
Where a NHSM generator, processor or combustor knows a contaminant will
either not be present or be present at a level below that in the
appropriate traditional fuel or traditional product, the agency
believes it is a reasonable and practical policy to allow persons to
rely on either process knowledge or previous testing of the same
material.
    The agency notes that there will be instances where testing is
conducted and comparisons will have to account for the variability of
contaminant levels in NHSMs, including lead concentrations in C&D wood.
The agency also notes that today's final rule does not change its
previously stated position that chromated copper arsenate-treated wood
(CCA wood) would likely have contaminant levels not comparable to
traditional fuels.\68\
---------------------------------------------------------------------------

    \68\ See 75 FR 31872.
---------------------------------------------------------------------------

    Comment: One commenter requested that the EPA clarify what it means
by the upper end of the statistical range. Citing the EPA's statement
in the proposal that ``it makes sense to base the traditional fuel
comparison on the upper end of the statistical range,'' \69\ the
commenter asked for confirmation that the maximum values in the
traditional fuel data set can be used for comparison with a NHSM since
all data corresponding to the traditional fuel are valid for
comparison, not just values that are below some arbitrarily determined
statistical parameter.
---------------------------------------------------------------------------

    \69\ See 76 FR 80481.
---------------------------------------------------------------------------

    Response: The word `ranges' in the proposed contaminant legitimacy
criterion has been changed to `the full range' in the final criterion
issued today. This term more clearly indicates the agency's intent to
include all true values in between the minimum and the maximum.
    The agency has also separated the concepts of ranges and
traditional fuel survey data in the regulatory language in order to
make the criterion more transparent. The pertinent regulatory text in
today's final rule reads as follows: ``In comparing contaminants
between traditional fuel(s) and a non-hazardous secondary material,
persons can use data for traditional fuel contaminant levels compiled
from national surveys, as well as contaminant level data from the
specific traditional fuel being replaced. To account for natural
variability in contaminant levels, persons can use the full range of
traditional fuel contaminant levels, provided such comparisons also
consider variability in non-hazardous secondary material contaminant
levels.''
    Comment: Several commenters noted that the agency proposed to allow
the use of ``national'' surveys of traditional fuel data in the
proposed contaminant legitimacy criterion and included several
international data sources in its ``Contaminant Concentrations in
Traditional Fuels: Tables for Comparison'' document.\70\ Several
commenters asked that the word `national' be removed from the
contaminant legitimacy criterion. Other commenters asked that the EPA
either remove the word `national' or clarify that international data
and surveys from other nations are also acceptable data sources.
---------------------------------------------------------------------------

    \70\ The EPA maintains a NHSM Web page with current information
on contaminant levels in traditional fuels, examples of legitimacy
determinations, and other information at http://www.epa.gov/epawaste/nonhaz/define/index.
---------------------------------------------------------------------------

    Response: The EPA has retained the proposed language, including the
word ``national,'' which expressly allows national surveys of
traditional fuel data to be used in contaminant comparisons

for NHSMs used as a fuel in combustion units. A statement that national
surveys can be used does not preclude the use of appropriate
international data. In fact, as the commenters recognize, the EPA
included several international sources in its analysis of traditional
fuels. These international sources were limited, however, to situations
where no data or minimal data could be found from national sources or
the agency had no reason to believe that data from national sources
would be significantly different. At issue is whether the data are
representative of traditional fuels that are purchased and burned at
operating boilers in the United States. The agency has decided that it
is reasonable to assume that national surveys of traditional fuels
contain information about fuels purchased and burned at operating
boilers in the United States.
    Comment: One commenter argued that the traditional fuel database
compiled by the EPA should include the USGS coal data from not only the
United States but also from around the world because those fuels are
currently in use.
    Response: The EPA has maintained its decision not to reference the
USGS COALQUAL database in its traditional fuel contaminant tables. It
is the agency's understanding that the COALQUAL database contains trace
metal analyses for coal and associated rocks taken directly from coal
beds throughout the United States and that not all of these coal beds
are currently being mined. It is also the agency's understanding that
as-mined coal typically undergoes a series of processing steps,
including crushing, screening, washing and physical separation
techniques to remove rock and other impurities prior to being blended
into clean, graded and uniform coal products suitable for use in
commercial boilers.\71\
---------------------------------------------------------------------------

    \71\ Speight, J.G. Synthetic Fuels Handbook: Properties,
Process, and Performance. McGraw-Hill, 2008. pg 141.
---------------------------------------------------------------------------

    In comparison, the EPA contaminant tables referenced by commenters
are based largely on a comprehensive dataset that contains
approximately 32,000 records of pre-combustion contaminant analyses
performed on coal, wood, biomass and fuel oil samples that were
actually used as fuel at boilers across the country. Thus, the agency
has decided that the EPA dataset is more representative of contaminant
levels in coal actually burned at operating boilers than the COALQUAL
database. As a result, the EPA has decided not to use the COALQUAL
database in developing the tables posted on the agency's Web site.
    We would also note that the decision not to use USGS data is
consistent with the agency's position that product fuel oils, as
opposed to virgin crude oil, should be measured for purposes of
contaminant comparisons. As stated in the proposed rule, neither
unrefined crude oil nor gasoline is typically burned in combustion
units regulated by CAA sections 112 and 129. Similarly, as-mined coal
is not typically burned in combustion units regulated by CAA sections
112 and 129.
    Comment: One commenter suggested that for each contaminant or group
of contaminants, either the UCL of the mean at a 90 percent confidence
level or the UPL at a 90 percent confidence level for NHSMs could be
compared to the maximum value for the appropriate traditional fuel.
    Response: First, we would note that in the preamble to the recent
proposed rule, the EPA indicated that when compared to the full range
of contaminants in traditional fuels, suitable measures of NHSM
contaminants would include the upper end of a statistical range, a
calculation involving the mean and standard deviation or perhaps a
single data point in situations where data are limited. The agency also
noted that the discussion in the preamble did not preclude ``other
reasonable methodologies.'' \72\
---------------------------------------------------------------------------

    \72\ See 76 FR 80481.
---------------------------------------------------------------------------

    With respect to the specific approaches suggested by the
commenters, the EPA agrees with the approach of comparing the UPL at a
90 percent confidence level for each contaminant or group of
contaminants in NHSMs to the maximum value for each contaminant or
group of contaminants in the appropriate traditional fuel.
Specifically, the UPL is an indicator of what a future measurement
would be. In the context of NHSM contaminant levels, the UPL taken at a
90 percent confidence level would yield a number, and a combustor could
be confident that 90 percent of the time, the next measured contaminant
level would be at or below that number. The UPL considers both the
variability of the contaminant distribution and the uncertainty
surrounding what the true mean is. The comment suggested taking a
maximum value for traditional fuel contaminant levels and comparing it
to the UPL at a 90 percent confidence level. Because both metrics
account for the variability present in contaminant distributions, the
EPA would consider this approach to be a reasonable methodology.
    The EPA does not agree, however, with an approach of using the UCL
of the mean. That is, the UCL of the mean, regardless of the confidence
level, is a measure of the mean and does not adequately factor in the
variability present in both NHSMs and traditional fuel contaminant
levels. The metric would be appropriate for a mean to mean comparison,
but that is not what the commenter suggested. The comment suggested
taking a maximum (which takes full advantage of the variability present
in traditional fuel contaminant levels) and comparing it to a mean
(which ignores the variability present in NHSM contaminant levels). The
EPA does not consider this approach to be a reasonable methodology.
    To be clear, the EPA does not object to the use of confidence
limits, or to the use of the UCL of the mean, on their own grounds.
However, the agency believes it is inappropriate to make a comparison
of mean contaminant levels in NHSMs to maximum contaminant levels in
traditional fuels.
    Comment: One commenter suggested that the EPA allow entities to
compare contaminants between NHSMs and traditional fuels on a pound of
contaminants per Btu (lb/MMBtu) basis, as the agency said it would
consider in the preamble discussion to the 2011 NHSM Final Rule.\73\
---------------------------------------------------------------------------

    \73\ See 76 FR 15525.
---------------------------------------------------------------------------

    Response: The EPA maintains its position that a direct comparison
of contaminant levels, as opposed to the lb/MMBtu approach, is the most
appropriate means of comparing contaminant levels. As was noted in the
2011 NHSM Final Rule, however, the agency may still consider the lb/
MMBtu approach as guidance is developed for implementation.
3. Categorical Non-Waste Determinations for Specific NHSM Used as Fuels
    The new provisions at 40 CFR 241.4 were proposed to allow the EPA
to list categorically certain NHSMs as non wastes--when used as a fuel
in a combustion unit. Based on these categorical non-waste
determinations, facilities burning NHSMs that qualify for the provision
will not need to demonstrate that the NHSM meets the legitimacy
criteria on a site-by-site basis. The EPA has determined that these
NHSMs are categorical non-wastes as described and are not discarded
when used as a fuel in a combustion unit.
    Categorical non-waste determinations only apply, however, to NHSMs
that are burned as a fuel in combustion units for the purpose of
recovery energy. Burning

a NHSM fuel in a combustion unit for energy recovery assumes a set of
basic design requirements that ensures excess air pollutants are not
formed and emission requirements under the CAA are met. As discussed in
section III.D.2.c of this preamble, such basic design requirements
include abilities to load the material into the unit, ensure the
material is well mixed and maintain temperatures within unit
specifications. For example, burning a whole tire in a boiler that is
only designed to burn tires that are chipped and/or dewired would not
be considered a fuel burned in a combustion unit for the purpose of
recovering energy. The agency is not including specific regulatory text
regarding this point since we believe it is understood that to be
burned for energy recovery, the combustion unit must be able to burn
the NHSM as a fuel.

a. Scrap Tires

    In the December 23, 2011, NHSM proposed rule, the EPA proposed the
following regulatory language under 40 CFR 241.4 Non-Waste
Determinations for Specific Non-Hazardous Secondary Materials When Used
as a Fuel: ``Scrap tires that are not discarded and are managed under
the oversight of established tire collection programs, including tires
removed from vehicles and off-specification tires.'' Further, the
addition of this provision (40 CFR 241.4(a)(1)) eliminated the need for
the previous scrap tire provision at 40 CFR 241.3(b)(2)(i),\74\ which
has been removed and reserved in today's final rule. Today's rule
finalizes the proposed provision without changes.
---------------------------------------------------------------------------

    \74\ The scrap tire provision in the 2011 NHSM final rule is now
removed and the section reserved in today's final rule: ``(b) The
following non-hazardous secondary materials are not solid wastes
when combusted:
     (2) The following non-hazardous secondary materials that have
not been discarded and meet the legitimacy criteria specified in
paragraph (d)(1) of this section when used in a combustion unit (by
the generator or outside the control of the generator):
    (i) Scrap tires used in a combustion unit that are removed from
vehicles and managed under the oversight of established tire
collection programs.''
---------------------------------------------------------------------------

    Comment: One commenter stated that, ``in its latest proposal, EPA
eliminates the need for scrap tires to meet its legitimacy criteria and
simply declares that scrap tires collected under an established tire
collection program are not waste regardless of whether they meet the
agency's legitimacy criteria.''
    Response: The EPA disagrees with this comment. The EPA has not
eliminated the legitimacy criteria for scrap tires. The categorical
determination for scrap tires (as with all the categorical
determinations in this rule) simply applies the agency's non-discard
determination, made in the March 2011 rule and not reopened in this
amendment, to the general category so that case-by-case determinations
as to legitimacy would not need to be made by each facility. For the
scrap tire category, scrap tires managed under established tire
collection programs and used as a fuel need not make case-by-case
legitimacy determinations. Moreover, the commenter has given us no
information that the criteria are not met. In fact, the commenter
simply repeats the argument made in previous rulemakings that the
material is always a waste regardless of legitimacy criteria.
    Comment: Several commenters suggested that scrap tires should not
have more restrictions under 40 CFR 241.4(a) for the categorical non-
waste status than does resinated wood. The non-waste determination for
scrap tires, as proposed in 40 CFR 241.4(a)(1), read ``Scrap tires that
are not discarded and are managed under the oversight of established
tire collection programs, including tires removed from vehicles and
off-specification tires.'' In comparison, the resinated wood
description, as listed in 40 CFR 241.4(a)(2), is ``Resinated wood.''
The commenters reasoned that if all resinated wood can be non-waste,
then all scrap tires should also qualify (regardless of the origin).
    Response: Please see the EPA's response in the resinated wood
section below (section III.D.3.b of this preamble) relating to the
241.4(a) criteria for resinated wood and the comparison to scrap tires.
That response goes into detail explaining why the extra criteria are
not needed for resinated wood and related discard issues. In addition,
as noted previously in the NHSM rulemaking record (see docket EPA-HQ-
RCRA-2008-0329), numerous tire piles have been created in the past
whereas this is not the case for resinated wood used as fuel. The
existence of these historic tire dumps demonstrates that some tires
have not been treated as a valuable commodity therefore necessitating
the additional discard qualification in regulatory text. The specific
tires described in the categorical determination are handled as a
valuable commodity and do not include discarded tires.
    Comment: A commenter suggested that the EPA should add ``off-
specification tire components'' to the regulatory language. This
revision would be in addition to the proposed text at 40 CFR
241.4(a)(1) that adds ``off-specification tires.''
    Response: Off-specification tire components are covered in the 40
CFR 241.4 categorical non-waste determinations for scrap tires. The
term `scrap tire' is a general term for tires and can include, for
example, whole tires, chipped tires, off-specification tires or off-
specification tire components (i.e., tread, sidewall or base) that are
removed from vehicles or are generated by tire manufacturers, including
retailers or other parties involved in the distribution and sale of new
tires. This formulation was also stated in the December 2011 NHSM
proposal \75\ and is adopted for today's final rule. The EPA sees no
difference between tires and their various components. Thus, the EPA
does not believe it necessary to modify the rule to include ``off-
specification tire components'' in the codified definition. They are
understood to be included in the categorical non-waste provision.
---------------------------------------------------------------------------

    \75\ See 76 FR 80483.
---------------------------------------------------------------------------

    Comment: Many commenters mentioned the difficulty in complying with
the regulations since it is very difficult to distinguish between tires
removed from vehicles (and off-specification tires) versus tires from
other origins. In regard to this issue, one commenter stated, ``a
combustor cannot know the origin of the tire-derived fuel it is buying.
In its response to requests for reconsideration of the CISWI rule, the
EPA responded to this issue by recognizing that it is not possible for
a combustor to know the source of all NHSM fuel and declined to impose
this requirement stating:

    ``Rather, it is sufficient that the ultimate user verify that it
is obtaining tires from an established tire collection program,
which program can provide the user with reasonable assurance that it
manages tires carefully from point of collection to point of burning
and which does not receive tires which have been abandoned in
landfills or otherwise. 76 Fed. Reg. 28318, 28322 (May 17, 2011).''

    Therefore, the commenter requests that the EPA codify this
statement in the NHSM rule and expressly allow combustors to rely upon
certifications of fuel suppliers that the fuel sold is not a solid
waste.
    Another commenter said that for the EPA to require a tire storage
facility to maintain separate classifications of tires (i.e.,
separating discarded tires from tire dumps from other tires) is not
reasonable, because inspectors and operators would not be able to tell
the piles apart. The EPA's current definition of scrap tires would
place undue financial hardship on contractors and storage facilities.
    Response: The EPA has decided that a regulatory statement on this
matter is

not necessary since the actual requirement for the combustor to
determine where its tires come from when they are coming from an
established tire collection program (or a contractual agreement) is
provided for under the CAA and interpretations provided for that
regulation. For example, major source boilers have a recordkeeping
requirement for a non-waste determination at 40 CFR 63.7555 ``What
records must I keep?'' Within those regulations for major source
boilers, it requires the combustor to demonstrate that NHSMs are a non-
waste. To the extent that a combustor believes it appropriate, they may
request haulers to verify that the tires would qualify as non-waste
under 40 CFR 241.4 when combusted.
    If there is question about the origin of the tires, the EPA
inspectors will not assume that tires are from discarded sources. As we
note in the Federal Register notice (76 FR 28318, 28322), ``It is EPA's
position that ultimate users are not responsible for knowing the source
of all tires obtained from an established tire collection program* * *
EPA does not interpret this language as requiring knowledge of each
individual tire as this is a practical impossibility* * * users also
should not assume that tires from established programs which
participate in occasional cleanup days are discarded--both because
there is no information that the tires from the cleanup efforts were
discarded (and these programs are designed to prevent discarding) and
whether the kiln received tires from the sporadic cleanup days in any
case.''
    The Federal Register notice that the commenter cited (76 FR 28322)
and a related letter to the docket (``Memorandum. Combustion in a
Cement Kiln and Cement Kilns' Use of Tires as Fuel.'' April 25, 2011,
Document ID: EPA-HQ-OAR-2002-0051-3582) provide sufficient guidance.
The agency believes this issue does not merit additional regulation for
the hauler.
    b. Resinated Wood
    In the December 23, 2011, proposed rule, the EPA proposed to
designate in regulatory text that resinated wood is not a solid waste
when used as a fuel. In making this determination, the agency analyzed
these materials using the legitimacy criteria, concluding that
resinated wood clearly is managed as a valuable commodity and has
meaningful heating value and is used as fuel.\76\ While stating that
these materials may not always meet the regulatory contaminant
legitimacy criterion in every situation, we proposed to list
categorically resinated wood as a non-waste fuel because, after
balancing the regulatory legitimacy criteria and other relevant
factors, the EPA determined that resinated wood that is used as fuel
represents an integral component of the wood manufacturing process and,
as such, is not being discarded when burned as fuel.
---------------------------------------------------------------------------

    \76\ See 76 FR 80483.
---------------------------------------------------------------------------

    Specifically, we noted the extent to which resinated wood is used
as fuels throughout the wood manufacturing industry and that the use of
resinated wood as fuel is essential to the wood manufacturing process.
We also noted the prevalence of wood product plants that have been
designed specifically to utilize these residuals for their fuel value;
in fact many (if not most) wood products plants would not be able to
operate as designed without the use of these materials. This
determination was previously codified under 40 CFR 241.3 (b)(2)(ii) of
the NHSM final rule, provided the resinated wood met the legitimacy
criteria in 40 CFR 241.3(d)(1). However, based on the available
information, as well as how this material is handled and used in the
process, resinated wood is not being discarded when used as a fuel, and
thus, should not be considered a solid waste when burned as a fuel. The
EPA proposed to codify this determination by categorically listing
resinated wood as a non-waste fuel in 40 CFR 241.4(a)(2).\77\ By
specifically listing it as a non-waste fuel, combustors of this
material would not need to demonstrate that they meet the legitimacy
criteria on a site-by-site basis.
---------------------------------------------------------------------------

    \77\ See 76 FR 80483-80484.
---------------------------------------------------------------------------

    The EPA finds that this reasoning is supported by the entire
rulemaking record, as explained in the December 2011 proposal, which
rationale is adopted for the final rule as further supported by
responses to comments below. Thus, the agency has determined to list
categorically resinated wood as a non-waste fuel. In addition, after
considering comments received on the proposal, the agency is revising
the definition of ``resinated wood,'' as codified in 40 CFR 241.2.
    Comment: Most comments on this issue were supportive of a
categorical determination that resinated wood is a non-waste fuel. One
commenter maintained that the record for this rulemaking clearly
establishes that resinated wood is highly valued within the wood
products industry for its high fuel value, stating that ``Many
facilities rely on mixing of these low moisture content wood materials
with higher moisture content wood materials to manage and optimize
combustion.'' This same commenter also stated that ``there exists
within the wood products industry a developed market for purchase and
sale of resinated wood between independent companies.'' In fact, many
wood-fired boilers at wood products plants that do not generate sander
dust have been retrofitted with sander dust injection burners so that
sander dust can be properly combusted in those units, taking full
advantage of the heat energy of sander dust.
    Another commenter stated that ``resinated fuels have been an
integral part of the composite wood product industry's production
process since the industry was established decades ago. As such,
facilities' combustion and energy systems were designed and constructed
to utilize most if not all of their own wood and wood by-products,
including resinated trim and sander dust. Excluding resinated wood
fuels from our manufacturing processes would require significant re-
engineering of our facilities and add insurmountable operating costs in
order to substitute fossil fuels, as well as to transport and dispose
of resinated wood fuels. Any other result would effectively make it
nearly impossible for these manufacturing facilities to continue
operations.'' This same commenter also noted that ``many of our
facilities rely exclusively on resinated wood for its fuel and have
limited access to substitutes.''
    Another commenter provided two examples of mills that utilize
nearly 100 percent of sander dust, either to create new product as part
of the manufacturing process or as fuel. In addition, two state
commenters supported the proposed categorical non-waste determination
for resinated wood.
    Response: Nearly all of the comments received regarding the
proposed categorical non-waste determination were supportive of
categorically listing resinated wood as a non-waste fuel when burned in
combustion units for energy recovery. As noted above, the agency did
receive a few additional examples of how the use of resinated wood as a
fuel is an integral part of the wood manufacturing industry's
production process (e.g., the facilities that would have to be
significantly re-engineered if they could not use resinated wood for
its fuel value and the mills that use 100 percent of the sander dust it
generates, either by recycling it back into the process or burning it
for fuel).
    Although we received one comment critical of the EPA's proposed
listing of resinated wood as a non-waste fuel (addressed below), we did
not receive

any comments that argued or suggested that the use of resinated wood as
a fuel is not an integral component of the wood manufacturing process.
Thus, we agree with commenters who encouraged the EPA to finalize
resinated wood as a categorical non-waste fuel and will finalize this
determination in today's rulemaking.
    Information in the record for this rulemaking clearly establishes
that resinated wood is managed as a valuable commodity (40 CFR
241.3(d)(1)(i)) and has meaningful heating value and is used as a fuel
in combustion units that recover energy (40 CFR 241.3(d)(1)(ii)).\78\
In addition, we generally have determined that most resinated wood
meets the contaminant legitimacy criterion as well ((40 CFR
241.3(d)(1)(iii)), although we acknowledge that in some instances these
materials may have levels of formaldehyde that are not comparable to
traditional fuels.\79\
---------------------------------------------------------------------------

    \78\ See, e.g., 76 FR 80483. See also background document
developed in support of the December 23, 2011, proposed rulemaking
titled, ``Resinated Wood, Scrap Tire, and Pulp/Paper Sludge Support
Document'' (EPA-HQ-RCRA-2008-0329-1880).
    \79\ Id.
---------------------------------------------------------------------------

    The EPA confirms the position discussed in the proposal and adopts
it as its final rationale that there are instances where it is
appropriate for the EPA to balance the regulatory legitimacy criteria
with other relevant factors in order to determine whether a material is
a legitimate fuel or is merely being discarded by being combusted. We
have determined that resinated wood is one such example. Although
resinated wood may not meet the regulatory contaminant legitimacy
criteria in every situation, it is clear that resinated wood is still a
``legitimate'' product fuel after one considers how integrally tied the
use of resinated wood as a fuel is within the wood manufacturing
process and industry. Nearly all comments received on this point
concurred with this assessment. Thus, in today's final rule, we are
codifying the determination that resinated wood, based on all
information and the totality of the circumstances, is a non-waste when
used as a fuel.
    Comment: One commenter, however, stated that the EPA's proposed
categorical determination that resinated wood is a non-waste fuel is
unlawful and arbitrary. The commenter stated that the EPA is now
proposing to simply ``exempt'' resinated wood altogether, regardless of
who burns it and whether it meets the legitimacy criteria. According to
the comment, the EPA acknowledges that the formaldehyde levels in
resinated wood would not always meet its contaminant legitimacy
criterion--i.e., would not be comparable to the levels in any fuel that
companies would otherwise burn. The commenter states that the EPA also
acknowledges that burning resinated wood increases the emissions of
formaldehyde, but nonetheless finds that, ``In general the motivation
to use resinated wood as a fuel, even with the slightly higher
formaldehyde levels, predominates over the motivation to dispose of the
formaldehyde.'' The EPA's decision to remove the limits on the
exemption for resinated wood and to ``categorically'' declare resinated
wood to be a non-waste--regardless of who burns it, regardless of how
contaminated it is, and regardless of the reality that some companies
may be burning resinated wood as a cheap means of disposing of their
toxic formaldehyde wastes--underscores this point.
    The comment continues that the EPA nowhere claims that companies
burning resinated wood that they have not generated pay for these
materials. Indeed, the EPA does not deny that these companies are paid
to take the resinated wood they burn. Thus, the EPA provides no reason
to believe that the resinated wood that is burned by a company other
than the one that generated it has not been discarded by the company
that generated it. Even under the EPA's own view of the meaning of
discard, resinated wood burned by companies other than the generator of
the resinated wood would be waste but for the agency's declaration that
it is not waste.
    The commenter also states that the EPA admits that some companies
may burn resinated wood because they want to dispose of the
formaldehyde it contains (i.e., to dispose of the contaminated wood
rather than to recover energy). Moreover, the levels of formaldehyde
contamination in some resinated wood would exceed the EPA's legitimacy
criteria, but for the EPA's declaration that these criteria do not
apply. For these reasons as well, resinated wood is discarded even
under the EPA's own view of what that term means.
    Further, the comment states that sources' alleged ``motivation''
for burning a material is to recover energy rather than to destroy the
wood and the contaminants it contains--assuming arguendo that a
source's motivation can even be determined--does not show that material
is not a waste. Rather, resinated wood is a waste because it is
discarded within the meaning of RCRA. Notably, the EPA does not suggest
that there is any use for resinated wood that has been discarded other
than--assuming it is a ``use'' at all--burning it. Moreover,
establishing a ``motivation''-based test for whether resinated wood is
or is not a waste conflicts with and defeats the CAA. Thus, the
agency's categorical declaration that resinated wood is not a waste is
unlawful.
    Response: The EPA strongly disagrees with the commenter's
characterization of its categorical determinations. In making
categorical determinations, the agency is not ``exempting'' these
materials from regulation as a solid waste (i.e., if not for this
``exemption,'' these materials would otherwise be regulated as solid
waste). Rather, the EPA has determined that the specified NHSMs are not
solid waste when used as fuels. Further, in making categorical
determinations, the EPA is not saying that the legitimacy criteria are
not relevant. In proposing the categorical non-waste determination for
resinated wood, the agency stated we were ``balancing the legitimacy
criteria and other relevant factors based on the fact that resinated
wood residuals that are used as fuels represents an integral component
to the wood manufacturing process and, as such, resinated wood
residuals are not being discarded when burned as fuels.'' \80\ This
remains the agency's final finding in this rule.
---------------------------------------------------------------------------

    \80\ See 76 FR 80483.
---------------------------------------------------------------------------

    Regarding the level of contaminants in resinated wood, the agency
is not saying that resinated wood is a non-waste fuel ``regardless of
how contaminated it is,'' as the commenter suggests. Based on all
available information, the agency has concluded that resinated wood
meets the legitimacy criteria for all contaminants with the possible
exception in some situations of formaldehyde. In focusing specifically
on formaldehyde, we also have stated that we have limited information
regarding formaldehyde levels--that is, resins and adhesives containing
formaldehyde react within the resin curing process leaving ``free
formaldehyde at levels less than 0.02 percent (or 200 ppm), but noted
that levels will be reduced further due to new national rules being
developed by the CARB Composite Wood ATCM, per new Public Law 111-199.
Thus, we have not said that contaminants do not matter. Rather, we have
carefully analyzed contaminant levels in resinated wood and have
determined, based both on contaminant levels, as well as how the use of
these materials represents an integral part of the wood product
manufacturing process, that resinated wood materials are a legitimate
non-waste fuel.

    Further, we do not concede, as the commenter contends, that some
companies burn resinated wood to destroy contaminants--in fact, we have
determined just the opposite. We have determined that companies burning
resinated wood do so because such an activity is integrally tied to
their production process, not to dispose of the formaldehyde. This
determination is based on that extent to which resinated wood is used
as fuels throughout the wood manufacturing industry, as well as the
fact that the use of resinated wood as fuel is essential to that
industry (i.e., plants have been designed to use these materials as
fuels and would be unable to operate if resinated wood was not
available as a fuel source).
    Regarding the comments that the EPA acknowledges that burning
resinated wood increases emissions of formaldehyde, the agency needs to
correct this characterization. First, in the 2011 NHSM final rule, we
stated that the criterion or test in determining the contaminant
legitimacy criterion is based on the level of contaminants in the
secondary material itself and not by comparing the differences in
emissions.\81\ However, responding to comments we received regarding
emission levels associated with burning resinated wood as a fuel, the
agency determined that the amount of formaldehyde that is emitted from
burning resinated wood residuals is in fact likely to decrease, given
that Public Law 111-199 will reduce formaldehyde levels in these
materials.\82\
---------------------------------------------------------------------------

    \81\ See, e.g., 76 FR 15502.
    \82\ Id.
---------------------------------------------------------------------------

    Regarding the commenter's statement that companies that burn
resinated wood that they have received from offsite do not pay for it,
the EPA disagrees with the argument put forth by the commenter as the
facts in this instance do not support such a premise.
    As noted in the March 2011 final rule, inter-company transfers of
resinated wood residuals are typically managed through buy-sell
contracts and 6 percent of resinated wood residuals are sold into the
fuel market and are used as either ``furnish'' (i.e., raw materials) or
fuel at the receiving facilities.\83\ In addition, the EPA received
additional comments on the proposed rule stating, ``* * *there exists
within the wood products industry a developed market for purchase and
sale of resinated wood between independent companies.''
---------------------------------------------------------------------------

    \83\ See 76 FR 15500.
---------------------------------------------------------------------------

    Moreover, while contractual arrangements can be used as evidence
that the material is managed as a valuable commodity and that discard
is not occurring when a material is transferred beyond the control of
the generator, the price of an NHSM is not, by itself, dispositive of
whether the material is or is not a waste. The main indication that
resinated wood residuals are not solid waste is the fact that they are
used as fuels in a way that represents an integral component to the
wood products industry. As the EPA noted in the March 2011 final rule,
``resinated wood residuals transferred off-site are utilized in the
same manner as self-generated resinated wood residuals (i.e., contained
in the same bins as furnish materials used in the product, transferred
via conveyors or ducts), which the plants are specifically designed to
burn as a fuel, [and therefore] we agree that this does not constitute
discard.''\84\
---------------------------------------------------------------------------

    \84\ Id.
---------------------------------------------------------------------------

    The comment that the agency has simply declared that resinated wood
is a non-waste ``regardless of who burns it'' is a mischaracterization
of this categorical non-waste determination. Based on all information
provided to the agency, we have determined the use of resinated wood as
a fuel is an integral part of the industry's production processes and
that these materials are managed as valuable commodities (i.e., fuels),
have meaningful heating value and are used in combustion units that
recover energy regardless of whether these materials remain within the
control of the generator or are transferred offsite to another
facility. On the other hand, we have no information that facilities are
burning these materials merely to get rid of them (i.e., discard).
    The EPA finds irrelevant the commenter's statement that the EPA is
looking to a source's motivation for using a material as a fuel
conflicts with and defeats the CAA. The issue, rather, is whether
motivation is relevant to a waste determination under RCRA. The D.C.
Circuit confirmed the relevance of motivation in determining whether a
recycled material is a waste. See, API v. EPA, 216 F.3d at 58 (court
criticizes the EPA for not saying why it has concluded whether
recycling motivation predominates over a disposal motivation). In this
case, it is clear that the motivation for burning the resinated wood is
to utilize its inherent value as a fuel and not for disposal.
Commenters have provided the agency with information that facilities
generating and managing resinated wood residuals consider these
materials to be an integral part of their production process--both in
the value these materials provide as being a critical source of energy
as well as being recycled back into the manufacturing process to create
more wood products. Thus, we are not convinced that a facility that
considers the use of resinated wood as a fuel to be an integral part of
its production processes, as has been established in the record, is
motivated to discard these materials by burning to get rid of them.
    Comment: A few commenters stated that the EPA is not consistent in
how discarded materials are designated as solid waste. In particular,
the commenter stated that the EPA was proposing to list as a
categorical non-waste fuel in 40 CFR part 241.4 resinated wood
regardless of whether it is previously discarded, while the agency
would require processing for scrap tires that have been discarded in
landfills.
    Response: The agency disagrees that its treatment of resinated wood
is inconsistent with its treatment of scrap tires. Nowhere does the
agency state that resinated wood would be considered a non-waste fuel
``regardless of whether it is previously discarded.'' The EPA, based on
all information available, has determined that resinated wood is not
being discarded when used as fuel, given the fact that resinated wood
residuals that are used as fuels represent an integral component of the
wood manufacturing process. If a shipment of resinated wood residuals
was disposed of in a landfill, it would be a waste. In addition, if a
shipment of resinated wood residuals were disposed of and later
recovered to be used as a fuel, as is the case with scrap tires that
are extracted from landfills, this would be a different scenario and
would not be included within the categorical listing in 241.4(a)(2).
    As the record clearly shows, resinated wood is routinely handled
and managed as a valuable fuel product within the wood products
manufacturing industry. As noted in the rulemaking record (see docket
EPA-HQ-RCRA-2008-0329), numerous scrap tire piles have been created in
the past and it is a common practice to recover abandoned tires from
tire piles and use them for fuel. This is not the case for resinated
wood.
    Comment: While supportive of the agency's proposed listing of
resinated wood as a non-waste fuel in 40 CFR part 241.4, two commenters
suggested that the agency revise the definition of ``resinated wood''
as codified in 241.2. Currently, ``resinated wood'' is defined as,
``wood products (containing resin adhesives) derived from primary and
secondary wood products manufacturing and comprised of such items as
board trim, sander dust, and

panel trim.'' However, these commenters request the EPA to revise this
definition in order to clarify that the ``spectrum of resinated
materials currently used as fuels throughout the wood product
manufacturing process are included in the definition.'' Thus,
commenters urge the EPA to revise the definition of resinated wood as
follows: ``Resinated wood means wood products (containing binders and
adhesives) produced by primary and secondary wood products
manufacturing. Resinated wood includes residues from the manufacture
and use of resinated wood, including materials such as board trim,
sander dust, panel trim, and off-specification resinated wood
products.''
    The suggested revised definition proposes two changes. First, the
suggested definition replaces the phrase ``containing resin adhesives''
with the phrase, ``containing binders and adhesives.'' The second
suggested revision to the definition is the specific inclusion of
``off-specification resinated wood products.'' Commenters have
indicated that these materials include materials that do not meet
manufacturing specifications or are otherwise physically marred or
damaged and thus, are not sold in the marketplace. This class of
materials would not be expected to be chemically different than the
resinated wood products that meet the manufacturing ``on-spec''
requirements. For example, off-specification resinated wood products
would not be expected to have higher amount of resins (and therefore
contaminants) than their on-specification counterparts. Commenters have
indicated that off-specification resinated wood products are identical
to their on-specification counterparts chemically and only differ in
that they are do not meet a manufacturing quality or standard.
    Response: The agency recognizes that in order for a categorical
non-waste determination to be meaningful and effective, it must be
clear about the universe of materials that such a categorical non-waste
determination encompasses. Thus, we agree with commenters who suggested
specific revisions to the definition of ``resinated wood'' contained in
part 241.2. Specifically, the EPA agrees that these revisions create a
definition that more accurately captures the scope of resinated wood
and is more representative of the resinated materials currently used as
fuels throughout the wood product manufacturing process. First, by
including the terms ``binders'' and ``adhesives,'' the universe of
materials that we consider to be within this definition should be more
clear, as these terms are widely used and accepted within the wood
products manufacturing industry.
    With respect to the inclusion of off-specification resinated wood
products, the EPA finds it appropriate to include this class within the
definition of resinated wood. We note, however, that to the extent that
a facility has reason to expect that the off-specification wood
products are off-spec for chemical reasons, such that the levels of
contaminants are expected to be greater than their on-spec
counterparts, the EPA would not consider such materials to be within
the scope of this definition. The agency will make this point more
clear by specifying in the definition that the term ``off-specification
resinated wood products'' are off-spec due to the fact that they do not
meet a manufacturing quality or standard. Thus, in today's final rule,
we are codifying the definition of resinated wood as follows:
``Resinated wood means wood products (containing binders and adhesives)
produced by primary and secondary wood products manufacturing.
Resinated wood includes residues from the manufacture and use of
resinated wood, including materials such as board trim, sander dust,
panel trim and off-specification resinated wood products that do not
meet a manufacturing quality or standard'' (emphasis added).
    Comment: One commenter noted that there are additional secondary
materials produced by the wood manufacturing industry that are similar
to resinated wood and, thus, should also be considered a non-waste
fuel. The production of flooring and furniture creates final finishing
trim, sander dust and process breakage that are both solid and
resinated wood materials. In some cases, these materials are coated
with finish materials used to color and protect the finished product.
The commenter (a utility) indicated that their facilities receive these
materials from furniture and flooring manufacturers and utilize them to
offset the fuel load from fossil fuels due to their high heat capacity.
Thus, the commenter requests that the EPA expand its definition of
resinated wood materials to include these additional wood manufacturing
secondary materials as non-waste fuels or otherwise describe the
circumstances under which these additional materials would be
considered a non-waste fuel.
    Response: It is possible that these materials (or some of these
materials) could be within the definition of ``resinated wood,'' as
codified in 40 CFR part 241.2; however, commenters have not provided
the agency with information regarding the factors involved in
determining whether these additional types of coated materials are
legitimately used as product fuels. That is, commenters have not
provided information regarding whether these ``finishing materials''
could have contaminant concerns and whether they are routinely used as
fuels. Subsequent to this rulemaking, the agency would welcome
information regarding these materials in order to make an informed
decision regarding whether these materials fit within the definition of
``resinated wood.'' Alternatively, the commenter may petition the
agency to receive a non-waste determination per the petition process
established in 40 CFR 241.3(c) if the commenter believes that this
material may not be within the definition of ``resinated wood.''
4. Rulemaking Petition Process for Other Categorical Non-Waste
Determinations (40 CFR 241.4(b))
    The EPA recognizes that there may be other NHSMs that can also be
considered non-wastes when used as fuels in combustion units when
balancing the legitimacy criteria and other relevant factors. Thus,
under today's rule, we are finalizing the process outlined in the
proposed rule whereby persons can submit a rulemaking petition to the
Administrator where they can identify and request that additional NHSMs
be listed in section 241.4. The petition process is similar to 40 CFR
260.20, where any person may petition the Administrator to modify or
revoke any provisions of the hazardous waste rules and where procedures
governing the EPA's action on those petitions are established. The 40
CFR 260.20 standards reflect normal, informal rulemaking procedures
under the APA and thus, serve as an appropriate model for the NHSM
rulemaking petitions under this section.
    In the context of a rulemaking petition under section 241.4(b), any
person can petition the Administrator for a regulatory amendment to
identify and request that additional NHSMs be included on the list of
materials in section 241.4(a) that are not solid wastes when used as a
fuel in a combustion unit. To be successful, the petitioner needs to
demonstrate to the satisfaction of the Administrator that the proposed
regulatory amendment involves a NHSM that has not been previously
discarded (i.e., was not initially abandoned or thrown away), or if
discarded, has been sufficiently processed into a legitimate fuel. The
petitioner must also demonstrate that the material is used as a non-
waste fuel in a combustion unit because it either

meets the legitimacy criteria, or, after balancing the legitimacy
criteria with other relevant factors, such NHSM(s) is not a solid waste
when used as a fuel in a combustion unit.
    If the applicant believes that the NHSM is a legitimate product and
not discarded despite not meeting the legitimacy criteria, additional
information must be submitted to explain or describe why such NHSM
should be considered a non-waste fuel. Possible factors to address
include, but are not limited to:
     The extent that use of the NHSM has been integrally tied
to the industrial production process. Information can include combustor
design specifications, the extent that use of the material is
integrated across the industry and the extent that use of the NHSM is
essential to the industrial process,
     The extent that the NHSM is functionally the same as the
comparable traditional fuel, and
     Other relevant factors.
    The application is required to include: (1) The petitioner's name
and address; (2) a statement of the petitioner's interest in the
proposed action; (3) a description of the proposed action, including
the specific NHSM, the industry (i.e., NAICS code) and functional use
(i.e., industrial functional code listed in 40 CFR 710.52(c)(4)(i)(C));
and (4) a statement of the need and justification for the proposed
action, including any supporting tests, studies or other information.
Where such NHSM(s) do not meet the legitimacy criteria, the applicant
must explain why such NHSM(s) should be considered a non-waste fuel,
balancing the legitimacy criteria with other relevant factors.
    Under this petition process, the Administrator makes a tentative
decision to grant or deny a petition and then publish notice of such
tentative decision, either in the form of an ANPRM, a proposed rule or
a tentative determination to deny the petition, in the Federal Register
for written public comment. The Administrator could, at its discretion,
hold an informal public hearing to consider oral comments on the
tentative decision. After evaluating all public comments, the
Administrator makes a final decision by publishing in the Federal
Register a regulatory amendment or a denial of the petition.
    Comment: One commenter does not support use of the legitimacy
criteria, as provided in the proposed section 241.4(b)(3) to make a
determination. A material which has not been discarded is, by
definition, not a solid waste. However, if the EPA believes that other
factors still should be considered, then the only other factor which
should be considered is whether the material is being used legitimately
as a fuel. The remaining legitimacy criteria are (and should be)
irrelevant.
    Response: As discussed in the 2011 NHSM final rule, ``legitimacy''
is shorthand for referring to NHSM that are not abandoned or thrown
away, are saved and are reused by being burned for their value as a
fuel.\85\ The legitimacy criteria are the factors needed to be examined
to make this determination. For example, it is relevant how the NHSM is
managed and its heating value since burning materials that have minimal
or limited heating value shows the material is being burned for discard
and not energy recovery. In addition, the extent to which contaminants
are present in NHSMs may also indicate that the real reason for burning
the secondary material is simply to destroy or discard them--referred
to as ``sham'' recycling. Thus, the agency is not simply ``punting'' to
its legitimacy criteria but believes they provide a valid basis for
showing that a NHSM is more commodity-like than waste-like.
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    \85\ See 76 FR 15471.
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    Comment: The current petition process is limited to NHSMs when used
as fuels. Absent from this petition process are NHSMs used as
ingredients and previously discarded materials that meet the fuel
legitimacy criteria. We do not understand this distinction and urge the
EPA to expand both the current and proposed petition processes to allow
for non-waste determinations for a wider range of NHSMs.
    Response: In general, the 40 CFR part 241 regulations establishes a
self-implementing approach for NHSM that can consider site-specific
information, if necessary (i.e., facilities will make a self-
determination of whether the non-hazardous secondary fuel or ingredient
in question meets the regulatory criteria). We note it is the EPA's
intention to indicate in these rules, as clearly as possible, which
non-hazardous materials used as fuels or ingredients in combustion
units are or are not considered solid waste based on the criteria laid
out in regulatory text. The agency expects this self-implementing
approach will govern the majority of situations, including NHSMs used
as ingredients and NHSMs processed from previously discarded materials.
    We would also note that the regulated community prior to proposing
the December 2011 proposed rule and commenters to that proposed rule
did not provide any instances where ingredients are combusted or are
processed from previously discarded material that would be a candidate
for listing categorically. Therefore, we do not believe it necessary to
modify the proposed rule to address this situation. However, to the
extent that there are instances where such materials do exist, persons
can always petition the EPA to modify the rules, including allowing
ingredients that are combusted to be categorically listed to account
for such materials.
    Comment: In the NHSM Proposal, the EPA recognizes that a material
can have levels of contaminants higher than traditional fuels, but
still be combusted for a legitimate, energy-producing purpose (see 76
FR 80483 discussing resinated wood). The EPA also has proposed that
this is true for hazardous secondary materials as well (see 76 FR
44094, 44122; July 22, 2011). Notwithstanding this admission, the EPA
is not proposing to amend its legitimacy criterion for contaminants to
make it a consideration, rather than a mandatory criterion. Thus, the
EPA's NHSM Proposal is internally inconsistent. Under 40 CFR
241.3(d)(iii), any material that has contaminants in concentrations
higher than those found in traditional fuels is automatically
considered a waste, no matter how integral the use of the material is
to the manufacturing process or how legitimate the combustion is to the
purpose of energy recovery. In contrast, under proposed 40 CFR 241.4,
EPA recognizes that materials can have high levels of contaminants and
still be non-waste material being legitimately combusted for energy
recovery. To justify this inconsistency, the EPA argues that it needs
to make a case-by-case determination that a material with higher levels
of contaminants is a non-waste to ``prevent sham recycling'' (see 76 FR
80482).
    Response: The EPA disagrees with the comment that the mandatory
nature of the self-implementing Sec.  241.3 standards (including the
contaminant legitimacy criterion) for individual facilities is
inconsistent with the non-waste determinations outlined in Sec.  241.4.
In particular, the legitimacy criteria (including the contaminant
legitimacy criterion) must be met under the self-implementing standards
for individual facilities outlined in Sec.  241.3, but the same
criteria may be balanced by the EPA with other relevant factors under
the categorical non-waste determinations outlined in Sec.  241.4.
    These differences are necessary and appropriate. Where a particular
NHSM may not meet all the legitimacy criteria outlined in Sec.
241.3(d)(1), but the

material is being used as a legitimate fuel, the agency has decided it
is necessary to require a formal determination (i.e., not a self-
implementing decision) to prevent materials from being burned for
discard under the guise of recycling. Furthermore, the agency has
decided that such a determination should be subject to public notice
and comment. In cases where the difference between recycling and waste
treatment is difficult to distinguish, as is the case when elevated
levels of contaminants are present, the potential for abuse is likely,
and thus, regulatory oversight is appropriate when making a waste/non-
waste determination. This approach is also consistent with what the EPA
proposed for the hazardous secondary material rule cited by the
comment--that is, the balancing test would be used by the EPA in a
petition process, not as a self-implementing determination.
    Comment: One commenter requested that the EPA should specifically
recognize in the categorical petition that the existence of a supply
contract between a generator of NSHMs and a combustor, with
specifications that the NHSM must meet, should be considered
dispositive evidence that the NHSM is not a waste and is combusted for
energy recovery, not disposal.
    Response: We disagree with the commenter that the mere existence of
a contract between the generator and combustor is dispositive evidence
of the material being a non-waste. However, existence of a contract is
a factor to be considered in a categorical non-waste determination. For
example, under 40 CFR 241.4(a)(1), scrap tires managed under
established tire collection programs are a categorical non-waste and
the definition of ``established tire collection program'' (40 CFR
241.2) explicitly recognizes contracts as evidence that the material
has not been discarded. Specifically, ``Established tire collection
program'' means ``a comprehensive collection system or contractual
arrangement [emphasis added] that ensures scrap tires are not discarded
and are handled as a valuable commodity through arrival at the
combustion facility* * *''
    Comment: The timeframe for which the EPA must grant or deny the
request should be included as well as defining the length of time of 30
days that these notices will be open to public comment. What is the
legal implication of an ``informal public hearing?'' How does this
differ from a public information meeting? If it is ``informal,'' what
is the purpose? What administrative procedures apply to comments made
during the ``informal public hearing?''
    Response: The agency is not imposing a deadline on its decision to
grant or deny a petition, or a specific time period for public comment,
due to the potentially wide range of issues involved in considering a
categorical non-waste petition and because of the many factors beyond
its control. Informal public hearings, similar to formal public
hearings, provide an opportunity for the public to provide comments and
oral testimony on proposed agency actions . All testimony received
becomes part of the public record. Public meetings, on the other hand,
are less formal; anyone can attend, there are no formal time limits on
statement, and the agency and/or the facility usually answer questions.
The purpose of the meeting is to share information and discuss issues,
not to make decisions.
    Comment: The final rule should make clear that the denial of a
petition would not bar the filer of the denied petition from filing a
subsequent petition for the same location and same materials.
    Response: Where the information submitted to make a categorical
non-waste determination has fundamentally changed, the EPA agrees that
a petition to categorically list a NHSM can be resubmitted for review.
5. Materials for Which Additional Information Was Requested
a. Pulp and Paper Sludge
    In the March 2011 NHSM final rule, the EPA concluded that pulp and
paper sludges meet the legitimacy criteria and, thus, can be burned as
a non-waste fuel provided such combustion units are within the control
of the generator in accordance with section 241.3(b)(1).\86\ The
December 2011 proposed rule discussed the information we currently have
on pulp and paper sludges, and the additional information that the
agency would need in order to categorically list these materials in 40
CFR 241.4(a) as a non-waste fuel.\87\ If such information were provided
to the EPA, the agency would then consider the legitimacy criteria and
other factors relevant to a determination that these sludges are not
solid wastes when combusted.
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    \86\ Pulp and paper sludges almost entirely remain on-site and
within the control of the generator when burned as fuels. To the
extent that pulp and paper sludges do not remain within the control
of the generator and are used as fuels, the petition process
established in 40 CFR 241.3(c) could apply to these materials, as
appropriate.
    \87\ Additional information needed to categorically list pulp
and paper sludges is discussed at 76 FR 80485.
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    This categorical listing would put pulp and paper sludges in the
same general grouping as resinated wood residuals. For resinated wood
residuals, the EPA considered that use of that material as a fuel has
been integrally tied to the industrial production process and is
consistent with that of a fuel product. The proposal discussed similar
information that was needed by the agency to support adding pulp and
paper sludges to 40 CFR 241.4(a) as a categorical non-waste.
    Based on the comments received and information submitted, the EPA
is listing as a categorical non-waste fuel under section 241.4 those
dewatered pulp and paper sludges that are not discarded and are
generated and burned on-site by pulp and paper mills that burn a
significant portion of those residuals. Such residual must be dewatered
and managed in a manner to preserve the meaningful heating value of
those materials.
    This determination for pulp and paper sludge as a categorical non-
waste represents the agency's finding that, after balancing the
regulatory \88\ legitimacy criteria with other relevant factors, the
burning of this material as described in the categorical listing is a
commodity fuel for legitimate energy recovery and not discard. That is,
the agency has concluded that, for pulp and paper mills that burn a
significant portion, pulp and paper sludges are integral to the mills'
operations and provide a critical source of energy. Such mills are not
burning these dewatered pulp and paper sludges to discard them but are
burning them as a legitimate commodity fuel. These facilities take the
steps necessary to dewater the pulp and paper sludges and to manage the
dewatered sludge to maintain its meaningful heating value and not to
dispose of the sludge. In addition, the agency finds for facilities
burning a significant portion of the dewatered sludge that:
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    \88\ As the EPA has previously stated (76 FR 15460), the Agency
has established regulatory legitimacy criteria which may be used by
companies on a case-by-case basis to show that they are not
discarding material when used in a combustor. However, for the
categorical determination, the Agency has determined that it is
appropriate for the Agency, itself, to make the discard
determination for material that does not meet the more strict
regulatory criteria. Thus, the EPA has developed the categorical
determination.
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    (1) The sludges are managed in a manner that preserves meaningful
heating value and, therefore, meets the managed as a valuable commodity
(241.3(d)(1)(i)).
    (2) Dewatered sludge (i.e., dewatered through appropriate water
removal practices, including dewatering presses, rotary driers, etc.)
meets the meaningful heating value and used in combustion

units that recovery energy criterion (241.3(d)(1)(ii)).
    (3) The sludge meets the comparable contaminant criterion
(241.3(d)(1)(iii)).
    The fact that these sludges meet the contaminant legitimacy
criterion, in the EPA's view, show that these sludges when burned on-
site are not being discarded. While the agency is not defining a
specific percentage of dewatered pulp and paper sludges that would need
to be burned to qualify for the categorical listing in section 241.4,
the agency would consider that the 42 mills that responded to an AFPA
survey \89\ and that use dewatered pulp and paper sludge as fuels at a
significant rate (between 70-100 percent of these materials that are
generated and burned) meet the listing description. We also find that
other mills that burn a significant portion of their dewatered pulp and
paper sludges on-site as fuel would qualify for the listing
description.\90\ For the pulp and paper mills that burn a relatively
small percentage of their dewatered pulp and paper sludges on-site as a
fuel (e.g., the five mills that responded to the AFPA survey that burn
less than 20 percent), the agency has determined that those sludges are
not viewed the same by the mill operator in that they do not need to
rely on them for their energy value and are not included in the non-
waste categorical listing in section 241.4.
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    \89\ See April 2, 2012, letter from Timothy G. Hunt to James
Berlow. A copy of this letter has been placed in the docket for
today's rulemaking.
    \90\ While the Agency is not including a specific requirement
for pulp and paper mills to document the amount of dewatered
wastewater treatment residuals they burn on-site as a fuel, we would
recommend that such pulp and paper mills include such documentation
in case there are any questions as to whether the pulp and paper
mills dewatered wastewater treatment residuals qualifies for the
categorical listing in 241.4. As an alternative, the pulp and paper
mill can request the Agency to confirm (via letter) that the
facility generates and burns on-site a significant portion of pulp
and paper sludges such that the facilities pulp and paper sludges
are included within the categorical listing.
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    However, there is likely little difference as to how pulp and paper
sludge may be defined under NHSM rules, whether a categorical or a
facility-specific non-waste determination. That is, such dewatered pulp
and paper sludges may still be considered non-waste fuels when burned
as a fuel for energy recovery at mills that burn a relatively small
percentage of these materials, although the rules require those
facilities to document on a facility-specific basis that such sludges
are non-waste fuels. As discussed in the final NHSM rule (76 FR 15488),
dewatered pulp and paper sludges that are burned within the control of
the generator and meet the legitimacy criteria, likely are non-waste
fuels and thus can be burned in units subject to CAA section 112
requirements.
    The agency has restricted the categorical listing to those
dewatered pulp and paper sludges that are burned on-site because the
agency has minimal information on how these NHSMs are managed when
shipped offsite.\91\
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    \91\ We note that in the situation where pulp and paper sludges
are transferred beyond the control of the generator, a facility can
petition the Agency to receive a non-waste determination, as
appropriate.