[Federal Register Volume 76, Number 54 (Monday, March 21, 2011)]
[Rules and Regulations]
[Pages 15456-15551]
[FR Doc No: 2011-4492]

Vol. 76

Monday,

No. 54

March 21, 2011

Part III

Environmental Protection Agency

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40 CFR Part 241

Identification of Non-Hazardous Secondary Materials That Are Solid
Waste; Final Rule

Federal Register / Vol. 76 , No. 54 / Monday, March 21, 2011 / Rules
and Regulations

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 241

[EPA-HQ-RCRA-2008-0329; FRL-9273-1]
RIN 2050-AG44

Identification of Non-Hazardous Secondary Materials That Are
Solid Waste

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA or the Agency) is
publishing a final rule that identifies which non-hazardous secondary
materials, when used as fuels or ingredients in combustion units, are
``solid wastes'' under the Resource Conservation and Recovery Act
(RCRA). This RCRA solid waste definition will determine whether a
combustion unit is required to meet the emissions standards for solid
waste incineration units issued under section 129 of the Clean Air Act
(CAA) or the emissions standards for commercial, industrial, and
institutional boilers issued under section 112 of the CAA. In this
action, EPA is also finalizing a definition of traditional fuels.

DATES: This final rule is effective on May 20, 2011.

ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-RCRA-2008-0329. All documents in the docket are listed on
the http://www.regulations.gov Web site. Although listed in the index,
some information is not publicly available, e.g., confidential business
information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, will
be publicly available only in hard copy. Publicly available docket
materials are available either electronically in http://www.regulations.gov or in hard copy at the RCRA Docket, EPA/DC, EPA
West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the Public
Reading Room is<PHONE_NUMBER>, and the telephone number for the RCRA
Docket is<PHONE_NUMBER>.

FOR FURTHER INFORMATION CONTACT: George Faison, Program Implementation
and Information Division, Office of Resource Conservation and Recovery,
5303P, Environmental Protection Agency, Ariel Rios Building, 1200
Pennsylvania Avenue, NW., Washington, DC 20460-0002; telephone number:
703-305-7652; fax number:<PHONE_NUMBER>; e-mail address:
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

A. Does this action apply to me?

    Categories and entities potentially affected by this action
include:

----------------------------------------------------------------------------------------------------------------
                       Generators                                                  Users
----------------------------------------------------------------------------------------------------------------
                                                             Major boiler type and
        Major generator category              NAICS*       primary industry category            NAICS*
----------------------------------------------------------------------------------------------------------------
                                         ...............  Industrial Boilers:
                                                         -------------------------------------------------------
Crop Production........................             111   Food Manufacturing........  311, 312,
Cattle Ranching and Farming............            1121   Pulp and Paper Mills......  3221
Hog and Pig Farming....................            1122   Petroleum Refining........  32411
Poultry and Egg Production.............            1123   Chemical Manufacturing....  325
Sheep and Goat Farming.................            1124   Primary Metal               331
                                                           Manufacturing.
Horses and Other Equine Production.....          112920   Fabricated Metal            332
                                                           Manufacturing.
Logging................................          113310   Other Manufacturing.......  313, 339, 321, 333, 336,
                                                                                511, 326, 316, 327
Support Activities for Crop Production.           11511
                                                         -------------------------------------------------------
Bituminous Coal and Lignite Surface              212111   Commercial Boilers:
 Mining.
                                                         -------------------------------------------------------
Bituminous Coal Underground Mining.....          212112   Retail....................  442-454
Anthracite Mining......................          212113   Warehouse.................  493
Fossil Fuel Electric Power Generation..          221112   Education.................  611
Sewage Treatment Facilities............          221320   Health Care Facilities....  621
Construction of Buildings..............             236   Social Assistance.........  624
Site Preparation Contractors...........          238910   Lodging, Restaurant.......  721, 722
Beverage and Tobacco Product                        312   Office....................  813, 541, 921
 Manufacturing.
Sawmills and Wood Preservation.........           32111   Other.....................  922140, others
Veneer, Plywood, and Engineered Wood              32121
 Product Manufacturing.
                                                         -------------------------------------------------------
Engineered Wood Member Manufacturing...          321213   Common Non-Manufacturing Boilers:
                                                         -------------------------------------------------------
Pulp, Paper, and Paperboard Mills......            3221   Agriculture (crop &         111, 112, 115
                                                           livestock production).
Solvents Made in Petroleum Refineries..          324110   All Mining................  212
Solvent Dyes Manufacturing.............          325132   Construction..............  236
Plastic Manufacturers..................          325211
                                                         -------------------------------------------------------
All Other Miscellaneous Chemical                 325998   Other Boilers:
 Product and Preparation Manufacturing.
                                                         -------------------------------------------------------
Packaging..............................           32611   Electric Utility Boilers..  2211
Other Rubber Product Manufacturing.....           32629   Non-Hazardous Waste         327310
                                                           Burning Cement Kilns.

Glass and Glass Product Manufacturing..            3272   ..........................  ..........................
Cement Manufacturing...................          327310   ..........................  ..........................
Iron and Steel Mills...................          331111   ..........................  ..........................
Electrometallurgical Ferroalloy Product          331112   ..........................  ..........................
 Manufacturing.
Metal-Casting Industry.................          331522   ..........................  ..........................
Recyclable Material Wholesalers........          423930   ..........................  ..........................
Landscaping Services...................          561730   ..........................  ..........................
Solid Waste Collection and Solid Waste   562111, 562212   ..........................  ..........................
 Landfill.
Automotive Repair and Replacement Shops          811111   ..........................  ..........................
----------------------------------------------------------------------------------------------------------------
* NAICS--North American Industrial Classification System.

    This table is not intended to be exhaustive, but rather provides a
guide for readers, including lists of examples of the types of entities
likely to be impacted by this action. Other types of entities not
listed could also be affected. To determine whether your facility,
company, business, organization, etc., is affected by this action, you
should examine the applicability criteria in this rule. If you have any
questions regarding the applicability of this action to a particular
entity, consult the person listed in the preceding section: FOR FURTHER
INFORMATION CONTACT.

B. Why is EPA taking this action?

    Clean Air Act (CAA) section 129 states that the term ``solid
waste'' shall have the meaning ``established by the Administrator
pursuant to [RCRA].'' The purpose of this final rule is to provide a
definition of ``solid waste'' in order to develop emission standards
under sections 112 and 129 of the CAA. In particular, this rule
codifies requirements and procedures that identify whether the
definition of ``solid waste'' applies to non-hazardous secondary
materials burned as fuels or used as ingredients in combustion units.
In related actions in this Federal Register, EPA is concurrently
finalizing air emission requirements under section 112 of the CAA for
industrial, commercial, and institutional boilers and process heaters,
as well as air emission requirements under section 129 of the CAA for
commercial and industrial solid waste incineration units.

Preamble Outline

I. Statutory Authority
II. List of Abbreviations and Acronyms
III. Introduction--Summary of Regulations Being Finalized
    A. Identifying Which Non-Hazardous Secondary Materials Are or
Are Not Solid Wastes When Used in a Combustion Unit
    1. Within the Control of the Generator: Non-Hazardous Secondary
Materials That Are Legitimately Used as Fuels Within the Control of
the Generator Are Not Solid Waste When Used in Combustion Units
    2. Scrap Tires: Scrap Tires That Are Legitimately Used as a Fuel
That Are Removed From Vehicles and Managed Under the Oversight of
Established Tire Collection Programs Are Not Solid Waste When Used
in Combustion Units
    3. Resinated Wood: Resinated Wood That Is Legitimately Used as a
Fuel Is Not a Solid Waste When Used in Combustion Units
    4. Ingredients: Non-Hazardous Secondary Materials That Are
Legitimately Used as Ingredients Are Not Solid Waste When Used in
Combustion Units
    5. Discards: Discarded Non-Hazardous Secondary Materials That
Have Undergone Processing To Produce Legitimate Fuel or Ingredient
Products Are Not Solid Waste When Used in Combustion Units
    6. Non-Waste Determination: Non-Hazardous Secondary Materials
Used as a Fuel for Which a Non-Waste Determination Has Been Granted
Are Not Solid Waste When Used in Combustion Units
    B. Codification of the Legitimacy Criteria
IV. Background
    A. What is the history of CISWI, CISWI definitions, and boiler
rulemakings?
    B. Why is the Court's decision affecting the CAA rules relevant
to RCRA?
    C. What is the history of the definition of solid waste?
    1. Statutory Definition of Solid Waste
    2. Solid Waste Program, RCRA Subtitle D
    3. Hazardous Waste Program, RCRA Subtitle C
    4. Case Law on the Definition of Solid Waste Under RCRA Subtitle
C
    5. Concept of Legitimacy
    D. Summary of the ANPRM
    E. Summary of the Proposed Rule
    F. Use of Secondary Materials
    1. Introduction
    2. Secondary Materials Use and Benefits
V. Comments on the Proposed Rule
    A. Proposed Approach
    1. Definition of the Term Discard
    2. Processing Requirements
    B. Comments on Specific Materials Used as Fuel
    1. Traditional Fuels
    2. Manure
    3. Other Biomass
    4. Pulp and Paper Sludge
    5. Scrap Tires
    6. Resinated Wood Residuals
    7. Used Oil
    8. Coal Refuse
    9. Coal Combustion Residuals
    10. Sewage Sludge
    11. Processed Fats
    C. Comments on Specific Materials Used as Ingredients
    1. Cement Kiln Dust
    2. Coal Combustion Residuals
    3. Foundry Sand
    4. Blast Furnace Slag/Steel Slag
    D. Comments on Legitimacy Criteria for Fuels
    1. Managed as a Valuable Commodity
    2. Meaningful Heating Value and Use as a Fuel
    3. Have Contaminants at Comparable Levels or Lower Than
Traditional Fuels
    E. Comments on Legitimacy Criteria for Ingredients
    1. Managed as Valuable Commodities
    2. Useful Contribution
    3. Quantifying an Ingredient's Contribution to Production/
Manufacturing Activity
    4. Contaminants in Ingredients
    5. Comparing Contaminant Levels in Products
    F. Comments on Non-Waste Determination Petitions
    G. Comments on the Other Approaches for Defining Solid Wastes
VI. Summary of Major Differences Between the Proposed Rule and Final
Rule
VII. Detailed Discussion and Rationale for Today's Final Rule
    A. Traditional Fuels
    B. Non-Hazardous Secondary Materials Used as Fuels That Remain
Within the Control of the Generator
    1. Scope and Applicability
    2. Restrictions and Requirements
    C. Non-Hazardous Secondary Materials That Have Not Been
Discarded: Scrap Tires Collected Under Established Tire Collection
Programs
    1. Scope and Applicability
    2. Restrictions and Requirements

    D. Non-Hazardous Secondary Materials That Have Not Been
Discarded: Resinated Wood Residuals
    1. Scope and Applicability
    2. Restrictions and Requirements
    E. Non-Hazardous Secondary Materials Used as Ingredients
    1. Scope and Applicability
    2. Restrictions and Requirements
    F. Discarded Non-Hazardous Secondary Materials That Have
Undergone Processing To Produce Legitimate Fuel or Ingredient
Products
    1. Scope and Applicability
    2. Restrictions and Requirements
    G. Non-Waste Determination Petitions
    1. Description of the Petition Criteria for the Non-Waste
Determination
    2. Non-Waste Determination Petition Process
    3. Petition Decisions Utilizing State Environmental Agency
Program's Input
    H. Legitimacy Criteria
    1. Legitimacy Criteria for Fuels
    2. Legitimacy Criteria for Ingredients
    I. Determining That Non-Hazardous Secondary Materials Meet the
Legitimacy Criteria
VIII. Effect of Today's Final Rule on Other Programs
    A. Clean Air Act
    B. Renewable Energy
    C. Subtitle C Hazardous Waste Program
IX. State Authority
    A. Applicability of State Solid Waste Definitions and Beneficial
Use Determinations
    B. State Adoption of the Rulemaking
    C. Clarifications on the Relationship to State Programs
X. Cost and Benefits of the Final Rule
XI. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution or Usage
    I. National Technology Transfer Advancement Act
    J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
    K. Congressional Review Act

I. Statutory Authority

    The U.S. Environmental Protection Agency (EPA or the Agency) is
promulgating these regulations under the authority of sections
2002(a)(1) and 1004(27) of the Resource Conservation and Recovery Act
(RCRA), as amended, 42 U.S.C. 6912(a)(1) and 6903(27). Section
129(a)(1)(D) of the Clean Air Act (CAA) directs EPA to establish
standards for Commercial and Industrial Solid Waste Incinerators
(CISWI), which burn solid waste (section 129(g)(6) of the CAA, 42
U.S.C. 7429). Section 129(g)(6) provides that the term ``solid waste''
is to be established by EPA under RCRA. Section 2002(a)(1) of RCRA
authorizes the Agency to promulgate regulations as are necessary to
carry out its functions under the Act. The statutory definition of
``solid waste'' is provided in RCRA section 1004(27).

II. List of Abbreviations and Acronyms

AASHTO American Association of State Highway and Transportation
Officials
ANPRM Advanced Notice of Proposed Rulemaking
ASME American Society of Mechanical Engineers
ASTM American Society for Testing and Materials
Btu British Thermal Unit
CAA Clean Air Act
CAFO Concentrated Animal Feeding Operations
C&D Construction and Demolition
CBO Carbon Burn-Out Unit
CCA Chromated Copper Arsenate
CCR Coal Combustion Residuals
CFB Circulating Fluidized Bed
CFR Code of Federal Regulations
CISWI Commercial and Industrial Solid Waste Incinerator
CKD Cement Kiln Dust
CWA Clean Water Act
DSE Domestic Sewage Exemption
DSW Definition of Solid Waste Rule (2008)
EG Emission Guidelines
EGU Electric Utility Steam Generating Unit
EPA U.S. Environmental Protection Agency
GACT Generally Available Control Technology
GHG Greenhouse Gas
HAP Hazardous Air Pollutant
IWI Institutional Waste Incinerator
LCA Life Cycle Analysis
MACT Maximum Achievable Control Technology
MEK Methyl Ethyl Ketone
NESHAP National Emission Standards for Hazardous Air Pollutants
NHSM Non-Hazardous Secondary Material
NSPS New Source Performance Standards
OCC Old Corrugated Cardboard
OSWI Other Solid Waste Incinerator
PC Portland Cement
PIC Product of Incomplete Combustion
POTW Publicly Owned Treatment Works
PVC Polyvinyl Chloride
RCRA Resource Conservation and Recovery Act
RFS Renewable Fuel Standards
SSI Sewage Sludge Incinerator
SWDA Solid Waste Disposal Act
TCLP Toxicity Characteristic Leaching Procedure
TDF Tire-Derived Fuel
U.S.C. United States Code
USGS U.S. Geological Survey
VSMWC Very Small Municipal Waste Combustor

III. Introduction--Summary of Regulations Being Finalized

    In today's rule, EPA is finalizing standards and procedures to be
used to identify whether non-hazardous secondary materials are solid
wastes when used as fuels or ingredients in combustion units.
``Secondary material'' is defined for the purposes of this rulemaking
as any material that is not the primary product of a manufacturing or
commercial process, and can include post-consumer material, off-
specification commercial chemical products or manufacturing chemical
intermediates, post-industrial material, and scrap (codified in Sec.
241.2).\1\ ``Non-hazardous secondary material'' is a secondary material
that, when discarded, would not be identified as a hazardous waste
under 40 CFR part 261 (codified in Sec.  241.2).
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    \1\ For the purpose of this definition, all commercial products
from a manufacturing process would be considered ``primary
products.'' Processes that are designed for the production of
multiple products could have more than one primary product.
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    The Agency first solicited comments on how the RCRA definition of
solid waste should apply to non-hazardous secondary materials used as
fuels or ingredients in combustion units are solid wastes under RCRA in
an Advanced Notice of Proposed Rulemaking (ANPRM), which was published
in the Federal Register on January 2, 2009 (74 FR 41). We then
published a proposed rule on June 4, 2010 (75 FR 31844).
    Today's preamble is organized as follows: This section of the
preamble (Section III) describes the principal regulatory provisions
that are finalized in this rule; Section IV describes the background of
this final rule, including a brief history of this rulemaking in
conjunction with the relevant rules being finalized under sections 112
and 129 of the CAA; Section V contains a discussion of the major public
comments received on the June 4, 2010 proposal, along with the Agency's
response to these comments; Section VI explains the ways in which the
June 2010 proposal differs from today's final rule; Section VII
provides a detailed explanation of and rationale for the regulations
being promulgated today; Section VIII describes the effect of today's
final rule on other programs; Section IX discusses how today's rule
affects the states' authority over solid waste pursuant to subtitle D
of RCRA; Section X describes the costs and benefits associated with
today's rule; and Section XI describes this rule's

compliance with the appropriate statutory and executive orders reviews.
    Below is a summary of the principal elements of the regulations
being promulgated today.

A. Identifying Which Non-Hazardous Secondary Materials Are or Are Not
Solid Wastes When Used in a Combustion Unit

    In our determination, most non-hazardous secondary materials burned
in combustion units are defined as solid wastes under RCRA. However,
this rule provides exceptions to that determination. The following non-
hazardous secondary materials are not solid waste when used
legitimately as a fuel or an ingredient in a combustion unit:
    (1) Those that remain within the control of the generator and used
as fuel (discussed further below--codified in Sec.  241.3(b)(1));
    (2) Scrap tires managed by established tire collection programs and
used as fuel (discussed further below--codified in Sec.
241.3(b)(2)(i));
    (3) Resinated wood used as fuel (discussed further below--codified
in Sec.  241.3(b)(2)(ii));
    (4) Those that are used as ingredients (discussed further below--
codified in Sec.  241.3(b)(3));
    (5) Discards that have undergone processing to produce fuel or
ingredient products (discussed further below--codified in Sec.
241.3(b)(4)); or
    (6) Those that are used as fuels for which a non-waste
determination has been granted (discussed further below--codified in
Sec.  241.3(c)).
    Materials are considered legitimate fuels or ingredients if they
conform to the criteria codified in Sec.  241.3(d), which this action
refers to as ``legitimacy criteria.'' These criteria are designed to
ensure that the fuel or ingredient is not being ``sham'' recycled for
the sole purpose of avoiding being considered a waste. The legitimacy
criteria for non-hazardous secondary materials used as fuels and
ingredients in combustion units are discussed below in the
``Codification of the Legitimacy Criteria'' section.
    Materials designated as ``traditional'' fuels are not wastes when
used in combustion units. We are finalizing a definition of traditional
fuels (codified in Sec.  241.2) that applies to this subpart.
Traditional fuels means materials that are produced as fuels and are
unused products that have not been discarded and therefore, are not
solid wastes, including: (1) Fuels that have been historically managed
as valuable fuel products rather than being managed as waste materials,
including fossil fuels (e.g., coal, oil and natural gas), their
derivatives (e.g., petroleum coke, bituminous coke, coal tar oil,
refinery gas, synthetic fuel, heavy recycle, asphalts, blast furnace
gas, recovered gaseous butane, and coke oven gas) and cellulosic
biomass (virgin wood); and (2) alternative fuels developed from virgin
materials that can now be used as fuel products, including used oil
which meets the specifications outlined in 40 CFR 279.11, currently
mined coal refuse that previously had not been usable as coal, and
clean cellulosic biomass. These fuels are not secondary materials or
solid wastes unless discarded before they are used.
1. Within the Control of the Generator: Non-Hazardous Secondary
Materials That Are Legitimately Used as Fuels Within the Control of the
Generator Are Not Solid Waste When Used in Combustion Units
    Except as otherwise provided, under this provision--40 CFR
241.3(b)(1)--EPA would consider non-hazardous secondary materials used
as fuels in combustion units which remain within the control of the
generator and that meet the specified legitimacy criteria (as codified
in Sec.  241.3(d)(1)) as not being a solid waste. The legitimacy
criteria for non-hazardous secondary materials used as fuels in
combustion units are discussed below in the ``Codification of the
Legitimacy Criteria'' section. Non-hazardous secondary materials would
be considered ``within the control of the generator'' under the
following circumstances:
    (1) They are generated and burned in combustion units at the
generating facility (as codified in Sec.  241.2); or
    (2) They are generated and burned in combustion units at different
facilities, if the facility combusting the non-hazardous secondary
material is controlled (as codified in Sec.  241.2) by the generator;
or
    (3) Both the generating facility and the facility combusting the
material are under control of the same person (as codified in Sec.
241.2).
2. Scrap Tires: Scrap Tires That Are Legitimately Used as a Fuel That
Are Removed From Vehicles and Managed Under the Oversight of
Established Tire Collection Programs Are Not Solid Waste When Used in
Combustion Units
    Under this provision--40 CFR 241.3(b)(2)(i)--EPA would consider
scrap tires used as a fuel in a combustion unit that are removed from
vehicles and collected and managed under the oversight of established
tire collection programs as not being a solid waste, provided these
materials satisfy the specified legitimacy criteria (as codified in
Sec.  241.3(d)(1)). This provision would not differentiate between
scrap tires that are used as a fuel within the control of the generator
from those that are not. For the purposes of this rule, the term
``vehicle'' is defined as any mechanical means of conveyance that
employs the use of tires. ``Established tire collection program'' (as
codified in Sec.  241.2) means a comprehensive collection system that
ensures scrap tires are not discarded and are handled as valuable
commodities in accordance with Sec.  241.3(d)(1)(i) from the point of
removal from the vehicle through arrival at the combustion facility.
The legitimacy criteria for non-hazardous secondary materials used as
fuels in combustion units are discussed below in the ``Codification of
the Legitimacy Criteria'' section.
3. Resinated Wood: Resinated Wood That Is Legitimately Used as a Fuel
Is Not a Solid Waste When Used in Combustion Units
    Under this provision--40 CFR 241.3(b)(2)(ii)--EPA would consider
resinated wood used as a fuel in a combustion unit as not being a solid
waste, provided these materials satisfy the specified legitimacy
criteria (as codified in Sec.  241.3(d)(1)). This provision would not
differentiate between resinated wood that is used as a fuel within the
control of the generator from those that are not. Resinated wood (as
codified in Sec.  241.2) means 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. The legitimacy criteria for non-hazardous secondary
materials used as fuels in combustion units is discussed below in the
``Codification of the Legitimacy Criteria'' section.
4. Ingredients: Non-Hazardous Secondary Materials That Are Legitimately
Used as Ingredients Are Not Solid Waste When Used in Combustion Units
    Under this provision--40 CFR 241.3(b)(3)--EPA would consider non-
hazardous secondary materials used as ingredients in combustion units
and that meet the specified legitimacy criteria as not being solid
waste. This provision does not differentiate between ingredients that
are used within the control of the generator from those that are not.
Ingredient (as codified in Sec.  241.2) means a non-hazardous secondary
material that is a component in a compound, process or product. A
discussion of the legitimacy criteria (as

codified in Sec.  241.3(d)(2)) for non-hazardous secondary materials
used as ingredients in combustion units is included below in the
``Codification of the Legitimacy Criteria'' section.
5. Discards: Discarded Non-Hazardous Secondary Materials That Have
Undergone Processing To Produce Legitimate Fuel or Ingredient Products
Are Not Solid Waste When Used in Combustion Units
    Under this provision--40 CFR 241.3(b)(4)--EPA would consider
discarded non-hazardous secondary materials that have been sufficiently
processed into fuel or ingredient products and used in a combustion
unit as not being a solid waste, provided these materials satisfy the
specified legitimacy criteria (as codified in Sec.  241.3(d)(1) for
fuels and (d)(2) for ingredients). Processing (as codified in Sec.
241.2) means any operations that transform the discarded non-hazardous
secondary material into a legitimate fuel or ingredient product, and
includes, but is not limited to, operations that remove or destroy
contaminants; operations that significantly improve the fuel
characteristics of the material, e.g., sizing or drying the material in
combination with other operations; operations that chemically improve
the as-fired energy content; and operations that improve the ingredient
characteristics. Minimal operations that result only in modifying the
size of the material by shredding do not constitute processing for the
purposes of this definition. Prior to any processing, the discarded
non-hazardous secondary material would be considered a solid waste and
would be subject to the appropriate federal, state, and local laws and
regulations.
6. Non-Waste Determination: Non-Hazardous Secondary Materials Used as a
Fuel for Which a Non-Waste Determination Has Been Granted Are Not Solid
Waste When Used in Combustion Units
    Under this provision--40 CFR 241.3(c)--EPA would consider non-
hazardous secondary materials used as fuels that have been transferred
to a third party, but have been granted a non-waste determination from
EPA, to not be a solid waste when used in combustion units.\2\ This
provision establishes a non-waste determination case-by-case process
that provides persons with an administrative process for receiving a
formal determination from EPA that their non-hazardous secondary
material fuel that has not been managed within the control of the
generator (as codified in Sec.  241.2), has not been discarded, and is
indistinguishable in all relevant aspects from a fuel product, is not a
solid waste when used as a fuel in combustion units. Any petition that
is submitted to EPA requesting a non-waste determination must
demonstrate that the non-hazardous secondary material has not been
discarded in the first instance, satisfies the specified legitimacy
criteria for fuels (as codified in Sec.  241.3(d)(1)), and satisfies
the following five criteria: (1) Whether market participants treat the
non-hazardous secondary material as a fuel rather than a solid waste;
(2) whether the chemical and physical identity of the non-hazardous
secondary material is comparable to commercial fuels; (3) whether the
non-hazardous secondary material will be used in a reasonable time
frame given the state of the market; (4) whether the constituents in
the non-hazardous secondary material are released to the air, water or
land from the point of generation to the point just prior to combustion
of the non-hazardous secondary material at levels comparable to what
would otherwise be released from traditional fuels; and (5) other
relevant factors. These criteria are codified in Sec.  241.3(c)(1).
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    \2\ As noted previously, scrap tires and resinated wood would
not be considered a solid waste even if transferred to a third party
provided these secondary materials meet the legitimacy criteria.
Also, as indicated in Section V.A.1, the Agency will in the future
solicit comment on other non-hazardous secondary materials in
addition to scrap tires and resinated wood that can be used as a
non-waste fuel both by the generator and outside the control of the
generator.
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    The process for receiving a non-waste determination is codified in
Sec.  241.3(c)(2). In order to obtain a non-waste determination, a
facility that is interested in using non-hazardous secondary materials
as fuel in combustion units that would otherwise be regulated as a
solid waste must apply to the Regional Administrator per the procedures
described in Sec.  241.3(c). The application must address the relevant
criteria discussed above. The Regional Administrator will evaluate the
application and issue a draft notice tentatively granting or denying
the application. Notification of this tentative decision will also be
provided by newspaper advertisement or radio broadcast in the locality
where the combustion unit is located. The Regional Administrator will
accept comments on the tentative decision for at least 30 days, and may
also hold a public hearing upon request or at his discretion. The
Regional Administrator will issue a final decision after receipt of
comments and after the hearing (if any).

B. Codification of the Legitimacy Criteria

    This provision--40 CFR 241.3(d)--codifies the legitimacy criteria
for fuels and ingredients. In order to be considered a non-waste fuel,
non-hazardous secondary materials used as a fuel in combustion units
must meet the legitimacy criteria codified in Sec.  241.3(d)(1). To
meet the fuel legitimacy criteria, the non-hazardous secondary material
must be managed as a valuable commodity, have a meaningful heating
value and be used as a fuel in a combustion unit that recovers energy,
and contain contaminants at levels comparable to or lower than those in
traditional fuels which the combustion unit is designed to burn.
    In order to be considered a non-waste ingredient, non-hazardous
secondary materials used as an ingredient in combustion units must meet
the legitimacy criteria codified in Sec.  241.3(d)(2). To meet the
ingredient legitimacy criteria, the non-hazardous secondary material
must be managed as a valuable commodity, provide a useful contribution
to the production or manufacturing process, be used to produce a
valuable product or intermediate, and must result in products that
contain contaminants at levels that are comparable to or lower than
those found in traditional products that are manufactured without the
non-hazardous secondary material.
    Non-hazardous secondary materials that are discarded in the first
instance (abandoned, disposed of, or thrown away) would still be a
solid waste even if they satisfy the legitimacy criteria, unless they
were processed into legitimate non-waste fuel or ingredient products
or, in the case of fuels, have received a non-waste determination from
EPA.

IV. Background

    The discussion below is a summary of what was included in the ANPRM
and in the preamble to the proposed rule. However, because it continues
to be relevant to several of the key concepts being finalized today, it
is provided here as background for the benefit of the reader. (For a
more detailed discussion of what was included in the ANPRM and the
proposed rule, we refer the reader to the ANPRM (74 FR 41, January 2,
2009) and the proposed rule (75 FR 31843, June 4, 2010).) The records
and documents comprising the ANPRM and proposed rule are included in
the administrative record for this rulemaking. To the extent there are
any

inconsistencies or differences between the ANPRM, the proposed rule,
and this final rule, the statements in this final rule govern.

A. What is the history of CISWI, CISWI definitions, and boiler
rulemakings?

    CAA section 112 requires EPA to promulgate regulations to control
emissions of 187 hazardous air pollutants (HAP) from sources in source
categories listed by EPA under section 112(c), while CAA section 129
CISWI standards include numeric emission limitations for the nine
pollutants, plus opacity (as appropriate), that are specified in CAA
section 129(a)(4).\3\ Pursuant to CAA section 129, EPA promulgated a
final rule setting forth performance emissions standards for Commercial
and Industrial Solid Waste Incineration Units (referred to as the
``CISWI Rule''). 65 FR 75338 (December 1, 2000). Under CAA section 129,
the term ``solid waste incineration unit'' is defined, in pertinent
part, to mean ``a distinct operating unit of any facility which
combusts any solid waste material from commercial or industrial
establishments * * *'' 42 U.S.C. Sec.  7429(g)(1). The CAA also
specifically excludes the following types of units from the definition
of ``solid waste incineration unit'': (1) Incinerators or other units
required to have a permit under section 3005 of RCRA; (2) material
recovery facilities (including primary and secondary smelters) which
combust waste for the primary purpose of recovering metals; (3)
qualifying small power production facilities, as defined in section
3(17)(C) of the Federal Power Act, or qualifying cogeneration
facilities, as defined in section 3(18)(B) of the Federal Power Act,
which burn homogeneous waste (such as units which burn tires or used
oil, but not including refuse-derived fuel) for the production of
electric energy or in the case of qualifying cogeneration facilities
which burn homogeneous waste for the production of electric energy or
steam or forms of useful energy (such as heat) which are used for
industrial, commercial, heating or cooling purposes, or (4) air curtain
incinerators, provided that such incinerators only burn wood wastes,
yard wastes and clean lumber and that such air curtain incinerators
comply with the opacity limitations to be established by the
Administrator by rule. Id. CAA section 129 further states that the term
``solid waste'' shall have the meaning ``established by the
Administrator pursuant to the Solid Waste Disposal Act.'' Id at
7429(g)(6).\4\
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    \3\ CAA section 129(a)(4) requires that specific numeric
emission limitations must be established for the following nine
pollutants, plus opacity (as appropriate): cadmium, carbon monoxide,
dioxins/furans, hydrogen chloride, lead, mercury, NOx, particulate
matter (total and fine), and SO2. Of these nine
pollutants, cadmium, dioxins/furans, hydrogen chloride, lead, and
mercury are also regulated HAP pursuant to CAA section 112.
    \4\ The Solid Waste Disposal Act, as amended, is commonly
referred to the Resource Conservation and Recovery Act or RCRA.
---------------------------------------------------------------------------

    The CISWI Rule established emission limitations for new and
existing CISWI units for the following pollutants: cadmium, carbon
monoxide, dioxins/furans, hydrogen chloride, lead, mercury, oxides of
nitrogen (NOX), particulate matter (PM), sulfur dioxide
(SO2), and opacity. In addition, the rule established
certain monitoring and operator training and certification
requirements.
    The CISWI Rule was challenged in Sierra Club v. EPA (No. 01-1048)
(DC Cir.). However, after promulgation of the CISWI Rule, the DC
Circuit issued its decision in a challenge to EPA's MACT standards for
the cement kiln industry. See Cement Kiln Recycling Coalition v. EPA,
255 F. 3d 855 (DC Cir. 2001) (``Cement Kiln''). As a result, EPA
requested, and was granted, a voluntary remand without vacatur, of the
CISWI rule, in order to address the concerns related to the issues that
were raised by the court in Cement Kiln. Because the CISWI rule was not
vacated, its requirements remain in effect. See Sierra Club v. EPA, 374
F. Supp. 2d 30, 32-33 (D.DC 2005).
    On September 22, 2005, EPA issued revised definitions of ``solid
waste,'' ``commercial or industrial solid waste incineration unit,''
and ``commercial or industrial waste'' (the ``CISWI Definitions
Rule''). See 70 FR 55568. In the CISWI Definitions Rule, EPA defined
``commercial and industrial solid waste'' to exclude solid waste that
is combusted at a facility in a combustion unit whose design provides
for energy recovery or which operates with energy recovery. Therefore,
a unit combusting solid waste with energy recovery was not considered a
CISWI unit.
    The CISWI Definitions Rule was vacated by the DC Circuit in NRDC v.
EPA (489 F.3d 1250 (DC Cir. 2007)) (``NRDC''). The court stated that
the statute unambiguously requires any unit that combusts ``any solid
waste material at all''--regardless of whether the material is being
burned for energy recovery--to be regulated as a ``solid waste
incineration unit.'' Id. at 1260. In the same decision, the court also
vacated and remanded EPA's 2005 emissions standards for commercial,
industrial, and institutional major source boilers and process heaters
(the Boiler MACT Rule), concluding that ``the universe of boilers
subject to its [section 112] standards will be far smaller and more
homogenous after all CISWI units, as the statute unambiguously defines
them, are removed from its coverage.'' 489 F.3d at 1260.
    In response to the D.C. Circuit's decision, EPA proposed revised
emissions standards for boilers, process heaters, and CISWI units.
Specifically, on June 4, 2010, the Agency proposed new National
Emissions Standards for Area Source Industrial, Commercial, and
Institutional Boilers (75 FR 31896), National Emission Standards for
Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and
Institutional Boilers and Process Heaters (75 FR 32006), and Standards
of Performance for New Stationary Sources and Emission Guidelines for
Existing Sources: Commercial and Industrial Solid Waste Incineration
Units (75 FR 31938). These proposed emissions standards were
established based on the criteria proposed in the Identification of
Non-Hazardous Secondary Materials Rule that are Solid Waste proposed
rule (75 FR 31844).

B. Why is the Court's decision affecting the CAA rules relevant to
RCRA?

    In responding to the court's vacatur and remand of the CISWI
Definitions Rule and the Boiler MACT Rule, EPA is establishing, under
RCRA, which non-hazardous secondary materials \5\ are ``solid waste.''
This is necessary because, under the court's decision, any unit
combusting any ``solid waste'' at all must be regulated as a ``solid
waste incineration unit,'' regardless of the function of the combustion
device. If a non-hazardous secondary material (also referred to as a
``secondary material'' in this rulemaking) is not a ``solid waste''
under RCRA, then a unit combusting that material must be regulated
pursuant to CAA section 112 if it is a source of HAP. Alternatively, if
such secondary material is classified as a ``solid waste'' under RCRA,
then a unit combusting that material must be regulated under

CAA section 129, unless it is within the scope of one of the exclusions
from the definition of ``solid waste incineration unit'' in section
129(g)(1) of the CAA.
---------------------------------------------------------------------------

    \5\ A secondary material is any material that is not the primary
product of a manufacturing or commercial process, and can include
post-consumer material, post-industrial material, and scrap. Many
types of secondary materials have Btu or material value, and can be
reclaimed or reused in industrial processes. For purposes of this
notice, the term secondary materials include only non-hazardous
secondary materials. See also American Mining Congress v. EPA, 824
F.2d 1177 (DC Cir. 1987) in which the U.S. Court of Appeals for the
District of Columbia Circuit discussed secondary materials.
---------------------------------------------------------------------------

    In addition to this final rule, EPA is concurrently finalizing air
emission requirements under CAA section 112 for industrial, commercial,
and institutional boilers and process heaters, as well as air emission
requirements under CAA section 129 for CISWI units. For a discussion of
what requirements are being promulgated today pursuant to the relevant
CAA rules, please see the respective final actions included in today's
Federal Register. These include: National Emission Standards for
Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and
Institutional Boilers (EPA-HQ-OAR-2006-0790); National Emission
Standards for Hazardous Air Pollutants for Major Sources: Industrial,
Commercial, and Institutional Boilers and Process Heaters (EPA-HQ-OAR-
2002-0058); and Standards of Performance for New Stationary Sources and
Emission Guidelines for Existing Sources: Commercial and Industrial
Solid Waste Incineration Units (EPA-HQ-OAR-2003-0119).

C. What is the history of the definition of solid waste?

1. Statutory Definition of Solid Waste
    RCRA defines ``solid waste'' as ``* * * any garbage, refuse, sludge
from a waste treatment plant, water supply treatment plant, or air
pollution control facility and other discarded material * * * resulting
from industrial, commercial, mining, and agricultural operations, and
from community activities * * *'' (RCRA section 1004 (27) (emphasis
added)). The key concept is that of ``discard'' and, in fact, this
definition turns on the meaning of the phrase, ``other discarded
material,'' since this term encompasses all other examples provided in
the definition.
2. Solid Waste Program, RCRA Subtitle D
    The regulations that pertain to non-hazardous solid waste (RCRA
subtitle D) contain five definitions of the term ``solid waste.'' (See
40 CFR 240.101(y); 40 CFR 243.101(y); 40 CFR 246.101(bb); 40 CFR 257.2;
and 40 CFR 258.2.) These regulatory definitions largely mirror the
statutory definition of solid waste with some clarifications applicable
to the specific regulatory section. The RCRA statutory definition of
solid waste has also been repeated in the CAA emission guidelines for
other solid waste incineration units (e.g., see 40 CFR 60.2977 and
60.3078).
    Under RCRA subtitle D, EPA has promulgated criteria for municipal
solid waste landfills and approves state solid waste landfill
permitting programs; however, it is the states that fully implement
these programs. EPA does not have the same role in these programs as it
does in the hazardous waste programs established under RCRA subtitle C.
As a result, EPA has not promulgated detailed regulations defining
``solid waste'' for purposes of the subtitle D (non-hazardous)
programs. States have promulgated their own laws and regulations for
what constitutes solid waste and have interpreted those laws and
regulations to determine what types of non-hazardous secondary
materials management activities constitute discard (and therefore
involve the management of a solid waste).
    The Agency is now determining at the national level the
requirements and procedures for identifying non-hazardous secondary
materials that are solid waste under RCRA subtitle D so that we can
establish appropriate emissions standards under CAA sections 112 and
129. We emphasize that we are articulating a narrow definition in this
final rule and are not making solid waste determinations that cover
other possible secondary material end uses.
3. Hazardous Waste Program, RCRA Subtitle C
    Under RCRA subtitle C, EPA is responsible for designing and
implementing a cradle to grave disposal system for hazardous wastes.
The RCRA subtitle C hazardous waste federal program has a long
regulatory history in defining ``solid waste'' for purposes of the
hazardous waste regulations.\6\ However, the 40 CFR 261.2 regulatory
definition of solid waste explicitly applies only to wastes that also
are hazardous for purposes of the subtitle C regulations (see 40 CFR
261.1(b)(1)). EPA emphasizes that it is not reopening any of its
subtitle C regulations in today's final rule.
---------------------------------------------------------------------------

    \6\ For example, see 45 FR 33066 (May 19, 1980; solid waste
defined; interim final); 48 FR 14472 (April 4, 1983; Amendments to
the Definition of Solid Waste; proposed rule); 50 FR 614 (January 4,
1985; Amendments to the Definition of Solid Waste; final rule); 53
FR 519 (January 8, 1988; Amendments to the Definition of Solid
Waste, excludes in-process recycled secondary materials from
petroleum industry; proposed rule); 59 FR 38536 (July 28, 1994;
Amendments to the Definition of Solid Waste, excludes in-process
recycled secondary materials from petroleum industry; final rule);
67 FR 11251 (March 13, 2002; Response to court Vacaturs; final
rule); 68 FR 61557 (October 28, 2003; Revisions to the Definition of
Solid Waste; proposed rule); 72 FR 14172 (March 26, 2007; Revisions
to the Definition of Solid Waste; supplemental proposed rule); 73 FR
64668 (October 30, 2008; Revisions to the Definition of Solid Waste;
final rule).
---------------------------------------------------------------------------

    Under subtitle C of RCRA, EPA promulgated a final rule on October
30, 2008, which revised the requirements regulating hazardous secondary
materials when they are recycled via reclamation (The 2008 Definition
of Solid Waste (DSW) Final Rule).\7\ On January 29, 2009, the Sierra
Club filed a lawsuit challenging the rule in the U.S. Court of Appeals
for the District of Columbia Circuit (DC Circuit), Docket No. 09-1041.
In addition, Sierra Club submitted to the Administrator of EPA an
administrative petition under RCRA section 7004(a), 42 U.S.C. 6974(a).
The administrative petition requested that the Agency repeal the
October 2008 revisions to the 2008 DSW Final Rule and stay the
implementation of the rule.\8\ EPA reviewed the administrative
petition, held a public meeting \9\ and requested written comments on
the petition. As a result of settlement in the litigation, Sierra Club
has withdrawn its administrative petition, but EPA has agreed to issue
a proposal to consider the issues raised in the petition. As a result,
EPA plans to develop a proposed rule asking for comment on potential
revisions to the October 2008 DSW Final Rule. Under the settlement
agreement with the Sierra Club in the DC Circuit litigation, EPA has
committed to a proposed rule on or before June 30, 2011 and to take
final action on the proposed rulemaking on or before December 31,
2012.\10\ The DC Circuit approved the settlement agreement by order
dated January 11, 2011. This subsequent proposed rule will apply to the
regulation of reclamation of hazardous secondary materials under
subtitle C of RCRA and is not affecting today's final rule.
---------------------------------------------------------------------------

    \7\ See ``Revisions to the Definition of Solid Waste,'' Final
Rule, October 30, 2008, at 73 FR 64667.
    \8\ A copy of Sierra Club's Petition to the U.S. EPA to
Reconsider and Repeal the Definition of Solid Waste Final Rule (DSW
Rule) can be found in the docket for the 2008 DSW Final Rule. See
Docket ID: EPA-HQ-RCRA-2009-0315; Document ID No. EPA-HQ-RCRA-2009-
0315-0002.
    \9\ The public meeting was announced in a May 27, 2009 Federal
Register notice, which also described possible actions and optional
paths forward. See 74 FR 25200. The transcript of the public hearing
can also be found in the docket for the DSW Final Rule. See Docket
ID: EPA-HQ-RCRA-2009-0315, Document ID No. EPA-HQ-RCRA-2009-0315-
0024.
    \10\ A copy of the settlement agreement, entitled ``EPA's and
Sierra Club's Lodging of Settlement and Motion to Sever and Hold
Case in Abeyance,'' can be found at http://www.epa.gov/osw/hazard/dsw/sierraclubdsw.pdf.
---------------------------------------------------------------------------

4. Case Law on the Definition of Solid Waste Under RCRA Subtitle C
    Partly because the interpretation of what constitutes a solid waste
is the

foundation of the hazardous waste regulatory program (i.e., secondary
material must qualify as ``solid waste'' before it can be classified as
``hazardous waste''), there have been a number of court opinions
discussing the meaning of ``solid waste'' in litigation challenges to
rules issued under RCRA subtitle C. From these cases, a few key
principles emerge which guide our thinking on the definition of solid
waste in today's final rule.
    First, the ordinary plain-English meaning of the term, ``discard,''
controls. See American Mining Congress v. EPA, 824 F.2d 1177 (DC Cir.
1987) (``AMC I''). The ordinary plain-English meaning of the term
discarded means ``disposed of,'' ``thrown away,'' or ``abandoned.'' The
court specifically rejected a more expansive meaning for discard that
would encompass any materials ``no longer useful in their original
capacity'' even if they were not destined for disposal. 824 F.2d at
1185-87. The Court further held that the term ``discarded materials''
could not include materials ``* * * destined for beneficial reuse or
recycling in a continuous process by the generating industry itself''
(824 F.2d at 1190).
    Subsequent to AMC I, the court discussed the meaning of discard in
particular cases. In American Petroleum Institute v. EPA, 906 F.2d 729
(DC Cir. 1990) (``API I''), the court rejected EPA's decision not to
regulate recycled air pollution control equipment slag based on an
Agency determination that waste ``ceases to be a `solid waste' when it
arrives at a metals reclamation facility because at that point it is no
longer `discarded material.' '' 906 F.2d at 740. Instead, the court
stated that these materials are part of a mandatory waste treatment
plan for hazardous wastes prescribed by EPA and continued to be wastes
even if recycled. 906 F.2d at 741. Further, ``once material qualifies
as `solid waste,' [footnote omitted] something derived from it retains
that designation even if it might be reclaimed and reused at some
future time.'' Association of Battery Recyclers v. EPA, (``ABR'') 208
F.3d 1047, 1056 (DC Cir. 2000) (referring to API I and the later
decided case, American Mining Congress v. EPA, (``AMC II'') 907 F.2d
1179 (DC Cir. 1990)).
    One of the more important holdings of a number of court decisions
is that simply because a hazardous waste has, or may have, value does
not mean the material loses its status as a solid waste. See API I, 906
F.2d at 741 n.16; United States v. ILCO Inc., 996 F.2d 1126, 1131-32
(11th Cir. 1993) (``ILCO''); Owen Steel v. Browner, 37 F.3d 146, 150
(4th Cir. 1994) (``Owen Steel''). ILCO and Owen Steel, however, seem to
recognize that legitimate products made from wastes are, themselves,
products and not wastes.
    The ABR case reiterated the concepts discussed in the previous
cases of AMC I and II and API I. The Court held that it had already
resolved the issue presented in ABR in its opinion in AMC I, where it
found that ``* * * Congress unambiguously expressed its intent that
`solid waste' (and therefore EPA's regulatory authority) be limited to
materials that are `discarded' by virtue of being disposed of,
abandoned, or thrown away'' (208 F.2d at 1051). It repeated that
materials that are reused within an ongoing industrial process are
neither disposed of nor abandoned (208 F.3d at 1051-52). It explained
that the intervening API I and AMC II decisions had not narrowed the
holding in AMC I (208 F.3d at 1054-1056).
    Notably, the Court did not hold that storage before reclamation
automatically makes materials ``discarded.'' Rather, it held that ``* *
* at least some of the secondary material EPA seeks to regulate as
solid waste (in the mineral processing rule) is destined for reuse as
part of a continuous industrial process and thus is not abandoned or
thrown away'' (208 F.3d at 1056). In this regard, the court criticized
all parties in the case--industry, as well as EPA--because they
``presented this aspect of the case in broad abstraction, providing
little detail about the many processes throughout the industry that
generate residual material of the sort EPA is attempting to regulate. *
* *'' (Ibid).
    American Petroleum Institute v. EPA, 216 F.3d 50, 55 (DC Cir. 2000)
(``API II''), decided shortly after ABR and considered by the court at
the same time, provides further guidance for defining solid waste, but
in the context of two specific waste streams in the petroleum refining
industry. The court overturned EPA's determination that certain
recycled oil-bearing wastewaters are wastes (216 F.3d at 55-58) and
upheld conditions imposed by the Agency in excluding petrochemical
recovered oil from the definition of solid waste (216 F.3d at 58-59).
In the case of oil-bearing wastewaters, EPA had determined that the
first phase of treatment, primary treatment, results in a waste being
created. 216 F.3d at 55. The court overturned this decision and
remanded it to EPA for a better explanation, neither accepting EPA's
view nor the contrary industry view. The court noted that the ultimate
determination that had to be made was whether primary treatment ``is
simply a step in the act of discarding [* * *][o]r is it the last step
in a production process before discard?'' 216 F.3d at 57. In
particular, the court rejected EPA's argument that primary treatment
was required by regulation, and instead stated that EPA needed to ``set
forth why it has concluded that the compliance motivation predominates
over the reclamation motivation'' and ``why that conclusion, even if
validly reached, compels the further conclusion that the wastewater has
been discarded.'' 216 F.3d at 58.
    The court also considered whether material is discarded in Safe
Food and Fertilizer v. EPA, 350 F.3d 1263 (DC Cir. 2003) (``Safe
Food''). In that case, among other things, the court rejected the
argument that, as a matter of plain meaning, recycled material destined
for immediate reuse within an ongoing industrial process is never
considered ``discarded,'' whereas material that is transferred to
another firm or industry for subsequent recycling must always be solid
wastes. 350 F.3d at 1268. Instead, the court evaluated ``whether the
agency's interpretation of * * * `discarded' * * * is, reasonable and
consistent with the statutory purpose. * * *'' Id. Thus, EPA has the
discretion to determine if material is not a solid waste, even if it is
transferred between industries.
    We also note that the Ninth Circuit has specifically found that
non-hazardous secondary materials may, under certain circumstances, be
burned and not constitute a solid waste under RCRA. See Safe Air For
Everyone v. Waynemeyer (``Safe Air''), 373 F.3d 1035 (9th Cir., 2004).
In this case, the Court found that Kentucky bluegrass stubble may be
burned to return nutrients to the soil and not be a solid waste.
5. Concept of Legitimacy
    Under RCRA subtitle C, some hazardous secondary materials that
would otherwise be subject to regulation under RCRA's ``cradle to
grave'' hazardous waste system are not considered solid wastes if they
are ``legitimately recycled'' or legitimately reused as an ingredient
or substitute for a commercial product. The principal reasoning behind
this construct is that use/reuse or recycling of such secondary
materials often closely resembles normal industrial production, rather
than waste management. Although today's final rule does not address the
Agency's hazardous waste regulations, EPA finds the concept of
legitimacy to be an important one in determining when a secondary
material (whether hazardous or non-hazardous) is genuinely recycled and
not discarded under the guise of recycling.

    However, since there can be considerable economic incentive to
manage recyclable materials outside of the RCRA hazardous waste
regulatory system, there is a clear potential for, and historical
evidence of, some handlers claiming they are recycling, when in fact
they are conducting waste treatment and/or disposal in the guise of
recycling. EPA considers such ``sham'' recycling to be, in fact,
discard and these secondary materials being sham recycled are solid
wastes (or hazardous waste if the material is listed as, or exhibits a
characteristic of, hazardous waste pursuant to 40 CFR part 261).
    To guard against hazardous secondary materials being discarded in
the guise of recycling, EPA has long articulated the need to
distinguish between ``legitimate'' (i.e., true) recycling or other use
and ``sham'' (i.e., fake) recycling; see the preamble to the 1985
hazardous waste regulations that established the definition of solid
waste under RCRA subtitle C (50 FR 638; January 4, 1985). A similar
discussion that addressed legitimacy as it pertains to burning
hazardous secondary materials for energy recovery (considered a form of
recycling under RCRA subtitle C) was presented in the January 9, 1988
proposed amendments to the definition of solid waste (53 FR 522).
    Then on April 26, 1989, the Office of Solid Waste \11\ issued a
memorandum that consolidated the various preamble and other statements
concerning legitimate recycling into a list of questions to be
considered in evaluating the legitimacy of hazardous secondary
materials recycling (OSWER directive 9441.1989(19)). This memorandum
(known to many as the ``Lowrance Memo,'' a copy of which is included in
the Docket to today's rule) has been a primary source of information
for the regulated community and for overseeing agencies in
distinguishing between legitimate and sham recycling.
---------------------------------------------------------------------------

    \11\ On January 9, 2009, the Office of Solid Waste was renamed
the Office of Resource Conservation and Recovery.
---------------------------------------------------------------------------

    In the October 30, 2008 DSW Final Rule, EPA finalized several
exclusions from the definition of solid waste for hazardous secondary
materials being reclaimed and a non-waste determination process for
persons to receive a formal determination that their hazardous
secondary materials are not solid wastes when legitimately reclaimed.
In that action, EPA codified in 40 CFR 260.43 the requirement that
materials be legitimately recycled as a condition for the exclusion for
hazardous secondary materials that are legitimately reclaimed under the
control of the generator (40 CFR 261.2(a)(2)(ii) and 40 CFR
261.4(a)(23)) and as a condition of the exclusion for hazardous
secondary materials that are transferred for the purpose of legitimate
reclamation (40 CFR 261.4(a)(24) and 40 CFR 261.4(a)(25)). As part of
that final rule, EPA also codified the legitimate recycling provision
specifically as a requirement for the non-waste determination process
(40 CFR 260.34).
    As discussed above, the Agency has agreed to prepare a notice of
proposed rulemaking, which will solicit comment regarding potential
revisions to the 2008 DSW Final Rule. The definition of ``legitimacy''
is one of the issues that will be reconsidered in this subsequent
proposed rule. This subsequent DSW proposed rule is, by necessity, in a
different proceeding from the rule we are promulgating today. EPA
cannot presuppose the results of the DSW rule, but still needs to issue
a final rule dealing with legitimacy criteria in today's separate rule
affecting non-hazardous secondary materials. The same concept--
legitimacy--applies to both rules, but, at this point, EPA cannot
reconcile the differences between the legitimacy criteria in each rule,
if there are indeed any substantive differences. As a result, each rule
will have its own definition of legitimate recycling. Although the
Agency is revisiting the definition of legitimacy in the context of
regulations promulgated pursuant to RCRA subtitle C, EPA continues to
find the principle of ``legitimacy'' to be an important element in the
recycling of both hazardous and non-hazardous secondary materials. That
is, the concept of legitimate recycling is crucial to determining
whether a hazardous or non-hazardous secondary material being recycled
is truly being recycled or is, in fact, being discarded through sham
recycling and thus, is a solid waste.

D. Summary of the ANPRM

    In the ANPRM, the Agency considered various guiding principles,
including the concept of discard, and if discarded, whether the
secondary material has been processed to produce a non-waste fuel or
ingredient product, and the concept of legitimacy,\12\ in determining
if secondary materials used in combustion units are solid wastes. Based
on these guiding principles, the Agency identified a number of
scenarios in evaluating the usage of secondary materials (e.g., as
fuels or ingredients) and whether these secondary materials should be
considered solid wastes under RCRA when used in combustion devices,
such that units burning these secondary materials would be subject to
regulation under CAA section 129, rather than subject to CAA section
112. The ANPRM identified several cases where such secondary materials
are not solid wastes when combusted, and thus, subject to CAA section
112. These scenarios were: (1) Traditional fuels, (2) non-hazardous
secondary materials used as legitimate ``alternative'' fuels that have
not been previously discarded, (3) non-hazardous secondary materials
used as legitimate ``alternative fuels'' resulting from the processing
of discarded secondary materials, (4) non-hazardous secondary materials
used as legitimate ingredients, and (5) hazardous secondary materials
that may be excluded from the definition of solid waste under RCRA
subtitle C because they are more like commodities than wastes. All
other cases where non-hazardous secondary materials are combusted would
be considered ``solid wastes'' and subject to CAA section 129.
Specifically:
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    \12\ The Agency discussed various criteria regarding the concept
of legitimacy. Specifically, with respect to secondary materials
used as a fuel, they should be handled as a valuable commodity, have
a meaningful heating value, and contain contaminants that are not
significantly higher in concentration than traditional fuel
products. For those secondary materials used as an ingredient, they
should be handled as a valuable commodity, the secondary material
provides a useful contribution, the recycling results in a valuable
product, and the product does not contain contaminants that are
significantly higher in concentration than traditional products. If
these criteria are not met, then sham recycling may be indicated and
the secondary material may be a solid waste.
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     Traditional Fuels: EPA identified in the ANPRM fossil
fuels (e.g., coal, oil, and natural gas) and their derivatives (e.g.,
petroleum coke, bituminous coke, coal tar oil, refinery gas, synthetic
fuel, heavy recycle, asphalts, blast furnace gas, recovered gaseous
butane, and coke oven gas), as well as cellulosic biomass (e.g., wood)
as traditional fuels. Such traditional fuels have been used
historically as fuels and have been managed as valuable products, such
that they are considered unused products that have not been discarded
and therefore, are not solid wastes. In addition, EPA also identified
as traditional fuels wood collected from forest fire clearance
activities and tree and uncontaminated wood found in hurricane debris
if not discarded, if managed properly, and if burned as a legitimate
fuel.
     Non-Hazardous Secondary Materials Used as Legitimate
``Alternative Fuels'' That Have Not Been Previously Discarded: The
ANPRM indicated that, in addition to traditional fuels, there may be a
category of non-

hazardous secondary materials that are legitimate alternative non-waste
fuels, even though they may not have been traditionally used as fuels,
because of changes in technology and in the energy market. Biomass was
discussed as one large category of these alternatives fuels. EPA also
discussed that scrap tires used as tire-derived fuel (TDF), which
includes whole or shredded tires, that have not been previously
discarded, could also be considered legitimate fuels that meet the
legitimacy criteria (see Materials Characterization Paper on Scrap
Tires in the docket for today's rule for a complete discussion on
contaminants in TDF [EPA-HQ-RCRA-2008-0329]). We noted that in many
cases, scrap tires are collected pursuant to state tire oversight
programs (e.g., used tires from tire dealerships that are sent to used
tire processing facilities) are handled as valuable commodities, and,
therefore, have not been abandoned, disposed of, or thrown away. We
noted that because states typically regulate these programs under their
state solid waste authorities, it was not the Agency's intent to
undercut the state's authority in this area. We, therefore, requested
comment on whether scrap tires collected pursuant to state tire
oversight programs should be considered a non-waste fuel when
combusted, and whether an EPA designation specifying that scrap tires,
for example, managed pursuant to state collection programs would
adversely impact a state's ability to manage such a program. Other non-
traditional alternative fuels that EPA identified in the ANPRM included
construction and demolition materials, scrap plastics, non-hazardous
solvents and lubricants, and wastewater treatment sludge. The Agency
solicited comment on this category.
     Non-Hazardous Secondary Materials Used as Legitimate
``Alternative Fuels'' Resulting from the Processing of Discarded
Secondary Materials: The Agency also discussed the concept of
processing of discarded non-hazardous secondary materials, such that
legitimate fuel products may be extracted, processed, or reclaimed from
a non-hazardous secondary material that has been discarded in the first
instance and that such products would generally not be considered solid
wastes. The principle behind this idea of processing a solid waste to
produce a product is common to industrial processes. We noted in the
ANPRM that until a legitimate product has been extracted, processed, or
reclaimed, the non-hazardous secondary material has been discarded and
is a solid waste. The ANPRM identified a number of non-hazardous
materials that can be processed into a legitimate fuel, including
biomass, coal fines, used oil, tires and landfill ash. Of course, the
degree of processing necessarily will vary depending on the specific
material, but the objective is the same--that is, the product from
processing must be a legitimate fuel (i.e., a material with a
meaningful heating value, with contaminants that are not present at
significantly higher concentrations than those of traditional fuel
products, and managed as a valuable commodity).
     Non-Hazardous Secondary Materials Used as Ingredients: In
addition to legitimate fuel products, the ANPRM also recognized that
non-hazardous secondary materials that have not been discarded can be
used as legitimate ingredients, and identified cement kiln dust (CKD),
bottom ash, boiler slag, blast furnace slag, foundry sand, and
secondary glass material as secondary materials that could be
considered as legitimate ingredient products. If, on the other hand,
such non-hazardous secondary materials have been discarded, the ANPRM
identified such secondary materials as solid wastes, unless they are
sufficiently processed into a legitimate product, as would be the case
for discarded materials that could become products after being
processed.
     Hazardous Secondary Materials That May Be Excluded From
the Definition of Solid Waste Under RCRA Subtitle C Because They Are
More Like Commodities Than Wastes: The final category identified in the
ANPRM are hazardous secondary materials that are recycled and are
specifically identified in the subtitle C hazardous waste rules as
secondary materials that may be burned under certain conditions, but
are not considered solid wastes, at least for purposes of the hazardous
waste regulations. The ANPRM indicated that EPA was interested in
extending this determination so that these materials also are not
considered solid wastes under RCRA subtitle D. The Agency indicated
that it believed that it had sufficient information in the rulemaking
records for the various hazardous secondary materials--that is, black
liquor and spent sulfuric acid,\13\ and comparable fuels \14\ to
conclude that these subtitle C exclusions are broadly applicable to the
definition of solid waste under subtitle D of RCRA when these secondary
materials are used as a fuel or ingredient.
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    \13\ A determination was made that black liquor reclaimed in a
pulping liquor recovery furnace and then reused in the pulping
process and spent sulfuric acid used to produce virgin sulfuric acid
were not solid wastes because these hazardous secondary materials
were determined to be an integral part of the manufacturing process.
    \14\ A determination was made with respect to comparable fuels
that certain hazardous secondary materials meet specific
requirements to ensure that the materials toxic constituents and
physical properties are similar to commercial (benchmark) fuels, and
therefore, are products and not solid wastes.
---------------------------------------------------------------------------

    The ANPRM indicated that in all other cases where secondary
materials were combusted, they would be considered ``solid wastes''
under RCRA subtitle D and thus, subject to CAA section 129. However,
the Agency solicited comment on many aspects of these scenarios. In
addition, the ANPRM also solicited comment on the following four
issues: (1) Whether there are circumstances where discarded secondary
materials--once recovered from the environment--that can be directly
used as a legitimate fuel or ingredient product without processing
should not be considered a solid waste; (2) whether there are other
approaches for determining that non-hazardous secondary materials when
used as a legitimate fuel is not a solid waste, and specifically took
comment on an approach presented to EPA by industry representatives;
\15\ (3) whether to consider non-hazardous secondary materials that
receive a state beneficial use determination for use as a fuel or
ingredient in a combustion unit as not being a solid waste; and (4) how
to address biofuels and byproducts from the production of biofuels--
that is, whether such secondary materials should be considered a waste
or not when combusted. (For a more detailed discussion of the ANPRM,
see 74 FR 41, January 2, 2009.)
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    \15\ Industry representatives suggested that non-hazardous
secondary materials should be evaluated, on a case-by-case basis, to
identify which criteria have been satisfied and determine whether
the material is legitimately handled as a fuel. Criteria identified
by industry stakeholders include: Handling and storage of materials
to minimize loss, use of materials within a reasonable period of
time, material value (e.g., whether there is a market for the
material as a fuel, internal or external to the company), material
managed and treated as a commodity, and processing of material to
enhance fuel value. See 74 FR 60 for the ANPRM's description of this
approach. A copy of this industry-recommended approach entitled,
``Outline of Regulatory Approach to Determine Materials Considered
Fuels--not Solid Wastes--under RCRA,'' is also included in the
docket for this rulemaking.
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E. Summary of the Proposed Rule

    The proposal maintained many of the concepts and provisions
discussed in the ANPRM, including the concept of discard and the
legitimacy criteria. However, the basic framework differed from the
ANPRM based partly on the

approach taken in the Definition of Solid Waste final rule promulgated
on October 30, 2008 (see 73 FR 64668), based partly on the comments
received on the ANPRM, as well as EPA's interpretation of whether these
secondary materials were discarded. For example, comments received on
the ANPRM from some states suggested that non-hazardous secondary
material fuels that are transferred to a third party have entered what
is traditionally considered to be the ``waste stream'' (and have been
regulated by the states as wastes) and therefore should appropriately
be considered wastes (e.g., scrap tires, regardless of whether they
were collected and managed pursuant to state programs or recovered from
legacy waste piles).
    As a result of comments like these and the Agency's re-examining
our interpretation of the application of the discard concept to various
non-hazardous secondary materials, the Agency altered its position in
the proposed rule. Whereas the ANPRM had indicated that there may be a
number of non-hazardous secondary materials that would not be
considered discarded even if the original generator sent them to
another entity outside of its control, the proposed rule assumed that
non-hazardous secondary materials that are used as fuels and are
managed outside the control of the generator are solid wastes, unless
they were processed into non-waste fuel products or the Agency grants a
non-waste determination (through a case-by-case petition process) that
such non-hazardous secondary materials are not solid wastes because
they have not been discarded and are indistinguishable in all relevant
aspects from a fuel product.
    In the proposal, EPA stated that when non-hazardous secondary
material fuels are transferred to another party, the Agency generally
believed that the material is discarded, since the generator has
relinquished control of the secondary material and the entity receiving
such materials may not have the same incentives to manage them as a
useful product, which results in the materials being discarded. The
Agency noted that this lack of incentive to manage as a useful product
has been well-documented in the context of hazardous secondary material
recycling as evidenced by the results of the environmental problems
study performed in support of the 2008 DSW Final Rule and believed that
this finding also held true for non-hazardous secondary materials that
are used as fuel.
    The proposed rule considered non-hazardous secondary materials used
as ingredients that are used in combustion units to not be solid waste
if they were not discarded in the first instance and if they met the
legitimacy criteria, irrespective of whether they have been transferred
to a third party. The Agency stated that it was not proposing to
differentiate ingredients that are used within the control of the
generator from those that are not since we believed the use of non-
hazardous secondary materials as ingredients is considered to be more
integral or akin to use in a commercial manufacturing process and thus,
these non-hazardous secondary materials would not be considered
discarded provided they satisfy the legitimacy criteria.
    The proposed rule also included a petition process for receiving
non-waste determinations, which was an additional area for comment in
the ANPRM, but not included as an approach or scenario that was
specifically presented. One of the differences between the ANPRM and
the proposed rule was the classification of ``clean'' biomass and on-
specification used oil as traditional fuels. In addition, the proposed
rule did not address hazardous secondary materials excluded from the
definition of solid waste under subtitle C of RCRA, concluding that it
does not need to address this exclusion in this rulemaking since these
secondary materials have already been excluded from the definition of
solid waste as hazardous secondary materials and therefore, should not
be addressed in the proposed rule, which deals with the definition of
solid waste for non-hazardous secondary materials used in combustion
units.
    Finally, the proposed rule also revised the contaminant legitimacy
criterion, stating that non-hazardous secondary materials used as fuels
in combustion units must contain contaminants at levels ``comparable to
or less than'' those in traditional fuels which the combustion unit is
designed to burn, whereas the ANPRM had stated that non-hazardous
secondary materials used as fuel could not contain contaminants that
were ``significantly higher'' than traditional fuel products. In the
proposed rule, EPA explained its rationale for making this change,
stating that the requirement that non-hazardous secondary materials
have contaminants at levels comparable to or less than traditional
fuels would ensure that the burning of any secondary materials in
combustion units will not result in discard of materials or their
contaminants and thus, will not result in increased releases to the
environment that could adversely impact the health and environment of
the local community. A similar change was made to the contaminant
legitimacy criterion for ingredients, with the comparison being made
between products manufactured with and without non-hazardous secondary
materials.
    Thus, in the proposed rule, the Agency considered all non-hazardous
secondary materials burned in combustion units as solid wastes except
for the following circumstances: (1) Non-hazardous secondary materials
used as a fuel that remains within the control of the generator
(whether at the site of generation or another site within the
generator's control) that meets the legitimacy criteria; (2) non-
hazardous secondary materials used as an ingredient in a manufacturing
process (whether by the generator or a third party) that meets the
legitimacy criteria; (3) legitimate fuel or ingredient products that
are produced from the processing of discarded non-hazardous secondary
materials; \16\ and (4) non-hazardous secondary materials handled
outside the control of the generator, but has been determined through a
case-by-case non-waste determination petition process to not have been
discarded and to be indistinguishable in all relevant aspects from a
fuel product.
---------------------------------------------------------------------------

    \16\ As we state throughout the preamble, prior to the
production of the legitimate fuel or ingredient product, the non-
hazardous secondary material is considered a solid waste and would
be subject to the appropriate federal, state, and local
requirements.
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F. Use of Secondary Materials

1. Introduction
    The U.S. is pursuing an approach to sustainable materials
management that employs the concepts of life cycle assessment \17\ and
full cost accounting.\18\ Within the context of RCRA,\19\ this final
rule aims to facilitate materials management to the extent allowed by
the statute, through the establishment of a regulatory framework that
guides the beneficial use of various secondary materials, while
ensuring that such use is protective of human health and the

environment. EPA, in conjunction with the states, seeks to further
facilitate this objective through research, analysis, incentives, and
communication. The Agency recognizes that secondary materials are
widely used today as fuels and/or ingredients in industrial processes.
We expect these uses will continue and expand in future years as
effective materials management becomes more critical to a sustainable
society. The use of secondary materials from a variety of non-
traditional sources, including the use of energy-containing secondary
materials, is expected to play an important role in future resource
conservation efforts.
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    \17\ The terms ``life cycle analysis'' and ``life cycle
assessment'' are commonly used interchangeably. Life cycle
assessment is a system-wide analytical technique for assessing the
environmental (and sometimes economic) effects of a product,
process, or activity across all life stages.
    \18\ Full cost accounting is an accounting system that
incorporates economic, environmental, health, and social costs of a
product, action, or decision.
    \19\ RCRA section 6901(c)--Materials: The Congress finds with
respect to materials, that--(1) millions of tons of recoverable
material which could be used are needlessly buried each year; (2)
methods are available to separate usable materials from solid waste;
and (3) the recovery and conservation of such materials can reduce
the dependence of the United States on foreign resources and reduce
the deficit in its balance of payments.
---------------------------------------------------------------------------

    The use of secondary materials as alternative fuels and/or
ingredients in manufacturing processes using combustion not only
recovers valuable resources, it is known to contribute to emission
reductions. For example, both greenhouse gas (GHG) and particulate
matter (PM) emissions have been reduced as a co-benefit of the use of
secondary materials.\20\ The use of secondary materials, such as use as
a fuel in industrial processes may also result in other benefits,
including reduced fuel imports, reduced negative environmental impacts
caused by previous dumping (e.g., tires), and reduced methane gas
generation from landfills.
---------------------------------------------------------------------------

    \20\ For example, the GHG emissions rate associated with the
combustion of scrap tires is approximately 0.081metric tons of
carbon dioxide equivalents (MTCO2E) per million metric
British thermal units (MMBtu) of scrap tires combusted, while the
GHG emissions rate for coal is approximately 0.094 MTCO2E
per MMBtu. Combined with the avoided extraction and processing
emissions 0.006 MTCO2E/MMBtu for coal, the total avoided
GHG is 0.019 MTCO2E per MMBtu. Substituting tire-derived
fuel for coal would also avoid an estimated 0.246 Lbs/MMBtu of PM
associated with the extraction and processing of the coal. Please
see the Materials Characterization Papers in the docket for further
details on these estimates, and other estimates of avoided emissions
associated with burning tires and other secondary materials as fuel.
---------------------------------------------------------------------------

    Secondary materials may, in some cases, be more appropriately
defined as ``by-products,'' \21\ reflecting their inherent resource
recovery value in the generation and production of heat, energy, and/or
marketable products or intermediates. Secondary materials can provide
microeconomic (firm level) and macroeconomic benefits when legitimately
used as effective substitutes for, or supplement to virgin materials.
Economic efficiencies can be improved with the use of secondary
materials, when substituted for increasingly scarce virgin materials,
because the use of such secondary materials often results in an
equivalent level of outputs at lower overall resource use, or in turn,
greater outputs could be generated using the same amount of resource
inputs. When this occurs, monetary savings resulting from reduced
resources and expenditures would, theoretically, be applied to a higher
and better use in the economy. This helps advance economic growth as a
result of improved industrial efficiency,\22\ which, in turn, helps
move the country toward material sustainability and energy self
sufficiency, while protecting human health and the environment.
---------------------------------------------------------------------------

    \21\ For purposes of this action, we define by-product as a
secondary or incidental material derived from the primary use or
production process that retains value in the marketplace or to an
end user.
    \22\ Opportunities for improved economic efficiency are
recognized through the Action Statement of the U.S. Business Council
For Sustainable Development: ``Promoting Sustainable Development by
Creating Value Through Action Establishing Networks and
Partnerships, and Providing a Voice for Industry.''
---------------------------------------------------------------------------

2. Secondary Materials Use and Benefits
    A wide and diverse range of secondary materials are currently used
as fuels and/or ingredients in manufacturing or service processes.
Based on our research conducted in support of the January 2, 2009
ANPRM, we identified eight non-hazardous secondary material fuels or
fuel groups and six non-hazardous ingredients, or ingredient groups.
The eight fuel source materials were: The biomass group (pulp and paper
residuals, forest derived biomass, agricultural residues, food scraps,
animal manure, and gaseous fuels); construction and demolition
materials (building related, disaster debris, and land clearing
debris); scrap tires; scrap plastics; spent solvents; coal refuse;
waste water treatment sludge, and used oil. The six secondary material
ingredients were: blast furnace slag; CKD; the coal combustion
residuals (fly ash, bottom ash, and boiler slag); foundry sand; silica
fume; and secondary glass material. The ANPRM discussed and described
these key secondary materials. In addition, we developed Materials
Characterization Papers for each of these fuel and ingredient
materials. These papers were included in the docket for the ANPRM, as
well as the docket for the proposed rule.
    In preparing the proposed rule, we developed three additional
Materials Characterization Papers for auto shredder residue,
purification process byproducts, and resinated wood products. For
today's final rule, we have updated and revised all of the existing
Materials Characterization Papers for which we received additional data
and information. We have included these updated Materials
Characterization Papers in the docket for this final rule. We have
determined that the non-hazardous secondary fuels and ingredients
discussed in this series of Materials Characterization Papers account
for the vast majority of all non-hazardous secondary materials used in
combustion processes in the U.S.

V. Comments on the Proposed Rule

    Under the approach outlined in the proposed rule, non-hazardous
secondary materials were defined as a solid waste unless: (1) The non-
hazardous secondary material is used as a fuel and remains within the
control of the generator that meets the legitimacy criteria; (2) the
non-hazardous secondary material is used as an ingredient that meets
the legitimacy criteria; (3) the discarded non-hazardous secondary
material has been sufficiently processed to produce a non-waste fuel or
ingredient product that meets the legitimacy criteria; or (4) through a
case-by-case non-waste determination petition process, EPA has
determined that the non-hazardous secondary material has not been
discarded and is indistinguishable in all relevant aspects from a fuel
product.
    The Agency also took comment on two other approaches regarding the
combustion of non-hazardous secondary materials. Under the first
approach, identified in the proposal as the ``Alternative Approach,''
all non-hazardous secondary materials and ingredients that were used in
combustion facilities that were not within the control of the generator
were considered a solid waste. Thus, only those non-hazardous secondary
materials or ingredients that were used in combustion facilities within
control of the generator that meet the legitimacy criteria would be
considered a non-waste. However, like the proposed rule, traditional
fuels also would not be considered a solid waste, regardless of the
generator.
    The second alternative that EPA took comment on was a broader
definition of solid waste, in which only traditional fuels are not
solid wastes and all non-hazardous secondary materials burned for
energy recovery or used as an ingredient are considered discarded, and
therefore, solid wastes.\23\ This

section discusses the comments that EPA received, as well as our
response to those comments.
---------------------------------------------------------------------------

    \23\ On August 18, 2009, EPA received a letter signed by nearly
one hundred community groups and citizens that urged for an
expansive definition of solid waste for the purposes of combustion
and argued against the general approach of the ANPRM. A copy of this
letter has been placed in the docket to today's final rule. The
letter highlights stakeholder concerns regarding the differences
between CAA sections 112 and 129 and argues against an overly narrow
definition of solid waste.
---------------------------------------------------------------------------

A. Proposed Approach

1. Definition of the Term Discard
    Under the proposed rule, non-hazardous secondary materials that are
discarded are considered to be a solid waste. On the other hand,
secondary materials that have not been discarded, for example,
secondary materials that are managed within the control of the
generator and meet the specified legitimacy criteria would not be
considered a solid waste. Many of the comments discussed the definition
of the term ``discard'' and instances in which the term should or
should not apply.
    As discussed below, environmental groups argue, generally, that any
secondary material burned for energy recovery is a solid waste. These
commenters object to allowing control by the generator to be relevant
to rendering material a non-waste, even if burned under the legitimacy
criteria, claiming that these materials are wastes.
    Industry commenters, on the other hand, assert that the secondary
materials used in their operations exhibit value as evidenced by their
purchase price, their use as inputs and products, their role in ongoing
recycling programs, their use as fuels, and/or their use in ``routine
transactions'' or processing operations. Based on these
characteristics, industry commenters maintain that such secondary
materials should not be considered discarded. Industry commenters also
assert that EPA cannot define something as ``discarded'' when
transferred to a third party and express concern that the concept of
discard is ambiguous or incorrectly interpreted by EPA in the proposed
rule.
    In addition, while industry commenters favor allowing the generator
to burn secondary materials as non-wastes, they also argue that
materials are not wastes so long as they are combusted legitimately
even if the material has been discarded in the first instance. They
argue that the proposed rule effectively makes the act of moving
materials from one party to another the equivalent of ``discard,''
regardless of intent. These commenters claim that EPA's definition of
solid waste is overly restrictive and yields little environmental gain.
Certain comments maintain that as long as a non-hazardous secondary
material meets the legitimacy criteria for use as a fuel, and it is
combusted as a fuel, it is not a waste. These comments state that
secondary materials cannot be assumed to be part of the solid waste
disposal problem merely because the original generator of the materials
transfers them to another entity. In fact, depending on the nature of
the transaction, this transfer may indicate that the company values the
material.
a. Comments From Environmental Groups
    Comment: Case law prevents EPA from finding that secondary
materials burned for energy recovery are not solid wastes. The DC
Circuit holding in AMC I that material ``recycled and reused in an
ongoing manufacturing or industrial process'' is not ``discarded'' does
not apply to secondary materials burned for energy recovery even if
legitimately recycled and reused. AMC I only addresses reclamation of
secondary materials. Moreover, EPA incorrectly relies on case law to
give it discretion to define ``discard.'' According to the comment, EPA
is wrongly implying that, under case law, the meaning of ``discard'' is
ambiguous and that the Agency has discretion to define burning for
energy recovery as either discard or not.
    EPA's Response: EPA disagrees with this comment. To reply to this
commenter, EPA is relying on its explanations in the ANPRM and the
proposal, as well as the discussion reiterated in this preamble. See
especially discussions of the law in the proposed rule at 75 FR 31850-
52 (section titled, ``Case Law on Definition of Solid Waste''); 31858-
59 (Comment/Response section titled ``Meaning of Discard''); and 31885-
87 (section titled ``Alternative Approach''). That is, EPA sees nothing
in the comment that would change the legal basis for this rule.
However, the Agency would like to clarify the more obvious inaccuracies
in the comment.
    First, EPA freely admits, as stated in the proposal, that the
secondary materials at issue in AMC I were not burned for energy
recovery. See, for example, 75 FR 31887. However, the plain logic of
the court's opinion and the plain meaning of the statute are
unmistakable. EPA does not have the discretion to cover as solid waste
secondary materials recycled in a continuous industrial process, even
if they are used in a combustion unit. Indeed, if EPA were to assert
jurisdiction for secondary materials recycled in a continuous process
for energy recovery, it appears highly likely that the Agency's rule
would be invalidated in a litigation challenge.
    In addition, EPA has not at any time since the ANPRM in this
proceeding stated that the term ``discard'' is ambiguous. It is clear
that EPA's jurisdiction under RCRA applies unambiguously to materials
that are discarded and the definition is unambiguous in that it means
thrown away, disposed of or abandoned. It is the application of the
definition to particular instances that gives rise to ambiguity. The
ABR court plainly stated that the term may be ambiguous as applied to
some situations, but not as applied to others. 208 F.3d at 1056, See
also 75 FR 31887. The comment simply begs the question when it claims
EPA is relying on an ambiguous meaning to claim discretion. EPA has no
discretion in certain cases. For example, the Agency may not regulate
under RCRA secondary materials recycled in a continuous industrial
process. On the other hand, EPA may have to exercise discretion to
determine whether particular materials are recycled in a continuous
process and whether such materials recycled in other ways are solid
wastes. Agency discretion applies to the application of the discard
definition.
    Comment: EPA's proposal acknowledges that burning a secondary
material for energy recovery is not ``traditional'' recycling. Thus,
EPA may not consider burning for energy recovery as recycling because
the term, ``recycling,'' is not given its ordinary meaning. See 75 FR
at 31872.
    EPA's Response: EPA disagrees with the conclusion of the comment,
but needs to correct the record. EPA received a comment in response to
the ANPRM that requested the Agency to apply the legitimacy criteria to
situations where the recycling does not include burning for energy
recovery. The commenter referred to these other situations as
``traditional'' recycling. EPA's response noted that this regulation
specifically applies to whether non-hazardous secondary materials in a
combustion unit are legitimately recycled or not. This is the general
policy in this regulation, since states may regulate non-hazardous
secondary materials recycled in ways not involving combustion units,
but EPA is required to determine which non-hazardous secondary
materials are solid waste when combusted for purposes of CAA sections
112 and 129.
    In its response to the comment wrongly referring to ``traditional''
recycling, the Agency used the same term as the commenter. This was a
mistake, since the Agency makes clear virtually everywhere else in the
rulemaking record that recycling

includes legitimate burning for energy recovery and this is very
clearly understood by almost all of the commenters. The Agency views
the comment's distinction as a semantic matter, not as a practical
application of the term ``traditional.'' This mistake is hereby
corrected for purposes of the final rule. ``Traditional'' recycling may
include burning for energy recovery of secondary materials.
    Comment: EPA effectively concedes that the ``ordinary everyday''
meaning of ``discarded material'' includes ``secondary materials'' when
they are burned--no matter who burns them and regardless of whether
energy is recovered from the combustion process. The comment cites the
preamble to the proposed rule in several places where EPA notes that
combustion of secondary materials is ``commonly'' associated with
disposal. See 75 FR at 31859, 31877.
    The comment states, further, EPA's sense of what constitutes
discard is not the ordinary sense of the term by citing the Agency's
discussion of the benefits of burning secondary materials. 75 FR at
31849. In addition, according to the comment, EPA is unlawfully seeking
to exclude from the definition of solid waste by its discussion of the
benefits of burning the following materials: Pulp and paper residuals,
agricultural residues, food scraps, animal manure, construction and
demolition waste, disaster debris, land clearing debris, scrap
plastics, spent solvents, coal refuse, waste water treatment sludge and
used oil. 75 FR at 31850.
    EPA's Response: Other responses deal with the legal arguments made
by this particular comment on how the statute and case law deal with
the definition of solid waste. However, the Agency believes it
necessary to address some of the comment's specific inaccuracies
separately.
    First, EPA in no way ``concedes'' that all materials burned for
energy recovery are discarded in the ordinary sense of the term. To the
extent that the Agency notes certain public perceptions, it plainly
states (on the same pages cited in the comment) that these are
misconceptions because they do not take into account that a secondary
material may often be used to produce a safe fuel product that is a
valuable commodity or that a secondary material that is burned in a
combustion unit does not necessarily have high levels of contaminants.
75 FR 31859.
    In addition, EPA refers to the same misconceptions when it
discusses whether product fuels may be processed or extracted from
materials once discarded. EPA notes that fuel processed or extracted
from discarded non-hazardous secondary materials should not necessarily
be considered solid waste, just as recycled newspapers, recycled
aluminum, re-refined oil, to name but a few, are not considered solid
waste. Moreover, the misperception that contaminant levels are high in
combusted secondary materials affects the perception that there needs
to be a very high threshold with respect to the level of processing
that must take place to render a discarded material into a non-waste
product. 75 FR 31877.
    Finally, EPA does not understand the comment's citation to 75 FR
31849-50 as containing statements regarding the Agency's ``sense'' of
discard or the fact that the Agency is seeking to exclude various
materials from the definition of solid waste. These pages only discuss
the benefits of secondary material combustion without opining on
whether the combusted materials would or would not be a waste. EPA
cannot understand the comment's motivation in making these statements.
    Comment: RCRA's statutory language shows that Congress did not
intend EPA to exclude secondary materials that are burned for energy
recovery from the definition of solid waste. In particular, section
3004(q) directs EPA to issue regulations both for facilities that
produce fuels from hazardous waste and for facilities that burn ``for
purposes of energy recovery'' any fuel that is produced from hazardous
waste or any fuel that contains any hazardous waste. Thus, EPA may not
declare that hazardous wastes and hazardous waste derived fuels are not
discarded when burned for energy recovery. The comment concedes that
section 3004(q) addresses hazardous waste, but maintains that the
provision is strongly indicative of Congress' intent that burning a
material for energy recovery does not transform that material into a
non-waste.
    EPA's Response: EPA disagrees with this comment. Section 3004(q)
only applies to specific provisions of the statute and in no way can it
be considered to present a sweeping bar to the Agency's ability to
interpret the statute. In fact, since Congress only addressed these
provisions in the hazardous waste subtitle of RCRA, the more logical
interpretation is that such provisions would not be applicable to other
parts of the statute. Section 3004(q) very clearly provides that a
material must be a hazardous waste, first, before its provisions apply.
EPA needs to make the determination that material is a hazardous waste
before even dealing with the restrictions under 3004(q). Thus, it does
not apply to the present rule where EPA must first determine whether
the material is a solid waste and there is no question that the
materials subject to this rule are not hazardous wastes. EPA accepts
the comment's concession that 3004(q) only applies to hazardous waste.
    Comment: One comment states that ``exemptions'' in EPA's rule from
the definition of solid waste violate the CAA. EPA interprets this
comment to mean that the commenter sees violations of the CAA for any
non-hazardous secondary material the Agency has decided is not a solid
waste. The comment states the following: ``Congress was not concerned
either about the ownership of a waste material that was being burned or
about whether energy was recovered from the combustion process; it
simply wanted to ensure that all waste combustion units were subject to
the protective control, monitoring, siting, training, and reporting
requirements that it found necessary and appropriate for these units.''
    The comment makes four points to support its contention:
    1. The proposed rule is a transparent attempt to exempt facilities
that recover energy from the section 129 standards and would shrink the
population of facilities covered to 175, a number far less than
Congress intended.
    2. Section 129(g)(1) makes clear that Congress viewed refuse-
derived fuel as waste and EPA includes ``refuse-derived'' fuel as a
non-waste.
    3. Section 129(h)(5) shows that Congress viewed the universe of
``fuel'' to consist of ``waste'' on the one hand and ``fossil fuel'' on
the other. Congress's definition of ``municipal waste'' expresses the
intent that facilities that burn non-fossil fuels and are not covered
by the express exclusions in section 129(g)(1) must meet the section
129 incinerator standards.
    4. Because EPA would allow energy recovery facilities controlled by
the generator to burn non-hazardous secondary materials under section
112, EPA's regulations would improperly allow hospital-owned medical
waste incinerators to burn medical and infectious wastes and would not
be incinerators subject to the section 129 incinerator standards.
    EPA's Response: EPA disagrees that these provisions of the CAA are
relevant to this regulation. EPA is not creating exemptions to section
129 for facilities that recover energy. Rather, EPA is establishing a
definition of non-hazardous solid waste, which, as specified by CAA
section 129(g)(6), governs the meaning of ``solid waste'' under section
129. Because Congress

specifically directed that ``solid waste'' have the meaning established
by the Administrator under RCRA, instead of defining the term under
RCRA, the CAA definition of ``municipal waste'' is not relevant to this
action.
    If any or all of the commenter's contentions are correct, section
129 would not provide that the term ``solid waste'' shall have the
meaning promulgated by EPA under RCRA. There would simply be no reason
for EPA to consider the RCRA definition, since section 129 would take
care of the issue. Section 129(g)(6) would be meaningless.
    The commenter further argues that EPA should consider the CAA when
defining solid waste under RCRA. The CAA does not direct the Agency to
consider the language of section 129 when establishing a RCRA
definition. So long as EPA's rule is consistent with the RCRA
definition of ``solid waste,'' it must stand. That is, as long as the
definition of solid waste is consistent with RCRA, and the Agency
issues emissions standards for all units that burn commercial and
industrial solid waste in the CISWI rule, the standards under section
129 are valid. Therefore, we believe the commenter's general argument
is without merit.
    With respect to each of the supporting points:
    1. Contrary to the commenter's assertion, EPA is not ``exempting''
energy recovery facilities from the section 129 standards. The Agency
is simply interpreting the term ``solid waste'' under RCRA. The number
of facilities that are combusting solid waste is not relevant to this
interpretation. Moreover, there is no indication in the CAA of the
number of facilities Congress intended to be covered under section 129
of the Act.
    2. The comment is incorrect that section 129, by excluding
``refuse-derived fuel'' from the exclusion in 129(g)(1)(B) was somehow
defining the term as being included in the term, ``solid waste,'' under
RCRA. Again, if that were the case, section 129(g)(6) would be
superfluous. Nevertheless, today's rule identifying which non-hazardous
secondary materials that are solid wastes when combusted does not
include fuel derived from municipal waste refuse under 129(g)(5). Some
fuels may be processed from solid waste, but that determination by the
Agency stands or falls based on the RCRA statute and case law, not the
CAA. EPA is not defining ``refuse derived fuel'' in this RCRA rule. The
validity of EPA's interpretation on whether commodity fuels may be
processed, or extracted, from a waste must stand or fall based on the
RCRA definition, not provisions of the CAA.
    3. EPA disagrees with the statement that the CAA considers ``the
universe of `fuel' to consist of `waste' on the one hand and `fossil
fuel' on the other.'' Again, the CAA is not defining solid waste. Solid
waste is defined under RCRA as material that is ``discarded.'' There is
no distinction anywhere in RCRA that would indicate that anything other
than a fossil fuel must be a waste.
    4. This rule does not address whether or not medical waste is a
solid waste under RCRA. EPA issued regulations under section 129 of the
CAA establishing emission standards for hospital and medical waste, and
today's action does not affect those regulations. [74 FR 51367].
    Comment: EPA's distinction between materials burned for energy
recovery and those burned for destruction has already been rejected as
irrelevant in NRDC. 489 F.3d at 1257-1258.
    EPA's Response: EPA agrees that the DC Circuit has rejected for
purposes of combusting materials under CAA section 129 a distinction
between materials burned for energy recovery and solid wastes. However,
EPA is not making that distinction in this rule. EPA agrees that units
combusting solid waste are generally subject to the emission standards
issued under section 129 of the CAA whether those wastes are fuels or
not. Moreover, nothing in the NRDC case addresses EPA's discretion to
interpret the term ``solid waste'' under the RCRA rulemaking. This
issue was not before the Court in NRDC, and thus the Court did not
speak to it. Therefore, we disagree with that portion of the comment.
    It is clear that wastes may have fuel value. EPA, in this rule, is
making a distinction between materials that are discarded and those
that are not. One of the considerations is whether a secondary material
is really being burned for destruction and is, therefore, a waste. If
it is not being burned for destruction, other factors need to be
considered to determine whether the non-hazardous secondary material is
a waste.
    Another way of describing our evaluation process to determine if a
secondary material is a waste, is that EPA evaluates, first, whether
such material is discarded in the first instance. If not, the Agency
needs to consider whether that material is legitimately burned for
energy recovery.
    There are different ways of explaining the legitimacy criteria and
the factors are not necessarily considered in any particular order and
one or more of the factors may render the material a waste. For
example, one of the legitimacy criteria is the consideration of whether
the non-hazardous secondary material has meaningful fuel value or is
simply being burned for destruction--that is, incinerated. If there is
no meaningful fuel value, the non-hazardous secondary material is
simply being destroyed.
    If there is meaningful fuel value, other factors must be
considered, including whether the non-hazardous secondary material is
managed as a commodity and whether contaminants indicate that
incineration (destruction) is the real reason for burning. A decision
as to whether a non-hazardous secondary material is a waste, thus,
depends on a number of factors, all of which need to be considered by
the Agency before it decides whether such secondary material is a waste
or not.
    Comment: It is irrelevant whether non-hazardous secondary materials
are burned at a facility controlled by the generator. Even EPA does not
believe its argument because it admits that a secondary material could
still be a waste even if it is recycled on-site or within the control
of the generator and cites the court's holding in API II. Instead of
defending its condition as relevant to whether a non-hazardous
secondary material is or is not discarded, the Agency merely says that
the secondary material must both be within the control of the generator
and must pass the legitimacy criteria. By punting to its legitimacy
criteria, EPA effectively concedes that its ```on-site' problem''
renders irrelevant the condition that non-hazardous secondary materials
be burned at a facility within control of the generator.
    EPA's Response: EPA disagrees with this comment. If the non-
hazardous secondary material remains within the control of the
generator, it is more likely to be a material that is saved and not
thrown away or abandoned. The Agency has explained that case law would
not allow it to determine that secondary materials are wastes if they
are recycled as fuels within a continuous industrial process. EPA
cannot evaluate every non-hazardous secondary material, but believes
this standard would cover all secondary materials that are recycled as
a fuel within a continuous process. EPA, however, acknowledges that
this may capture non-hazardous secondary materials which may be a
waste, but this is unlikely. There may also be non-hazardous secondary
materials transferred to another party that may not be a waste and EPA
is attempting to deal with those categories of non-hazardous secondary
materials on a case-by-case basis. However, EPA believes that it is a
reasonable interpretation of the

statutory definition of discard and the case law to consider that a
non-hazardous secondary material within the control of its generator
that is legitimately burned as a fuel is not a solid waste.
    EPA is careful to note that ``legitimacy'' is shorthand for
referring to non-hazardous secondary materials that are not thrown
away, are saved and are reused by being burned for their value as a
fuel. The legitimacy criteria are the factors needed to be examined to
make this determination. Thus, for example, it is relevant how the non-
hazardous secondary materials is managed and the extent to which
contaminants in the secondary material may indicate that the real
reason for burning the secondary material is simply its destruction--
referred to as ``sham'' recycling. The Agency is not simply ``punting''
to its legitimacy criteria, but believes they provide a valid basis for
showing that a non-hazardous secondary material is more commodity-like
than waste-like.
b. Comments From Industry Groups
    Comment: A number of industry comments object to EPA's explanation
for determining the extent to which transfer of secondary materials
between companies for use as a fuel renders the non-hazardous secondary
materials discarded. According to the comments, EPA not only makes the
transfer of secondary materials an indication of discard, but transfer
becomes the primary and controlling condition for determining whether
secondary materials will be classified as fuel commodities or solid
waste. One commenter in this general category claims that EPA is
forbidding economic reuse of such materials by anyone other than the
generator without prior government permission.
    Moreover, the commenters claim that EPA cannot make a sweeping and
arbitrary assumption in categorizing these transferred materials as
``discarded'' and then place the burden on the regulated community to
challenge the assumption through submission of a petition to declare
the material a non-waste. According to the commenters, it is incumbent
upon EPA to explain why a material is discarded before the Agency can
put the burden on companies to submit non-waste petitions if the
companies want to claim the secondary material is not a waste.
    The Safe Food case states that firm-to-firm transfers ``are hardly
good indicia'' of discard. If a fuel can meet all of the legitimacy
criteria (managed as a valuable commodity, have meaningful heating
value, not contain elevated levels of contaminants), it cannot
reasonably be said to be discarded just because it is sold or otherwise
transferred to an entity separate from the generator. Assuming all
relevant legitimacy criteria are met, the transfer of secondary
materials between companies is simply not relevant for determining
whether such materials have been discarded. In fact, depending on the
nature of the transaction, this transfer may be a good indicator that a
company values the material.
    EPA cannot support its position by referring to over-accumulation
of scrap tires resulting in massive piles of discarded tires. Those
materials did not meet the legitimacy criteria and should be treated as
discarded. Such a reference does not rehabilitate EPA's presumption
that mere transfer of a non-hazardous secondary material could cause
the mismanagement that resulted in the tire piles.
    Nor can EPA support its position that state agencies consider
materials wastes when transferred to third parties for use as fuels.
States can make mistakes, as they did regarding used oil, which they
classified as a waste, but changed direction after EPA promulgated its
used oil regulations at 40 CFR part 279.
    One comment states, on the basis of case law on abandonment, that
to be abandoned there must be a clear and unequivocal intent to abandon
on the part of the owner and that the burden is on whoever alleges
abandonment to establish that intent. Of particular significance is the
principle in the common law that abandonment does not occur where a
direct transfer of ownership to another party occurs. Where a generator
conveys title to a secondary material to a third-party, no abandonment
occurs, whether there is payment for the material or not. Nor, if the
material is actually recycled (i.e., used, reused, or reclaimed), would
such material ordinarily be deemed to be ``disposed of'' or ``thrown
away.'' Materials legitimately burned for energy recovery or used as
ingredients in combustion units are neither disposed of nor abandoned
and do not meet the `plain-English meaning' of * * * `discard.'
    Merely because one party has relinquished control of a secondary
material does not make it a waste nor does the fact that a receiving
party may not have the same incentives to manage them as a useful
product. EPA cannot indict all parties that in fact do manage these
secondary materials as a useful product. Indeed, a generator's use of a
secondary material does not guarantee its proper use, yet EPA allows
the legitimacy criteria to suffice in situations in which the generator
retains control of the non-hazardous secondary material and
legitimately recycles it.
    Further, EPA seems to contradict itself because it does not presume
discard of ingredients transferred to other companies and gives no
reason as to why fuels should be treated differently. EPA only states,
without giving a reason, that it believes that the use of non-hazardous
secondary materials as ingredients is considered to be more integral or
akin to use in a commercial manufacturing process and thus, these non-
hazardous secondary materials should not be considered discarded
provided they meet the legitimacy criteria. After all, commercial
manufacturing processes require both ingredients and energy (e.g.,
fuels).
    EPA's Response: EPA disagrees with these comments to the extent
they argue that the Agency has arbitrarily determined that secondary
materials transferred between companies are wastes. Instead, EPA has
evaluated whether certain categories of materials are discarded or not.
The Agency has not adopted the extremes of saying that all burning of
secondary material, regardless of ultimate use, is waste treatment or
that any secondary material that is recycled for legitimate fuel value
is a commodity and not a waste. Wastes may have value, but are still
wastes.
    Between these broad parameters, EPA has examined a number of
specific materials, recycled within the control of the generator and
transferred to a third party for recycling, and determined whether they
would be appropriately placed within the waste or non-waste categories.
EPA would consider transferred materials not to be wastes if it could
make the appropriate findings for those categories. In fact, the Agency
does so with respect to scrap tires removed from vehicles and managed
under the oversight of established tire collection programs and
resinated wood residuals.
    Consideration of over-accumulation of scrap tires resulting in
massive piles of discarded tires is not being cited as support for the
proposition that all transfers of secondary materials result in waste
treatment, but only for the proposition that the Agency needs to be
careful in examining whether secondary materials may be transferred as
commodity fuels or as wastes. Further, EPA is not relying on state
determinations regarding whether secondary materials are wastes,
specifically tires, but is instead allowing state tire programs that
meet certain parameters to affect an EPA determination that transferred
scrap tires are not wastes.

    Any of EPA's decisions regarding specific materials, if challenged,
must stand or fall based on its individual merit. For example,
resinated wood residuals are routinely transferred between either
intra- or inter-company facilities and used as either ``furnish''
(i.e., raw materials) or fuel at the receiving facilities. The material
being transferred off-site is used and handled in the same manner that
resinated wood residuals are used when generated on-site (such that it
is impossible to distinguish between materials that are being used as a
raw material and those that are being used as a fuel). Accordingly,
these materials are not solid wastes whether used within the same
company or transferred to another company. See below, at sections V.B.6
for discussion of EPA's response to comments and the Agency rationale
for how resinated wood should be treated for purposes of this rule.
    Other materials would be wastes based on the Agency's analysis of
the industry in general or, based on a lack of data or knowledge, an
effective presumption that recycling materials for a fuel is primarily
conducted within the control of the generator. For example, use of old
corrugated cardboard (OCC) rejects (clay, starches, other filler and
coating materials, as well as fiber) are not discarded when used within
the control of the generator, since these secondary materials are part
of the industrial process. OCC rejects can include, and are usually
burned in conjunction with, other fuels (such as bark) at pulp and
paper mills that recycle fibers. These materials are not generally
transferred outside the control of the generator.
    Still other non-hazardous secondary materials may be processed or
extracted from wastes to produce fuel commodities. Examples include
tire-derived fuel processed from scrap tires retrieved from waste tire
piles, and coal refuse retrieved from legacy piles that have been
processed through the use of grizzlies, screens, and blending to
improve the quality, remove metal objects, and reduce the
concentrations of various constituents. To the extent that EPA has
indicated that particular categories of non-hazardous secondary
materials are wastes when transferred off-site to a third party, the
Agency provides companies with the opportunity to petition EPA for a
non-waste determination; we believe a petition process is essential
because many non-hazardous secondary materials are recycled and managed
in many different ways, and the Agency may lack the specific details in
certain cases to know whether or not such non-hazardous secondary
materials are or are not solid wastes.
    Thus, EPA is not making a sweeping arbitrary assumption in
categorizing transferred secondary materials as discarded. In addition,
EPA is not, in any sense, forbidding economic reuse of such materials
by anyone other than the generator without prior government permission
(through the petition process). The effect of this regulation would
simply be to require the non-hazardous secondary materials designated
as wastes to be combusted only in facilities regulated under section
129 of the CAA, while non-waste fuels could be combusted under section
112 of the CAA.
    EPA also disagrees with the comment's narrow citation to the Safe
Food case. Safe Food does not stand for the narrow proposition that
transferring material to another industry is not relevant for
determining whether material is discarded. The court in that case noted
that ``the term `discarded' cannot encompass materials that `are
destined for beneficial reuse or recycling in a continuous process by
the generating industry itself.' '' 35 F.3d at 1268. Further,
``materials destined for future recycling by another industry may be