paper sludges to those in coal and found lower levels, we also found it
appropriate to compare the contaminant concentrations to untreated wood
since wood is also burned in pulp and paper mills. Since levels of
chlorine in untreated wood are as high as 11,890 ppm, even the high end
of the range of chlorine in pulp and paper sludges is comparable to
that in untreated wood. When comparing to the information that we have
compiled on coal, we find that chlorine levels in coal are reported to
be as high as 7,400 ppm, and that average chlorine values for
bituminous and sub-bituminous coal are 1,200 ppm and 140 ppm,
respectively. Thus, the average chlorine levels reported in most pulp
and paper sludge are likely to be comparable with average chlorine
levels found in bituminous coal.\64\ We note that there is one sample
in the submitted data set that has a chlorine concentration of 16,550
ppm. We do not consider this to be comparable to the levels found in
coal and, where it is replacing coal, would consider this material to
be a solid waste. However, since this was the only sample with such a
high concentration of chlorine, we do not think that it is
representative of pulp and paper sludges generally.
---------------------------------------------------------------------------

    \64\ See the Material Characterization Papers for Pulp and Paper
Sludges and for Traditional Fuels that are located in the docket for
today's rule (EPA-HQ-RCRA-2008-0329).
---------------------------------------------------------------------------

    The levels of metals were also lower in pulp and paper sludges than
untreated wood and coal. For example, untreated wood has levels of As,
Cr, Hg, and Pb as high as 6.8 ppm, 130 ppm, 2

ppm, and 340 ppm, respectively, while coal has levels of As, Cr, Hg,
and Pb as high as 80 ppm, 121.3 ppm, 2 ppm, and 80 ppm,
respectively.\65\ These levels are all greater than those submitted in
the comments for pulp and paper sludges. We did receive data on some
elevated levels of MEK in five samples from one mill, but we do not
believe that this data changes are view that these sludges generally
meet the contaminant legitimacy criterion, especially since EPA removed
MEK from the CAA 112 HAP list in 2005,\66\ and thus, MEK is no longer
considered a ``contaminant'' in evaluating the contaminant legitimacy
criterion.
---------------------------------------------------------------------------

    \65\ Ibid.
    \66\ The Agency removed MEK from the list of HAP because it
concluded that the potential exposures to MEK emitted from
industrial processes may not reasonably be anticipated to cause
human health or environmental problems.
---------------------------------------------------------------------------

    While pulp and paper sludges can have a heating value below 5,000
Btu/lb, even on a dry basis, pulp and paper mills do try to improve the
heating value through dewatering. Thus, we believe that pulp and paper
sludges generally meet the meaningful heating value legitimacy
criterion. Also, since pulp and paper sludges are handled promptly
(i.e., not stored for long periods of time and are contained in storage
units along with traditional fuels (such as wood and bark) with minimal
loss (similar to a valuable commodity), we agree that pulp and paper
sludges are managed as a valuable commodity.
    Comment: Emission tests from two states were said to have shown no
significant change in emissions associated with the combustion of pulp
and paper mill sludge, although the specific emission test results were
not provided in these comments. One other commenter stated that any
emissions from those materials will be accounted for in the source's
emission limits in its permit. One other commenter submitted a study by
the National Council for Air and Stream Improvement (2006), which
summarizes many different studies on the emissions from the combustion
of pulp and paper sludges. Some studies show that keeping the amount of
pulp and paper sludges to no more than 10-15% of the total heat input
will result in no increased emission impacts. However, two studies
stated that dioxin and furan emissions could result from the burning of
pulp and paper sludges and that the levels of these compounds in the
emissions are directly relevant to the amount of chlorine in the
sludges. Thus, chlorine levels should not be greater than those in
found in wood.\67\
---------------------------------------------------------------------------

    \67\ National Council for Air and Stream Improvement, Inc.
Technical Bulletin (TB) 906, ``Alternative Fuels Used in the Forest
Products Industry: Their Composition and Impact on Emissions.''
September 2005.
---------------------------------------------------------------------------

    EPA's Response: First, we would note that emissions testing results
is not the criterion or test for determining legitimacy as combustion
systems vary greatly and this rule aims to determine what is a solid
waste. To be considered a legitimate non-waste fuel, the non-hazardous
secondary material itself must have contaminants at levels that are
comparable to (or lower than) those in traditional fuels. From the data
available, it shows that chlorine levels in pulp and paper sludges, for
example, are typically at levels that are lower than those found in
coal and wood, as noted above. Nevertheless, we also recognize that
high chlorine levels are an indicator that the combustion of such
materials may result in increased emissions of dioxins and furans, such
that if chlorine levels in pulp and paper sludges are excessively high,
it may be an indication that the burning of those sludges is more
reflective of waste management. Thus, chlorine levels in pulp and paper
sludges should particularly be monitored and evaluated as part of a
plants determination that their pulp and paper sludges meet the
contaminant legitimacy criterion.
5. Scrap Tires
    In the proposal, EPA stated that whole used tires, including those
collected from tire dealerships and automotive shops and overseen by a
state tire collection oversight program, are initially abandoned and
thus meet the plain meaning of discard. As a result, whole used tires
that are not processed into a legitimate fuel or ingredient (e.g.,
shredded/chipped with steel belts removed) were considered a solid
waste. EPA acknowledged that whole tires can be legitimately burned as
a fuel, but because they have been discarded, were considered solid
wastes and subject to the incinerator requirements in section 129 of
the CAA, unless processed into a non-waste fuel product, in which case
it would be subject to the section 112 requirements of the CAA.
    However, EPA requested comment in the proposed rule on the discard
interpretation stated in the ANPRM regarding scrap tires that are
managed under the oversight of a state tire collection program, such
that these non-hazardous secondary materials collected and sent for
legitimate use as fuels are not discarded and are not solid wastes. EPA
also solicited comment on the processing requirements for whole tires,
as well as fuel contaminant data on whole tires or tire-derived fuel
(TDF) chips as compared to coal, the replacement fuel.
    In order to clarify the context of the proposed rule comments, the
Agency describes the background below in ``a. Background; Scrap Tire
Approach in ANPRM and Proposal.'' The comments and EPA's responses are
listed in ``b. Scrap Tire Comments.''
a. Background; Scrap Tire Approach in ANPRM and Proposal
    ANPRM Scrap Tire Approach.\68\ As part of its discussion regarding
non-hazardous secondary materials used as legitimate ``alternative''
fuels that have not been previously discarded, the ANPRM noted that
scrap tires used as tire-derived fuel, which include whole tires or
tires that have been processed and have not been previously discarded,
are legitimate non-waste fuels if they meet the legitimacy criteria
i.e., they are handled as valuable commodities, have a meaningful
heating value, and do not contain contaminants that are significantly
higher in concentration when compared to traditional fuel products (see
Materials Characterization Paper on Scrap Tires in the docket for
today's rule for a complete discussion on contaminants in TDF [EPA-HQ-
RCRA-2008-0329]). We noted that in many cases, scrap tires that are
collected pursuant to state tire oversight programs (e.g., scrap 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 (not discarded). We also noted
that because State Agencies typically regulate these programs under
their state solid waste authorities, it was not the Agency's intent to
undercut the states' authority in this area. We, therefore, requested
comment on whether scrap tires collected pursuant to state tire
oversight programs have been discarded, and whether an EPA designation
specifying that scrap tires, for example, managed pursuant to state
tire collection programs are not solid wastes, would adversely impact a
state's ability to manage such a program.
---------------------------------------------------------------------------

    \68\ The ANPRM was published in the Federal Register on January
2, 2009 (74 FR 41). This reference can be found on page 57 of the FR
notice.
---------------------------------------------------------------------------

    Proposed Rule Scrap Tire Approach.\69\ The proposal took a
different approach regarding the use of scrap tires when used as a
fuel, based on comments received on the ANPRM.

Specifically, some states argued 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. Scrap tires, regardless of whether they were
collected and managed pursuant to state programs or recovered from
legacy waste piles, would be an example of such materials. As a result,
the Agency re-examined its position of how the concept of discard
applies to scrap tires. Whereas the ANPRM had indicated that there may
be some number of 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 took the position 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 a case-by-case non-waste
determination petition was granted by EPA.
---------------------------------------------------------------------------

    \69\ The proposed rule, published on June 4, 2010 in the Federal
Register (75 FR 31844) has numerous references to scrap tires. The
statement described under ``Proposed Rule Scrap Tire Approach'' can
be found on pages 31874 and 31875 of the proposed rule.
---------------------------------------------------------------------------

    Proposal Kept ANPRM Scrap Tire Approach as an Option. In the ANPRM,
we considered scrap tires (except from tire dumps) that were collected
under state tire collection programs as non-waste as described above.
We reconsidered that position in the proposed rule as follows: ``* * *
tires collected under these recycling programs are discarded and are
solid wastes. EPA proposes this formulation for tires, but is asking
for further comment on the ANPRM formulation that secondary material
collected and sent for legitimate use as fuels are not discarded and
are not solid wastes.* * * EPA may issue a final rule containing either
set of provisions depending on information received in the comment
period and other information available to the Agency.''
    The Scrap Tire Approach in the Final Rule. Based on the proposed
rule comments and all other relevant information in the rulemaking
record, EPA has modified its approach for scrap tires in this final
rule. Under today's rule, scrap tires are considered a non-waste when
used as a fuel under the following scenarios:
    (1) Scrap tires that are removed from vehicles and collected and
managed under the oversight of established tire collection programs (as
codified at Sec.  241.2) are non-waste fuels \70\ when burned as a fuel
in a combustion unit. See details at Sec.  241.3(b)(2)(i).
---------------------------------------------------------------------------

    \70\ As described elsewhere, these tires do not need processing
(as described in Sec.  241.3(b)(4)), in order to be considered non-
waste since they were not ``discarded in the first place.'' Since
these tires were ``not discarded in the first place,'' boilers and
cement kilns can use them as non-waste fuel as whole tires,
shredded, or fully processed TDF at their discretion (provided they
meet the legitimacy criteria). Regardless, most types of combustors
require TDF chips, cement kilns are the notable exception.
---------------------------------------------------------------------------

    (2) Scrap tires that undergo a sufficient level of processing (as
codified at Sec.  241.2 and detailed in the scrap tire response to
comments) are considered a non-waste fuel, when used as fuel in a
combustion unit, independent of whether they have been previously
discarded. See details at Sec.  241.3(b)(4).
    All other scrap tires are considered a waste when combusted, unless
a non-waste determination petition is granted per the requirements in
Sec.  241.3(c).
    The comments that led to this approach are further described in the
response to comments below and in Section VII.C.
b. Scrap Tire Comments
    Comment: Many of the commenters that compared the approach for
whole scrap tires in the ANPRM (described previously in this section)
with the proposed approach, preferred the ANPRM approach and believed
it was an accurate assessment of how scrap tires are managed. Many of
those commenters argued that whole scrap tires that are handled in this
situation have not been discarded when removed from vehicles for use as
a fuel if there is a process or network that ensures their safe
handling prior to use as a fuel. In addition, many commenters listed
the attributes that make it a good fuel, in particular they noted that
the heat value for TDF is higher than typical solid fuels, including
coal.
    Commenters disagreed with the assumption that we made in the
proposed rule that off-site/third party use of scrap tires equated to
discard. Other comments on ``transfer to third parties'' apply to other
non-hazardous secondary materials in addition to scrap tires and are
addressed in section V.A.1. In addition, commenters said that the owner
of the car does not abandon, dispose of, nor throw away the tire when a
tire is changed at a tire shop. These tires are destined for a
beneficial use and are managed as a valuable product. Commenters
disagreed with EPA's statement in the proposal that scrap tires are
``discarded'' when removed from the automobile because the generator
has relinquished control and the entity receiving the tires may not
have the same incentives to manage them as a useful product. For
example, one scrap tire commenter summarized the discard issue and
suggests that if transfer to a third party does not equate to discard
for hazardous secondary materials in specific instances, then EPA is
able to make distinctions for non-hazardous secondary materials like
scrap tires. Specifically, the commenter states, with respect to tire
derived fuel:
    ``EPA's proposed approach stands in stark contrast to EPA's
approach to hazardous secondary materials * * *. In the Subtitle C
regulation, EPA was careful to identify circumstances where discard
would occur based on a record of damages arising from cases of
hazardous material recycling. EPA then shaped its transfer-based
exclusion from the definition of solid waste to regulate only transfers
where discard is taking place. See 73 FR at 64677-78. In contrast, with
respect to non-hazardous secondary materials, EPA has no record
identifying circumstances where discard may occur and yet is proposing
to determine that all transferred material is discarded. Any definition
of solid waste that sweeps so broadly exceeds EPA's authority under
RCRA. EPA's proposed approach also stands in stark contrast to the
approach and guiding principle outlined in the ANPRM. In the ANPRM, EPA
did not assume that all non-hazardous secondary material that is
transferred outside the control of the generator is discarded. Instead,
as in its Subtitle C regulations, EPA was guided by the ``overall
principle * * * that materials treated as a commodity, rather than as a
waste, are not discarded and are not solid wastes so long as they are
legitimately recycled.'' 74 FR 53. If such an approach is appropriate
for hazardous substances, a similar or perhaps less demanding
determination would be still more appropriate for non-hazardous
secondary materials. First, the dangers of sham recycling are far less.
Second, the fact that industrial boilers are similar and are regulated
in similar manner from industry to industry makes distinctions between
industries uniquely hard to justify. EPA offers no persuasive evidence
to overcome these considerations. As noted earlier, EPA says only that
it ``believes'' that such materials have been discarded and that third
parties ``may not'' have the same incentive to manage these materials
properly as the generator. EPA offers a few off point examples but
makes no effort to investigate this issue in any detail. Furthermore,
EPA's approach ignores the fact that there is an established market
infrastructure for the sale and purchase of secondary fuels such as
TDF. As a result, TDF is subject to

normal business practices, including contractual arrangements that
establish specifications for TDF. Just as a fuel supplier needs to
provide a specific type of fuel oil to meet a customer's demands, so
does the supplier of secondary fuels. The supplier will comply with the
specification demanded by the customer or they will lose the business.
As a matter of company policy, most generators of secondary material
fuels take reasonable precautions to evaluate where their materials are
going as part of risk management.''
    Commenters also disagreed with our assumptions that led to the
Agency's discard position in the proposal with regard to third party
use of scrap tires as follows.
     They disagreed that third party handlers would lack an
incentive to manage them as a useful material \71\ because, scrap tire
derived materials have an exceptionally high rate of use in various
markets and are sold as valuable products.
---------------------------------------------------------------------------

    \71\ The comments are in regard to this statement in the
proposal: ``When non-hazardous secondary material fuels are
transferred to another party, we generally believe that the material
is discarded since the generator has relinquished control of the
secondary material and the entity receiving such materials may not
have the same incentives to manage them as a useful product, which
results in the materials being discarded.'' See EPA's statement in
the proposal at 75 FR 31844, page 31875.
---------------------------------------------------------------------------

     Commenters also disagreed that scrap tires have the same
market incentives for misuse as does hazardous waste, which EPA
referenced in the proposal,\72\ because, in part, hazardous waste are
likely to have a relatively negative monetary value. They said that
those EPA arguments based on hazardous waste are not relevant to scrap
tire markets and usage and is inappropriate to use the rationale based
on hazardous waste cases. Scrap tires do not have the environmental and
economic risks associated with hazardous waste.
---------------------------------------------------------------------------

    \72\ The comments are in regard to this statement in the
proposal, as well as other references to hazardous waste: ``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 DSW [hazardous waste] final rule. (This
scenario does not apply to transfers taking place under the transfer
based exclusion for hazardous secondary materials that are generated
and then transferred to another company for the purpose of
reclamation.) However, this finding also holds true for non-
hazardous secondary materials that are used as fuel.'' See EPA's
statement in the proposal at 75 FR 31844, page 31875.
---------------------------------------------------------------------------

     Furthermore, commenters disagreed that there was currently
a pattern of discard at third party scrap tire reclaimers \73\ that can
be processed and generating stockpiles as possible evidence of the lack
of incentive to perform actual recycling).
---------------------------------------------------------------------------

    \73\ The comments are in regard to this statement in the
proposal: ``As discussed in the DSW final rule, this pattern of
discard at off-site, third party reclaimers appears to be a result
of inherent differences between commercial recycling and normal
manufacturing. As opposed to manufacturing, where the cost of raw
materials or intermediates (or inputs) is greater than zero and
revenue is generated primarily from the sale of the output,
secondary materials recycling, including when used as a fuel, can
involve generating revenue primarily from receipt of the secondary
materials. Recyclers of secondary materials in this situation may
thus respond differently than traditional manufacturers to economic
forces and incentives, accumulating more inputs (secondary
materials) than can be processed and generating stockpiles with
sometimes little incentive to perform actual recycling.''
---------------------------------------------------------------------------

     Commenters did acknowledge that there were problems in the
past with tire dumps, but since tires are now effectively managed and
brought to markets, the over-accumulation, disposal, and dumping that
occurred in the past (as mentioned in the proposal) \74\ is less of an
issue now. In justifying this statement, many commenters discussed the
success of eliminating tire dumps. Specifically, they argued that fewer
than one million tires remain in stockpiles, compared to an estimate of
one billion tires in 1990. It is clear the total number of tires
discarded in tire dumps is being reduced annually, not increasing due
to the improper management which the proposal postulated regarding the
current management practices at third party sites. Also, they argued
that of the 300 million scrap tires that are generated each year, scrap
tires are reported to have the second lowest disposal rate at 10.7% in
2007, with lead acid batteries having the lowest disposal rate.
---------------------------------------------------------------------------

    \74\ See EPA's statement in the proposal at 75 FR 31844, page
31875.
---------------------------------------------------------------------------

     Commenters, mainly from industry, also disagreed with our
statement in the proposal that scrap tires that are transferred to a
third party have entered what is traditionally considered to be the
``waste stream'' and therefore should appropriately be considered solid
wastes. Refer to Section V.A.1 for the discussion on related comments
(not specific to scrap tires). Some commenters (including some states),
however, agreed that states tend to initially regard tires as waste
until they are beneficially used.
    EPA's Response: In the first place, to the extent these comments
refer to EPA's general approach to secondary material transferred to
another party, the Agency refers commenters to Section V.A.1. As
discussed in that section, 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 on-site and transferred to third parties
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 harvested from vehicles and resinated wood residuals.
Any of EPA's decisions regarding specific materials, if challenged,
must stand or fall based on its individual merit.
    With respect specifically to how the Agency is dealing with scrap
tires in this rule, the ANPRM noted that scrap tires that are collected
pursuant to tire programs (e.g., scrap tires from tire dealerships that
are sent to used tire processing facilities) are collected and handled
as valuable commodities, and, therefore, have not been abandoned,
disposed of, or thrown away. The ANPRM had indicated that there are
instances where non-hazardous secondary materials would not be
considered discarded even if the original generator sent them to
another entity outside of its control.
    The proposed rule took an approach that assumed 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 legitimate non-waste fuel products or a non-waste determination
petition was granted by EPA. However, in the proposed rule, the Agency
was open to an alternate interpretation and requested further comment
on the ANPRM formulation that scrap tires collected and sent for
legitimate use as fuels are not discarded and are not solid wastes, and
specifically indicated that the Agency ``may issue a final rule
containing either set of provisions depending on information received
in the comment period and other information available to the Agency.''
    After careful consideration of the comments and all the material in
the rulemaking record, including documents cited in the ANPRM and the
preamble to the proposed rule, the Agency agrees that a system where
scrap

tires are removed from vehicles \75\ and are collected and managed
under the oversight of established tire collection programs are not
``discarded in the first instance.'' Such tires (including both whole
tires and tires that have been shredded--with or without metal
removal)\76\ are non-waste when used as a fuel in combustion units.
These programs ensure that the tires are not discarded en route to the
combustor for use as fuel and are handled as a valuable commodity as
required in the legitimacy criterion in today's rule at Sec.
241.3(d)(1)(i).
---------------------------------------------------------------------------

    \75\ For purposes of today's rule, the term ``vehicle'' is meant
to include any mechanical means of conveyance that employs the use
of tires.
    \76\ If scrap tires are not discarded in the first place, they
do not have to be processed per the standards in today's rule, but
they can be converted to rough shreds or processed into TDF chips at
the discretion of the combustor and still be a non-waste fuel. If
the scrap tires were discarded, they have to be processed (with
metal removal) per the standards in today's rule in order to be a
non-waste fuel.
---------------------------------------------------------------------------

    Consistent with other non-hazardous secondary materials that are
considered to be non-wastes, scrap tires also meet the rest of the
legitimacy criteria for fuel. They meet the requirement for meaningful
heating value, required per Sec.  241.3(d)(1)(ii) in that scrap tires
have a higher heating value (12,000 Btu/lb to 16,000 Btu/lb) as
compared to coal (the replacement fuel).
    Scrap tires also meet the requirement specified at Sec.
241.3(d)(1)(iii) for the non-hazardous secondary materials to have
comparable (or lower) levels of contaminants as compared to the
traditional fuel it is replacing. Refer to the specific response to
comments on contaminants.
    Established tire collection programs promote the collection of
scrap tires and coordinate with tire dealerships, haulers, processors,
and end users. The existing tire collection programs form an
established collection infrastructure. These established tire
collection programs together with state bans on landfilling in most
states \77\ effectively result in the beneficial reuse of tires (as
fuel or used in other scrap tire markets) as the sole \78\ end use
option for scrap tires in those states.
---------------------------------------------------------------------------

    \77\ A few states allow tires cut up in smaller pieces to be
landfilled, while fewer states still allow whole tires in landfills.
    \78\ Note, a commenter has indicated that some states are
considering revoking their tire landfill ban if combustors are no
longer choosing to use tires for fuel based on the outcome of this
rule.
---------------------------------------------------------------------------

    While the Agency recognizes that there will be differences between
the various established tire collection programs, at a minimum, the
following components would need to be included as part of any
established tire collection program: (1) A comprehensive system that
prevents tires from being abandoned when the scrap tires are harvested
from vehicles and collected at the various businesses where they are
removed; these tires are not considered ``discarded in the first
instance'' per this rule; and (2) standards for the scrap tires to be
managed as a valuable commodity. These programs should ensure storage
does not exceed reasonable time frames, the scrap tires are managed in
a manner consistent with the analogous fuel (coal), and a system is in
place to prevent scrap tires from being discarded (according to the
plain language definition) en route to the combustor (and during any
processing prior to combustion).
    An example of this type of program is a tire dealership that has
prearranged agreements where the combustor pays for the delivery of the
tires harvested from vehicles and can track the delivery and has
contractual obligations for a safe delivery. Another example is the
Texas system where tires are not seen as waste, but have specifications
for tracking and safe delivery to the end use markets.
    These programs neither allow an opportunity for tires intended as a
fuel to be discarded in the first place nor discarded while in transit.
The definition of an established tire collection programs is codified
in today's rule at Sec.  241.2. These tires have not been ``disposed
of, abandoned, or thrown away'' through the initial process of removing
them from cars or collecting them under established tire collection
programs.
    It is the combustor's responsibility to confirm that the whole
tires are not discarded and were handled appropriately under the
established tire collection program. Notification and recordkeeping
requirements with regard to the use of non-hazardous secondary
materials under CAA 112 and 129 rules, including whole tires managed
under established tire collection programs, are outlined in Section
VII.I.
    This approach for scrap tires is supported by comments from auto
maintenance shops, tire retailers, and others in the automotive
business. These commenters discussed the management of tires collected
from tire and auto-related shops under established tire collection
programs. Typically, the state and private programs work together to
encourage the processing, reuse, and/or recycling, which results in a
market demand for scrap tires to be collected, but the use as fuel is
more independently sustainable in the free market.\79\ In the event the
combustor is disposing via combustion (i.e., not utilizing the energy
from combustion), it is a waste.
---------------------------------------------------------------------------

    \79\ The recovery and management of tires that are removed from
tire piles are largely supported or subsidized by State Agencies and
these whole tires are considered discarded and waste when used as a
fuel. This is not the case for the tires we are calling non-waste
that are annually generated and are collected off the vehicles and
sent for use as fuel.
---------------------------------------------------------------------------

    With the approach described in today's rule, EPA is recognizing
that some specific types of secondary materials are more like valuable
commodities than solid wastes, and the act of transferring them to a
third party does not automatically involve discard. As commenters
noted, the mere relinquishing of ownership does not make something a
waste.
    Furthermore, as EPA notes below, the fact that states may consider
tires as wastes under state programs does not affect EPA's
determination in this rule that certain scrap tires are not wastes for
purposes of tire combustion under CAA sections 112 and 129. States may
regulate tires as wastes while EPA, for purposes of the federal
regulations, may consider them to be commodities.
    We also recognize that the basis for the final position on scrap
tires is different from the proposal and is more in line with our
original position in the ANPRM. As we noted many commenters disagreed
with the basis for the position on scrap tires in the proposal, in
addition to stating a preference for the ANPRM position on scrap tires.
The overall rationale for the position in the final rule regarding
scrap tires is included in Section VII, entitled ``Detailed Discussion
and Rationale for Today's Final Rule.''
    Comment: A number of commenters stated that the concentration of
contaminants that are found in tire-derived fuel TDF chips (or whole
tires) are comparable (or less than) those found in the traditional
fuels that it would be replacing. In the proposed rule, we requested
data on the TDF contaminants that are HAP, as listed in section 112(b)
of the CAA and the nine pollutants, as listed in section 129(a)(4) of
the CAA. Some commenters provided independent test results that
correlated to those contaminants and the results showed a trend that
the contaminants were generally comparable to or lower than coal, the
replacement fuel, (although individual tests and comparisons vary). In
addition to independent data, some commenters referenced EPA's
Materials Characterization Papers (used to support the proposed rule),
and the TDF

American Society for Testing and Materials (ASTM) \80\ data on chemical
constituents and fuel characteristics. The TDF and coal data were
typically reported as elemental analyses.
---------------------------------------------------------------------------

    \80\ ASTM (American Society for Testing and Materials) or ASTM
International, is a globally recognized leader in the development
and delivery of international voluntary consensus standards.
---------------------------------------------------------------------------

    Specifically, commenters provided the following TDF concentrations
for CAA section 112(b) HAP (some are also CAA 129 pollutants):
81 82
---------------------------------------------------------------------------

    \81\ This is the available data for the elements or the
compounds (that are among the nine CAA section 129(a)(4) pollutants
or are on the 187 HAP listed in CAA section 112(b)) that were
reported in comments, as well as data from the scrap tire Materials
Characterization Paper referenced by commenters. Since TDF is
usually co-fired with coal, the results can include contaminants
that originated from the coal.
    \82\ Refer to the Materials Characterization Papers for
traditional fuels in the docket for today's rule.
---------------------------------------------------------------------------

     Cadmium--less than 5 up to 6 ppm (also on the CAA 129
pollutant list);
     Calcium--3,780 ppm (although listed as ``calcium
cyanamide'' in the HAP list);
     Chlorine--non-detect to 1,490 ppm (also listed in the CAA
129 pollutant list as ``hydrogen chloride'');
     Chromium--less than 5 up to 97 ppm; \83\
---------------------------------------------------------------------------

    \83\ If this is present from the steel wire, it is not expected
to be released during typical boiler combustion.
---------------------------------------------------------------------------

     Lead--51-65 ppm (also on the CAA 129 pollutant list);
     Manganese--less than 100 ppm; \84\ and
---------------------------------------------------------------------------

    \84\ If this is present from the steel wire, it is not expected
to be released during typical boiler combustion.
---------------------------------------------------------------------------

     Mercury--non-detect up to levels in low-mercury coals
(also on the CAA 129 pollutant list).
    These contaminant levels, the commenters argue, are at or below
documented levels in coals. Although barium and zinc are not CAA 129
pollutants or HAP, commenters also mentioned that barium was non-
detectable and one commenter mentioned that data available from the
USGS database showed coal can have much higher concentrations of zinc
\85\ than TDF. It was also reported that the steel wire in tires is
98.5% iron (which is not a HAP). As noted previously, many commenters
argue that the small amount of steel wire in typical TDF is not
considered a contaminant that could result in emissions. Rather, it
presents a handling concern when used as boiler fuel; specifically, the
TDF needs to have the exposed wire removed so that it is ``flowable''
like coal. One commenter went on to say that they can recycle metals
from TDF post-combustion. A large number of commenters stated that the
metal from tires is a necessary ingredient in the formation of clinker
in cement kilns and becomes part of the clinker product, and is in no
way considered a ``contaminant'' in cement kilns.\86\
---------------------------------------------------------------------------

    \85\ The commenter said the coal sample was 51,000 ppm zinc,
while coal is usually less than 100 ppm. TDF usually has higher
concentrations of zinc than the average in coal.
    \86\ See the comment on cement kilns for more information
relative to cement kiln usage.
---------------------------------------------------------------------------

    Many of the commenters also reiterated that the constituents in TDF
fuel product do not lead to emission problems as evidence by comparable
or lower emissions for the following CAA 129 pollutants according to
their tests: carbon monoxide (some higher some lower, but comparable),
dioxins/dibenzofurans (some commenters stated no significant
difference, while others claimed emission reductions), hydrogen
chloride (specifically mentioned reduction in cement kilns), oxides of
nitrogen (usually combustors witness the greatest reductions in this
pollutant when using TDF \87\), and sulfur dioxide (usually reduced
when using TDF). Many commenters thought that we should also take into
consideration the reduction in greenhouse gases and the emissions
improvements.\88\ On the other hand, a number of commenters voiced
concerns about emissions from scrap tires used as fuel, anticipating
that they increased emissions (including those pollutants listed in
section 129 of the CAA). A commenter cited that emissions increases
were expected for a paper mill that was testing a substitution of TDF
for wood.
---------------------------------------------------------------------------

    \87\ Commenters often said this is the biggest benefit in using
TDF. State regulators are said to suggest the use of TDF if a
combustor has a problem with NOX emissions.
    \88\ Refer to the Materials Characterization Papers for a
detailed summary of the contaminant data for TDF, including data
provided by commenters.
---------------------------------------------------------------------------

    Although we requested data on fuel contaminants, some contaminant
data was reported as emission results. Results of a rather large study
were reported by a commenter: ``In 2008, PCA member companies completed
a study on the impact of TDF firing on cement kiln air emissions. The
study's data set included emission tests from thirty-one of the cement
plants presently firing TDF. Dioxin-furan emission test results
indicated that kilns firing TDF had emissions approximately one-third
of those kilns firing conventional fuels--this difference was
statistically significant. Emissions of particulate matter (PM) from
TDF-firing kilns were 35% less than the levels reported for kilns
firing conventional fuels (not statistically significant due to the low
PM emissions reported for essentially all cement plants). Nitrogen
oxides, most metals, and sulfur dioxide emissions from TDF-firing kilns
also exhibited lower levels than those from conventional fuel kilns.
The emission values for carbon monoxide and total hydrocarbons were
slightly higher in TDF versus non-TDF firing kilns. However, none of
the differences in the emission data sets between TDF versus non-TDF
firing kilns for sulfur dioxide, nitrogen oxides, total hydrocarbons,
carbon monoxide, and metals were statistically significant. Separate
studies conducted by governmental agencies and engineering consulting
firms have also indicated that TDF firing either reduces or does not
significantly affect emissions of various contaminants from cement
kilns.''
    EPA's Response: The Agency assessed the contaminants in TDF using
the data submitted and the proposed rule data (referenced above) and
compared it to the concentrations in coal, the traditional fuel that
scrap tires would be replacing.\89\ While the level of contaminants in
TDF or tires vary slightly \90\ between test results for the scrap
tires and for the type of fuel that was used for comparison purposes
(i.e., coal, the replacement fuel), this data supports the commenters'
position that the level of contaminants in TDF (or whole tires) are
comparable to (if not less than) those found in the traditional fuel
that it would be replacing.\91\ Coal has a number of contaminants that
are not present in TDF. See the Materials Characterization Papers on
Traditional Fuels and on Scrap Tires in the docket for today's rule for
a complete discussion on contaminants in TDF (EPA-HQ-RCRA-2008-0329).
---------------------------------------------------------------------------

    \89\ The ``contaminants'' are the nine CAA section 129(a)(4)
pollutants and the 187 HAP listed in CAA section 112(b).
    \90\ The elemental constituents in coal vary regionally so the
test result comparisons to TDF also vary. For example, the relative
percentage of some elements is sometimes slightly higher in some
tests and lower in others. Overall, we find that TDF and coal have a
comparable level of contaminants.
    \91\ While zinc has been reported to have higher levels in TDF
than in coal, zinc is neither a HAP or one of the nine pollutants
identified in section 129(a)(4) of the CAA and thus, would not be a
contaminant for consideration.
---------------------------------------------------------------------------

    The metal wire in tires is 98.5 percent iron, but it is a small
component of the TDF when processed. The Agency has determined that the
concentration of iron in the processed TDF chips is comparable to those
in coal. However, iron is not a HAP, nor are the other components of
the wire expected to be released to the emissions in a typical boiler.
Rather, the wire ends up in the bottom ash such that, according to one
commenter, the metal can be recovered.

If the scrap tires were discarded (i.e., recovered from a tire dump),
they would need to be processed into TDF chips with some removal of the
metal wire (per the processing specifications described in a response
to comments below) in order to be a non-waste fuel. Based on the
comments, we recognize that this is more important for handling, than
for emissions. We would also note that the steel wire in the whole
tires used in cement kilns is regarded differently since it is needed
to become part of the cement. That is, if the non-combustible
ingredient in feedstocks that are necessary (e.g., iron) for clinker
production are no longer used, those materials must be replaced.
    Finally, although we focus on the contaminants in fuel since that
is the relevant criterion as it relates to the legitimacy criteria, and
for deciding whether a material is a waste or a commodity, we do
recognize the value of the greenhouse gas, as well as other criteria
pollutant improvements using scrap tires as stated in the proposal and
also raised by commenters. Specifically, 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 emissions reductions. For example, GHG has been reduced
as a co-benefit of the use of secondary materials--the GHG rate
associated with the combustion of scrap tires is approximately 0.09
MTCO2 E \92\ per million Btu of scrap tires combusted, while
the GHG emissions rate for coal is approximately 0.094
MTCO2E per million Btu. Combined with the avoided extraction
and processing emissions 0.006 MTCO2 E/million Btu for coal,
the total avoided greenhouse gas is 0.019 MTCO2 E per
million Btu. Also, substituting TDF for coal would avoid an estimated
0.246 Lbs/million Btu of particulate matter associated with the
extraction and processing of the coal.
---------------------------------------------------------------------------

    \92\ Metric tons of carbon dioxide equivalent
(MTCO2E)
---------------------------------------------------------------------------

    Relative to criteria pollutants, historical EPA and test program
data demonstrate that, while emission rates vary over different TDF
levels at different facilities, criteria pollutant emissions from
combusting TDF have been found a majority of the time to be reduced or
not significantly different than those from other conventional fossil
fuels, provided combustion occurs in a well-designed, well-operated and
well-maintained combustion device. In fact, results from a dedicated
tires-to-energy (100% TDF) facility indicate that it is possible to
have emissions much lower than those produced by existing solid-fuel-
fired boilers (on a heat input basis) with a specially designed
combustor and add-on controls.\93\ Typically boilers use a mix of TDF
and coal; they have comparable emissions with or without TDF with the
same air pollution control device. We are not aware any small area
sources that are able to use TDF for fuel. (See the Materials
Characterization Papers in the docket for further details on these GHG
estimates, and other estimates of avoided emissions associated with
burning tires and other secondary materials as fuel.)
---------------------------------------------------------------------------

    \93\ See, for example, Reisman JI (1997) Air Emissions from
Scrap Tire Combustion, Appendix: Emissions Data from Controlled Tire
Burning. Technical Report prepared for USEPA. Office of Research and
Development, Washington, DC EPA 1997 at http://www.epa.gov/ttn/catc/dir1/tire_eng.pdf
---------------------------------------------------------------------------

    Finally, we would also note that 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 mining impacts, and
reduced negative environmental impacts caused by previous dumping
(e.g., tires).
    Comment: Some industry commenters claimed that the proposed rule
would increase the costs for facilities that use scrap tires as a fuel
due to the imposed costs for unnecessary processing, and would
negatively affect them and existing tire recycling programs. According
to the many comments by tire retailers, tires are a material handled as
a commodity. Under the third party processing requirements in the
proposed rule, they estimated substantially increased costs to remove
the tires they handle from their shops. This would also have the effect
of causing the tires to be seen as ``waste-like'' since their monetary
value would be reduced.
    EPA's Response: As a result of the changes made to the final rule
concerning scrap tires that are collected as part of an established
tire collection program, we anticipate that there will be no or minimal
changes, to the current system that prevents scrap tires from being
discarded. Thus, the costs for the tire retailers are not expected to
increase, as anticipated by the commenters.
    Comment: A number of state environmental agencies recommended that
scrap tires not be considered a solid waste when combusted, because of
potential impacts on their state programs. These state environmental
agencies, however, typically preferred EPA to consider scrap tires a
waste at least until it arrives at the combustion unit (or otherwise
reasonably processed into a product according to some State Agency
commenters). Many of these states noted the beneficial aspects of using
whole scrap tires as a fuel and were concerned with the negative
impacts and possible interference to the success of their beneficial
use programs (typically for non-combustion determinations) and
requested clarification on the scope and impact of this rule for all
non-hazardous secondary materials, including scrap tires. For instance,
they asked if the rule would affect or interfere with state solid waste
regulations, laws, and beneficial use programs. They also requested
that EPA clarify the implications to a state program if the scrap tires
are considered non-waste when used as fuel for federal purposes, but
are considered waste according to the state recycling and waste
management programs (until beneficially used or made into a non-waste
product).
    EPA's Response: As discussed, the Agency has decided to identify
scrap tires that are removed from vehicles and collected as part of an
established tire collection program as a non-waste fuel when combusted.
Thus, we believe that the concerns or impacts on the effective
collection and use as a tire-derived fuel product should no longer be a
concern. However, this approach would not address the request from
state agencies that we identify scrap tires as a waste until combusted.
As discussed previously, existing RCRA case law on hazardous wastes
would not allow EPA to declare that a discarded material ceases to be a
waste solely by the fact that it is beneficially used. Wastes may be
used beneficially. Accordingly, once a non-hazardous secondary material
(such as scrap tires retrieved from waste tire piles) is identified as
a waste, its arrival at a facility for combustion would not change its
status. EPA has also expressed the belief that case law would not
prevent wastes from being processed into materials that are no longer
wastes. However, that would require changing the material sufficiently
so that a new fuel product is created.
    In response to the states question concerning conflicting and
concurrent interpretations of state and federal waste status (when used
as fuel), EPA would like to clarify that non-hazardous secondary
materials may be simultaneously regulated as a non-waste fuel or
ingredient for use in combustion units under the federal program, but
as a solid waste by the state's solid waste programs. That is, non-
hazardous secondary materials that are designated as a non-waste by
today's rule, while

not subject to the section 129 CAA standards, could be subject to the
state standards that identify the same non-hazardous secondary material
as a solid waste. The federal rule does not affect the state waste
determination in this case. For more information about state agency
concerns with regulating non-hazardous secondary materials, not just
scrap tires, refer to Section IX.A, ``Applicability of State Solid
Waste Definitions and Beneficial Use Determinations.''
    Finally, we would note, and as stated elsewhere in this preamble,
this rule only addresses those non-hazardous secondary materials that
are burned in combustion units as a fuel or ingredient. Thus, we are
not making any determination that non-hazardous secondary materials are
or are not solid wastes for other possible beneficial uses. Such
beneficial use determinations are generally made by the states for
these other beneficial uses, and EPA will continue to look to the
states in making such determinations.
    Comment: One commenter stated that ``[b]urning in incinerators,
kilns, boilers, etc. is not the highest best use of scrap tires,'' and
that with proper processing, they can be used in many value-added
recycling processes. Many other commenters were opposed to the
combustion of any non-hazardous secondary materials as a fuel,
including scrap tires in CAA section 112 regulated units, and support
the recycling or reuse of scrap tires for other uses instead of
combustion.
    EPA's Response: The issue that EPA is addressing in this rule is
whether the burning of non-hazardous secondary materials, including
scrap tires (whether whole or as TDF) is considered waste management.
This is critical since the status of scrap tires--that is, whether they
are a waste or not, determines which CAA emission standards the non-
hazardous secondary material would be subject to. With that said, EPA
supports the broad use of scrap tires in many different markets (e.g.,
recycled rubber products, use in asphalt, and in civil engineering
projects). The Agency also believes that the use of scrap tires as a
fuel is a valuable use and should remain a component in the overall
suite of recycling/management options provided the combustion units are
subject to appropriate standards. In some cases, other recycling
markets may not be available if TDF was not used a fuel. For example,
in the standard process of shredding tires for tire-derived fuel (TDF),
finer pieces are created as a by-product appropriate for recycled
rubber products. In most cases, it would be too expensive to process
the scrap tires solely for the recycling of this rubber (according to
sources in the scrap tire program). Comments on the ANPRM and the
proposal led us to believe that the non-combustion markets for scrap
tires could not handle the surplus and will reverse the trend in
cleaning up tire dumps and will lead to many tires being disposed of in
scrap tire piles.
    Specifically, in 2007, 89.3% percent of the scrap tires generated
in the U.S. by weight were collected and consumed in end-use markets.
The total volume of scrap tires consumed in these end use markets
reached approximately 4,105.8 thousand tons of tires out of an
estimated 4,595.7 thousand tons of tires generated in the U.S. By
comparison, in 1990, only eleven percent of the scrap tires were
consumed on a per tire basis.\94\ Of the scrap tires that are collected
annually and used in beneficial use end markets, about half are used
for their fuel value, while the remainder are used in value-added
recycling processes as the commenter preferred. We recognize that
regionally, there are sometimes scrap tire shortages in an area that
could support more non-combustion uses (as compared to the market
demand for scrap tire usages). That is, some states are net importers
and have very healthy markets using scrap tires as commodities, while
other states do not have as much demand for scrap tires. The EPA
supported scrap tire program is described on our Web site (http://www.epa.gov/osw/conserve/materials/tires/index.htm).
---------------------------------------------------------------------------

    \94\ These tire figures are compiled by RMA and are developed
jointly with state scrap tire programs and listed in ``U.S. Scrap
Tire Markets 2007.'' The report can be found at http://www.rma.org/scrap_tires/.
---------------------------------------------------------------------------

    Comment: EPA describes coal and petroleum coke as traditional fuel.
Based on the extensive use developed over the last 20-30 years in the
industry, many of the alternative fuels, such as TDF can also be
considered traditional. A number of commenters cited that scrap tires
have been used as a fuel for a long time (since the late 70's) which
should qualify as ``historical use'' and should be regarded as a
traditional fuel. The cement industry's goals have emphasized use of
alternate fuels and raw materials based on the industry increasing its
reliance on this type of material since the 1980s. The use of TDF is a
long-standing and customary practice now characteristic of cement
manufacturing fuel options. In fact, commenters have argued that the
number of major industrial boilers and cement plants utilizing TDF as a
supplemental fuel has risen dramatically over the last 19 years and
decreased the dependence on virgin fuel sources.
    Other commenters mentioned that the components of tires are derived
from hydrocarbons (like fossil fuels, such as coal, oil, and natural
gas) and natural ``biogenic'' sources (the rubber), and therefore, they
should be considered a traditional fuel. Still other commenters
mentioned that TDF should be considered a traditional fuel since it
should qualify for the same reasons as on-spec used oil. Finally other
commenters argued that scrap tires should be considered a traditional
fuel based on the comparable contaminant content and superior Btu value
(at 12,000 Btu/lb to 16,000 Btu/lb), as compared to coal.
    EPA's Response: We do not agree with the commenters that scrap
tires should be considered an historically managed traditional fuel or
alternative fuel. In fact, until this rulemaking, we are not aware that
anyone has considered or identified scrap tires as a traditional fuel.
While we recognize that scrap tires may have been used as a fuel since
the 1970's, we would also note that tires are not produced for their
fuel value, even though the components of tires are derived from
hydrocarbons and natural biogenic source. Further, scrap tires are not
derived from virgin material fuels (e.g., as is the case of coal refuse
derived from virgin coal).
    Comment: Some commenters regarded the combustion of non-hazardous
secondary materials, including scrap tires, as waste disposal and
therefore the combustion unit that burns these secondary materials
should be regulated as an incinerator. Another commenter was concerned
with a combustor accepting fees to accept non-hazardous secondary
materials and argued that waste-burning boilers can receive a pass-
through portion of tipping fees and can also collect fees ``to dispose
of'' the material through combustion at ``clean energy'' projects. The
commenter went on to say that the fuel at these facilities is in no way
sold in the marketplace the way that traditional fuels are sold for
profit. In fact, the economic model is reversed, so that the combustion
facility is paid to take the secondary material.
    EPA's Response: The question of whether or not a non-hazardous
secondary material, including scrap tires is or is not a solid waste,
depends on whether it has been discarded, and whether it could
legitimately be considered a fuel-like material, by meeting the
legitimacy criteria. As we have discussed elsewhere in this preamble,
we have determined that scrap tires, when collected as part of an

established tire collection program and sent to a combustion unit for
use as a fuel, or when sufficiently processed to produce a tire-derived
fuel, have not been discarded and are not solid wastes. These secondary
materials are more akin to non-waste fuels in these instances. Thus, we
disagree with the commenters who argue that the combustion of non-
hazardous secondary materials, including scrap tires, always
constitutes waste management.
    On the other hand, where scrap tires or any other non-hazardous
secondary materials are disposed of (part of the plain meaning of
discard) via combustion, they are a waste. For example, if a combustion
unit's main purpose is to provide heat to dry a product, but they
consistently have a surplus of tires received with a tipping fee and
operate the unit without a product being dried, they are in effect
destroying the scrap tires. In this case, they would be considered
solid wastes, and the combustion unit would be subject to the CAA 129
standards. With respect to the situation where a facility accepts scrap
tires for a tipping fee (as opposed to paying for the fuel), that can
be an indicator that disposal may be occurring, but is not
determinative to indicate that such transactions always constitute
waste management. For example, the tipping fees could encourage over-
accumulation leading to combustion for disposal versus being used as a
valuable replacement fuel. Thus, this factor should be considered, in
light of the other circumstances, in determining whether or not scrap
tires when combusted as a fuel are or are not a solid waste.
    Comment: A commenter described the associated environmental justice
impacts that would occur at sites that would receive scrap tires if the
proposed rule went into effect, as compared to the current
environmental justice impacts associated with cement kiln sites. The
commenter provided an analysis that they said showed a decreased chance
of impacting environmental justice communities based on the demographic
analysis at cement kilns versus the alternative sites. The commenter
claimed that the processing described in the proposed rule would
effectively prohibit them from using scrap tires as a fuel and will
result in more scrap tires being disposed of or unnecessarily processed
at sites that are more likely to be in environmental justice
communities, as EPA's environmental justice analysis indicates.
    The commenters' analyses indicated that cement kilns tend to be
located in areas with fewer minorities than the national average, as
well as fewer minorities as compared to the larger set of sites that
use non-hazardous secondary materials that may become CISWI facilities,
tire processors, and RCRA subtitle D facilities (as EPA assessed in the
``Review of Environmental Justice Impacts'' \95\). The commenter stated
that ``EPA's data shows vividly that there are no Environmental Justice
issues at any of the cement plants in its CISWI database.'' The
commenter also argued that land disposal (or processing) sites already
have environmental justice issues and that the proposed rule would make
it worse by having more scrap tires diverted to waste tire piles or
processors. Another commenter indicated that states are considering
removing landfill bans on whole tires if this rule goes into effect,
and argued that the proposed rule would cause an increase in the number
of tires going to landfills or stockpiles and would have a disparate
impact on adjacent communities and mentioned the risks of fires and
mosquito born vectors at tire piles.
---------------------------------------------------------------------------

    \95\ EPA's ``Review of Environmental Justice Impacts'' that the
commenter referenced, can be found in the docket for today's rule
(EPA-HQ-RCRA-2008-0329-0519). Cement kilns and other combustors that
use non-hazardous secondary materials were included in the CISWI
database used for EPA's demographics (many of the units in the CISWI
database were not regulated as incinerators).
---------------------------------------------------------------------------

    EPA's Response: In the evaluation regarding the use of whole scrap
tires (predominantly used as a fuel in cement kilns) and whether or not
they should be considered solid wastes if collected as part of an
established tire collection program, we considered the environmental
justice demographics and impacts that would result at cement kilns.
Based on our review of the demographics at cement kilns, on average,
they are located in areas with fewer minorities and less poverty than
RCRA subtitle D disposal sites, processing sites, and facilities
assessed to become CISWI CAA section 129 incinerators.
    Whole scrap tires can be used as a non-waste fuel in cement kilns
under today's rule when they were harvested from vehicles and managed
under the oversight of an established tire collection program prior to
being delivered to the combustion unit. Based on our most recent
demographic data, we agree with the commenter that sending whole tires
to cement kilns as a non-waste fuel is not expected to have a negative
impact on environmental justice communities. In fact, it appears that
it would have benefits since RCRA subtitle D disposal sites, processing
sites, and facilities assessed to become CISWI CAA 129 incinerators
(the sites that would be accepting scrap tires if not burned as a fuel
in cement kilns) are more likely to be located in environmental justice
communities. Thus, while this was not the primary basis on which this
decision was made, the Agency believes it important that its decision
would lessen the impacts on environmental justice communities.
    Comment: EPA never explains why it believes that, in the context of
a secondary material that does not need processing or perhaps needs
only minimal processing to serve as a wholly bona fide fuel, that scrap
tires cannot be considered sufficiently ``processed'' unless they are
physically shredded and undergo metals removal processing. We note that
whole tires that have long been buried or stacked in aging piles may
need minimal processing for use in cement kilns, such as removal of
excess water and dirt, mud, and debris. Whole tires from newer stacks
or piles often need no physical processing whatever. EPA never explains
why it thinks this much processing is necessary for tires to escape the
``discard'' rubric and serve as bona fide fuels in portland cement
kilns. The result of this faulty logic is that beneficial reuse of
significant amounts of non-hazardous secondary materials will be
greatly discouraged, and there will be no health or environmental
benefits (only detriments). We believe it is obvious that EPA's
proposal represents a ``classic case of arbitrary and capricious
rulemaking.''
    The portland cement industry simply cannot afford to jeopardize its
product by using alternate fuels that affect cement quality. EPA
justifiably had a concern (reflected in the earlier RCRA subtitle C
rulemaking and policy documents it cites) that unscrupulous parties
seeking to avoid the expensive subtitle C cradle-to-grave regime had
incentives to claim that the hazardous waste they were burning was a
bona fide fuel. At that stage in RCRA subtitle C development (mid
1980s), burning of hazardous materials for bona fide energy recovery
purposes was exempt. This concern simply does not apply to the
situation in which non-hazardous secondary materials are being burned
in fully regulated industrial furnaces such as portland cement kilns.
    Ironically, EPA has long recognized that products from portland
cement kilns burning hazardous waste fuel are not adversely affected in
any manner. In 1995, after reviewing exhaustive data presented in a
petition filed under the Toxic Substances Control Act (TSCA), EPA
rejected the petitioners' request that products produced from cement

kilns that burn hazardous waste fuel carry warning labels because EPA
found there was no difference in contaminant levels (or risks) in the
product. 60 FR 39169 et seq., August 1, 1995. As recently as 2007,
EPA's Assistant Administrator for Solid Waste and Emergency Response
(OSWER) stated in a letter to the Center for Maximum Potential Building
Systems that ``there is no difference in the cement from kilns burning
hazardous waste compared to cement produced by kilns not burning
hazardous waste.''
    Moreover, NSF International has reviewed data from several portland
cement kilns burning hazardous waste fuel to assess whether the product
from such kilns could be safely used in concrete water pipes and water
storage tanks. These studies have uniformly concluded that there is no
statistical difference in contaminants between clinker or products made
from kilns burning hazardous waste fuel as compared to kilns using only
fossil fuels.
    The commenters representing cement kilns also noted that a cement
kiln is not a boiler or an incinerator. One of the commenters went on
to say that ``in enacting CAA section 129, Congress was focused
exclusively on ``incinerators.'' Incinerators burn waste materials
solely for the purposes of destruction. They do not use
``ingredients,'' and they make no product. Moreover, in all the
rulemaking and litigation that prompted this proposed rule--culminating
in the NRDC case * * * EPA, the parties, and the Court were focused
exclusively on incinerators and boilers. Like incinerators, boilers do
not use ``ingredients.'' Unlike incinerators, boilers may burn waste
materials for energy recovery purposes. But the only product they make
is steam, and the steam that they make never comes in contact with the
fuel they burn.
    A portland cement kiln is significantly different from an
incinerator or a boiler in key respects. First, it is one type of
``industrial furnace'' which, unlike boilers and incinerators, which
makes a marketable product. All materials that are placed in the kiln--
including fuels--come into mutual contact in the manufacturing process.
The product the kilns produce must meet strict quality standards. EPA's
RCRA regulations have long recognized these key distinctions among
industrial furnaces, boilers, and incinerators. The commenter referred
to 40 CFR 260.10.
    Despite the fact that there was absolutely no issue with portland
cement kilns producing ingredients in the development of CAA section
129 or the rulemaking and litigation leading to this rulemaking, the
commenter stated that portland cement kilns have been included in this
proposal in a manner that could have very adverse impacts on a kilns'
ability to use non-hazardous materials beneficially; the commenter went
on to argue that a significant flaw in the proposal is its failure to
recognize the key differences between portland cement kilns as compared
to incinerators and boilers.
    EPA's Response: These comments may express legitimate policy
concerns. However, they are essentially irrelevant to the decisions
that EPA is making in this rulemaking. Tires from tire dumps are
clearly wastes because they have been disposed for a long time. The
tires were clearly abandoned if they were left in a tire dump. EPA
understands the commenter's remarks that cement kilns are not
``boilers'' nor were designed to be ``incinerators,'' but cement kilns
are clearly ``combustors'' under the CAA and the Agency needs to decide
whether CAA section 112 or 129 standards would apply.
    With respect to the comments regarding ``processing,'' EPA's
intention is to provide a standard for turning clearly discarded
material into a non-waste. EPA acknowledges that there is no direct
case on point in which a court has opined on how a material may lose
its status as a waste.\96\ The comment assumes all fuel is not a waste.
As EPA has repeatedly stated in this preamble, a waste may be used
beneficially and may, indeed, be a bona fide fuel. This is consistent
with the DC Circuit's opinion in NRDC v. EPA. A combustor that burns
solid waste, even for energy recovery, must be regulated under CAA 129.
If the kiln is regulated under CAA 129, no processing is needed for a
waste scrap tire to be burned as a bona fide fuel.
---------------------------------------------------------------------------

    \96\ Although we recognize that some states have systems in
place where materials lose the waste status if beneficially used
according to the state's standards.
---------------------------------------------------------------------------

    Given the statutory provisions and case law, EPA is constrained to
argue that discarded materials are solid wastes and would need to be
burned under CAA section 129 standards. EPA notes that environmental
groups would argue that all units combusting tires must be subject to
emissions standards issued under section 129 of the CAA even if the
tires have been processed into a separate TDF, and the comments include
policy arguments to support this contention. The point of the comment
is that requiring units to meet emissions standards issued under
section 129 of the CAA would discourage burning of tires as an
environmentally beneficial replacement for non-renewable fuels, yet
environmental groups would argue that scrap tires should nevertheless
be subject to such standards. EPA's focus, however, must be on the
definition of solid waste under RCRA and the comment gives the Agency
no basis to determine what kind of activity would make the waste a non-
waste. Whether the material is a bona fide fuel does not provide the
answer to that inquiry.
    EPA sees no reason based on these comments to eliminate the
processing requirement for this final rule.
    Comment: The commenters that addressed the specific level of
processing for whole scrap tires disagreed with EPA on the amount of
processing required before TDF should be considered a non-waste fuel.
In addition, many of the commenters had different interpretations of
our proposed wire removal requirements and on the term ``relatively
wire free'' (since some incorrectly believed that the proposed standard
was up to 99% or absolutely no wire). Furthermore, many of these same
commenters argued that the proposed processing requirements for units
that use TDF chips were unrealistic and would dramatically increase
processing costs, while a few commenters cited that many processors
could not even achieve the specified level of wire removal. These
changes would significantly deter facilities from using TDF that they
regarded as a product. In fact, a number of commenters, including some
state agencies, questioned the value of requiring unnecessarily costly
processing of whole scrap tires that are to be used as a fuel in units,
such as cement kilns, since the wire in the scrap tires can be
beneficial due to the properties of the iron oxide resulting from the
tire combustion in cement kilns. Other commenters noted that the
presence of steel in the whole scrap tires or TDF should be irrelevant
to their waste status since the wire removed is for improvement in
handling--that is, the TDF needs to have the exposed wire removed so
that it is ``flowable'' like coal within the combustion unit, as well
as any loose wire removed since it can also cause handling issues in
the units, not emissions.
    A few commenters claimed that TDF processed to two-inch pieces was
seen as the higher end TDF product and that this should be our
standard. In particular, one commenter that markets TDF as a product,
``request that the EPA use the widely accepted nominal two-inch minus,
90%+ wire free standard that has been standard in the industry

for years'' since this would accurately define a product. The commenter
said that ``TDF meeting this 90%+ wire free standard typically has a
wire content of between 2% and 8% by weight.'' In addition, some state
agencies have been known to specify two-inch TDF as a product rather
than a waste, while rough shreds used for fuel in some combustors
(bigger than two inches) are seen as a waste material (not a product)
by those states. The size restriction is more prevalent in
specification for TDF than specifying a percentage of metal.
    Other commenters argued that a product is created when tires are
processed at any level that makes it ``TDF'' and mentioned that the
ASTM describes a process that creates a ``product'' called TDF. Another
commenter mentioned that a necessary component in the processing of
shredded tires is to remove the protruding wire from the shreds and to
sort the rubber pieces from the wire remnants called ``free wire.'' The
commenter said that this part of processing is typically necessary in
order for it to be sold as a TDF product to boilers. The commenter went
on to say that the completion of this last step can be tested by
spreading out the TDF chips in a single layer and passing a very strong
magnet over them to see if any free wire remains. That commenter
reasoned that TDF chips that pass the magnet test and had the free wire
removed should qualify as a non-waste TDF product.
    EPA's Response: In the situation where tires are discarded in the
first place or otherwise do not meet the legitimacy criteria,
processing is needed before it is considered a non-waste fuel (i.e.,
tires that are not collected from vehicles as part of an established
tire collection program per Sec.  241.3(b)(2)(i)). We disagree with
those commenters who addressed the level of processing needed before
TDF is considered a non-waste as these commenters are answering a
different question: How much processing is necessary before whole scrap
tires can be burned properly in any particular combustion unit?
    However, the question that EPA needs to answer is how much
processing is sufficient before whole scrap tires are considered a non-
waste fuel where the scrap tires are not collected as part of a scrap
tire collection program? Examples of sufficient processing for other
non-hazardous secondary materials include the processing of used oil to
produce on-specification used oil and the processing of construction
and demolition (C&D) wood into a fuel by sorting to remove contaminants
(e.g., lead-painted wood, treated wood, non-wood materials), and sizing
it. In all these instances, the non-hazardous secondary material is
being sufficiently changed, either chemically or physically to produce
a non-waste product.
    Thus, while insufficiently processed discarded tires can be burned
in boilers as a fuel, such TDF would still be considered a waste-
derived product because the Agency does not believe that simply
shredding or quartering whole tires, or removing some dirt, is adequate
to produce a non-waste product for use as fuel according to today's
rule (refer to the processing definition in Sec.  241.2 Definitions).
While the extent of processing that may be required may vary for
different types of non-hazardous secondary materials, the Agency
contends that a sufficient amount of processing must occur to produce a
non-waste product from secondary materials.
    One commenter mentioned, boiler operators are able to recycle the
metal from the wire post-combustion (although minimal). This is after
it has been cleaned of the rubber particles via the combustion process,
so this iron can be recovered and recycled (not disposed in emissions).
However, whether or not the metal from the wire (post-combustion) can
be recycled does not go to the question of whether or not the non-
hazardous secondary material has been ``sufficiently processed'' to
produce a non-waste product.
    With respect to the technical question of how much wire must be
removed before the amount of processing is considered sufficient, the
specific unit types that use TDF chips require different levels of
metal removal for handling concerns as noted by commenters. The ASTM
Standard D 6700 ``Standard Practice for Use of Scrap Tire-Derived
Fuel'' \97\ describes the process for ``dewired'' and has a helpful
guideline on the appropriate amount of wire removal for different unit
types under the topic titled ``Handling Considerations Conveying, Grate
and Ash.'' However, the ASTM standard is concerned with proper dewiring
and not whether the resultant material is a waste or non-waste fuel.
---------------------------------------------------------------------------

    \97\ ASTM Standard D6700-01, 2006, ``Standard Practice for Use
of Scrap Tire-Derived Fuel,'' ASTM International, West Conshohocken,
PA, 2003, DOI: 10.1520/C0033-03, http://www.astm.org. This standard
can be obtained through the following Web site: http://www.astm.org/Standards/D6700.htm.
---------------------------------------------------------------------------

    In the proposed rule, EPA referred to the level of processing in
varied terms (``relatively wire free,'' ``processed to the Standard
Practice for Use of Scrap Tire-Derived Fuel ASTM Standard D 6700-01,''
``wire removed,'' ``steel belts removed,'' and ``sufficiently
processed''). While ASTM was not deciding whether this material would
be a waste, or not, EPA in the proposal was suggesting that such
material would be sufficiently processed to render the new material a
commodity fuel. Thus, to be considered sufficiently processed, there
has to be metal removed and, it should be at the level of wire removal
that is specific to the combustion unit as mentioned above. EPA agrees
with the commenter who stated that TDF that has been chipped/shredded,
sorted and dewired (or at least 90%+ wire free) would be considered
sufficiently processed. However, this may not be the only standard, to
the extent that other unit types require different levels of metal
removal.
    With respect to the commenter that suggested the removal of free
wire as an indicator of sufficient processing, we would agree that the
removal of free wire (as described by the commenter) is a necessary
component of processing scrap tires into a non-waste product for the
purposes of this rule, but that alone, may not be sufficient to meet
our definition of processing. It could qualify if, according to product
specifications appropriate for the particular combustion unit, it is
processed into TDF chips and enough wire is removed from the TDF and
the loose free wire is removed (to the degree practical) appropriate to
the unit.
    However, we would also note, as is the case for all types of solid
fuel, proper characterization of the size and composition of TDF are
important factors that combustion unit operators assess to determine if
the TDF is a suitable fuel for their specific combustion unit
design.\98\ For example, ASTM Standard D 6700, describes standard
practices for using TDF as fuels, and also specifies sampling and
analysis methods and procedures that apply to TDF that cover
composition and fuel characterization analyses. The standards also
address the size of the tire pieces and metal content in order to
optimize combustion. The ASTM Standard D 6700 ``Standard Practice for
Use of Scrap Tire-Derived Fuel'' also describes the process for
``dewired'' TDF and has a helpful guideline on the appropriate amount
of wire removal for different unit types under the topic

titled ``Handling Considerations Conveying, Grate and Ash.'' In
summary, EPA considers that previously discarded tires that have been
made into TDF (shredded/chipped, sized, sorted, and with a significant
portion of the metal belts or wire removed, at a level appropriate for
the unit), meets the definition of ``sufficient processing.''
---------------------------------------------------------------------------

    \98\ With regard to the legitimacy criteria discussed in Section
V.D., the heating value of scrap tires (12,000 Btu/lb to 16,000 Btu/
lb) is the highest of all non-hazardous secondary materials, except
used oil (17,800 Btu/lb), and higher than typical coal values.
Contaminants of potential concern have been measured for both
materials: The constituents are comparable.
---------------------------------------------------------------------------

    Finally, as discussed above, the final rule also allows for scrap
tires that have been harvested from vehicles (as part of an established
tire collection program) to be used as a non-waste fuel. The question
of processing into TDF or the ``extent of processing'' is only relevant
if they are using scrap tires that have first been discarded.\99\ Scrap
tire processors typically enter into contracts with the end users of
these products that specify that the processed tires meet certain
specifications (i.e., size of chips and possibly other considerations)
to ensure that the product that is produced consistently meets the
needs of that particular end use. Boilers, unlike cement kilns,\100\
benefit from TDF that has been processed into small chips that feed in
the combustion unit like coal and the reduction of metal to improve its
handling and operational qualities in the combustion unit. For
instance, the removal of the exposed wire around the perimeter of the
tire chips makes it ``flowable'' like coal in the combustion unit.
---------------------------------------------------------------------------

    \99\ Since scrap tires that are harvested from vehicles (as part
of an established tire collection program) can be burned as whole
tires and still be considered a non-waste fuel, the Agency does not
believe it appropriate to require such tires to meet the level of
processing (as codified in Sec.  241.2). However, other scrap tires,
e.g., those that are removed from tire piles would need to be
processed (as codified in Sec.  241.2) in order to be burned as a
non-waste fuel.
    \100\ We note that most cement kilns use whole tires as fuels,
as opposed to TDF chips, because their process does not require the
TDF to be in the form of small chips to use it as a fuel, and does
not require removal of the metal (since they use the metal as an
ingredient).
---------------------------------------------------------------------------

    EPA notes that merely harvesting tires from vehicles does not
render the material a non-waste. If the tires are used in a combustor
for which they are not suitable, which can be determined through the
analysis of the legitimacy criteria, they would be wastes.
6. Resinated Wood Residuals
    The proposed rule described resinated wood products as those
generated during the manufacture of particleboard, medium density
fiberboard, and hardboard and includes materials, such as board trim,
sander dust, and panel trim. The proposal indicated that such resinated
wood products were considered a non-waste fuel when burned in a
combustion unit because this secondary material generally meets the
legitimacy criteria. We acknowledged, however, that we had limited data
on the level of contaminants in resinated wood products, but the data
we had did generally indicate that this non-hazardous secondary
material would meet the legitimacy criterion for contaminants. In order
to gather additional information on which to base our decision, we
requested comment and data on the contaminant levels contained in these
secondary materials, as well as the appropriateness of calling them a
non-waste.
    Comment: The American Mining Congress v. EPA case states that
secondary materials beneficially used within the generating industry,
not within the generating plant, is part of a continuous industrial
process and thus, not a solid waste. Therefore, transfer of materials
within the generating industry would have to be considered a non-waste
fuel.
    Some commenters contend, however, that any secondary material
burned for energy recovery is a solid waste, regardless of whether it
remains within the control of the generator. These commenters object to
allowing control by the generator to be relevant to rendering secondary
material a non-waste, even if burned under the legitimacy criteria,
claiming that these secondary materials are wastes. The commenter goes
on to note that EPA itself 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.
    EPA's Response: EPA needs to correct some of the industry and
environmental group misrepresentations of the cases on the definition
of solid waste. In AMC I, the court was only noting that secondary
materials reclaimed within a continuous process are not wastes and are
not subject to EPA's jurisdiction as solid wastes. The case is actually
a narrow discussion of one basic principle regarding what is not
discarded. The court does not even state whether any particular
material is discarded. For example, while there is a reference to used
oil that could be discarded, the court in no sense was saying that all
used oil is discarded. In fact, in API II the court specifically noted
that in AMC I they ``did not address the discard status of any of the
particular materials discussed in the briefs.'' 216 F.3d at 56. The
court freely admitted in API II that its ``prior cases have not had to
draw a line for deciding when discard has occurred,'' but only dealt
with the extreme cases of materials that were either wastes or non-
wastes. 216 F.3d at 57.
    As the various definition of solid waste cases hold, the ultimate
issue for deciding when most materials are discarded is whether EPA's
determination complies with the arbitrary and capricious standard of
the Administrative Procedure Act (APA). Sweeping formulations involving
whether a process is within an ``industry'' is not helpful, nor is it
consistent with the case law. EPA, and the courts, reject any
formulation that under AMC I the statement that discard cannot be found
in the case of immediate recycling within a continuous industrial
process means ipso facto that any material transferred within an
``industry,'' even between companies located in New York and
California, is not a waste. EPA's decision on whether resinated wood is
a waste (within the control of the generator or if transferred) is
based on the circumstances under which the material is handled and
combusted. Merely keeping material on-site will not render it a non-
waste, nor will mere transfer make the material a waste.
    Comment: Trim, sawdust, shavings, sander dust and other residual
materials from producing panels and other engineered wood products
containing resins have been widely used as fuels by wood product plants
since the industry began in the 1950s and should, therefore, be
classified as a traditional fuel. In fact, the wood product plants have
been designed so as to specifically utilize these residuals that the
process creates and would not be able to operate as designed without
this material. The commenters argue that there are no significant
contaminants in resinated wood residuals that are used as fuels. None
of the constituents are among the contaminants controlled under CISWI.
This fact provides sufficient justification to accept resinated fuels
as traditional fuels from the standpoint of contaminants.
    EPA's Response: We do not agree with those commenters who argue
that resinated wood residuals should be considered a traditional fuel,
since it can have contaminants at levels greater than traditional fuels
(as discussed below). We recognize, however, that much of the resinated
wood residuals are used as a product fuel, and that the plants have
been designed to catch and then burn these residuals to supply energy
and heat to other parts of the plant. EPA recognizes that some specific
types of non-hazardous secondary materials, such as resinated wood
residuals, are more like valuable

commodities than solid wastes. Resinated wood is a secondary material
that, upon examination, is not discarded when used on-site or
transferred off-site to a different company. Thus, EPA would consider
resinated wood residuals used as a fuel in a combustion unit as not
being a solid waste, provided these materials satisfy the specified
legitimacy criteria for fuels.
    Comment: Commenters argued that resinated wood residuals are often
used off-site in a manner that does not constitute discard and the
secondary materials should not be classified as solid waste when
transferred between facilities or companies. As much as 6% of resinated
wood residuals are sold into the fuel market and 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. Inter-company transfers are typically managed through buy-
sell contracts that likely do not specify how the materials will be
used because the receiving facility likely mixes the purchased material
with self-generated materials. Those combined materials are either used
as furnish or fuel in accordance with the needs of the facility at the
time. Because these resinated materials are bought and sold and used in
a manner--either as furnish or fuel--similar to how self-generated
resinated materials are used, this transaction does not constitute
discard and the materials should not be classified as solid waste
simply due to the transfer between facilities or between companies.
    EPA's Response: We agree that transferring secondary materials
between companies or facilities does not necessarily mean that the
material has been discarded. As resinated wood residuals transferred
off-site are utilized in the same manner as self-generated resinated
wood residuals (i.e., contained in the same bins as furnish materials
used in the product, transferred via conveyors or ducts), which the
plants are specifically designed to burn as a fuel, we agree that this
does not constitute discard. Thus, we have determined that resinated
wood residuals are not solid waste when transferred off-site for use as
fuel, provided the material meets the legitimacy criteria and has not
been otherwise deemed to be discarded. We have codified this concept
under 40 CFR 241.3(b)(2)(ii).
    Comment: Processing should not be necessary when utilizing the
material on-site or off-site to be considered a non-waste fuel.
However, resinated wood residuals are generally chipped or hogged to
reduce its size before burning. This should be sufficient to meet the
processing requirement.
    EPA's Response: We generally agree with the commenters that
resinated wood residuals do not need to be processed, but if processed,
such as by chipping or hogging, this level of processing would not
affect the status of this material.
    Comment: Resinated wood residuals have contaminants that are
comparable to traditional fuels. The list of resins and adhesives
include constituent chemicals that are on the hazardous air pollutant
list. Notably, phenol, formaldehyde, methylene di-isocyanate and
epichlorohydrine are HAP. However, these individual components react
completely within the resin curing process, leaving, in the worst case,
only trace amounts of the HAP. With the exception of formaldehyde,
undetectable or extremely low levels of these HAP remain behind after
the resin/adhesive cure. As noted in the comments referenced in the
proposal, miniscule amounts of formaldehyde remain in some resinated
wood residuals, less than 0.02%, a number that is expected to fall as
the California Air Resource Board (CARB) Composite Wood Airborne Toxic
Control Measure (ATCM) is implemented nationwide, per the new Public
Law 111-199 (which establishes consistent standards for wood products
across the country). Further, since formaldehyde is found in natural
wood, it should not be considered a contaminant in resinated wood.
    EPA's Response: The proposed rule acknowledged a general lack of
data regarding the levels of formaldehyde in these non-hazardous
secondary materials and specifically requested data on this issue.
While we received only limited contaminant information during the
comment period, the data we do have suggests that the levels of
formaldehyde in these resinated wood residuals is at non-detect levels.
The existing data we have is that resinated wood residuals contain
``free'' formaldehyde at levels less than 0.02 percent (or 200 ppm). In
addition, new rules, as mandated by the CARB Composite Wood ATCM, per
new Public Law 111-199, will reduce the formaldehyde levels even
further to levels that are comparable to unadulterated wood. We also
have limited data on the formaldehyde levels in traditional fuels.
Specifically, we have limited data that natural wood has between 0.6
and 8.5 ppm of formaldehyde,\101\ but we have no data on formaldehyde
levels in other traditional fuels, such as coal, oil, and natural gas.
We do know, however, that organic materials produce formaldehyde. For
example, studies have shown that formaldehyde is generated from coal
piles.\102\
---------------------------------------------------------------------------

    \101\ Weigl, M., R. Wimmer, E. Sykacek, and M. Steinwender,
2009. ``Wood-borne formaldehyde varying with species, wood grade,
and cambial age,'' Forest Products Journal 59(1/2) 88-92.
    Meyer, B. and C. Boehme, 1997. ``Formaldehyde Emission from
Solid Wood,'' Forest Products Journal 47(5) 45-48.
    Killiam, B. ``Background Formaldehyde Emissions for Solid
Wood,'' Temple-Inland Forest Products Corporation, Diboll, TX.
    \102\ Cohen, H. and U. Green, 2009. ``Oxidative decomposition of
formaldehyde catalyzed by bituminous coal,'' Energy Fuels 23(6)
3078-3082. Nehemia, V., S. Davidi, and H. Cohen, 1999. ``Emission of
hydrogen gas from weathered steam coal piles via formaldehyde as a
precursor: I. Oxidative decomposition of formaldehyde catalyzed by
coal--batch reactor studies,'' Fuel, 78(7) 775-780.
    Nehemia, V., 1997. ``Oxidative decomposition of formaldehyde
catalyzed by coal,'' Fuel and Energy Abstracts 38(6) p. 386.
---------------------------------------------------------------------------

    Thus, considering the fact that new rules will reduce the amount of
formaldehyde to levels comparable to unadulterated wood, we have
concluded that resinated wood residuals when burned as a fuel by the
generator or outside the control of the generator and not discarded
should be considered a non-waste fuel. However, as we have noted
elsewhere, the generator of these secondary materials would still need
to demonstrate that such residuals meet the legitimacy criteria. Thus,
they would need to show that the levels of formaldehyde, as well as
other possible contaminants, in the resinated wood residuals are at
levels comparable to those found in traditional fuels, which in this
case would be natural wood. We would note that we would not consider
levels of formaldehyde of 200 ppm or slightly less to be comparable
since the levels in unadulterated wood are at least two orders of
magnitude lower. The levels would need to be lower to be considered
comparable to those found in natural wood.
    Comment: The comments indicated that resinated wood residuals have
about 5 percent moisture content, with heating values typically between
8,500-9,000 Btu/lb (as fired). This fuel value is equal to or better
than unadulterated wood, which has higher moisture content.
    The comments also argue that resinated wood residuals are managed
as a commodity as they are typically pneumatically transferred through
ducts, stored temporarily in a fuel silo, and then utilized in boilers
to provide heat to hot presses and dryers. In fact, wood product plants
have been designed so as to specifically utilize

these residuals that the process creates and would not be able to
operate as designed without this material.
    EPA's Response: The heating value range presented (8,500-9,000 Btu/
lb) indicates that resinated wood residuals meet the meaningful heating
value criterion as it is greater than the heating value of
unadulterated wood. We also agree with the commenters that resinated
wood residuals meet the legitimacy criterion for being managed as a
valuable commodity since these residuals are managed as a primary fuel
for wood products manufacturers. We acknowledge that wood products
manufacturing plants were specifically designed to burn these resinated
wood residuals to power the facility. In addition, wood product
manufacturers have designed their plants to use their residuals
(including placing the material in silos and transferring the material
via conveyor belts and ducts) that supply the process both as a raw
material and as a fuel, indicating that the resinated wood residuals
are managed as a valuable commodity.
    Comment: Commenters referred to studies that show that the
combustion of resinated wood residuals does not produce adverse air
emissions. Specifically, EPA's ``Wood Products in the Waste Stream--
Characterization and Combustion Emissions'' (1996) describes studies
that were conducted to determine if various types of wood produce more
non-criteria air pollutants than typical wood sources. Air emissions
and fuel materials were sampled at six different processors and
boilers. Fuel materials that were used at the boilers were a mixture of
wood produced at construction and demolition sites at the time:
Unadulterated lumber, treated wood (including CCA-treated wood),
resinated wood residuals, and painted wood (including lead-based
paint). The study concludes that organic compounds that are emitted
include aldehydes, benzene, phenol, and polynuclear aromatic
hydrocarbons (PAH). These compounds are formed as products of
incomplete combustion and did not appear to be a function of the woods
composition or source. Instead, they appear to be an indicator of
combustion inefficiency. ``Good'' combustion conditions appear to
minimize organic emissions. Metals usually found in wood combustor
particulate include As, Cr, Cu, Pb, Zn, Al, Ti, Fe, and Mg. Metals were
found to be higher in samples taken, although this could be a result of
the inclusion of treated wood in the samples combusted. Metals control
efficiency appears to be roughly equivalent to total particulate
control efficiency. Chlorinated organic compounds, such as dioxins,
furans, polychlorinated biphenyls, chlorinated phenols, and chlor-
benzenes were measured at extremely low concentrations or were reported
to be less than minimum detection limits.
    One commenter argued that, since resins contain only carbon,
hydrogen, oxygen, and nitrogen, the wood and its adhesives will convert
to carbon dioxide, water, and nitrogen oxides (which would be produced
even if nitrogen is not present in the fuel, since nitrogen represents
approximately 80% of air) under normal conditions that normally occur
in industrial wood combustion units. Thus, the products of combustion
from wood are the same from the adhesives. Adhesives are expected to be
more combustible than wood, due to their simpler structure and lower
molecular weights. Conditions which assure the complete combustion of
wood are adequate to assure the complete combustion of these adhesives.
Although it is possible that different types of compounds could be
produced from the adhesives than from wood and that more of certain
types of compounds might be produced from one fuel or another, there
does not appear to be any scientific basis for a presumption that
emissions from incompletely combusted adhesives are more harmful than
emissions from incompletely combusted wood. In fact, the results of
toxicity studies commissioned by National Forest Products Association
in response to New York State law which requires manufacturers to
provide data on the toxicity of smoke from their products indicate that
smoke from glued wood products is no more toxic than wood smoke. There
are a few halogen-containing synthetic polymers, such as
polytetrafluorethylene, which can produce more hazardous fumes, but
they are not normally used in wood products.
    The commenter also submitted data on HCl and NOX
emissions from burning sander dust that was not yet published.
Emissions from five combustion systems that burned a combination of
sander dust and hog fuel were sampled. One test was run only using hog
fuel (which consisted primarily of bark). Results are presented in
Table 3. The commenter argued that these results prove that HCl and
NOX emissions from the combustion of resinated wood
residuals are comparable to the combustion of hog fuel alone. In fact,
the three samples that contained the lowest percentages of sander dust
(0%, 15%, and 25%) produced the greatest percentages of chloride in the
fuel emitted as HCl and nitrogen in the fuel that was subsequently
emitted as NOX.

  Table 3--Emissions Data From Six Combustors That Burned Hog Fuel or a Combination of Hog Fuel and Sander Dust
----------------------------------------------------------------------------------------------------------------
                 Sample number                      1          2          3          4          5          6
----------------------------------------------------------------------------------------------------------------
Fuel mixture, %Hog fuel/Sander dust...........      100/0      75/25      85/15      60/40      60/40      60/40
Hog Fuel content (%, dry basis):
    Chloride..................................       0.02       0.01       0.01       0.02       0.02       0.02
    Nitrogen..................................       0.58       0.56       0.56       0.51       0.58       0.56
    Sulfur....................................       0.02       0.04       0.04       0.04       0.05       0.03
Sander dust content (%, dry basis):
    Chloride..................................  .........       0.18       0.18       0.16       0.15       0.15
    Nitrogen..................................  .........        3.7        3.7        3.2        3.4        3.8
    Sulfur....................................  .........       0.05       0.05       0.06       0.04       0.03
Total Fuel Content (lb/hr):
    Chloride..................................        1.7        3.3        2.1        6.0        6.4        5.6
     Nitrogen.................................         49         84         60        136        151        143
    HCl.......................................       0.17       0.19       0.08       0.09       0.11       0.16
    NOX.......................................         26         53         31         45         48         53
Emissions (lb/MMBtu):
    HCl.......................................     0.0024     0.0038     0.0017     0.0012     0.0015     0.0023
    NOX.......................................       0.38       1.08       0.69       0.62       0.64       0.75
% of Cl in Fuel Emitted as HCl................        9.6        5.5        3.5        1.4        1.7        2.8
% of N in Fuel Emitted as NOX.................       16.1       19.3       15.7       10.1        9.7       11.2
----------------------------------------------------------------------------------------------------------------

    EPA's Response: We recognize that the studies have shown that there
are decreased HAP emissions from burning resinated wood residuals. As
we have stated previously, however, the criterion or test in
determining the legitimacy criterion is based on the level of
contaminants in the secondary material itself, and not by comparing the
differences in emissions. We believe that in order for a non-hazardous
secondary material to be considered a non-waste fuel, it must be
similar in composition, whereas comparing the emissions profiles
between combustion units that burn traditional fuels and non-hazardous
secondary materials only tells one how well the combustion unit is
operating, not what the material is that is being burned. Thus, while
the Agency recognizes that such emissions data can be useful in
determining whether or not burning such material presents a risk to
human health or the environment, we believe it says nothing in terms of
whether or not the non-hazardous secondary material is a legitimate
non-waste fuel (see also Section V.D.3 discussion on legitimacy
criteria).
    In response to some of the specific comments made, we would note
that none of the studies or data provided information on formaldehyde
emissions, the HAP that we identified that we were most concerned with
in the proposal.\103\ While the EPA study did state that organics were
not detected above typical wood fuel, it is not possible to ascertain
what percentage of the material that was burned was represented by
resinated wood residuals. Thus, we do not know how much resinated wood
materials were in the samples that were tested and how it correlates to
the emissions data.
---------------------------------------------------------------------------

    \103\ 75 FR 31862.
---------------------------------------------------------------------------

    We also acknowledge that resins are made from H, N, C, and O.
However, our concern rests with the amount of formaldehyde (which is a
HAP and also is made of H, C, and O) that is generated in the stack.
While formaldehyde may be generated as a product of incomplete
combustion, it may also be emitted from the stack if it is present in
the fuel material and is not combusted at all. In other words, if some
of the formaldehyde escapes combustion while in the fuel chamber and is
emitted in the stack, more formaldehyde is likely to escape. A unit
combusting 10 tons of formaldehyde is likely to result in more
formaldehyde emissions than a unit combusting one ton of formaldehyde
simply due to the fact that there is more formaldehyde in the fuel.
Therefore, none of the information provided addresses our concern
regarding formaldehyde emissions. However, given that Public Law 111-
199 will decrease formaldehyde levels in the resinated wood residuals,
the combustion of resinated wood residuals should not increase the
amount of formaldehyde that is emitted.
7. Used Oil
    In the ANPRM, EPA had stated that off-specification (or ``off-
spec'') used oil that is collected from repair shops is generally
thought to be originally discarded, but that on-specification (or ``on-
spec'') used oil was considered to be a product fuel, not a waste,
because it meets the fuel specification requirements of 40 CFR
279.11.\104\ However, between the ANPRM and the proposal, EPA modified
its view of on-spec used oil and identified it as a traditional fuel
because the Agency had decided that the on-spec used oil is similar in
composition to virgin fuel oil and has been historically managed as a
valuable fuel product rather than as a waste.\105\
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    \104\ See 74 FR at 58.
    \105\ See 75 FR 31855, 31861, 31864.
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    While EPA considers on-spec used oil to be an alternative fuel and
thus, within our definition of traditional fuel (see Section VII.A),
the Agency finds that the rationale in the ANPRM also provides a valid
reason for considering on-spec used oil to be a legitimate product fuel
and not a solid waste. The proposal also referred to the provisions of
40 CFR Part 279 that allows off-specification used oil to be processed
into on-specification used oil.\106\ Used oil may be rendered on-
specification, therefore, either by being generated that way or by
being processed under existing EPA regulations. These circumstances are
not changed by EPA's issuing today's rule.
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    \106\ 75 FR 31865, 31877.
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    On the other hand, based on the information received and the record
established for this rulemaking, we still consider off-spec used oil to
be a solid waste, as off-spec used oil contains contaminants at levels
that are not comparable to those in traditional fuels. Under the
existing used oil regulations promulgated under RCRA, off-spec used oil
can only be used in limited devices, as identified in 40 CFR 279.61,
including small oil-fired space heaters provided the burner meets the
provisions of 40 CFR 279.23.
    EPA reiterates that the determination as to the waste status of
used oil does not reopen the regulations in Part 279. Those regulations
remain in place. This rule considers the waste status for purposes of
CAA sections 112 and 129 based on the existing regulations. Further,
EPA is specifically clarifying in this final rule that used oil
combusted in an oil-fired space heater that meets the provisions of 40
CFR 279.23 need not be tested to establish whether or not such oil is
on or off-spec. This includes used oil generated by small facilities
such as auto repair shops and machine shops that have such units, and
used oil-generated by homeowners who change their own oil (referred to
as ``do-it-yourself'' or ``DIY'' oil) that are burned in such units.
This is because the CISWI regulations promulgated elsewhere in the
Federal Register today do not establish emissions limits for such
units, and therefore the concerns of the commenters that such units
would have to comply with CAA Section 129 standards have been addressed
for this population of combustion units.
    Comment: Many argued that all used oil is a traditional fuel and
should not be considered a solid waste regardless of its chemical
composition, as it is treated as a valuable product no different than
virgin fuel oil. Thus, some commenters agreed with EPA that on-spec
used oil is a traditional fuel, but disagreed with the Agency's
determination that off-spec used oil is a solid waste.
    Other commenters believe that that used oil, both on- and off-spec,
falls within the ``ordinary everyday sense'' of discarded materials
whether they are burned or not and that all used oil should be
classified as a solid waste. Indeed, EPA does not identify any
situation in which these secondary materials are not wastes, except
when they are burned for energy recovery. Thus, EPA is essentially
claiming that non-hazardous secondary materials, including used oil,
which would otherwise indisputably be wastes become non-wastes solely
because they can be burned with energy recovery. Neither RCRA nor any
of the case law interpreting RCRA lends the slightest support to that
notion.
    EPA's Response: We disagree that off-spec used oil should be
considered a traditional fuel, or even a non-waste fuel, since as we
have discussed elsewhere in the preamble, such used oil contains
contaminants at levels that are not comparable to (or lower than) in
traditional virgin refined fuel oil. In fact, off-spec used oil may
contain contaminants at levels that are significantly higher than those
in traditional virgin refined fuel oil. On the other hand, used oil
that has been determined to be on-spec contains contaminants at levels
below the maximum concentration limits established in the standards,
levels that

EPA considers to be comparable to (or less than) those in traditional
virgin refined fuel oil.\107\ In accordance with 40 CFR part 279, once
used oil is determined to be on-spec, it is no longer regulated under
the used oil management standards.\108\
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    \107\ See Used Oil Final Rule, 50 FR 49181 (November 29, 1985).
    \108\ Once used oil is claimed to be on-spec and the marketer
complies with the requirements for analysis and record retention,
notification, and record tracking shipment to on-specification
burners, it is no longer subject to other management standards. We
note that today's rule does not change any of the regulations in
place that regulate on-spec used oil.
---------------------------------------------------------------------------

    We also disagree that we are defining the use of used oil as fuel
oil as the only situation where used oil is not a solid waste. RCRA is
silent on the issue of whether or not used oil is or is not a solid
waste. This rulemaking effort is the first to determine in which
situations used oil would be considered a solid waste. Additionally, 40
CFR part 279 puts no restrictions on the use of on-spec used oil once
it has been determined to be on-spec, which indicates that the Agency
has historically viewed this material as a commodity and not a waste.
We are also simply not opining on other situations where used oil is
used beyond its use as fuel as it does not matter for federal law.
States may make their own decisions on whether other uses are solid
wastes.
    Comment: Industry commenters argue that off-specification used oil
should not be considered a solid waste for a number of reasons relating
to the statute and EPA regulations, as well as policy preferences. (We
elaborate and respond to each of the comments separately, below. The
comments also refer to on-specification used oil in much of the
argument, but we have dealt with on-specification used oil above. Thus,
the comments and responses below only deal with off-specification used
oil issues.)
    Comment: Section 3014 of RCRA did not classify used oil as a waste
and instead established a separate regulatory program for used oil.
This section provides EPA with authority to regulate used oil that is
recycled, independent of any determination whether or not used oil is a
waste. Moreover, RCRA section 1004(37) defines used oil to include
``recycled oil'' that is ``burned.'' Consistent with this provision,
the used oil regulations in 40 CFR part 279 state ``EPA presumes that
used oil is to be recycled unless a used oil handler disposes of used
oil, or sends used oil for disposal.'' 40 CFR 279.10(a). The commenters
claim that these provisions mean that ``disposal'' is separate from
``burning'' because ``disposal'' must be separate from ``recycling.''
Thus, ``recycling'' is separate from ``solid waste'' because the two
terms are mutually exclusive.
    In addition, the 40 CFR part 279 regulations already define what is
legitimate used oil recycling under section 3014 of RCRA, which
includes recycling of off-specification used oil with appropriate
environmental safeguards. EPA cannot now reverse this determination
without a reasoned analysis.
    Another provision of EPA's hazardous waste regulations, 40 CFR
section 261.33, supports this position with respect to whether off-
specification used oil is a solid waste. Under this provision,
commercial chemical products and intermediates and off-specification
variants listed as hazardous wastes in 40 CFR 261.33, as well as some
other materials not relevant here, are solid wastes when burned for
energy recovery unless the commercial chemicals are themselves fuels.
Commercial chemicals that are themselves fuels are not wastes when
burned for energy recovery. According to the comments, even off-
specification variants of the commercial chemical products may be
burned as fuels and not be considered solid waste. See 40 CFR 261.33(a)
and (b); 40 CFR 261.2(c)(2)(B)(ii). The argument is that off-
specification used oil should also be treated as a non-waste when
burned for energy recovery. That is, used oil, even if off-
specification, should be considered a product and not a waste under the
rationale that used oil is a commercial chemical product. Further, EPA
should not treat off-specification potentially hazardous wastes
different from off-specification non-hazardous wastes.
    EPA's Response: EPA disagrees that this analysis of the statute and
regulations shows that off-specification used oil is not a solid waste.
The Agency agrees that section 3014 of RCRA does not classify used oil
as either a waste or a commodity. However, section 1004(37), also, does
not define ``recycled oil'' as either a waste or a commodity. As EPA
has explained elsewhere in this preamble, the recycling of secondary
materials, per se, does not mean that such materials are either wastes
or not. Wastes may have value and may be recycled, but they are still
wastes. Used oil may be recycled by being ``burned,'' as provided under
1004(37), or may be recycled in any number of other ways. The mere fact
that the secondary material is recycled is not dispositive for
determining whether it is a waste. Thus, under the statute, contrary to
the commenter's view, ``recycling'' and ``solid waste'' are not
mutually exclusive. This means that EPA must decide whether the
secondary material is a waste based on the definition of solid waste in
RCRA 1004(27) by deciding whether material is ``discarded'' in the
plain meaning of the word.
    Similarly, part 279 does not provide that the terms, ``recycling''
and ``solid waste,'' are mutually exclusive. Section 279.10(a) does
distinguish between materials that are clearly ``disposed of'' by, for
example, being thrown into a landfill, but makes no determination as to
whether recycled secondary material is ``discarded'' in any other
sense. Both ILCO and Owen Steel, for example, provide examples of
recycling of wastes. As EPA continues to emphasize, wastes may be
recycled even by being burned for energy recovery, but they are still
wastes.
    As mentioned above, based on the information received and the
record established for this rulemaking, we have concluded that off-spec
used oil does not meet the legitimacy criteria. EPA has determined that
off-specification used oil is a solid waste when burned for energy
recovery because it has greater contaminant levels than fuel oils and
its markets are limited due to this contamination. In particular, 40
CFR part 279 restricts the burning of off-specification used oil to
industrial furnaces, industrial boilers, utility boilers, certain used
oil-fired space heaters, and hazardous waste incinerators and
specifically excludes non-industrial boilers, such as those located in
apartment and office buildings, schools, and hospitals. For a more
detailed discussion of off-spec used oil, see 75 FR 31865. On-
specification used oil, on the other hand, is not a waste because it
has contaminant concentrations similar to fuel oils. Due to this, 40
CFR part 279 does not restrict where on-specification used oil can be
burned. The definitions cited by the commenters in the statute and
regulations do not affect these determinations.
    Section 261.33, also, does not affect EPA's interpretation of the
waste status of used oil. That provision deals with hazardous wastes
and EPA has repeatedly stated that it is not reopening its RCRA
subtitle C regulations for comment. In any event, however, section
261.33 provides that chemicals manufactured as a fuel may be burned for
energy recovery. It does not apply to secondary materials that may
later be used as fuels when their original use was different.

    Furthermore, EPA is not making any changes to 40 CFR part 279 by
virtue of this rule. The Agency is not reversing itself on any part of
40 CFR part 279. Also, 40 CFR part 279 makes no determination regarding
the nature of the CAA regulations for any facilities that burn used oil
and EPA is not amending 40 CFR part 279 to state whether any used oil
is a waste or not. Based on the current provisions of 40 CFR part 279,
it is entirely reasonable for the Agency to find that on-specification
used oil is not a waste, while off-specification used oil is a waste.
Also, we would note that off-spec used oil may still be burned in the
same types of facilities provided in 40 CFR part 279, but the CAA must
determine how they are to be controlled based on the fact that the off-
spec used oil is a waste.
    Comment: If EPA classifies burning off-specification used oil as a
waste, it will no longer be covered by the Part 279 Used Oil Management
Standards. As EPA noted when it promulgated the Part 279 Used Oil
Management Standards, section 3014 only authorizes the regulation of
oil that is destined for recycling, not oil that is ``discarded.''
    EPA's Response: EPA disagrees with this comment. As noted above,
EPA is not changing the used oil regulations and off-spec used oil
burned as a waste would still be subject to 40 CFR part 279. The
commenter is conflating the clear disposal of used oil--throwing it in
a landfill, for example--with the concept of ``discard.'' ``Discard''
is not used in 40 CFR part 279 and ``disposal'' is not a congruent term
to ``discard.'' That is, the regulations at 40 CFR part 279 do not
discuss or address whether used oil has been discarded; rather the
requirements ensure that used oil that is recycled is done so in a
manner that protects human health and the environment.
    Also, as noted repeatedly in the rulemaking record, wastes may be
recycled as a fuel, but they would still be wastes and would be
discarded. The determination in this rule that off-spec used oil is a
waste only means that the facilities that burn it are burning it as a
waste and they will be subject to the appropriate CAA authorities. EPA
has not previously opined as to the consequences under the CAA of the
various facilities that burn used oil.
    Comment: If EPA fails to classify off-specification used oil as a
product, it will be in violation of the Congressional mandate to
promulgate regulations that ``do not discourage the recovery or
recycling of used oil, consistent with the protection of human health
and the environment.'' 42 U.S.C. 6935(a).
    EPA's Response: EPA disagrees with this comment. The Agency is
constrained by the provisions of RCRA that define solid waste as
material that is discarded. Furthermore, we feel the definitions
established in this rulemaking in fact do not discourage the recovery
or recycling of used oil. For example, EPA is specifically clarifying
in this final rule that used oil combusted in an oil-fired space heater
that meets the provisions of 40 CFR 279.23 need not be tested to
establish whether or not such oil is on or off-spec. This includes used
oil generated by small facilities such as auto repair shops and machine
shops that have such units, and used oil-generated by homeowners who
change their own oil (referred to as ``do-it-yourself'' or ``DIY'' oil)
that are burned in such units. This is because the CISWI regulations
promulgated elsewhere in the Federal Register today do not establish
emissions limits for such units, and therefore the concerns of the
commenters that such units would have to comply with CAA Section 129
standards have been addressed for this population of combustion units.