ton estimate than direct PM2.5 because it does not directly
transform into PM2.5, and because sulfate particles formed
from SO2 emissions can transport many miles, including over
areas with low populations. Direct PM2.5 emissions convert
directly into ambient PM2.5, thus, to the extent that
emissions occur in population areas, exposures to direct
PM2.5 will tend to be higher, and monetized health benefits
will be higher than for SO2 emissions.
    For context, it is important to note that the magnitude of the PM
benefits is largely driven by the concentration response function for
premature mortality. Experts have advised the EPA to consider a variety
of assumptions, including estimates based on both empirical
(epidemiological) studies and judgments elicited from scientific
experts, to characterize the uncertainty in the relationship between
PM2.5 concentrations and premature mortality. For this rule,
we cite two key empirical studies, the American Cancer Society cohort
study \3\ and the extended Six Cities cohort study.\4\ In the RIA for
this rule, which is available in the docket, we also include benefits
estimates derived from expert judgments and other assumptions.
---------------------------------------------------------------------------

    \3\ Pope, et al., 2002. ``Lung Cancer, Cardiopulmonary
Mortality, and Long-term Exposure to Fine Particulate Air
Pollution.'' Journal of the American Medical Association. 287:1132-
1141.
    \4\ Laden, et al., 2006. ``Reduction in Fine Particulate Air
Pollution and Mortality.'' American Journal of Respiratory and
Critical Care Medicine. 173: 667-672.
---------------------------------------------------------------------------

    The EPA strives to use the best available science to support our
benefits analyses. We recognize that interpretation of the science
regarding air pollution and health is dynamic and

evolving. After reviewing the scientific literature and recent
scientific advice, we have determined that the no-threshold model is
the most appropriate model for assessing the mortality benefits
associated with reducing PM2.5 exposure. Consistent with
this recent advice, we are replacing the previous threshold sensitivity
analysis with a new ``LML'' assessment. While a LML assessment provides
some insight into the level of uncertainty in the estimated PM
mortality benefits, the EPA does not view the LML as a threshold and
continues to quantify PM-related mortality impacts using a full range
of modeled air quality concentrations.
    Most of the estimated PM-related benefits in this rule would accrue
to populations exposed to higher levels of PM2.5. Using the
Pope, et al., (2002) study, 85 percent of the population is exposed at
or above the LML of 7.5 [mu]g/m\3\. Using the Laden, et al., (2006)
study, 40 percent of the population is exposed above the LML of 10
[mu]g/m\3\. It is important to emphasize that we have high confidence
in PM2.5-related effects down to the lowest LML of the major
cohort studies. This fact is important, because as we estimate PM-
related mortality among populations exposed to levels of
PM2.5 that are successively lower, our confidence in the
results diminishes. However, our analysis shows that the great majority
of the impacts occur at higher exposures.
    This analysis does not include the type of detailed uncertainty
assessment found in the 2006 PM2.5 NAAQS RIA because we lack
the necessary air quality input and monitoring data to run the benefits
model. In addition, we have not conducted any air quality modeling for
this rule. The 2006 PM2.5 NAAQS benefits analysis \5\
provides an indication of the sensitivity of our results to various
assumptions.
---------------------------------------------------------------------------

    \5\ U.S. Environmental Protection Agency, 2006. Final Regulatory
Impact Analysis: PM2.5 NAAQS. Prepared by Office of Air
and Radiation. October. Available on the Internet at http://www.epa.gov/ttn/ecas/ria.html.
---------------------------------------------------------------------------

    It should be emphasized that the monetized benefits estimates
provided above do not include benefits from several important benefit
categories, including reducing other air pollutants, ecosystem effects,
and visibility impairment. The benefits from reducing HAP have not been
monetized in this analysis, including reducing 25,000 tons of CO, 470
tons of HCl, 4.1 tons of Pb, 0.95 tons of Cd, 260 pounds of Hg and 92
grams of total D/F each year. Although we do not have sufficient
information or modeling available to provide monetized estimates for
this rulemaking, we include a qualitative assessment of the health
effects of these air pollutants in the RIA for this rule, which is
available in the docket.
    In addition, the monetized benefits estimates provided in Table 12
of this preamble do not reflect the disbenefits associated with
increased electricity and fuel consumption to operate the control
devices. We estimate that the increases in emissions of CO2
would have disbenefits valued at $3.8M at a 3 percent discount rate.
Carbon Dioxide-related disbenefits were calculated using the social
cost of carbon, which is discussed further in the RIA. However, these
disbenefits do not change the rounded total monetized benefits. In the
RIA, we also provide the monetized CO2 disbenefits using
discount rates of 5 percent (average), 2.5 percent (average), and 3
percent (95th percentile).

II. NHSM Proposed Revisions

A. Statutory Authority

    The EPA is proposing amendments to the NHSM regulations under the
authority of sections 2002(a)(1) and 1004(27) of the RCRA, as amended,
42 U.S.C. 6912(a)(1) and 6903(27). Section 129(a)(1)(D) of the CAA
directs the EPA to establish standards for CISWI, which burn solid
waste. Section 129(g)(6) provides that the term ``solid waste'' is to
be established by the EPA under RCRA (42 U.S.C. 7429). Section
2002(a)(1) of RCRA authorizes the Agency to promulgate regulations as
are necessary to carry out its functions under the Act. The statutory
definition of ``solid waste'' is provided in RCRA section 1004(27).

B. What is the intent of this proposal?

    Today's proposal would clarify several provisions in 40 CFR part
241, which provides the standards and procedures for identifying
whether NHSM are solid waste when used as fuels or ingredients in
combustion units. The part 241 regulations were promulgated on March
21, 2011, in the ``Identification of Non-Hazardous Secondary Materials
That Are Solid Waste'' final rule (the 2011 NHSM final rule).\6\ On the
same day, the EPA promulgated final emissions standards for both area
and major source boilers and process heaters under section 112 of the
CAA and for CISWI under section 129 of the CAA, as well as for new and
existing sewage sludge incinerators.\7\ These rules are interrelated
because facilities that burn solid waste, as that term is defined under
section 129(g)(6) of the CAA, are regulated as CISWI units pursuant to
section 129 and facilities that do not burn solid waste are regulated
as boilers and process heaters, under section 112.
---------------------------------------------------------------------------

    \6\ 76 FR 15456.
    \7\ See National Emissions Standards for Area Source Industrial,
Commercial, and Institutional Boilers (76 FR 15554), National
Emission Standards for Hazardous Air Pollutants for Major Sources:
Industrial, Commercial, and Institutional Boilers and Process
Heaters (76 FR 15608), Standards of Performance for New Stationary
Sources and Emission Guidelines for Existing Sources: Commercial and
Industrial Solid Waste Incineration Units (76 FR 15704), and
Standards of Performance for New Stationary Sources and Emission
Guidelines for Existing Sources: Sewage Sludge Incineration Units
(76 FR 15372). We also note that on the same day, EPA announced it
was initiating a reconsideration process with respect to certain
aspects of the CAA section 112 and 129 rules so as to take
additional comment and provide opportunity for submission of
information relevant to those standards. 76 FR 15266.
---------------------------------------------------------------------------

    Since promulgation of the 2011 NHSM final rule, the regulated
community has raised a number of issues and concerns regarding the part
241 requirements, including the implementation of those requirements.
For example, the regulated community raised concerns and questions as
to certainty about whether particular materials are solid wastes and
how they could demonstrate compliance with the legitimacy criteria--
with most focusing on the contaminant legitimacy criterion for NHSM
used as fuels (codified in Sec.  241.3(d)(1)(iii)). Further, the
regulated community asserts that under the current NHSM rule, waste
streams that the Agency itself found to be non-waste fuels when
combusted may not meet the legitimacy criteria as established (e.g.,
resinated wood). It was also brought to the Agency's attention that the
provision identifying tires recovered from an established tire
collection program as a non-waste fuel when combusted is limited to
tires ``from the point of removal from the vehicle through arrival at
the combustion facility.'' The regulated community asserts that this
language precludes burning as a non-waste fuel off-specification tires
(including factory scrap tires) that have never been placed on an
automobile, even though they are not discarded.
    The Agency has re-examined the 2011 NHSM final rule and is
proposing amendments and clarifications on certain issues on which we
have received new information, as well as specific targeted revisions
that are appropriate in order to allow implementation of the rule as
the EPA originally intended. The Agency is not reopening the entire
rule for reconsideration and will not respond to comments directed
toward rule provisions that are not specifically identified in this
proposal.

C. What is the scope of this proposal?

    The regulatory changes being proposed today are summarized below.
The intent of this summary is to give a brief overview of the proposed
changes. More detailed discussions, including the Agency's rationale
for these proposed changes, are discussed in section II.D of today's
action. In addition, to aid commenters in their review, the EPA has
also included in the docket for today's proposal an informational
redline/strikeout version of the proposed revised regulations as
compared to the current CFR.
    The EPA is soliciting comment only on these targeted changes and is
not reopening any other issues in the final NHSM rule. Comments that go
beyond the scope of this narrow RCRA rulemaking will not be addressed
by the Agency when it finalizes today's proposed rule.
1. Revised Definitions
    In today's action, the EPA is proposing to revise certain
definitions codified in Sec.  241.2. Specifically, the EPA is proposing
to revise, for the purposes of clarifying the regulations, the
following definitions: (1) ``clean cellulosic biomass,'' (2)
``contaminants,'' and (3) ``established tire collection programs.''
a. Clean Cellulosic Biomass
    The EPA is proposing to revise the definition of ``clean cellulosic
biomass'' to list additional examples of biomass materials that are
appropriately included within this definition. The 2011 NHSM final rule
defined ``clean cellulosic biomass'' as meaning ``those residuals that
are akin to traditional cellulosic biomass, such as forest-derived
biomass (e.g., green wood, forest thinnings, clean and unadulterated
bark, sawdust, trim, and tree harvesting residuals from logging and
sawmill materials), corn stover and other biomass crops used
specifically for energy production (e.g., energy cane, other fast
growing grasses), bagasse and other crop residues (e.g., peanut
shells), wood collected from forest fire clearance activities, trees
and clean wood found in disaster debris, clean biomass from land
clearing operations, and clean construction and demolition wood. These
fuels are not secondary materials or solid wastes unless discarded.
Clean biomass is biomass that does not contain contaminants at
concentrations not normally associated with virgin biomass materials''
(codified in 40 CFR 241.2).
    In today's proposal, the EPA is adding more examples of biomass
materials that should be included within this definition. This
regulatory revision would not change the Agency's intent under the
March 2011 final rule, but would identify additional materials that are
``clean cellulosic biomass,'' and, thus, would be a traditional fuel
under these regulations. While the list of clean biomass materials is
not exhaustive, it is more comprehensive than the list that appeared in
the definition included in the 2011 NHSM final rule.
    Thus, the EPA is proposing to revise the definition of ``clean
cellulosic biomass'' as follows: ``Clean cellulosic biomass means those
residuals that are akin to traditional cellulosic biomass, including,
but not limited to: agricultural and forest-derived biomass (e.g.,
green wood, forest thinnings, clean and unadulterated bark, sawdust,
trim, tree harvesting residuals from logging and sawmill materials,
hogged fuel, wood pellets, untreated wood pallets); urban wood (e.g.,
tree trimmings, stumps, and related forest-derived biomass from urban
settings); corn stover and other biomass crops used specifically for
the production of cellulosic biofuels (e.g., energy cane, other fast
growing grasses, byproducts of ethanol natural fermentation processes);
bagasse and other crop residues (e.g., peanut shells, vines, orchard
trees, hulls, seeds, spent grains, cotton byproducts, corn and peanut
production residues, rice milling and grain elevator operation
residues); wood collected from forest fire clearance activities, trees
and clean wood found in disaster debris, clean biomass from land
clearing operations, and clean construction and demolition wood. These
fuels are not secondary materials or solid wastes unless discarded.
Clean biomass is biomass that does not contain contaminants at
concentrations not normally associated with virgin biomass materials.''
    In accordance with the above traditional fuels definition, clean
construction and demolition wood could be combusted as a traditional
fuel if it does not contain contaminants at concentrations not normally
associated with virgin wood. However, the final NHSM rule also
addressed construction and demolition wood that may contain
contaminated material (76 FR 15485). Additionally, construction and
demolition wood that has been processed (e.g., sorted) to remove
contaminants (such as lead-painted wood, treated wood containing
contaminants such as arsenic and chromium, metals and other non-wood
materials), and is size-reduced prior to burning likely meets the
processing and legitimacy criteria for contaminants, and thus can be
combusted as a non-waste fuel. Such construction and demolition wood
may contain de minimis amounts of contaminants and other materials
provided it meets the legitimacy criteria for contaminant levels (76 FR
154586).
    See section II.D.1 for more information regarding the revised
definition of ``clean cellulosic biomass.''
b. Contaminants
    The 2011 NHSM final rule defined ``contaminants'' as meaning ``any
constituent in non-hazardous secondary materials that will result in
emissions of the air pollutants identified in Clean Air Act section
112(b) or the nine pollutants listed under Clean Air Act section
129(a)(4) when such non-hazardous secondary materials are burned as a
fuel or used as an ingredient, including those constituents that could
generate products of incomplete combustion'' (codified in 40 CFR
241.2).
    The EPA is proposing to revise the definition of ``contaminants''
to clarify what will be considered contaminants for the purposes of the
legitimacy criteria. Specifically, several pollutants listed in CAA
sections 112(b) and 129(a)(4) form during combustion, so elemental
precursors to those pollutants that are found in the NHSM prior to
combustion are being added to the revised contaminant definition in
place of the pollutants themselves. In addition, those pollutants from
CAA section 112(b) and 129(a)(4) lists that we do not expect to find in
any NHSM are also specifically excluded from the definition of
contaminants (see discussion in section II.D.1.b). We do not expect
this change to affect any of the decisions previously made on whether
NHSMs are solid wastes when burned as fuels.
    We are also proposing to revise this definition to clarify that,
for the purpose of meeting the contaminant legitimacy criterion,
contaminant levels found in the NHSM prior to being fed into combustion
units, should be evaluated rather than emissions from those units.
Specifically, there appears to be confusion within the regulated
community that in determining whether or not a NHSM meets the
``contaminant legitimacy criterion,'' emissions from the combustion
unit are to be considered in making such an evaluation. Both in today's
proposal and in the 2011 NHSM final rule preamble and regulatory text,
it was clear that the NHSM itself was to be evaluated and not the
emissions from the combustion unit. This approach is more appropriate,
since the question is whether or not a NHSM is being burned for
discard, and elevated contaminant levels in the

NHSM could be indicative of burning for discard. Thus, the EPA is
clearing up any inadvertent ambiguity in the regulation itself. The
rationale for this approach can be found in the rulemaking record for
the final rule.\8\ EPA is not proposing any revisions to that approach,
but is simply clarifying the regulatory text to better reflect the
Agency's intention.
---------------------------------------------------------------------------

    \8\ For example, see 76 FR 15524-5.
---------------------------------------------------------------------------

    Thus, the Agency is proposing to revise the definition of
``contaminants'' as follows: ``Contaminants means all pollutants listed
in Clean Air Act sections 112(b) and 129(a)(4), with modifications
outlined in this definition to reflect constituents found in non-
hazardous secondary materials prior to combustion. The definition
includes the following elemental contaminants that commonly form Clean
Air Act section 112(b) and 129(a)(4) pollutants: Antimony, arsenic,
beryllium, cadmium, chlorine, chromium, cobalt, fluorine, lead,
manganese, mercury, nickel, nitrogen, selenium, and sulfur. The
definition does not include the following Clean Air Act section 112(b)
and 129(a)(4) pollutants that are either unlikely to be found in non-
hazardous secondary materials prior to combustion or are adequately
measured by other parts of this definition: Hydrogen chloride (HCl),
chlorine gas (Cl2), hydrogen fluoride (HF), nitrogen oxides
(NOX), sulfur dioxide (SO2), fine mineral fibers,
particulate matter, coke oven emissions, diazomethane, white
phosphorus, titanium tetrachloride, m-cresol, o-cresol, p-cresol, m-
xylene, o-xylene, and p-xylene.'' For more information and the
rationale regarding the proposed revision to the definition of
``contaminants,'' see section II.D.1 of today's proposed rule.
c. Established Tire Collection Programs
    The EPA is proposing to revise the definition of ``established tire
collection programs'' to clarify that off-specification tires
(including factory scrap tires) are not discarded when combusted, in
the same way as tires that are removed from vehicles.
    The 2011 NHSM final rule defined ``established tire collection
program'' as meaning ``a comprehensive collection system that ensures
scrap tires are not discarded and are handled as valuable commodities
in accordance with section 241.3(b)(2)(i) from the point of removal
from the vehicle through arrival at the combustion facility'' (codified
in 40 CFR 241.2). However, that definition did not account for
``factory scrap'' or ``off-specification'' tires that are contractually
arranged to be collected, managed, and transported between a tire
manufacturer (including retailers or other parties involved in the
distribution and sale of new tires) and a combustor, which is analogous
to how scrap tires removed from vehicles are managed.
    Thus, the Agency is proposing to revise the definition of
``established tire collection program'' to mean ``a comprehensive
collection system or contractual arrangement that ensures scrap tires
are not discarded and are handled as valuable commodities through
arrival at the combustion facility.'' For more information regarding
the proposed revision to the definition of ``established tire
collection program,'' see section II.D.1 of today's proposed rule.
2. Contaminant Legitimacy Criterion for NHSM Used as Fuels
    The 2011 NHSM final rule codified three self-implementing
legitimacy criteria that NHSM must meet in order to be considered a
non-waste fuel when burned in a combustion unit (40 CFR 241.3(d)(1)(i)-
(iii)). One of these criteria focused on comparing levels of
contaminants contained in the NHSM to levels of those constituents
found in traditional fuels. Specifically, the contaminant legitimacy
criterion for fuels was finalized as follows: ``The non-hazardous
secondary material must contain contaminants at levels comparable in
concentration to or lower than those in traditional fuels which the
combustion unit is designed to burn. Such comparison is to be based on
a direct comparison of the contaminant levels in the non-hazardous
secondary material to the traditional fuel itself.'' 40 CFR
241.3(d)(1)(iii). The existing language provides flexibility for
persons to make comparisons on a contaminant-by-contaminant basis or on
a group of contaminants-by-group of contaminants basis in determining
what constituents to compare. The phrase ``traditional fuels which the
combustion unit is designed to burn'' also provides the flexibility to
choose among multiple fuel options.
    Industry groups have expressed concern that the regulatory language
does not clearly reflect the EPA's intent.\9\ The EPA agrees that the
regulatory language can be revised to better reflect the EPA's intent
in implementing the contaminant legitimacy criterion. Therefore, the
Agency is proposing to revise this criterion to read, ``The non-
hazardous secondary material must contain contaminants or groups of
contaminants at levels comparable in concentration to or lower than
those in traditional fuel(s) which the combustion unit is designed to
burn. In determining which traditional fuel(s) a unit is designed to
burn, persons can choose a traditional fuel that can be or is burned in
the particular type of boiler, whether or not the combustion unit is
permitted to burn that traditional fuel. In comparing contaminants
between traditional fuel(s) and a non-hazardous secondary material,
persons can use ranges of traditional fuel contaminant levels compiled
from national surveys, as well as contaminant level data from the
specific traditional fuel being replaced. Such comparisons are to be
based on a direct comparison of the contaminant levels in both the non-
hazardous secondary material and traditional fuel(s) prior to
combustion.'' We are taking comment on how this revised contaminant
legitimacy criterion would apply to specific fuels.
---------------------------------------------------------------------------

    \9\ See, for example, June 24, 2011 letter from Tracey Norberg
of the Rubber Manufacturers Association and Paul Noe of the American
Forest & Paper Association to OSWER Assistant Administrator Mathy
Stanislaus. A copy of this letter can be found in the docket for
today's rule.
---------------------------------------------------------------------------

    For more information regarding the proposed revisions to the
contaminant legitimacy criterion for NHSM used as fuels, see section
II.D.2 of today's proposed rule.
3. Categorical Non-Waste Determinations for Specific NHSM Used as Fuels
    The EPA is proposing to identify several NHSMs as not being solid
waste when burned as a fuel in a combustion unit where the Agency has
sufficient information to determine that discard is not occurring when
these materials are being used as fuels. Specifically, the Agency
recognizes that certain NHSMs may not meet the legitimacy criteria,
especially the ``contaminant legitimacy criterion,'' in all instances,
but the material would still generally be considered a non-waste fuel.
While we do not agree it is appropriate for the regulated community to
make these judgments as part of the self-implementing aspects of the
NHSM final rule, it is appropriate that the Agency do so, by balancing
the legitimacy criteria and such other relevant factors that the
Administrator may identify, in determining that a NHSM is not a solid
waste when used as a fuel in a combustion unit. Thus, in today's
proposed rule, we are identifying the following specific materials as
non-waste fuels: (1) scrap tires that have not been discarded and are
managed under the oversight of established tire collection programs,
including tires removed from vehicles

and off-specification tires, and (2) resinated wood. Thus, persons who
burn these NHSMs as a fuel would not need to evaluate them using the
self-implementing legitimacy criteria when burned.
    In addition, the Agency recognizes that there may be other NHSMs
that should also be considered non-waste fuels, based on a balancing of
the legitimacy criteria with other relevant factors. Therefore, we are
proposing to create a petition process that would provide the regulated
community an opportunity to submit a rulemaking petition to the EPA for
a determination that a particular NHSM should not be considered solid
waste when burned as a fuel in a combustion unit. This process could be
used when a facility does not believe that the self-implementing
legitimacy criteria yields a clear result or does not accurately
reflect whether the material is being discarded. A brief discussion of
the specific NHSMs being proposed to be listed as not solid waste is
provided below, as well as an overview of the petition process for
identifying additional NHSMs as not being solid wastes when burned as a
fuel in a combustion unit for energy recovery. See section II.D.3 and 4
of today's proposed rule for a detailed discussion of these topics.
a. Scrap Tires
    In the 2011 NHSM final rule, the EPA determined that scrap tires
removed from vehicles and managed pursuant to established tire
collection programs would not be considered a solid waste. This
determination was codified in Sec.  241.3(b)(2)(i). This determination
was made after the EPA analyzed scrap tires removed from vehicles and
managed pursuant to established tire collection programs and concluded
that (1) these materials would meet the legitimacy criteria for fuels,
and (2) these materials were not discarded when transferred off-site
from the generating facility.\10\
---------------------------------------------------------------------------

    \10\ See 76 FR 15490-15499.
---------------------------------------------------------------------------

    Since promulgation of the 2011 NHSM final rule, the EPA has
received information that tire manufacturers, including downstream
distribution channels, may produce tires that are not suitable for use
on vehicles, but like the tires removed from vehicles, are usable as
legitimate fuels. They are, for all intents and purposes, the same as
the vehicle tires managed under the oversight of established tire
collection programs. As a result, the revised definition of
``established tire collection program,'' would encompass off-
specification tires (including factory scrap tires) that are
contractually arranged to be collected, managed, and transported
between a tire manufacturer, which would include retailers and other
parties involved in the distribution and sale of new tires and a
combustor. We note that tires coming from vehicles that are part of an
established tire collection program would be a non-waste fuel under the
2011 NHSM final rule. The EPA is not reopening this determination in
today's proposed rule.
    For clarity, the Agency is proposing to add scrap tires that are
not discarded and are managed under the oversight of established tire
collection programs, including tires removed from vehicles and off-
specification tires, to the categorical list of non-waste fuels (see 40
CFR 241.4(a)). For more on this determination and the off-specification
tires from tire manufacturers or downstream distribution channels, see
section II.D.3 of today's proposed rule.
b. Resinated Wood
    The 2011 NHSM final rule determined that resinated wood is not a
solid waste when used as a fuel regardless of whether it remained
within the control of the generator (see 40 CFR 241.3(b)(2)(ii)). This
determination was made after the EPA analyzed resinated wood and
concluded that (1) resinated wood generally would meet the legitimacy
criteria for fuels, and (2) resinated wood was not discarded when
transferred off-site from the generating facility.\11\ Today's action
proposes to revise part 241 to state affirmatively that resinated wood,
when used as a fuel, is not being burned for discard and is not a solid
waste. We are proposing to codify this determination based on our
belief that the use of resinated wood as fuel represents an integral
component to the wood manufacturing process and, as such, resinated
wood is not being discarded, and therefore not solid waste, when burned
as fuel. For more on this proposed revision, see section II.D.3 of
today's proposed rule.
---------------------------------------------------------------------------

    \11\ For a full discussion and rationale for why EPA reached
this conclusion, see 76 FR 15499-15502.
---------------------------------------------------------------------------

c. Rulemaking Petition Process for Other Non-Waste Determinations
    Under today's rule, the Agency is proposing to create a rulemaking
petition process that would provide persons an opportunity to submit a
rulemaking petition to the Administrator, seeking a categorical
determination for additional NHSMs to be listed in section 241.4(a) as
non-waste fuels. The process for submitting a rulemaking petition to
the Agency, as well as the factors a successful application must
include, is proposed in 241.4(b). For more information regarding the
rulemaking petition process, see section II.D.4 of today's proposal.
Parties have identified the potential of manure not being solid waste.
Parties can present information including data demonstrating that
manure is not discarded either through the existing non-waste petition
process or the proposed categorical determination process.
4. Additional Request for Comment
    As discussed elsewhere in this preamble, the Agency requests
additional information regarding pulp and paper sludge in order for the
Agency to determine whether a categorical determination that pulp and
paper sludge is a non-waste, when used as fuel, is appropriate.
Information that would be particularly helpful includes: (1)
Documentation of how the use of pulp and paper sludges that are used as
a fuel are integrated into the industrial production process and the
steps taken industry-wide to ensure that this NHSM is consistently used
as a legitimate fuel and is not discarded, including when transferred
to a different person for use as a fuel; (2) documentation on the
amount of pulp and paper sludges burned as a fuel (whether within the
control of the generator or outside the control of the generator), and
what determines which pulp and paper sludges are burned as a fuel, as
opposed to being land applied or disposed; (3) additional data
regarding the contaminant levels of the various HAP, such as chlorine
and metals, and what steps the industry has taken to ensure the quality
of these sludges when used as a fuel are consistent with that of fuel
product; (4) information on standard practices used to ensure that
these sludges have a meaningful heating value, including the types of
dewatering and other processing steps that these sludges are subject
to, as well as information on whether any pulp and paper sludges that
are burned as a fuel are done so without any processing, including
dewatering; and (5) when shipped to a different person for use as a
fuel, how these sludges are managed, including how they are shipped,
any processing that may occur, and how long these sludges are typically
stored prior to being burned as a fuel.
5. Clarification Letters Issued After Promulgation of the NHSM Final
Rule
    After promulgation of the 2011 NHSM final rule, a number of
questions were raised regarding certain issues,

including whether the EPA was changing its position regarding
``contained gaseous materials'' and whether they are solid wastes when
burned in combustion units. While there was no regulatory text or
discussion in the preamble to the final NHSM rule, the Agency did
respond to several comments that were submitted to the EPA during the
comment period. Specifically, its response to the fourth comment in
part 3b.I3 of the document entitled, ``Responses to Comments Document
for the Identification of Non-Hazardous Secondary Materials that are
Solid Waste (February 2011),'' \12\ created concerns among the
regulated community that the Agency had changed a long-standing
interpretation of what constitutes a ``contained gaseous material'' for
purposes of defining the term solid waste under RCRA.
---------------------------------------------------------------------------

    \12\ See ``Responses to Comments Document for the Identification
of Non-Hazardous Secondary Materials that are Solid Waste (February
2011). A copy of this document can be found at http://www.epa.gov/epawaste/nonhaz/define/index.htm.
---------------------------------------------------------------------------

    In a letter sent to the American Forest and Paper Association, the
EPA clarified that it was not changing its previous interpretations and
that such interpretations still were the Agency's position.\13\
Specifically, as we state in the letter, ``EPA was responding to a
comment requesting that we include in the NHSM final rule a definition
of `contained gaseous material.' The Agency does not believe that
including such a definition in the rule is necessary. However, our
response seems to have caused confusion about whether the Agency was
changing its prior interpretations regarding the burning of gaseous
materials, for example in fume incinerators, and whether or not such
burning is considered to be treatment of a solid waste by burning. The
response does not change any previous EPA positions. We clarify here
that the Agency's previous statements and interpretations remain
effective. Thus, burning of gaseous material, such as in fume
incinerators (as well as other combustion units, including air
pollution control devices that may combust gaseous material) does not
involve treatment or other management of a solid waste (as defined in
RCRA section 1004(27).'' Thus, we are stating again in the preamble to
today's proposed rule that we are not changing any of our previous
interpretations as it relates to whether ``contained gaseous material''
is a solid waste.
---------------------------------------------------------------------------

    \13\ May 13, 2011 Letter to Tim Hunt, American Forest and Paper
Association. A copy of this letter has been placed in the docket for
today's proposed rule.
---------------------------------------------------------------------------

    In addition to this letter, the Agency has also issued a number of
other letters in which we clarify how the 2011 NHSM final rule
addresses certain materials or activities. For example, the EPA has
issued clarification letters covering the following materials and
issues: (1) July 21, 2011, letter to Pamela F. Faggert, Dominion
Resources Services, regarding materials that are used in recirculation/
reinjection processes and CBO units; (2) August 5, 2011, letter to Sue
Briggum, Waste Management, regarding landfill gas; (3) August 5, 2011,
letter to Tracey Norberg, Rubber Manufacturers Association, regarding
off-specification tires (including factory scrap tires); and (4) August
15, 2011, letter to Jeff A. McNelly, ARIPPA, regarding coal refuse in
legacy piles. We are not taking comment on these letters, since they
reflect the Agency's interpretation of its existing March 21, 2011,
NHSM rule.
6. Clarification of the Process for Submittal of Non-Waste Petitions
    The 2011 NHSM final rule established a non-waste determination
process that provides persons with an administrative petition process
for receiving a formal determination from the EPA Regional
Administrator that a NHSM that is used as a fuel, and which is not
managed within the control of the generator, can be considered a non-
waste fuel provided they are able to demonstrate that such material has
not been discarded and is indistinguishable in all relevant aspects
from a fuel product. (40 CFR 241.3(c)).
    As discussed in the March 21, 2011 final rule (76 FR 15471), EPA
has not arbitrarily determined that secondary materials transferred
between companies are wastes. Instead, EPA examined a number of
specific recycled materials, both within the control of the generator
and transferred to a third party for recycling and decided that
materials are to be considered solid wastes except in certain instances
described in 40 CFR 241.3(b). These determinations were based on the
record available to EPA. In order to better reflect the evidentiary
record, EPA is proposing to amend the language of 40 CFR 241.3(a) to
state that except for materials described in 241.3(b), and newly
proposed section 241.4, combusted non-hazardous secondary materials are
``presumed'' to be solid wastes.
    This petition process provides an opportunity under 40 CFR 241.3(c)
for companies to show that their materials are not wastes. The petition
process is essential because NHSMs are recycled and managed in many
different ways and the Agency may lack the specific details in certain
cases to know whether or not such NHSMs are or are not waste (76 FR
15472). We believe that the petition process provides an important
assurance to the community on waste status and relevant standards and
also provides an opportunity to demonstrate that the particular NHSM
was not discarded. The Agency solicits comment on the petition process
as it relates this approach, and on whether or not the regulatory text
should also be changed to address this situation as it relates to the
petition process where such NHSM has not in fact been discarded.
    In evaluating whether to grant or deny the petition, the ultimate
question that EPA will need to answer is whether or not the NHSM has
been discarded. If the applicant is able to demonstrate that such NHSM
has not been discarded, including meeting the legitimacy criteria, it
is likely that the Agency will grant the petition. Under the existing
regulations, until EPA acts on such petition, the NHSM is considered to
be a solid waste. However, we would note that if the NHSM has not been
discarded, EPA's grant of the petition would apply as of the date that
the petition was submitted to the Agency. The Agency solicits comment
on whether or not the regulatory text should also be changed to address
this situation where such NHSM has not in fact been discarded.
    Since promulgation of the 2011 NHSM final rule, concerns have been
raised that the information required for a non-waste determination
petition would be extensive and the timeframe for issuance of the
decision lengthy. The Agency wishes to clarify that we do not intend
that the application required or the petition process itself to be
burdensome or time and resource intensive for the applicant.
    As noted in the March 2011 final rule, the applicant must
demonstrate that the NHSM that is to be burned as a fuel has not been
discarded, is a legitimate product fuel (per Sec.  241.3(d)(1)),
considering the five criteria identified in Sec.  241.3(c)(1)(i)-(v):
    (1) Whether market participants treat the non-hazardous secondary
material as a product rather than as a solid waste;
    (2) Whether the chemical and physical identity of the non-hazardous
secondary material is comparable to commercial fuels; \14\
---------------------------------------------------------------------------

    \14\ As discussed elsewhere in today's proposal, EPA is
clarifying that in making comparisons between the NHSM and the
traditional fuel, the owner or operator can consider individual
constituents or grouping of constituents. See section II.D.2 of this
preamble for further discussion.

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

    (3) Whether the non-hazardous secondary material will be used in a
reasonable time frame given the state of the market;
    (4) Whether the constituents in the non-hazardous secondary
material are released to the air, water or land from the point of
generation to the point just prior to combustion of the secondary
material at levels comparable to what would otherwise be released from
traditional fuels; and
    (5) Other relevant factors.\15\
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    \15\ The Agency included this criterion to allow the applicant
to make additional arguments that such NHSMs are a non-waste fuel.
For example, if there is a contractual or other written agreement
between the generator of the NHSM and the facility that combusts the
NHSM that lays out how this material is to be handled or used as a
fuel that may indicate how the material would meet the legitimacy
criteria, this would be a relevant factor that EPA would consider in
determining whether such NHSM is a non-waste fuel.
---------------------------------------------------------------------------

    Overall, applicants, in many cases can utilize existing information
already in hand (e.g., laboratory analysis data or process knowledge)
rather than develop additional information specifically for the non-
waste determination petition. In addition, as noted in the previous
footnote, there may already be a contractual or other written agreement
between the generator of the NHSM and the combustion facility that
burns such NHSM that lays out how this material is to be handled or
used as a fuel that may indicate how the material would meet the
legitimacy criteria that would be a relevant factor that EPA would
consider in determining whether such NHSM is a non-waste fuel. As noted
elsewhere in this preamble, EPA has collected contaminant data for
various traditional fuels, which are available for use in meeting the
contaminant legitimacy criterion as needed, to the extent that the
applicant wants to utilize these data.\16\ Potential applicants can
include the generator of the NHSM, the facility that combusts the NHSM,
an interested third party or a state agency (see FR 15530).
Applications can also be submitted for a single combustor or a class of
combustors, provided such combustion units are within the jurisdiction
of the Regional Administrator. Useful information could also include a
description of the nature of the relationship between the generator and
the combustor, as well as a description of how the NHSM will be managed
as it is transported off-site and after it arrives at the combustor. We
believe this type of information should be readily available to
potential applicants.
---------------------------------------------------------------------------

    \16\ EPA's contaminant data are provided at the Web site for the
NHSM rule at http://www.epa.gov/epawaste/nonhaz/define/index.htm.
However, as we have noted elsewhere, the applicant can rely on other
data that they may have or become aware of.
---------------------------------------------------------------------------

    In addition, the EPA does not intend that the application review
process itself be either time consuming or extensive. Rather, the
Regional Administrator will evaluate the petition and issue a draft
notice tentatively granting or denying the petition. Notification of
the decision will be provided by local newspaper or radio. Public
comment will be accepted for thirty days and a public hearing held upon
request. A final decision will be issued after consideration of the
comments as expeditiously as possible.
    In summary, we do not envision that the information submitted in a
petition for a non-waste determination would be more than is required
for making a self-determination that a NHSM is a non-waste when burned
within the control of the generator. However, because there are nearly
200,000 boilers and incinerators that can be used to burn such NHSMs,
the EPA believes it is important that the Agency have the information
necessary to ensure that the legitimacy criteria are met and that
materials are not being discarded. The Agency requests comment on
whether any other changes could be made to the non-waste determination
petition process to streamline the process, while at the same time
provide EPA with the opportunity to ensure that such NHSMs are not
being discarded. For example, because the public has had the
opportunity to comment on the basic criteria in determining whether the
NHSM should be considered a non-waste fuel, we are seeking comment on
whether the Agency should further streamline the process by not seeking
public comment on each individual petition.

D. Rationale for the Proposed Revisions to the Part 241 Requirements

    As noted above, the intent of this proposal is to identify certain
specific aspects of the rule which EPA is reconsidering and on which it
is soliciting public comment. The Agency is not reopening the entire
rule for reconsideration and will not respond to comments directed
toward rule provisions that are not specifically identified in this
proposal. Thus, the Agency is not providing additional discussion of
the background or rationale for the NHSM rule in general. For a
detailed discussion of the NHSM final rule, see 76 FR 15532-15545. The
EPA is proposing the revisions and clarifications discussed below.
1. Revised Definitions
    In today's action, the EPA is proposing to revise several
definitions codified in Sec.  241.2, including the definitions of
``clean cellulosic biomass,'' ``contaminants,'' and ``established tire
collection programs.''
a. Clean Cellulosic Biomass
    In today's action, we are proposing to revise the definition of
``clean cellulosic biomass.'' In particular, following promulgation of
the 2011 NHSM final rule, the Agency received additional information
regarding other types of biomass not explicitly listed in the
definition of clean cellulosic biomass codified in Sec.  241.2, which
persons believe also are clean cellulosic biomass. However, there was
some confusion as to whether the definition included these materials.
For example, questions arose whether the EPA would consider orchard
trees, vines and hulls, to be within the definition of clean cellulosic
biomass (and, therefore, a traditional fuel) if the biomass material
was not specifically listed within the regulatory definition.
Consequently, we are proposing to revise the definition of ``clean
cellulosic biomass'' in two ways: (1) to clarify that the list of
biomass materials are examples within the definition and is not
intended to be an exhaustive list, and (2) to provide a more
comprehensive list of clean cellulosic biomass to guide the regulated
community.
    Specifically, we are proposing to make the following revisions and
additions to the definition: (1) Explicitly acknowledge that the list
of biomass materials is not exclusive by adding the phrase,
``including, but not limited to''; (2) revise the category ``forest-
derived biomass'' to include ``agricultural biomass''; (3) add hogged
fuel, wood pellets, and untreated wood pallets as examples of forest-
derived biomass; (4) add the category of ``urban wood'' and provide
examples, including tree trimmings, stumps, and related forest-derived
biomass from urban settings (note that ``urban wood'' is limited to
forest-derived biomass from urban settings and does not include
construction and demolition materials. Certain construction and
demolition materials are included as a separate type of biomass within
the definition of ``clean cellulosic biomass''); (5) add more examples
of types of crop residues (vines, orchard trees, hulls, seeds spent
grains, cotton byproducts, corn and peanut production residues, rice
milling and grain elevator operation residues); and (6) revise the
category of ``other biomass crops used specifically for

energy production'' to read as ``other biomass crops used specifically
for the production of cellulosic biofuels'' and include ``byproducts of
ethanol natural fermentation processes'' as an example of this type of
biomass.
    These proposed revisions and additional examples more clearly
recognize and describe the various categories of biomass materials that
we consider to be within the definition of ``clean cellulosic biomass''
and, therefore, within the definition of traditional fuels. We believe
that these additional examples clearly meet the definition of clean
cellulosic biomass, in that they will not contain contaminants at
concentrations not normally associated with virgin biomass materials.
In fact, many of the examples being added in today's proposal are
themselves virgin materials (e.g., tree trimmings, stumps, orchard
trees, etc.). We believe that providing these additional examples
within the definition of clean cellulosic biomass is consistent with
the intent of the 2011 NHSM final rule. Further, we believe that such
revisions make it more clear that the types of biomass materials the
Agency would consider to be within the definition of clean cellulosic
biomass (and a traditional fuel) are not limited to those explicitly
listed in the definition, as we believe that it would be impractical if
not impossible to capture all types of biomass materials that can be
used as fuels within this single definition.
    Thus, in today's proposed rule, the EPA is proposing to revise the
definition of ``clean cellulosic biomass'' as follows: ``Clean
cellulosic biomass means those residuals that are akin to traditional
cellulosic biomass, including, but not limited to: agricultural and
forest-derived biomass (e.g., green wood, forest thinnings, clean and
unadulterated bark, sawdust, trim, tree harvesting residuals from
logging and sawmill materials, hogged fuel, wood pellets, untreated
wood pallets); urban wood (e.g., tree trimmings, stumps, and related
forest-derived biomass from urban settings); corn stover and other
biomass crops used specifically for the production of cellulosic
biofuels (e.g., energy cane, other fast growing grasses, byproducts of
ethanol natural fermentation processes); bagasse and other crop
residues (e.g., peanut shells, vines, orchard trees, hulls, seeds,
spent grains, cotton byproducts, corn and peanut production residues,
rice milling and grain elevator operation residues); wood collected
from forest fire clearance activities, trees and clean wood found in
disaster debris, clean biomass from land clearing operations, and clean
construction and demolition wood. These fuels are not secondary
materials or solid wastes unless discarded. Clean biomass is biomass
that does not contain contaminants at concentrations not normally
associated with virgin biomass materials.''
b. Contaminants
    In today's action, we are proposing a number of changes to the
definition of ``contaminants'' in an effort to clarify what
constituents are subject to the contaminant legitimacy criterion. The
proposed definition is as follows: ``Contaminants means all pollutants
listed in Clean Air Act sections 112(b) and 129(a)(4), with
modifications outlined in this definition to reflect constituents found
in non-hazardous secondary materials prior to combustion. The
definition includes the following elemental contaminants that commonly
form Clean Air Act section 112(b) and 129(a)(4) pollutants: antimony,
arsenic, beryllium, cadmium, chlorine, chromium, cobalt, fluorine,
lead, manganese, mercury, nickel, nitrogen, selenium, and sulfur. The
definition does not include the following Clean Air Act section 112(b)
and 129(a)(4) pollutants that are either unlikely to be found in non-
hazardous secondary materials prior to combustion or are adequately
measured by other parts of this definition: hydrogen chloride (HCl),
chlorine gas (Cl2), hydrogen fluoride (HF), nitrogen oxides
(NOX), sulfur dioxide (SO2), fine mineral fibers,
particulate matter, coke oven emissions, diazomethane, white
phosphorus, titanium tetrachloride, m-cresol, o-cresol, p-cresol, m-
xylene, o-xylene, and p-xylene.''
    Before discussing these changes, we first want to note that the
2011 NHSM final rule and today's proposed rule identify the same three
ways a chemical can be labeled a contaminant. First, it may be one of
the 187 HAP currently listed in CAA section 112(b); second, it may be
one of the nine pollutants listed under CAA section 129(a)(4); and
third, it may be one of a handful of chemicals whose combustion will
result in the formation of listed CAA section 112(b) and section
129(a)(4) pollutants (e.g., sulfur that will result in SO2).
Today's proposed definition provides clarification by listing the
constituents that belong to the third group.\17\ Specifically, several
pollutants listed in CAA section 112(b) and section 129(a)(4) form
during combustion, so elemental precursors to those pollutants that are
found in the NHSM prior to combustion are being added to the
contaminant definition in place of the pollutants themselves. For
example, when present in a NHSM undergoing combustion, chlorine readily
forms HCl, fluorine readily forms HF, nitrogen readily forms
NOX, and sulfur readily forms SO2. Because forms
of these four elements found in materials prior to combustion are not
directly identified as CAA air pollutants, yet the forms they take due
to combustion are directly identified as CAA air pollutants, we believe
it would be less confusing to include these elements in the
``contaminants'' definition.
---------------------------------------------------------------------------

    \17\ Eleven metal elements directly identified in CAA section
112(b) are listed in the definition to provide the regulated
community with a complete list of elements that are considered
``contaminants'' under the rule.
---------------------------------------------------------------------------

    Also, we are proposing to exclude from the definition of
contaminants those pollutants in the CAA sections 112(b) and 129(a)(4)
lists that we do not expect to find in any NHSM. Specifically:
     Hydrogen chloride, Cl2, HF, NOX, and
SO2 are identified as CAA list pollutants that are excluded
from the definition since they are unlikely to be found in NHSM prior
to combustion and have been replaced by the elements chlorine,
fluorine, nitrogen and sulfur as discussed above; \18\
---------------------------------------------------------------------------

    \18\ Carbon monoxide (CO) is unlikely to be found in solid or
liquid NHSMs, and EPA expects that combustors can use process
knowledge to justify not testing for CO in these cases. CO remains
in the contaminants definition, however, because no clear surrogate
exists to replace it--neither the 2011 NHSM final rule nor today's
proposed rule considers the elements carbon and oxygen to be
contaminants.
---------------------------------------------------------------------------

     Fine mineral fibers are excluded because they are releases
from the manufacturing and processing (not combustion) of non-
combustible rock, glass, or slag into mineral fibers;
     Particulate matter and coke oven emissions are excluded
because they are products of combustion unlikely to exist in NHSM prior
to combustion;
     Cresol isomers m-cresol, o-cresol and p-cresol are
excluded because the listed pollutant cresols/cresylic acid includes
these three isomers;
     Xylene isomers m-xylene, o-xylene and p-xylene are
excluded because the listed pollutant xylenes includes these three
isomers; and
     Diazomethane, white phosphorus and titanium tetrachloride
are excluded because their high reactivity makes their presence in
NHSMs very unlikely.
    In addition, two phrases present in the 2011 NHSM final rule
``contaminants'' definition are not present in today's proposed
definition. First, the phrase concerning constituents ``that will
result in emissions of air pollutants'' has been

removed since the regulated community appears to be confused that in
determining whether or not a NHSM meets the ``contaminant legitimacy
criterion,'' emissions from the combustion unit were to be considered
in making the evaluation. The EPA disagrees and directs readers to the
language in sections 241.3(d)(1)(iii) and 241.3(d)(2)(iv), which
clearly states that the contaminant comparisons are based on the
presence of contaminants in the NHSM that enters the combustion unit.
    Second, the phrase ``including those constituents that could
generate products of incomplete combustion,'' also referred to as PICs,
has been removed because it is duplicative and potentially misleading.
Specifically, this phrase has been removed because all PICs that the
Agency considers air pollutants--including dioxins, dibenzofurans,
PCBs, and PAHs--are already listed in CAA sections 112(b) or 129(a)(4)
and are thus included in the ``contaminants'' definition. More
importantly, it is potentially misleading because PIC formation depends
heavily on combustion conditions, such as air/fuel ratio and mixing.
These conditions are controlled to limit emissions, and neither these
conditions nor emissions are the subject of this rule. The NHSM itself,
and what it contains prior to combustion, is the subject of this rule.
Thus, both changes clarify--but do not alter--the constituents subject
to the contaminant legitimacy criterion.
c. Established Tire Collection Programs
    Under the 2011 NHSM final rule, whole scrap tires (that are removed
from vehicles) had to be managed under an ``established tire collection
program'' in addition to meeting other criteria in order to be
considered a non-waste fuel. The 2011 NHSM final rule defined
``established tire collection program'' as meaning ``a comprehensive
collection system that ensures scrap tires are not discarded and are
handled as valuable commodities in accordance with section
241.3(b)(2)(i) from the point of removal from the vehicle through
arrival at the combustion facility'' (codified in 40 CFR 241.2).
    However, this definition does not directly account for ``factory
scrap'' tires or ``off-specification'' tires that are contractually
arranged to be collected, managed and transported between a tire
manufacturer (including retailers and other parties involved in the
distribution and sale of new tires) and a combustor--a fact pattern the
Agency views as being within the intent of the regulatory definition of
``established tire collection program'' because the tires are not
discarded. Thus, the Agency is proposing to define ``established tire
collection program'' to mean ``a comprehensive collection system or
contractual arrangement that ensures scrap tires are not discarded and
are handled as valuable commodities from the point of removal from the
vehicle or the point at which they are generated at a tire manufacturer
(including retailers or other parties involved in the distribution and
sale of new tires) through arrival at the combustion facility.'' The
Agency did not include the provisions for the ``factory scrap'' or
``off-specification'' tires in the 2011 NHSM final rule since
information or comments were not provided to the EPA during the
rulemaking process and thus, the Agency was not aware of the issue. The
Agency did not receive comments about factory scrap or off-
specification tires on the ANPRM or the proposed rule. Following
promulgation of the 2011 NHSM final rule, the EPA learned that off-
specification tires (including factory scrap tires), which include
whole tires and tire components that do not meet manufacturer
specifications, are collected at tire manufacturing facilities or
manufacturer's downstream distribution channels--retailers and other
parties involved in the distribution and sale of new tires. As noted in
the revised definition, we interpret the term ``tire manufacturers''
broadly to include retailers and other parties that are involved in the
distribution and sale of new tires, as we believe that these parties
also manage tires as valuable commodities, such that discard is not
occurring when these tires are transferred to a combustor.
    If at any point in the process, a tire component or whole tire is
not suitable for use as a vehicle tire, it is separated from the other
tire components (or whole tires) and is stored in a protected
environment in order to accumulate a sufficient quantity for shipment.
The management of these tires is tightly controlled. Proprietary
information could be collected by competitors by analyzing the factory
scrap tire components, particularly from the uncured components (not
yet vulcanized through heat and pressure), so the tires are stored in a
safe manner, in part, to prevent theft.\19\ Thus, we believe that
factory scrap and off-specification tires are handled in the same
protective manner as those that qualified to be managed under the
oversight of established tire collection programs as described in the
2011 NHSM final rule.
---------------------------------------------------------------------------

    \19\ Personal communication from Tracey Norberg to EPA,
September 13, 2011. A copy of this communication has been placed in
the docket in today's rule.
---------------------------------------------------------------------------

    The tire manufacturers, as well as the manufacturers' downstream
distribution channels, that are included in the definition of
``established tire collection programs'' (1) have contractual
arrangements with combustors, typically cement kilns (due to the high
heating value and beneficial contribution to the cement production), to
take and use their tires as fuels; or (2) are covered under the
oversight of other collection programs that qualify under established
tire collection programs (i.e., oversight of state tire programs).
    As discussed in the 2011 NHSM final rule, the intent of the
requirement for ``removal from the vehicle'' was to distinguish these
tires from those that were previously abandoned, and thus discarded.
The changes to the definition in this proposed rule align the codified
definition of established tire collection programs with the intent of
the definition. We also note that we are proposing to delete the
reference to section 241.3(b)(2)(i) that was included in the previous
definition of established tire collection programs, since the citation
is no longer accurate based on other revisions being proposed today
(e.g., see the discussion regarding scrap tires managed pursuant to
established tire collection programs in section II.D.3). Refer to the
2011 NHSM final rule for more background and information regarding the
characterization of ``established tire collection programs.'' \20\
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    \20\ See 76 FR 15490-15499 and 15534-15535.
---------------------------------------------------------------------------

2. Revisions to the Contaminant Legitimacy Criterion for NHSM Used as
Fuels
    Several changes are being proposed in today's rule to the
contaminant legitimacy criterion for NHSM used as fuel. These proposed
changes to the wording in Sec.  241.3(d)(1)(iii) emphasize the
flexibility that is already embodied in the 2011 NHSM final rule.
First, today's proposal replaces ``contaminants'' with the phrase
``contaminants or groups of contaminants'' to clarify that the
regulatory definition allows groups of contaminants to be evaluated,
where appropriate, in determining whether a NHSM meets the contaminant
legitimacy criterion. Second, today's proposal codifies language from
the preamble of the 2011 NHSM final rule stating that the ``designed to
burn'' concept includes traditional fuels that can be burned or are
burned in a particular unit, whether or not the unit is permitted to
burn that traditional fuel.

    In addition, the proposed regulations include text confirming that
contaminant comparisons may use ranges from national surveys of
traditional fuel data. Neither the 2011 NHSM final rule nor today's
proposed rule requires persons to compare contaminants in their NHSM to
contaminants in the specific traditional fuel source they burn (or
would otherwise burn). As an example, persons who would otherwise burn
coal may use any as-burned coal available in coal markets in making a
comparison between the contaminants in their NHSM and the contaminants
in coal--they are not limited to coal from a specific coal supplier
they have used in the past or currently use. Regulatory text confirming
this flexibility is only included in today's proposed regulations to
clarify what is inherent in the 2011 NHSM final rule.
    Two other issues have arisen during implementation of the 2011 NHSM
final rule that, while not leading to specific regulatory changes in
today's proposal, still merit discussion. The first issue is that
contaminant legitimacy criterion determinations do not require testing
contaminant levels, in either the NHSM or an appropriate traditional
fuel. Persons can use expert or process knowledge to justify decisions
to rule out certain constituents. The second issue is that persons may
use data from a group of similar traditional fuels for contaminant
comparisons, provided the unit could burn each traditional fuel. This
idea grows from the ``designed to burn'' concept explained in the 2011
NHSM final rule and codified in today's proposal, as it allows a person
with a unit that can or does burn similar traditional fuels (e.g.,
anthracite, lignite, bituminous, and sub-bituminous coal) to group
those traditional fuels when making contaminant comparisons. See
section II.D.2.b for more discussion of this rationale.
a. What are the contaminants?
    While persons may satisfy the contaminant legitimacy criterion on a
contaminant-by-contaminant basis, comparing groups of contaminants in
the NHSM to similar groups in traditional fuels could also be
appropriate, provided the grouped contaminants share physical and
chemical properties that influence behavior in the combustion unit
prior to the point where emissions occur. Volatility, the presence of
specific elements, and compound structure are three such properties.
One approach to grouping contaminants, as shown in Tables 7 and 8
below, could include TOX, nitrogenated compounds, VOC, SVOC, D/F, PCB,
PAH, and radionuclides. Persons may consider other groupings that they
can show are technically reasonable.
    Grouping of contaminants is a standard practice often employed by
the Agency as it develops regulations. In fact, the monitoring
standards included in the CAA sections 112 and 129 regulations also
utilize the grouping concept and they apply to the same combustion
units impacted by the NHSM rule (i.e., industrial, commercial and
institutional boilers and process heaters and CISWI units). For
example,
     Volatile hydrocarbons and semi-volatile hydrocarbons can
both be expected to result from incomplete combustion; therefore, the
emission standards promulgated under the CAA regulations are grouped
into one category: CO.\21\
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    \21\ Area Source Boilers NESHAP, Major Source Boilers NESHAP,
and Commercial and Industrial Solid Waste Incinerators NESHAP.
---------------------------------------------------------------------------

     Halogenated organics are expected to contribute to
emissions of dioxin and acid gases (HCl and HF); therefore, the
emission standards promulgated under the CAA are grouped into two
categories: D/F and HCl.\22\
---------------------------------------------------------------------------

    \22\ Major Source Boilers NESHAP and Commercial and Industrial
Solid Waste Incinerators NESHAP.
---------------------------------------------------------------------------

     Nitrogenated compounds are expected to contribute to
emissions of NOX; therefore, the emission standards
promulgated under the CAA are grouped into one category:
NOX.\23\
---------------------------------------------------------------------------

    \23\ Commercial and Industrial Solid Waste Incinerators NESHAP.
---------------------------------------------------------------------------

    A look at Tables 7 and 8 below also reveals that a number of the
seemingly ``individual'' pollutants listed in sections 112 and 129 of
the CAA are actually classes of structurally-related compounds (e.g.,
PCBs, POM, D/F, cyanide compounds, cresols, glycol ethers,
radionuclides, xylenes, antimony compounds, arsenic compounds,
beryllium compounds, Cd compounds, etc.).
    If persons choose to group contaminants, analytical methods for the
NHSM and traditional fuel should account for the same list of compounds
to the extent possible. Persons may be able to exclude some members of
a particular contaminant group from testing based on process knowledge,
but methods for testing the group as a whole should generally account
for all other members of the contaminant group.
    Some data sources may define contaminant groups more broadly than
this rule, thus resulting in a definition for a particular group that
includes compounds not considered contaminants under the rule. Such
data sources may be all that is available in the literature in some
cases, but they may still be appropriate. Total VOC and total SVOC
analyses offer an instructive example because, depending on the test
used and the material analyzed, such analyses may include
concentrations of methane, acetone, or other compounds not considered
contaminants under the NHSM final rule. Several solutions exist to make
the results meaningful, however. One approach would be to specifically
subtract compounds like methane that are not considered contaminants
under the rule and are expected to boost a total group count in
traditional fuels. Another approach would be to measure each applicable
compound individually and add the totals.
    The tables presented below would separate the list of potential
contaminants into the 15 elements listed in today's proposed definition
of ``contaminants'' and the 163 compounds or groups of compounds
inferred from that definition by their inclusion on the CAA sections
112 or 129 lists. The elements listed in Table 7 are considered
contaminants because they commonly form air pollutants listed on either
the CAA section 112 HAP list, the CAA section 129 list, or both lists.
The compounds or groups of compounds listed in Table 8 are considered
contaminants because they are directly on either the CAA section 112
HAP list, the CAA section 129 list, or both lists.24 25 The
Agency wants to make clear that persons can use other approaches that
they can show are technically reasonable, whether it is on a
contaminant-by-contaminant basis or involves grouping contaminants. The
Agency is only offering these tables to provide the regulated community
with one reasonable approach for how a grouping of contaminants could
be implemented.
---------------------------------------------------------------------------

    \24\ Clean Air Act section 112(b). See http://www.epa.gov/ttn/atw/pollutants/atwsmod.html for modifications to the original list
of Hazardous Air Pollutants.
    \25\ Clean Air Act section 129(a)(4). See http://www.epa.gov/ttnatw01/129/sec129.pdf.

                                               Table 7--Elements Considered Contaminants--With Explanation
--------------------------------------------------------------------------------------------------------------------------------------------------------

--------------------------------------------------------------------------------------------------------------------------------------------------------
1. Antimony (Sb)................................  Antimony compounds are a CAA section 112 HAP.
2. Arsenic (As).................................  Arsenic compounds are a CAA section 112 HAP.
3. Beryllium (Be)...............................  Beryllium compounds are a CAA section 112 HAP.
4. Cadmium (Cd).................................  Cadmium compounds are a CAA section 112 HAP.
5. Chlorine (Cl)................................  Hydrogen chloride/hydrochloric acid is on the CAA HAP & 129 lists.
6. Chromium (Cr)................................  Chromium compounds are a CAA section 112 HAP.
7. Cobalt (Co)..................................  Cobalt compounds are a CAA section 112 HAP.
8. Fluorine (F).................................  Hydrogen fluoride/hydrofluoric acid is a CAA section 112 HAP.
9. Lead (Pb)....................................  Lead compounds are a CAA section 112 HAP.
10. Manganese (Mn)..............................  Manganese compounds are a CAA section 112 HAP.
11. Mercury (Hg)................................  Mercury compounds are a CAA section 112 HAP.
12. Nickel (Ni).................................  Nickel compounds are a CAA section 112 HAP.
13. Nitrogen (N)................................  Nitrogen oxides (NOX) are a CAA section 129 pollutant.
14. Selenium (Se)...............................  Selenium compounds are a CAA section 112 HAP.
15. Sulfur (S)..................................  Sulfur dioxide (SO2) is a CAA section 129 pollutant.
--------------------------------------------------------------------------------------------------------------------------------------------------------

                      Table 8--Compounds Considered Contaminants--With Group Information 26
----------------------------------------------------------------------------------------------------------------

----------------------------------------------------------------------------------------------------------------
1 Acetaldehyde.................  VOC \27\.
2 Acetamide....................  ...................  SVOC \28\.........  ..................  Nitrogenated.
3 Acetonitrile (methyl cyanide)  VOC................  ..................  ..................  Nitrogenated.
4 Acetophenone.................  VOC.
5 2-Acetylaminofluorene........  ...................  ..................  ..................  Nitrogenated.
6 Acrolein.....................  VOC.
7 Acrylamide...................  VOC................  ..................  ..................  Nitrogenated.
8 Acrylic acid.................  VOC.
9 Acrylonitrile................  VOC................  ..................  ..................  Nitrogenated.
10 Allyl chloride..............  VOC................  ..................  Org. Halogen \29\.  ..................
11 4-Aminobiphenyl.............  ...................  SVOC..............  ..................  Nitrogenated.
12 Aniline.....................  VOC................  ..................  ..................  Nitrogenated.
13 o-Anisidine.................  ...................  SVOC..............  ..................  Nitrogenated.
14 Asbestos
15 Benzene.....................  VOC
16 Benzidine...................  ...................  SVOC..............  ..................  Nitrogenated.
17 Benzotrichloride............  ...................  SVOC..............  Org. Halogen.       ..................
18 Benzyl chloride.............  VOC................  ..................  Org. Halogen.       ..................
19 Biphenyl....................  ...................  SVOC.
20 Bis (2-ethylhexyl) phthalate  ...................  SVOC.               ..................  ..................
 (DEHP).
21 Bis (chloromethyl) ether....  VOC................  ..................  Org. Halogen.       ..................
22 Bromoform...................  VOC................  ..................  Org. Halogen.       ..................
23 1,3-Butadiene...............  VOC
24 Calcium cyanamide...........  ...................  ..................  ..................  Nitrogenated.
25 Captan......................  ...................  SVOC..............  Org. Halogen......  Nitrogenated.
26 Carbaryl....................  ...................  SVOC..............  ..................  Nitrogenated.
27 Carbon disulfide............  VOC.
28 Carbon monoxide.............  ...................  ..................  ..................  ..................
29 Carbon tetrachloride........  VOC................  ..................  Org. Halogen.       ..................
30 Carbonyl sulfide............  VOC.
31 Catechol....................  VOC.
32 Chloramben..................  ...................  SVOC..............  Org. Halogen......  Nitrogenated.
33 Chlordane...................  ...................  SVOC..............  Org. Halogen......  ..................
34 Chloroacetic acid...........  VOC................  ..................  Org. Halogen.       ..................
35 2-Chloroacetophenone........  ...................  SVOC..............  Org. Halogen.       ..................
36 Chlorobenzene...............  VOC................  ..................  Org. Halogen.       ..................
37 Chlorobenzilate.............  ...................  SVOC..............  Org. Halogen.       ..................
38 Chloroform..................  VOC................  ..................  Org. Halogen.       ..................
39 Chloromethyl methyl ether...  VOC................  ..................  Org. Halogen.       ..................
40 Chloroprene.................  VOC................  ..................  Org. Halogen.       ..................
41 * Cresols/Cresylic acid \30\  VOC.
42 Cumene......................  VOC.
43 * Cyanide compounds \31\....  ...................  ..................  ..................  Nitrogenated.
44 2, 4-D, salts and esters....  ...................  SVOC..............  Org. Halogen.       ..................
45 DDE.........................  ...................  SVOC..............  Org. Halogen.       ..................
                                --------------------------------------------------------------------------------
46 * Dibenzofurans \32\........                   Consider Dioxins & Furans as a Distinct Group.
                                --------------------------------------------------------------------------------
47 1, 2-Dibromo-3-chloropropane  VOC................  ..................  Org. Halogen.       ..................
48 Dibutylphthalate............  ...................  SVOC.
49 1, 4-Dichlorobenzene(p).....  VOC................  ..................  Org. Halogen.       ..................
50 3, 3-Dichlorobenzidene......  ...................  SVOC..............  Org. Halogen......  Nitrogenated.
51 Dichloroethyl ether (bis (2-  VOC................  ..................  Org. Halogen.       ..................
 chloroethyl) ether).
52 1, 3-Dichloropropene........  VOC................  ..................  Org. Halogen.       ..................

53 Dichlorvos..................  ...................  SVOC..............  Org. Halogen.       ..................
54 Diethanolamine..............  ...................  SVOC..............  ..................  Nitrogenated.
55 Diethyl sulfate.............  VOC.
56 3, 3-Dimethoxybenzidine.....  ...................  ..................  ..................  Nitrogenated.
57 Dimethyl aminoazobenzene....  ...................  ..................  ..................  Nitrogenated.
58 N, N-Dimethylaniline........  VOC................  ..................  ..................  Nitrogenated.
59 3, 3'-Dimethyl benzidine....  ...................  SVOC..............  ..................  Nitrogenated.
60 Dimethyl carbamoyl chloride.  VOC................  ..................  Org. Halogen......  Nitrogenated.
61 Dimethyl formamide..........  VOC................  ..................  ..................  Nitrogenated.
62 1, 1-Dimethyl hydrazine.....  VOC................  ..................  ..................  Nitrogenated.
63 Dimethyl phthalate..........  ...................  SVOC.
64 Dimethyl sulfate............  VOC.
65 4, 6-Dinitro-o-cresol, and    ...................  SVOC..............  ..................  Nitrogenated.
 salts.
66 2, 4-Dinitrophenol..........  ...................  SVOC..............  ..................  Nitrogenated.
67 2, 4-Dinitrotoluene.........  ...................  SVOC..............  ..................  Nitrogenated.
68 1, 4-Dioxane (1, 4-           VOC.
 diethyleneoxide).
69 1, 2-Diphenylhydrazine......  ...................  SVOC..............  ..................  Nitrogenated.
70 Epichlorohydrin (1-chloro-    VOC................  ..................  Org. Halogen.
 2,3-epoxypropane).
71 1, 2-Epoxybutane............  VOC.
72 Ethyl acrylate..............  VOC.
73 Ethyl benzene...............  VOC.
74 Ethyl carbamate (urethane)..  VOC................  ..................  ..................  Nitrogenated.
75 Ethyl chloride                VOC................  ..................  Org. Halogen.
 (chloroethane).
76 Ethylene dibromide            VOC................  ..................  Org. Halogen......
 (dibromoethane).
77 Ethylene dichloride (1, 2-    VOC................  ..................  Org. Halogen......
 Dichloroethane).
78 Ethylene glycol.............  ...................  SVOC.
79 Ethylene imine (aziridine)..  VOC................  ..................  ..................  Nitrogenated.
80 Ethylene oxide..............  VOC.
81 Ethylene thiourea...........  ...................  SVOC..............  ..................  Nitrogenated.
82 Ethylidene dichloride (1, 1-  VOC................  ..................  Org. Halogen......
 Dichloroethane).
83 Formaldehyde................  VOC.
84 * Glycol ethers \33\........  ...................  SVOC.
85 Heptachlor..................  ...................  SVOC..............  Org. Halogen......
86 Hexachlorobenzene...........  ...................  SVOC..............  Org. Halogen......
87 Hexachlorobutadiene.........  VOC................  ..................  Org. Halogen......
88 Hexachlorocyclopentadiene     ...................  SVOC..............  Org. Halogen......
 (HCCPD).
89 Hexachloroethane............  VOC................  ..................  Org. Halogen......
90 Hexamethylene-1, 6-           ...................  SVOC..............  ..................  Nitrogenated.
 diisocyanate.
91 Hexamethylphosphoramide.....  ...................  SVOC..............  ..................  Nitrogenated.
92 Hexane......................  VOC................
93 Hydrazine...................  ...................  ..................  ..................  Nitrogenated.
94 Hydroquinone................  ...................  SVOC.
95 Isophorone..................  VOC................
96 Lindane (all isomers).......  ...................  SVOC..............  Org. Halogen......
97 Maleic anhydride............  ...................  SVOC.
98 Methanol....................  VOC.
99 Methoxychlor................  ...................  SVOC..............  Org. Halogen......
100 Methyl bromide               VOC................  ..................  Org. Halogen......
 (bromomethane).
101 Methyl chloride              VOC................  ..................  Org. Halogen......
 (chloromethane).
102 Methyl chloroform (1, 1, 1-  VOC................  ..................  Org. Halogen......
 trichloroethane).
103 Methyl hydrazine...........  VOC................  ..................  ..................  Nitrogenated.
104 Methyl iodide (Iodomethane)  VOC................  ..................  Org. Halogen......
105 Methyl isobutyl ketone.....  VOC.
106 Methyl isocyanate..........  VOC................  ..................  ..................  Nitrogenated.
107 Methyl methacrylate........  VOC.
108 Methyl tert butyl ether      VOC.
 (MTBE).
109 4, 4-Methylene bis (2-       ...................  ..................  Org. Halogen......  Nitrogenated.
 chloroaniline).
110 Methylene chloride           VOC................  ..................  Org. Halogen......
 (dichloromethane).
111 4, 4'-Methylenedianiline...  ...................  ..................  ..................  Nitrogenated.
112 Methylene diphenyl           ...................  SVOC..............  ..................  Nitrogenated.
 diisocyanate (MDI).
113 Naphthalene................  ...................  SVOC.
114 Nitrobenzene...............  VOC................  ..................  ..................  Nitrogenated.
115 4-Nitrobiphenyl............  ...................  SVOC..............  ..................  Nitrogenated.
116 4-Nitrophenol..............  ...................  SVOC..............  ..................  Nitrogenated.
117 2-Nitropropane.............  VOC................  ..................  ..................  Nitrogenated.
118 N-Nitrosodimethylamine       VOC................  ..................  ..................  Nitrogenated.
 (NDMA).
119 N-Nitroso-N-methylurea.....  VOC................  ..................  ..................  Nitrogenated.
120 N-Nitrosomorpholine........  VOC................  ..................  ..................  Nitrogenated.
121 Parathion..................  ...................  SVOC..............  ..................  Nitrogenated.
122 Pentachloronitrobenzene      ...................  SVOC..............  Org. Halogen......  Nitrogenated.
 (Quintobenzene).
123 Pentachlorophenol..........  ...................  SVOC..............  Org. Halogen......
124 Phenol.....................  VOC.
125 p-Phenylenediamine.........  ...................  SVOC..............  ..................  Nitrogenated.
126 Phosgene...................  VOC................  ..................  Org. Halogen......

127 Phosphine
128 Phthalic anhydride.........  ...................  SVOC..............  ..................  ..................
                                --------------------------------------------------------------------------------
129 * Polychlorinated biphenyls                         Consider PCBs as a Distinct Group.
 (PCBs) \34\.
                                --------------------------------------------------------------------------------
130 * Polycyclic Organic Matter                       Consider Total PAH as a Distinct Group
 (or Total PAH) \35\.
                                --------------------------------------------------------------------------------
131 1, 3-Propane sultone.......  VOC.
132 [beta]-Propiolactone.......  VOC................
133 Propionaldehyde............  VOC................
134 Propoxur (Baygon)..........  ...................  SVOC..............  ..................  Nitrogenated.
135 Propylene dichloride (1, 2-  VOC................  ..................  Org. Halogen......  ..................
 dichloropropane).
136 Propylene oxide............  VOC................
137 1, 2-Propylenimine (2-       VOC................  ..................  ..................  Nitrogenated.
 methyl aziridine).
138 Quinoline..................  ...................  SVOC..............  ..................  Nitrogenated.
139 Quinone....................  ...................  SVOC..............
140 * Radionuclides (including
 radon).\36\
141 Styrene....................  VOC................
142 Styrene oxide..............  VOC................
                                --------------------------------------------------------------------------------
143 * 2, 3, 7, 8-                                  Consider Dioxins/Furans as a Distinct Group.
 Tetrachlorodibenzo-p-dioxin &
 other dioxins \37\.
                                --------------------------------------------------------------------------------
144 1, 2, 2, 2-                  VOC................  ..................  Org. Halogen......  ..................
 Tetrachloroethane.
145 Tetrachloroethylene          VOC................  ..................  Org. Halogen......  ..................
 (perchloroethylene).
146 Toluene....................  VOC................
147 2, 4-Toluene diamine.......  ...................  SVOC..............  ..................  Nitrogenated.
148 2, 4-Toluene diisocyanate..  ...................  SVOC..............  ..................  Nitrogenated.
149 o-Toluidine................  ...................  SVOC..............  ..................  Nitrogenated.
150 Toxaphene (chlorinated       ...................  SVOC..............  Org. Halogen.       ..................
 camphenes).
151 1, 2, 4-Trichlorobenzene...  VOC................  ..................  Org. Halogen.       ..................
152 1, 1, 2-Trichloroethane....  VOC................  ..................  Org. Halogen.       ..................
153 Trichloroethylene (TCE)....  VOC................  ..................  Org. Halogen.       ..................
154 2, 4, 5-Trichlorophenol....  ...................  SVOC..............  Org. Halogen.       ..................
155 2, 4, 6-Trichlorophenol....  ...................  SVOC..............  Org. Halogen.       ..................
156 Triethylamine..............  VOC................  ..................  ..................  Nitrogenated.
157 Trifluralin................  ...................  SVOC..............  Org. Halogen......  Nitrogenated.
158 2, 2, 4-Trimethylpentane...  VOC.
159 Vinyl acetate..............  VOC.
160 Vinyl bromide..............  VOC................  ..................  Org. Halogen.       ..................
161 Vinyl chloride.............  VOC................  ..................  Org. Halogen.       ..................
162 Vinylidene chloride (1, 1-   VOC................  ..................  Org. Halogen.       ..................
 dichloroethylene).
163 * Xylenes \38\.............  VOC................
----------------------------------------------------------------------------------------------------------------

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

    \26\ Spicer, Chester W. et al., Hazardous Air Pollutant
Handbook, Lewis, Boca Raton, FL, 2002, pg. 23-53.
    \27\ Volatile organic compounds (VOC) are identified here as
organic compounds with a vapor pressure greater than 0.1 mm Hg at 25
[deg]C.
    \28\ Semi-volatile organic compounds (SVOC) are identified here
as organic compounds with a vapor pressure between 10-7
and 0.1 mm Hg at 25 [deg]C.
    \29\ Organic halogens are identified here as any compound that
contains both carbon and a halogen (chlorine, bromine, fluorine, or
iodine).
    \30\ Cresols are a group that includes three compounds.
    \31\ Cyanide compounds are a group that includes hydrogen
cyanide, propionitrile, cyanogens, and a number of possible particle
phase compounds.
    \32\ Dibenzofurans are a group that includes 135 polychlorinated
dibenzofurans (PCDFs).
    \33\ Glycol ethers are a group that includes roughly 30
compounds.
    \34\ PCBs are a group that includes 209 congeners.
    \35\ Polycyclic Organic Matter (POM) is a group that
theoretically may include millions of compounds. Only 100 or so,
however, have been identified and studied.
    \36\ Radionuclides are a group that includes uranium, radon, and
radium isotopes.
    \37\ Dioxins are a group that includes 75 polychlorinated
dibenzo dioxins (PCDDs).
    \38\ Xylenes are a group that includes three compounds.
---------------------------------------------------------------------------

    Tables 7 and 8 do not include the 17 compounds specifically removed
from the proposed regulatory definition of contaminants in Sec.  241.2.
As discussed in section II.D.1., HCl, Cl2, HF),
NOX, and SO2 are excluded from Table 8 and
replaced by the elements chlorine, fluorine, nitrogen and sulfur in
Table 7. This is necessary because of differences between NHSMs prior
to combustion and the emissions that will result from that combustion.
NHSMs prior to combustion are not expected to contain the CAA 112/129
pollutants HCl, Cl2, HF, NOX or SO2,
and measuring forms of their precursors (the elements chlorine,
fluorine, nitrogen and sulfur) is the only way to account for these
pollutants prior to combustion.
    In addition, fine mineral fibers, PM, and coke oven emissions are
excluded because they are unlikely to exist in NHSMs prior to
combustion. Diazomethane, white phosphorus and titanium tetrachloride
are also excluded because their reactivity makes their presence in
NHSMs very unlikely.\39\ Finally, the three cresol isomers are included
in Table 8 under cresols/cresylic acid, itself a listed HAP; and
similarly, the three xylene isomers are included in Table 8 under
xylenes, also a listed HAP.
---------------------------------------------------------------------------

    \39\ Spicer, Chester W. et al., Hazardous Air Pollutant
Handbook, Lewis, Boca Raton, FL, 2002, pp 11-21.
---------------------------------------------------------------------------

b. What does ``designed to burn'' mean?
    To meet the contaminant legitimacy criterion, persons must compare
contaminants in the NHSM they wish to burn to contaminants in the
traditional fuel the unit is ``designed to burn.'' \40\ Today's
proposal codifies that data for any traditional fuel the unit can burn
or does burn may be used for these comparisons, whether or not the
unit's

air permit lists the traditional fuel. The reason such comparisons to
traditional fuel(s) are conducted is to assist in making a
determination of whether or not the NHSM is being discarded, which
makes differentiating between ``can burn'' and ``does burn''
irrelevant. Please note that for a unit to be able to burn a
traditional fuel, it needs an appropriate feed mechanism (e.g., a way
to load solid fuel of a particular size into the unit). The unit would
also need the ability to adjust physical parameters to ensure spatial
mixing and flame stability per unit specifications.
---------------------------------------------------------------------------

    \40\ As explained in Section II.D.2.a, today's proposed rule
makes it clear that ``contaminants'' may be an individual
contaminant or group of contaminants.
---------------------------------------------------------------------------

    Traditional fuels are defined in Sec.  241.2 as follows:
``Traditional fuels means materials that are produced as fuels and are
unused products that have not been discarded and therefore, are not
solid wastes, including: (1) fuels that have been historically managed
as valuable fuel products rather than being managed as waste materials,
including fossil fuels (e.g., coal, oil and natural gas), their
derivatives (e.g., petroleum coke, bituminous coke, coal tar oil,
refinery gas, synthetic fuel, heavy recycle, asphalts, blast furnace
gas, recovered gaseous butane, and coke oven gas) and cellulosic
biomass (virgin wood); and (2) alternative fuels developed from virgin
materials that can now be used as fuel products, including used oil
which meets the specifications outlined in 40 CFR 279.11, currently
mined coal refuse that previously had not been usable as coal, and
clean cellulosic biomass. These fuels are not secondary materials or
solid wastes unless discarded.''
    Because most combustion units can burn different--but related--
traditional fuels, broad groups of similar traditional fuels may be
used when comparing contaminants. The most common traditional fuel
categories burned at major source boilers are coal, wood, oil and
natural gas, as evidenced by data submitted to the EPA's
OAQPS.41 42
---------------------------------------------------------------------------

    \41\ EPA, Office of Air Quality Planning and Standards (OAQPS),
Emissions Database for Boilers and Process Heaters Containing Stack
Test, CEM & Fuel Analysis Data Reported Under ICR No. 2286.01 and
ICR No. 2286.03 (Version 6). February 2011. http://www.epa.gov/ttn/atw/boiler/boilerpg.html#TECH.
    \42\ The fuel analysis information in this OAQPS database is one
example of a ``national survey'' of traditional fuel information, as
referenced in the proposed contaminant legitimacy criterion at Sec.
241.3(d)(1)(iii).
---------------------------------------------------------------------------

    To further clarify the impact of the new proposed ``designed to
burn'' language on contaminant comparisons, potential categories for
coal, wood and oil are described below. A coal group could include data
on anthracite, lignite, bituminous and sub-bituminous coal. A wood or
biomass group could include data on unadulterated lumber, timber, bark,
biomass and hogged fuel. An oil group could include data on fuel oils
1-6, diesel fuel, kerosene and other petroleum based
oils.43 44 In cases where a unit can burn traditional fuels
from several categories, such as a boiler that can burn either coal or
biomass, contaminant comparisons could be made using data from either
fuel category at the combustor's discretion. In other words, if a
facility burns biomass in its combustion unit, but that same combustion
unit could also burn coal, the facility could compare its secondary
material to either traditional fuel.
---------------------------------------------------------------------------

    \43\ We do not believe that the oil group should include
unrefined crude oil or gasoline, as neither is typically burned in
combustion units subject to the CAA sections 112 or 129 standards.
    \44\ Used oil is a special case and does not need to undergo the
contaminant comparison. If it meets the specifications in 40 CFR
Part 279.11, it is a traditional fuel. If it does not meet the
specifications (i.e., it is ``off-spec'' oil), it is a solid waste
under the 2011 NHSM final rule.
---------------------------------------------------------------------------

    Some fossil fuel derivatives (e.g., petroleum coke, coal tar oil)
and alternative fuels (e.g., clean cellulosic biomass) are defined as
traditional fuels and, therefore, do not need to meet the legitimacy
criteria to be burned. The EPA lacks sufficient contaminant data,
however, to assist those wishing to compare NHSM to these traditional
fuels. In addition, other units currently exist that burn only NHSMs.
Both situations raise the question of what traditional fuel(s) to use
for contaminant comparisons. In addition to being able to burn
derivative fuels, alternative fuels, or NHSM, most combustion units can
also burn other traditional fuel(s). In such cases, it is appropriate
to make the comparison to one of the traditional fuel categories
discussed above: either coal or wood for solids or oil for liquids. For
example, if a combustion unit only burns a solid form of NHSM, the
combustor could compare contaminants in the NHSM against either coal or
wood in order to demonstrate compliance with the contaminant legitimacy
criterion, provided the combustion unit is designed to burn such solid
forms of fuel.
c. What contaminant comparisons are allowed?
    Regardless of the specific methodology chosen, a comparison will
have to be made for each contaminant or group of contaminants between a
traditional fuel or group of traditional fuels and the NHSM. Generators
or combustors can use either traditional fuel data collected by the EPA
or their own data for traditional fuel comparison values.\45\
Generators or combustors are responsible, however, for either providing
NHSM comparison values in cases where testing is required or
documenting why testing is unnecessary. Examples of acceptable NHSM
data could include both laboratory test results from a specific
generator or combustor and industry-recognized values provided by a
national trade organization.
---------------------------------------------------------------------------

    \45\ The EPA has collected current information on levels of
contaminants in traditional fuels, which can be found at http://www.epa.gov/epawaste/nonhaz/define/index and used by the regulated
community as they so choose. The EPA will update this information as
appropriate.
---------------------------------------------------------------------------

    Given data for a particular traditional fuel, it makes intuitive
sense to base the traditional fuel comparison value on the upper end of
its statistical range. Anything less could result in ``traditional
fuel'' samples being considered solid waste if burned in the very
combustion units designed to burn them--not the Agency's intent in
either the 2011 NHSM final rule or today's proposed rule.\46\ Given
that selection, acceptable NHSM comparison values would include the
upper end of a statistical range, a calculation involving the mean and
standard deviation, or perhaps a single data point in situations where
data are limited. It would not be appropriate to compare an average
NHSM contaminant value to the high end of a traditional fuel range, as
the existence of an average implies multiple data points from which a
more suitable statistic (e.g., range or standard deviation) could have
been calculated.
---------------------------------------------------------------------------

    \46\ Traditional fuels, as defined in Sec.  241.2, are not
required to meet the legitimacy criteria, and this scenario is only
used to explain the logic behind basing a traditional fuel
comparison value on the upper end of a statistical range.
---------------------------------------------------------------------------

    If each NHSM comparison value is comparable to or lower than its
corresponding traditional fuel value, the material would be considered
to meet the contaminant legitimacy criterion. An initial assessment
would not generally need to be repeated, provided the facility
continues to operate in the same manner and use the same type of NHSMs
as when the original assessment was made.
    We would finally note that despite presenting several approaches
for calculating NHSM comparison values, such as the upper end of a
statistical range or a calculation involving the mean and standard
deviation, today's preamble discussion does not preclude other
reasonable methodologies. In the context of an inspection or
enforcement action, the Agency will evaluate the appropriateness of
alternative methodologies and data sources on a case-by-case basis when
determining

whether the legitimacy criteria have been met.
    Even when analytical testing is not necessary, combustors burning
NHSM under CAA section 112 must document the basis of their
determinations pertaining to the part 241 criteria (including the
contaminant legitimacy criteria) in accordance with applicable air
regulations. These regulations can be found in Sec.  63.11225(c)(2)(ii)
for area source boilers, in Sec.  63.7555(d)(2) for major source
boilers, and in Sec.  60.2175(v) and Sec.  60.2740(u) for incinerators.
3. Categorical Determinations That Specific NHSM Are Not Solid Waste
When Used as a Fuel
    Issues were raised after promulgation of the 2011 NHSM final rule
concerning application of the legitimacy criteria, and the extent of
the information required to make demonstrations that a NHSM was not a
solid waste. To provide additional clarity and assist in implementation
of the rule, the Agency is proposing to codify in Sec.  241.4
determinations that certain NHSMs are not solid wastes when used as a
fuel, where the Agency has sufficient information and knowledge that
these NHSMs are not wastes. The practical effect of these categorical
listings is that persons that generate or burn these materials will not
need to make individual determinations, as required under the existing
rules, that these materials meet the legitimacy criteria. Except where
noted, combustors of these materials will not be required to provide
further information demonstrating their non-waste status.\47\
---------------------------------------------------------------------------

    \47\ In the 2011 NHSM final rule, scrap tires managed under
established tire collection programs and resinated wood were
designated as non-wastes when used both within and outside generator
control (see Sec.  241.3(b)(2). The final rule indicated that the
Agency would solicit comment in the future on additional non-
hazardous secondary materials that can be used as a non-waste fuel
both by the generator and outside the control of the generator (76
FR 15472).
---------------------------------------------------------------------------

    Thus, the Agency is proposing a list of secondary materials that
are non-wastes when used as a fuel in a combustion unit, based on a
balancing of the legitimacy criteria and other such relevant factors
that the Administrator may identify. Such additional factors may
include, but are not limited to, whether the NHSM's use as a fuel has
been integrally tied to the industrial production process and the
extent to which the NHSM is functionally the same as the comparable
traditional fuel.
    We note that a balancing approach to considering the legitimacy
criteria along with other relevant factors is not included in the
standards and procedures for making individual non-waste determinations
under Sec.  241.3. The Agency is not considering any change to the
self-implementing, mandatory nature of the Sec.  241.3 standards for
individual facilities and will not respond to any comments on this
topic.
    Regarding the proposed categorical determinations in Sec.  241.4,
where a particular NHSM may not meet all the legitimacy criteria
outlined in Sec.  241.3(d)(1), it is necessary to require a formal
determination in order to prevent sham recycling (i.e., materials being
discarded under the guise of recycling). The EPA has long acknowledged
that, ``[w]ith respect to the issue of whether [an] activity is sham
recycling, this question involves assessing the intent of the owner or
operator by evaluating circumstantial evidence, always a difficult
task.'' \48\ In cases where the difference between recycling and
treatment is difficult to distinguish, ``[t]he potential for abuse is
such that great care must be used when making a determination that a
particular activity is to go unregulated (i.e., it is one of those
activities which is beyond the scope of our jurisdiction).'' \49\
However, the Agency also believes that there are cases where a
secondary material may not fully meet the self-implementing legitimacy
criteria, but upon consideration of other relevant factors, it can be
determined that the material is a legitimate fuel and is not merely
being discarded by being burned.
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    \48\ See April 26, 1989 Memorandum from Sylvia K. Lowrance,
Director, Office of Solid Waste to Hazardous Waste Management
Division Directors, Regions I-X. A copy of this document has been
placed in the docket for today's rulemaking.
    \49\ Id.
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    In addition to the proposed categorical determination that certain
secondary materials are not wastes when combusted as a fuel, the Agency
is proposing a rulemaking petition process for individuals to request
categorical determinations for additional NHSM as not being a solid
waste when burned as a fuel in combustion units. This process is
outlined in section II.D.4.
    The information and rationale that the Agency is relying upon to
propose the section 241.4 categorical determinations for certain
secondary materials is discussed below.
a. Scrap Tires
    In the 2011 NHSM final rule, the EPA determined that scrap tires
removed from vehicles and managed pursuant to established tire
collection programs would not be considered a solid waste, provided
they meet the legitimacy criteria in Sec.  241.3(d)(1). The 2011 NHSM
final rule preamble also concluded that, as a category, scrap tires
managed pursuant to established tire collection programs would meet the
legitimacy criteria for NHSMs used as fuels. Questions have arisen,
however, as to whether persons must still demonstrate for each facility
that this material meets the legitimacy criteria. To clarify this
point, we are proposing to codify a categorical determination in
today's rule to designate scrap tires that have not been discarded and
are managed under the oversight of established tire collection programs
(as defined in 241.2), including tires removed from vehicles and off-
specification tires, are not solid wastes when used as fuels in
combustion units. Thus, persons who generate and/or burn such scrap
tires would not need to make an individual legitimacy determination
that such scrap tires are non-waste fuels.
    As discussed in section II.D.1 of today's action, the term
``established tire collection program'' is proposed to encompass off-
specification tires (including factory scrap tires) that are
contractually arranged to be collected, managed and transported between
a tire manufacturer, including retailers or other parties involved in
the distribution and sale of new tires, and a combustor. Thus, under
the proposal, ``established tire collection program'' means ``a
comprehensive collection system or contractual arrangement that ensures
scrap tires are not discarded and are handled as valuable commodities
through arrival at the combustion facility.'' The established tire
collection programs ensure the tires are not discarded. The rationale
for the related edits to the definition of established tire collection
programs are described in the section II.D.1.
    As discussed in the 2011 NHSM final rule, scrap tires from vehicles
meet the legitimacy criteria (Sec.  241.3(d)(1)) for being handled as a
valuable commodity, for having meaningful heating value, and for
comparable contaminants.\50\ Specifically, scrap tires are considered
to be handled as a valuable commodity when they are collected under
established tire collection programs. Because scrap tires have an
exceptionally high heating value (12,000 Btu/lb to 16,000 Btu/lb), they
are considered to meet the legitimacy criteria for meaningful heating
value. In fact, the heating value of scrap tires is higher than typical
coal values and other solid fuels.\51\ In developing the

2011 NHSM final rule, the EPA analyzed contaminant concentrations in
scrap tires and determined that contaminant levels were comparable to
or lower than levels in traditional fuels; therefore, scrap tires are
considered to meet the legitimacy criterion for comparable
contaminants.\52\
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    \50\ 76 FR at 15535.
    \51\ 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.
    \52\ 76 FR at 15492. Data cited submitted as comments on the
2010 NHSM Proposed Rule and can be found in the docket EPA-HQ-RCRA-
2008-0329. See also Materials Characterization Papers in Support of
the Final Rulemakings--Identification of Non-Hazardous Secondary
Materials that are Solid Wastes: Scrap Tires (February 3, 2011);
Traditional Fuels and Key Derivatives (February 7, 2011) in docket
EPA-HQ-RCRA-2008-0329. We also note that we have developed, in
support of today's proposed rulemaking, a new background document
that includes updated information regarding scrap tires, as well as
the other NHSM discussed in today's proposal. This document is
entitled ``Resinated Wood, Scrap Tire, and Pulp/Paper Sludge Support
Document'' and can also be found in docket EPA-HQ-RCRA-2008-0329.
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    The term ``scrap tire'' is a general term for tires and can
include, for example, whole tires, chipped tires, off-specification
tires, or off-specification tire components (i.e., tread, sidewall or
base) that are removed from vehicles or are generated by tire
manufacturers, including retailers or other parties involved in the
distribution and sale of new tires; it does not include whole tires
that have been discarded and burned directly without processing as a
fuel. The provision in Sec.  241.4 specifically references only those
scrap tires that have not been discarded and are managed under the
oversight of established tire collection programs, including tires
removed from vehicles and off-specification tires. Thus, the regulatory
text has been revised to make this point clear.
b. Resinated Wood 53
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    \53\ 40 CFR 241.2 defines resinated wood as wood products
(containing resin adhesives) derived from primary and secondary wood
products manufacturing and comprised of such items as board trim,
sander dust and panel trim.
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    The EPA is proposing to designate resinated wood as not being a
solid waste when used as a fuel. This determination was previously
codified under Sec.  241.3 (b)(2)(ii) of the NHSM final rule, provided
the resinated wood met the legitimacy criteria in Sec.  241.3(d)(1).
However, based on the available information, as well as how this
material is handled and used in the process, resinated wood is not
being discarded when used as a fuel, and thus, should not be considered
a solid waste when burned as a fuel.
    As discussed in the 2011 NHSM final rule, wood product plants have
been designed to specifically utilize these residuals that the wood
manufacturing process creates and would not be able to operate as
designed without this material. For example, sander dust injector
systems have been specifically developed to accommodate the unique
combustion requirements of this material and these injector systems
have been installed on many boiler and wood drying systems within the
industry.\54\ Burners designed to combust sander dust or trim may not
be suitable for combusting other fuels--thus, the cost of these
residual materials relative to the cost of using other fuels would be a
major consideration.\55\ Overall, in composite panel manufacturing,
plants typically reuse 58 percent of these residual materials in the
process and 35 percent is burned for energy recovery.\56\
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    \54\ American Forest and Paper Association, August 3, 2010. EPA
Docket ID EPA-HQ-RCRA-2008-0329.
    \55\ For example, Composite Panel Association, in comments on
the NHSM Proposed Rule, stated, ``Estimates for the cost of a
composite panel plant to switch boiler fuel from a trim/sander dust
mix to natural gas ranged from $1 million to $3.5 million a year
depending on boiler size and the price of natural gas. For direct
fired dryers alone, the cost to switch from sander dust to natural
gas ranged from $350,000 to $1.4 million a year, again depending on
dryer size and gas prices. These costs do not include the re-
engineering costs that would be necessitated nor do they include the
cost of transportation or off-site disposal of this valuable fuel.
Moreover, these costs do not take into account the severe costs
implications on all wood product facilities that currently utilize
resinated fuels in process heaters or dryers.'' EPA Docket ID: EPA-
HQ-RCRA-2008-0329-1358.
    \56\ The Generation and Utilization of Residuals from Composite
Panel Products; Forest Products Journal 54:2, 2004; David C. Smith.
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    Resinated wood is highly valued within the wood products industry
for its high fuel value relative to other wood fuels generated and
burned at these facilities for energy recovery. Many facilities rely on
mixing of these low moisture content wood materials with higher
moisture materials. Resinated wood residuals are routinely transferred
between either intra- or inter- company facilities and used as either
``furnish'' (i.e., raw materials) or fuel at the receiving facilities.
The material being transferred off-site is used and handled in the same
manner that resinated wood residuals are used when generated on-site.
In general, the motivation to use the resinated wood as a fuel, even
with the slightly higher formaldehyde levels, predominates over the
motivation to dispose of the formaldehyde. See American Petroleum
Institute v. EPA, 216 F.3d 50, 58 (DC Cir. 2000) (in declaring
reclaimed oily wastewater to be a waste, the EPA failed to explain why
the discard motivation predominated the recycling motivation). Indeed,
discard of the formaldehyde is a very distant second to the fuel
product use of the resinated wood.
    The heating value range presented (8,500-9,000 Btu/lb) indicates
that resinated wood residuals have heating values significantly greater
than the 5,000 Btu/lb level described in the preamble to the 2011 NHSM
final rule for presuming compliance with the meaningful heating value
legitimacy criterion (codified at Sec.  241.3(d)(1)(ii)). Resinated
wood residuals also are managed as a valuable commodity since these
residuals are managed as a primary fuel for wood products
manufacturers.
    While we received limited contaminant information prior to the
promulgation of the final rule, the data we have suggest that resins
and adhesives containing formaldehyde react within the resin curing
process, leaving ``free'' formaldehyde at levels less than 0.02 percent
(or 200 ppm). In addition, new national rules, as mandated by the CARB
Composite Wood ATCM, per new Public Law 111-199, will reduce the
formaldehyde levels even further.\57\
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    \57\ Information received from the wood manufacturing industry
indicates that formaldehyde levels will be reduced to less than 100
ppm in resinated wood based on the new CARB rules. These data are
provided in the docket for today's proposed rule.
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    While we acknowledge that these levels may not always meet the
contaminant legitimacy criterion in every situation, in today's action,
we are proposing a categorical non-waste determination for resinated
wood that is used as fuel. We are proposing to codify this
determination, balancing the legitimacy criteria and other relevant
factors based on the fact that resinated wood residuals that are used
as fuels represents an integral component to the wood manufacturing
process and, as such, resinated wood residuals are not being discarded
when burned as fuels. That is, the purpose of burning these wood
residuals (including the resins that they contain, which themselves
contribute to the heating value of the material) is not to destroy or
discard them, as they are clearly considered and managed as a valuable
commodity to the manufacturing process.
    In making this determination, we note the extent to which resinated
wood is used as fuels throughout the wood manufacturing industry and
that often the use of resinated wood as fuel is essential to the wood
manufacturing process. We also note the prevalence of wood product
plants that have been designed specifically to utilize these residuals
for their fuel value; in fact, many (if not most) wood products plants
would not be able to operate as designed without the use of these

materials as fuel. Thus, resinated wood residuals are not being
discarded when used as fuel and, therefore, we are proposing to
specifically identify them as a non-waste fuel in Sec.  241.4. By
specifically listing them as a non-waste fuel, generators or combustors
of this material will not need to make legitimacy determinations on a
site-by-site basis.
4. Rulemaking Petition Process for Other Non-Waste Determinations
    The Agency recognizes that there may be other NHSMs that can also
be considered non-wastes when burned as fuels in combustion units when
balancing the legitimacy criteria and other relevant factors. Thus,
under today's proposed rule, we are proposing a process whereby persons
may submit a rulemaking petition to the Administrator where they can
identify and request that additional NHSMs be listed in section
241.4.\58\ The petition process would be similar to 40 CFR 260.20,
where any person may petition the Administrator to modify or revoke any
provisions of the hazardous waste rules, and where procedures governing
the EPA's action on those petitions are established. The section 260.20
standards reflect normal, informal rulemaking procedures under the APA
and thus serve as an appropriate model for the NHSM petitions under
this section.
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    \58\ This approach is consistent with the approach EPA recently
proposed in the July 2011 Definition of Solid Waste (DSW) proposed
rule (76 FR 44094), whereby the Agency is proposing to require that
persons who claim that they are legitimately reclaiming a hazardous
secondary material meet all four legitimacy criteria, but is
providing a petition process whereby they can petition EPA that such
materials, when looking at the hazardous secondary material and
recycling activity as a whole, would still be considered legitimate
recycling. The primary difference between the two is that in the DSW
proposed rule, the demonstration is made on a site-specific basis,
whereas in today's proposed rule, the demonstration would be made on
a material-by-material basis.
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    In the context of a rulemaking petition under section 241.4(b), any
person would be able to petition the Administrator for a regulatory
amendment to identify and request that additional NHSMs be included on
the list of materials in section 241.4(a) that are not solid wastes
when used as a fuel in a combustion unit. To be successful, the
petitioner would need to demonstrate to the satisfaction of the
Administrator that the proposed regulatory amendment involves a NHSM
that has not been previously discarded (i.e., was not initially
abandoned or thrown away). The petitioner must also demonstrate that
the material is used as a non-waste fuel in a combustion unit because
it either meets the legitimacy criteria, or, after balancing the
legitimacy criteria with other relevant factors, such NHSM(s) is not a
solid waste when used as a fuel in a combustion unit.
    If the applicant believes that the NHSM is a legitimate product and
not discarded despite not meeting legitimacy criteria, additional
information must be submitted to explain or describe why such NHSM
should be considered a non-waste fuel. Possible factors to address
include, but are not limited to:
     The extent that use of the NHSM has been integrally tied
to the industrial production process. Information can include combustor
design specifications, the extent that use of the material is
integrated across the industry, and the extent that use of the NHSM is
essential to the industrial process, and/or
     The extent that the NHSM is functionally the same as the
comparable traditional fuel, and
     Other relevant factors.
    The application would be required to include (1) The petitioner's
name and address; (2) a statement of the petitioner's interest in the
proposed action; (3) a description of the proposed action, including
the specific NHSM, the industry (i.e., NAICS code) and functional use
(i.e., industrial functional code listed in 40 CFR 710.52(c)(4)(i)(C));
and (4) a statement of the need and justification for the proposed
action, including any supporting tests, studies, or other information.
Where such NHSM(s) do not meet the legitimacy criteria, the applicant
must explain why such NHSM should be considered a non-waste fuel,
balancing the legitimacy criteria with other relevant factors.
    Under this petition process, the Administrator would make a
tentative decision to grant or deny a petition and then publish notice
of such tentative decision, either in the form of an ANPRM, a proposed
rule, or a tentative determination to deny the petition, in the Federal
Register for written public comment. The Administrator could, at its
discretion, hold an informal public hearing to consider oral comments
on the tentative decision. After evaluating all public comments, the
Administrator would make a final decision by publishing in the Federal
Register a regulatory amendment or a denial of the petition.

E. Additional Request for Comment

1. Pulp and Paper Sludges
    As we discuss elsewhere in this preamble, the Agency is proposing
to identify and categorically list NHSMs as being a non-waste fuel,
whether burned within the control of the generator or outside the
control of the generator (see 241.4(a)). By listing these NHSMs
categorically, persons would not have to make individual determinations
as to whether or not these NHSMs are solid wastes. In addition, the
Agency is also proposing that in considering whether or not to list a
NHSM as a non-waste fuel, that the Agency can balance the legitimacy
criteria, and such other relevant factors that the Administrator may
identify. Such additional factors may include, but are not limited to,
whether the NHSM's use as a fuel has been integrally tied to the
industrial production process and the extent to which the NHSM when
used as a fuel is consistent with that of fuel product.
    With regard to pulp and paper sludges, the 2011 NHSM final rule
specifically concluded the following ``The final rule will retain the
proposed approach--pulp and paper sludges managed within control of the
generator are a non-waste fuel as they would seem to meet all of the
legitimacy criteria * * * '', (See 76 FR 15488, March 21, 2011). We
received several questions about these materials following issuance of
the final rule. As discussed below, based on the current record, the
EPA continues to believe that these pulp and paper sludges meet the
legitimacy criteria and can be burned as a non-waste fuel in accordance
with existing section 241.3(b)(1) provided such combustion units are
within the control of the generator. In this section, we discuss the