considered `discarded.' '' Id. With respect to transferring material,
the court only said ``we have never said that RCRA compels the
conclusion that material destined for recycling in another industry is
necessarily `discarded.' '' Id. Rather, the key to understanding the
importance of Safe Food is the question `` `whether the agency's
interpretation of * * * `discarded' [is] permissible, that is,
reasonable and consistent with the statutory purpose.' '' 35 F.3d at
1269 (citations omitted).
    The point of Safe Food is that the courts are to examine EPA's
interpretation based on whether it is reasonable. No one factor will be
determinative.
    Thus, the comment is wrong to try to argue that a quotation in Safe
Food regarding ``vertical integration'' somehow means that the transfer
of a secondary material to another party is irrelevant for determining
whether a secondary material is a waste. Aside from the fact that EPA
finds no evidence of the relevance of ``vertical integration'' to this
regulation and no commenter has indicated its relevance, it is plain
from any reasonable analysis that transfer to another party, where a
generator of a secondary material relinquishes all control of the
material is certainly relevant to any determination whether a material
is a waste.
    EPA is in no way claiming that such transfer is the definitive
criterion for discard. Instead, EPA has examined the issue of company-
to-company transfers in the context of specific secondary materials and
to the extent the Agency has found either discard or no legitimate
recycling, it is requiring companies to file a non-waste petition in
order to allow the Agency to review the specifics of their cases.
Further, the Agency will in the future solicit comment 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. Under
today's rule, only scrap tires managed under established tire
collection programs and resinated wood are non-wastes when used both
within and outside generator control (see Sec.  241.3(b)(2). In
addition, citations to case law on abandonment issues between private
parties are not relevant to this case of government regulation. The
cases do not consider the factors that are relevant to EPA's
determination under this rule. In this rule, EPA needs to decide
whether secondary material is discarded in the first instance, and
whether the transfer represents a legitimate non-waste activity. To
represent a legitimate non-waste activity, if the material has not been
discarded in the first instance, it must be handled as a valuable
commodity, must have meaningful heating value, and must not have
contaminant levels that show the material is transferred to destroy
unwanted constituents instead of for its fuel value. A waste owner may
not be ``abandoning'' a waste when it sends it to another company, but
the non-hazardous secondary material is still a solid waste if the
receiver is not burning the secondary material legitimately as a fuel
(construction debris highly contaminated with lead paint).
    EPA also disagrees with the comment that the Agency is inconsistent
by allowing the legitimacy criteria to suffice for generators, but not
for the transferred material. The issue is not whether legitimacy
suffices for materials under the control of the generator as opposed to
material transferred to another party. Rather, EPA is using the
legitimacy standard for generators in order to comply with the holdings
in the case law that secondary material recycled within a continuous
industrial process is not a waste. As stated in the preamble to the
proposed rule, secondary materials recycled or reused legitimately
under the control of the generator will cover all, or almost all,
secondary materials recycled or reused

in a continuous industrial process. See 75 FR 31886-87. EPA thus,
rejects the environmental groups' argument that any combustion of
secondary material is a waste. EPA has only decided that there is
greater likelihood that material will not be a waste if it is under the
control of the generator. If the generator keeps the material it would
indicate presumptive non-discard. However, the legitimacy criteria
serve as a check to make sure discard would not occur. For material
transferred to another party, as noted above, EPA has greater concern
since different incentives come into play for the generator as well as
the recipient, as evidenced by past careless treatment of secondary
materials.
    Comment: EPA has no authority under section 129 of the CAA to
regulate the use of non-hazardous secondary materials as ingredients.
EPA's section 129 authority is limited to ``solid waste incineration
units,'' which the statute defines as units that ``combust'' solid
waste. This statutory definition does not say EPA can regulate units
that ``treat'' solid waste (as provided in RCRA subtitle C). Nor does
it say that EPA can regulate units that ``use'' solid waste. For
example, the feedstock for clinker that is placed into a Portland
Cement kiln is not ``combusted''--rather, it is incorporated into the
clinker product. Similarly, non-hazardous secondary materials that may
be used as substitutes for mined or virgin feedstock become
incorporated into the clinker product and are not ``combusted.''
    EPA's Response: This comment is not relevant to this regulation,
which determines whether a secondary material is a solid waste, or not
a solid waste as defined by RCRA. Clearly, EPA has the authority to
interpret RCRA to decide whether non-hazardous secondary materials are
solid wastes or not. Whether EPA may cover ingredients used in
combustors under section 129 of the CAA is a matter for regulations
under that statute.
    Comment: EPA asserts in its preamble that any material that is
discarded must be considered forever discarded (and therefore remain a
solid waste) no matter what value or use it may have to another person
who may retrieve the material. This logical leap defies common sense,
and is not in any manner compelled by the statutory language or
judicial precedent.
    It is illogical and nonsensical to hold that a material must be
considered forever ``discarded'' if Party B comes upon the material,
removes it from its ``discarded'' venue, and takes it with him or her
for a bona fide use. Suppose a woman walks by a town dump and spies a
chest-of-drawers that has been thrown away (i.e., abandoned,
discarded). The piece of furniture is old, but it is perfectly usable
for a room in her house. She takes the chest of drawers and places it
in a guest bedroom and it now sits there full of clothes. To say the
chest sitting in that room is now a ``discarded'' material simply
defies the plain meaning of the word.
    According to the comment, the RCRA subtitle C case API I, which
deals with hazardous waste under RCRA, in no way impairs EPA's ability
to craft a subtitle D rule that could allow for materials once deemed
to have been discarded to cease to be a solid waste when reused. The
comment acknowledges that in API I, the court disapproved of the
concept that a material that may have once been thrown away could
nevertheless ``cease to be a solid waste'' if it were being
beneficially reused, as it would no longer at that point be considered
a ``discarded material.'' The comment goes on to say, however, that the
court only stated that it believed it would be ``unlikely'' that EPA
could successfully maintain the position that a discarded material
could cease to be a solid waste when recycled. The court reasoned that
for EPA to reach such a conclusion, the Agency would have to reconcile
this position with RCRA's acknowledged objective to establish a cradle-
to-grave regulatory structure for the safe handling of hazardous
wastes.
    The comment argues that this language of the opinion is a
``critical'' element of the decision and only applies to hazardous
wastes. Therefore, it does not apply to non-hazardous waste. The
comment goes on to say that EPA cites no case law, and they are aware
of none, in which a court has ruled that a discarded non-hazardous
secondary material must forever be deemed discarded no matter what
beneficial use it may subsequently be put to.
    EPA's Response: EPA disagrees with this comment. In the first
place, the Agency is not saying that wastes are ``forever'' discarded.
Wastes may be processed into materials that are not wastes. The
important point, here, is that a waste does not automatically lose its
waste designation solely because some person has found value in the
material. Something has to happen to that waste to make it a non-waste.
    Judicial interpretations of the statutory definition of discard
very plainly hold that a material that has become a waste--because it
is discarded--may not lose its waste status ``just because a reclaimer
has purchased or finds value'' in the waste. ILCO at 1131; OWEN STEEL
at 150. Furthermore, in ABR, the court stated, ``The point of AMC II,
and for that matter API, is that once material qualifies as `solid
waste,'' something derived from it retains that designation even if it
might be reclaimed and reused at some future time.'' ABR at 1056.
    EPA notes in a response to a comment elsewhere in this preamble
that these cases do not prevent the Agency from considering that wastes
may be processed in some way into non-waste products. Nevertheless, the
cases unmistakably hold that secondary materials do not lose their
waste status simply because they have value.
    The commenter's reference to the API I case's mention of the
purposes behind the hazardous waste regulation's ``cradle to grave''
regime is not ``critical'' to the court's holding. The court only was
opining on a hypothetical situation should EPA return to the court in a
future case. It certainly was not necessary to the holding in the case
and must only be considered dicta. EPA believes it has crafted a valid
interpretation of the statute based on other relevant case law on the
subject.
    EPA also acknowledges that persons may find value in materials that
have been thrown away, such as the chest of drawers to which the
comment refers. However, this regulation deals with fuels and
ingredients that are used in combustors, and EPA is not evaluating
other materials when beneficially used. In fact, EPA has specifically
indicated that the Agency is not making a determination that non-
hazardous secondary materials are, or are not, solid wastes for other
possible beneficial end uses. Such beneficial use determinations are
generally made by the states for these other end uses, and EPA will
continue to look to the states in making such determinations. Thus, EPA
does not need to resolve the hypothetical situation as to when the
chest of drawers becomes a non-waste.
    Comment: In the proposed rule, the Agency indicated that the 2008
DSW Final Rule included a third part in the definition of ``under the
control of the generator.'' Specifically, the 2008 DSW Final Rule also
applies to hazardous secondary materials that are generated pursuant to
a written contract between a tolling contractor and a toll manufacturer
and legitimately reclaimed by the tolling contractor. For purposes of
that exclusion, a tolling contractor is a person who arranges for the
production of a product or intermediate made from specified raw or
virgin materials through a written contract with a toll manufacturer.
The

Agency requested comment on whether to include this option in the final
rule.
    Few comments were received on tolling contractors. One commenter
stated that to the extent that such arrangements facilitate the
recycling or use of non-hazardous secondary materials and benefit the
environment by reusing such secondary materials that might otherwise be
disposed of, it should be included. A state commented, however, only
that tolling contracts should not be considered under the control of
the generator.
    EPA's Response: We did not include tolling arrangements as being
``within the control of the generator'' as we viewed this as a specific
type of arrangement used in the production of secondary materials that
are not being used as fuels, and were unaware of these types of
contractual arrangements where both products and secondary material
fuels are sent to what we are calling tolling contractors, nor has any
comment informed the Agency of such arrangements for fuels.
    Comment: In implementing RCRA, EPA must balance the statute's two
primary goals of (1) protecting human health and the environment and
(2) encouraging reuse and recycling. The second goal is particularly
critical in the RCRA subtitle D context. EPA's proposal, along with the
CISWI proposal, draws many lines that would impose major impediments on
recycle/reuse. Yet EPA never attempts to justify these choices dealing
with non-hazardous secondary materials on the grounds of protecting
human health and the environment.
    EPA's failure to take both of these factors into account produces
results that impede reuse and recycling of non-hazardous secondary
materials with no benefit to health and the environment. The commenters
claim this is arbitrary and capricious and a failure of reasoned
decision making.
    EPA's Response: EPA disagrees that these policy goals provide the
legal basis for the Agency's determination whether secondary materials
are solid wastes--discarded within the ordinary meaning of the term.
Broad policy goals stated in the statute do not substitute for the
substantive statutory requirements which the Agency must follow. In the
NRDC case, the DC Circuit admitted that EPA may have legitimate policy
reasons for its decision. However, the Agency must still follow the
statute.
    Yes, the Agency should encourage recycling, but it may not
encourage that use by allowing discarded materials to be considered
non-wastes. The overall congressional policies are limited by the
substantive statutory requirements. Yes, the Agency must protect human
health the environment, but its ability to do that is limited to its
ability to regulate material that is discarded--material that is a
solid waste. The Agency is establishing standards for determining if a
secondary material is a solid waste, in order to clearly identify which
combustion units are subject to CAA section 129 standards. We do note
that as part of the Agency's legitimacy criteria, we consider whether
there are excessive contaminants in the secondary material that is
combusted. This analysis delves into matters regarding whether the
secondary material is actually a waste.
    Comment: In a similar vein, another industry comment argues that
the statutory definition of solid waste sets the outer limits of EPA's
regulatory authority under RCRA. However, EPA is neither required nor
authorized to go to the limits of that definition in each of its
regulatory programs. Each such program, according to this comment, is
aimed at specific dangers that the wastes it addresses may pose, and
each such program must take account other statutory purposes, such as
encouraging the beneficial reuse of secondary materials. EPA,
therefore, should exercise its authority to establish a definition of
waste that is tailored to address the problems at issue, and that does
not impermissibly infringe on other statutory goals.
    EPA's Response: EPA disagrees with this comment. First, general
congressional policies that refer to encouraging recycling have no
place in EPA's determination as to whether a secondary material is a
waste or not. For purposes of this rule, EPA is evaluating which non-
hazardous secondary materials are discarded under the statute. CAA
section 129 requires that units burning solid waste, as defined by the
Administrator, are subject to emissions standards under that section.
    In deciding which non-hazardous secondary materials are in fact
wastes, the Agency evaluated a number of circumstances and exercised
discretion to decide on how the definition of solid waste applies in
various circumstances. However, EPA cannot decide to develop a narrower
interpretation of what constitutes a waste simply because it does not
want to have the non-hazardous secondary materials burned under CAA
section129 instead of CAA section 112. EPA may not say material is not
discarded if, in fact, it is.
    In this case, EPA is determining which non-hazardous secondary
materials are solid wastes. EPA has no authority to grant waivers
simply because it wishes to encourage recycling by making the
combustion of secondary materials less expensive.
    With respect to RCRA subtitle C regulations, as has been noted
throughout this proceeding, EPA is not reopening any decisions. Any
commenter's subjective evaluation of whether a particular hazardous
waste regulation is more stringent than this regulation has no
relevance to whether a non-hazardous secondary material is discarded
for purposes of this regulation.
    EPA has stated that secondary materials excluded from the
definition of solid waste under the subtitle C regulations will remain
non-wastes under this rule. We are not reopening the RCRA subtitle C
rules. EPA also notes that some comments have argued that the
legitimacy criteria do not apply to the subtitle C rules and,
therefore, should not apply to this rule. EPA disagrees with that
concept. In fact, the legitimacy criteria in some form apply to all
recycling, regardless of how it is formulated, even if there is a
specific exclusion under RCRA subtitle C.
2. Processing Requirements
    Under the proposal, fuels or ingredients that are produced from the
processing of discarded non-hazardous secondary materials are not a
solid waste provided they meet the specified legitimacy criteria.
Comments from environmental groups rejected in its entirety any
processing requirement at all. According to these comments, a discarded
material remains a waste and cannot be rehabilitated to become a
commodity fuel. Any fuel derived from a waste must be combusted under
section 129 of the CAA.
    On the other hand, industry commenters in general found the
proposed definitions of ``processing'' and ``sufficient processing''
unclear and the processing requirements generally too restrictive.
Several comments requested that EPA offer further explanation as to why
processing is necessary in the first instance. In particular, they
claimed that the degree of processing required by the proposed rule is
inappropriate and illogical, arguing that there is no reason to impose
an artificial and arbitrary requirement that materials first be
``transformed'' into something different.
    Other commenters argued that secondary materials suitable for use
as a fuel or ingredient without processing are not solid wastes when
combusted, even if they have been previously discarded. In other words,
if previously discarded, non-hazardous secondary materials can be used
as is, as fuels or as ingredients, then such non-hazardous

secondary materials are not solid waste. As long as the fuel or
ingredient meets the legitimacy criteria, affected parties should not
have to process the material, as doing so would be burdensome and
unnecessary. Other commenters asserted that minimal processing should
be sufficient for a fuel not to be considered a solid waste.
a. Comments From Environmental Groups
    Comment: EPA is incorrect in defining discarded materials to be
considered non-waste product fuels if they have been ``sufficiently
processed.'' In the view of this commenter, the DC Circuit has held
plainly and repeatedly that the term solid waste unambiguously includes
fuels made from processed secondary materials. The comment refers to
dicta in the DC Circuit opinions of AMC I and ABR, in which the court
states that EPA may regulate used oil recyclers that collect discarded
used oils, distill them, and sell the resulting material for use as
fuel in boilers. In addition, the comment cites cases in other
circuits--ILCO and Owen Steel--to the effect that wastes may be
recycled and that their recycling is irrelevant to the determination as
to whether they are wastes. In particular, the comment cites the facts
in ILCO where the court found used batteries to be discarded within the
everyday use of the term and that their secondary character as
recyclable material is irrelevant to that determination. In addition,
the comment cites the Owen Steel facts where steel slag recycling
activities were considered waste treatment even though the recycled
slag was used commercially. According to the comment, a material is
discarded and the fact of discard is not changed just because a
reclaimer has purchased or finds value in the components of such
secondary materials.
    EPA's Response: EPA disagrees with the comment, and finds that the
commenter reads too much into these cases. EPA has repeatedly stated in
this rulemaking that it agrees that wastes may be recycled and that the
fact of discard does not change solely because the waste may have
value. As stated earlier, EPA has specifically indicated that the
Agency is not making a determination that non-hazardous secondary
materials are, or are not, solid wastes for other possible beneficial
end uses. These cases do not, however, stand for the proposition that
any product resulting from the recycling must be a waste. Such a view
would make almost every aluminum can from which we drink our sodas or
newspapers on which we read the news ``solid wastes.''
    With respect to AMC I and ABR, the reference to regulating used oil
processing into fuels that are sold is, first, not necessary to the
decisions. Those cases overturned rules where EPA was overly broad in
its regulation. The cases were not deciding which situations constitute
proper regulation by EPA. Nevertheless, the DC Circuit, by the terms of
its dicta, was only referring to regulating the processing activity for
the used oil. The court was not referring to regulation of the
resulting material that was sold to boilers as a fuel. In fact, the
court acknowledges that the fuel is sold to boilers and in no way
opines on whether the resulting fuel is a waste. In this rule, also,
EPA is not saying that the processing of discarded material is excluded
from regulation as a waste activity, but only that the resulting fuel
is not a waste if it has been sufficiently processed and meets the
criteria of fuels that are not wastes--referred to as meeting the
legitimacy criteria.
    As for the other recycling cases, EPA has admitted that the mere
fact of recycling does not change the nature of a secondary material
that has been discarded. Again, AMC I and ABR cases are not directly on
point for deciding whether non-waste products can be extracted from
discarded material because the courts were not called upon to decide
that issue. In both cases, however, the courts refer to resulting
products that were sold commercially.
    In the ILCO case, the issue was whether reclaimed lead plates from
discarded batteries were recycled wastes or raw materials used to
produce steel ingots. The court found that the lead plates were wastes,
but only noted that the lead ingots made from the wastes were sold
commercially and did not opine as to whether the ingots were wastes.
EPA argues that the ingots were not wastes, since they were processed
into valuable commodities.
    In Owen Steel, the court found that slag from steel production was
a waste and the area where the slag was processed was a waste treatment
facility. The cured slag was sold for various commercial processes,
including roadbed construction. The court was not asked to opine, nor
did it, on whether the roadbed material was a waste. Again, EPA argues
that the cured slag could be a product produced from the waste, even
though the processing activity involved waste treatment.
    EPA does admit that the cases are not directly on point regarding
the Agency's determination that discarded materials may be processed
into legitimate product fuels. The cases do seem to recognize, however,
that products made from wastes may be products and not wastes.
    More importantly, the cases do not refute EPA's essential logic
that fuel or ingredients processed or extracted from discarded
secondary material is analogous to many products that are processed or
extracted from non-hazardous wastes, such as aluminum cans or recycled
paper made from recycled secondary materials. The cases indicate that
the same logic could apply to fuel processed from used oil, lead ingots
made from battery lead plates, or roadbed construction material made
from steel slag. This applies even though the processing or extraction
activities involve waste treatment. EPA believes that, at a minimum,
there are circumstances in which the resulting materials are not
wastes.
    EPA's task in the current rule is to decide when such processing
results in a product or a waste. To resolve the issue, EPA has
identified conditions on the extent of processing that has been
conducted. That is, the processed discarded material may become a non-
waste fuel or ingredient if certain conditions are met--that is
sufficient processing has occurred. If so, and if the material meets
the legitimacy criteria, the fuel or ingredient product would be
considered a non-waste material.
b. Comments From Industry Groups
    Comment: A number of industry commenters object to the processing
requirement for discarded non-hazardous secondary materials to become
non-waste fuels or ingredients. These comments contrast with the
argument of environmental groups that no processing would transform
discarded non-hazardous secondary materials into non-waste fuels or
ingredients, a contention to which the Agency responds to earlier in
this preamble.
    Industry commenters argue that the legitimacy criteria are
sufficient and that there should be no processing requirement for non-
hazardous secondary materials that were discarded and could now be used
as fuels or ingredients. The general argument is that the very act of
retrieving a previously discarded material for use as a fuel or an
ingredient proves that the material is once again wanted by the
consumer, regardless of the type or extent of processing which the
secondary material must undergo. According to these comments, the mere
act of removing the previously discarded material from the environment
for use ``conclusively'' demonstrates that the non-hazardous

secondary material has value as a product or intermediate--otherwise,
no one would invest the significant costs associated with the recovery
of these materials.
    Various activities were specifically mentioned--recovery of coal
combustion byproducts from landfills, extraction of coal refuse from
mine sites and used whole tires retrieved from tire piles. With respect
to these non-hazardous secondary materials, commenters argue that the
excessive threshold level of processing makes no sense and that EPA
should allow only a minimal amount of processing to convert a waste
into a product fuel or ingredient.
    In particular, the comments argue that normal processing of coal
refuse (mining rejects) should be sufficient to constitute processing
needed to convert previously discarded materials to legitimate fuels/
ingredients. The same material mined to be used in today's combustion
technology is processed in that way and there is no difference between
the mined materials.\24\ Also, whole tires retrieved from waste tire
piles may need only minimal processing for use in cement kilns, such as
removal of excess water and dirt, mud, and debris. Whole tires from
newer stacks or piles often need no physical processing whatsoever. In
contrast, EPA argues that scrap tires cannot be considered sufficiently
``processed'' unless they are physically shredded and undergo metals
removal processing.
---------------------------------------------------------------------------

    \24\ As discussed later in this preamble, the Agency has changed
its view regarding coal refuse that was previously abandoned, such
that if the discarded coal refuse is processed in the same way as
coal is today, the Agency would not consider the processed coal
refuse a solid waste.
---------------------------------------------------------------------------

    Establishment of a threshold level of processing that must take
place before a discarded non-hazardous material is considered a
legitimate fuel or ingredient would also have the perverse effect of
applying different standards to identical materials. For example, there
is no difference in the coal refuse or coal combustion byproducts that
are recovered from landfills for use in a fluidized bed combustion unit
or in the cement manufacturing process.
    Some comments claim that under EPA's hazardous waste regulations,
only minimal processing, such as baling or sorting, is required for
scrap metal to be excluded from the definition of solid waste. The
scrap metal, which would otherwise be a hazardous waste, may be sent
into high-temperature environments, such as electric arc furnaces at
steel mills and aluminum smelters. EPA had stated that this is a good
example of where the level of processing necessary to convert a waste
material to a non-waste material is dependent on the material itself.
The comments claim that this is inconsistent with requiring used tires
that have been discarded to not to be considered sufficiently
``processed,'' unless they are physically shredded and undergo metals
removal processing.
    EPA's Response: As discussed in the case law elsewhere in this
preamble, EPA is constrained by the statutory definition of solid waste
under RCRA and the fact that case law holds that a discarded material
does not lose its status as a waste solely because it has value or may
be beneficially reused. Allowing certain non-hazardous secondary
materials to be combusted as a fuel under the section 112 standards of
the CAA may have beneficial policy objectives. However, EPA may not
base its decision on the policy, but must evaluate whether a secondary
material is a solid waste under RCRA. Specifically, the DC Circuit in
NRDC would not allow EPA to establish a policy basis for determining
whether section 112 or 129 applies. Thus, non-hazardous secondary
materials that are wastes and are used as a fuel/ingredient in a
combustion unit must be used in section 129 units, whereas non-
hazardous secondary materials that are not wastes and are used as a
fuel/ingredient in a combustion unit may be used in section 112 units.
The court stated that ``the distinction EPA draws may well be
reasonable'' referring to EPA's distinguishing between section 112
combustors designed to recover energy and section 129 incinerators
meant to destroy materials. NRDC at 1260. The court, however, was very
clear that this is not the line drawn by Congress, which intends that
any waste material, even if burned for energy recovery, must be burned
in section 129 combustion units.
    The Agency, however, believes that the case law would not prohibit
the processing or extracting of products from non-hazardous secondary
materials that were once wastes. This latter view is controversial as
evidenced by the comments from environmental groups, which claim that
no amount of processing can convert a waste into a legitimate fuel or
ingredient product. EPA, however, does not believe it may interpret the
statute or the case law to allow a clearly discarded secondary material
to become a non-waste solely because it has value.
    EPA sympathizes with the commenters' concern that the processing
requirement could have the effect of applying different standards to
identical materials, such as scrap tires. The Agency, however, is
constrained by the statute and case law. If the non-hazardous secondary
material is not discarded in the first instance and is legitimately
recycled--that is, meets the legitimacy criteria, it is not discarded.
Once the material has been discarded--thrown into waste piles or on
stacks--there is no choice. Something other than mere recycling must
happen to the material before it may lose its waste designation. The
mere fact that secondary materials may have value after being discarded
is not sufficient to rehabilitate it.
    Accordingly, EPA is not making any changes to the processing
requirements for discarded scrap tires, although the Agency is
providing that tires harvested from vehicles do not need to be
processed if they are harvested off of the vehicles and are managed
under the oversight of an established tire collection program and are
legitimately used as a fuel in a combustion unit (refer to Section
V.B.5 Scrap Tires) to be considered a non-waste fuel.
    For coal refuse, however, EPA has decided that for the final rule,
to make some modifications to its determinations regarding sufficient
processing. In the proposal, EPA was still considering that the coal
refuse that was abandoned would require additional processing, even
though they were the same material as coal refuse currently generated
and used in fluidized bed combustors as traditional mined coal. EPA has
modified its view to provide that the discarded coal refuse that is
processed in the same way as coal is today would not be considered a
waste when combusted. For more information on the rationale for this
decision, see Section V.B.8 for a discussion of the comments received
on coal refuse and our response to those comments.
    Finally, in response to the point that minimal processing is
permitted to exclude scrap metal from the definition of solid waste in
EPA's hazardous waste regulation, the Agency first states that it is
not reopening the hazardous waste regulations, including the reasoning
in those regulations. Besides, the reference to scrap metal in the
hazardous waste regulation was only used in the preamble to note the
fact that the extent of processing in general depends on the nature of
the material, as we have noted elsewhere in the preamble to today's
rule. Any comparison, other than the very general one that processing
depends on the material, is not being considered by EPA. Whatever the
reasoning provided in those regulations, EPA did not cite the scrap
metal regulation as support for the processing

definition. The Agency also points out that the scrap metal is not
combusted.

B. Comments on Specific Materials Used as Fuel

1. Traditional Fuels \25\
---------------------------------------------------------------------------

    \25\ Traditional fuels are not considered secondary materials
and therefore, are not considered a solid waste unless they
themselves have been discarded. However, because the Agency received
comments regarding ``traditional fuels,'' including whether certain
materials should be considered a traditional fuel, the Agency is
addressing those comments in this section.
---------------------------------------------------------------------------

    The following discussion describes how EPA has analyzed what is a
traditional fuel in the ANPRM and the proposal. Next, the Agency shows
how it considered various comments on the concept of traditional fuels.
Section VII.A, based on these analyses and all information in the
rulemaking record, explains the Agency's decision on what constitutes a
traditional fuel.
    EPA does wish to clarify, however, that it is using the term,
``traditional,'' more in the sense that we have a product that is
created for its use as a fuel. Some traditional fuels have been used
for a long time, while others are ``traditional'' only in the sense
that they are created in the ``traditional'' way that a product is
created (or mined), even though they may be newly developed fuels. For
example, coal refuse that was formerly not able to be used as a fuel
may now be used in fluidized bed systems. Perhaps, more obvious is the
fact that petroleum, itself, would not have been considered a
traditional fuel in the early 1800s, nor would uranium.
    The ANPRM categorized as traditional fuels cellulosic biomass
(e.g., wood) and fossil fuels (e.g., coal, oil, natural gas), as well
as fossil fuel 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). Traditional
fuels are those that have been burned historically as fuels and have
been managed as valuable products. They are unused products that have
not been discarded. The ANPRM also stated that unadulterated or clean
wood collected from forest fire clearance activities and trees and such
wood found in disaster debris, likewise, constitute traditional fuels.
This basic concept of traditional fuels was discussed at 74 FR 53.
    The ANPRM also discussed other legitimate ``alternative'' fuels
that have not been previously discarded generally noting that what
constitutes a new ``fuel'' reflects the availability of the fuel
materials generally, the demand for the fuel, and technology
developments. Thus, there is a category of materials that are
legitimate alternative fuels that may not have been historically used
as fuels, but that are nonetheless legitimate fuels today because of
changes in technology and in the energy market. In cases where these
legitimate alternative fuels have not been discarded, EPA said that it
would not consider them to be solid wastes. This is explained in the
ANPRM at 74 FR 56.
    The ANPRM stated that much of the biomass currently used as
alternative fuels are not solid waste since they have not been
discarded in the first instance and are legitimate fuel products. It
noted that biomass can include a wide range of alternative fuels, and
can be broken down into two different categories--cellulosic biomass
and non-cellulosic biomass. Cellulosic biomass was described to include
forest-derived biomass (e.g., green wood, forest thinnings, clean and
unadulterated bark, sawdust, trim, and tree harvesting residuals from
logging and sawmill materials), food scraps, pulp and paper mill wood
residuals (e.g., hog fuel, such as clean and unadulterated bark,
sawdust, trim screenings; and residuals from tree harvesting),\26\ and
agricultural residues (e.g., straw, corn husks, peanut shells, and
bagasse). Non-cellulosic biomass was described to include manures and
gaseous fuels (e.g., from landfills and manures) (74 FR 56).
---------------------------------------------------------------------------

    \26\ The ANPRM description of cellulosic biomass inadvertently
repeated the same material--``tree harvesting residuals from
logging'' and ``residuals from tree harvesting.'' Descriptions of
cellulosic biomass in the proposed rule and this final rule deleted
the second reference to residuals from tree harvesting.
---------------------------------------------------------------------------

    The ANPRM stated that biomass, especially cellulosic biomass, has a
comparable composition to traditional fuel products due to the nature
of the plants and animals (i.e., they would not be considered to have
additional ``contaminants''). Thus, if they are managed as valuable
commodities and have meaningful heating value, they would not be
considered solid wastes.
    The ANPRM distinguished the traditional fuels from non-traditional
alternative fuels to decide whether they are discarded, or whether they
are legitimate alternative fuels. These fuels are those in use today
that the Agency was evaluating, and continues to evaluate, to determine
whether they have been discarded and whether they are legitimate
alternative fuels (e.g., construction and demolition materials, scrap
plastics, non-hazardous non-halogenated solvents and lubricants, and
wastewater treatment sludge) (74 FR 56).
    The ANPRM also described secondary materials EPA considered to be
questionable as to whether they are legitimate fuels because they lack
adequate heating value (wet biomass), or because they may contain
contaminants that are significantly higher in concentration than those
in traditional fuel products to the degree that sham recycling is
indicated. The secondary materials that were described in the ANPRM
that could fall into this category include polyvinyl chloride (PVC),
halogenated plastics, chromated copper arsenate (CCA) lumber, creosote
lumber, copper-based treated lumber, lead-based treated lumber, and
secondary mill residues, such as board, trim and breakage from the
manufacture of reconstituted wood/panel products.
    The proposed rule continued to recognize that traditional fuels, as
noted above, are not solid wastes, but added to that group clean
cellulosic biomass and on-specification used oil (75 FR 31856).
Specifically, in the proposal, ``clean'' biomass material was defined
as a non-hazardous secondary material that has not been altered (either
chemically or through some type of production process), such that it
contains contaminants at concentrations normally associated with virgin
biomass materials (the description of ``clean'' is being modified
slightly for today's rule, see discussion below). Clean cellulosic
biomass was described to include 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,
and clean biomass from land clearing operations (75 FR 31856).
Essentially, ``clean'' biomass was that biomass material that was
simply picked up from its environment and burned for fuel. EPA
requested comment on whether other types of cellulosic biomass should
be designated as clean biomass, and thus a traditional fuel (75 FR
31856).
    EPA also proposed to add on-specification used oil to the list of
``traditional'' fuels based on the argument that it meets the Agency's
view of fuels that have been managed as valuable fuel products rather
than being managed as waste materials. 75 FR 31864. The Agency stated
that under 40 CFR part 279, once used oil is determined to be on-spec,
it is no longer regulated under the used oil management standards. This
means that once the marketer complies with the

requirements for analysis and record retention, notification, and
record tracking shipment to on-specification burners, the oil is no
longer subject to other management standards. Moreover, the on-
specification used oil contains contaminants at levels below the
maximum concentration limits established in the standards, such that
they are either at the same concentration or a lower concentration than
virgin refined fuel oil.
    EPA acknowledged in the proposal that changes in technology and in
the energy market over time may result in additional materials being
economically viable to be used as alternative ``traditional'' fuels. It
also may not always be clear whether a fuel material is a traditional
fuel. We agreed with commenters to the ANPRM that this rulemaking
should be flexible to account for increasing use and changes in
commodities, technologies, markets, and fuel prices. We, therefore,
requested comment on whether other fuels in use today should be
classified as traditional fuels, as well as whether to provide a
petition process that would allow a facility or person to request that
EPA determine whether the fuel that they burn qualifies as a
traditional fuel.
    As also discussed in Section VII, the definition of traditional
fuels has been modified in today's rule. The new definition encompasses
two categories of fuels: (1) ``Historically managed'' fuels, as
identified in the proposed rule, and (2) ``alternative'' fuels, as
discussed in the ANPRM. Through this revised definition, EPA is
recognizing that changes in technology and in the energy market over
time have resulted in additional materials being economically viable to
be used as alternative ``traditional'' fuels. The definitions of
traditional fuels and clean cellulosic biomass are codified in today's
rule (Sec.  241.2). ``Traditional fuels'' is defined in today's final
rule as materials that are produced as fuels and are unused products
that have not been discarded and therefore, are not solid waste
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. Clean cellulosic biomass is also codified in today's rule
(Sec.  241.2) and includes 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. ``Clean'' cellulosic biomass is cellulosic biomass
that does not contain contaminants at concentrations not normally
associated with virgin biomass materials. As indicated above, this
description of clean is modified slightly in today's rule. The previous
description included non-hazardous secondary material that has not been
altered (either chemically or through some type of production process),
such that it contains contaminants at concentrations normally
associated with virgin biomass materials.
    Traditional fuels as described above are not secondary materials or
solid wastes.
    Comment: Several industry commenters suggested that EPA include
off-spec used oil, scrap tires, resinated wood products, treated wood,
pulp and paper mill residues, and recycling process residuals in its
definition of traditional fuels. They claim that these materials have
histories of use as valuable fuel products. Another commenter suggested
that secondary materials from new processes to meet Renewable Fuel
Standards (RFS) should be defined as traditional fuels. According to
the commenter, not defining those materials as traditional fuels could
lead to reduced beneficial use, could negatively impact the economics
of these newly developing processes, and could increase the use of
conventional fossil fuels. This could significantly harm the prospects
of reaching RFS goals.
    EPA's Response: For a discussion of comments and EPA responses
related to each of the individual materials listed above and their use
as traditional fuels, see their respective subsections within Section
V.B. Regarding the RFS program, the Agency disagrees with the commenter
that materials from processes to meet the RFS standard should be
defined as traditional fuels. Under the RFS program, EPA is responsible
for developing and implementing regulations to ensure that
transportation fuel sold in the U.S. contains a minimum volume of
renewable fuel. Today's rule addresses only the use of non-hazardous
secondary materials as a fuel or ingredient in stationary source
combustion units (regulated under CAA section 112 and 129), and does
not impact other end uses of these materials, including their use as a
transportation fuel.
    Comment: There are many other materials that might be considered as
secondary materials, but because of their energy content, have been
identified as viable fuels, particularly as the cost of fossil fuels
have increased over time. Citing phrases from the proposed rule, one
commenter stated that ``Changes in * * * the energy market,'' as well
as systems designed and installed by cement plants in order to manage
these materials (``changes in technology''), would suggest that
materials, such as plastics, paper and paper residues, and tires should
qualify under this definition of ``traditional fuels.''
    EPA's Response: As indicated in the discussion above, EPA agrees
that there is a category of materials that are legitimate alternative
fuels that have not been discarded and may not have been traditionally
used as fuels (i.e., a product that is created for its use as a fuel),
but that are nonetheless legitimate fuels today because of changes in
technology and in the energy market. Such alternative fuels would
include clean cellulosic biomass, currently mined coal refuse, and on-
specification used oil. See the respective subsections within Section
V.B for a further discussion of each of these materials. As discussed
in the proposed rule, the Agency believes materials, such as plastics,
paper and paper residues and tires that have not been removed from
vehicles and managed under an established tire collection program
typically have been discarded, and thus would not be considered
traditional fuels or legitimate alternative fuels.
    Comment: Another commenter stated that EPA does not say why it
regards certain fuels as ``traditional'' and, indeed, stresses that the
term ``traditional'' ``should be flexible to account for increasing use
and changes in commodities, technologies, markets, and fuel prices.''
Thus, EPA makes clear that the term ``traditional fuels'' will
accommodate fuels that are anything, but ``traditional.'' EPA provides
no basis at all for assuming that none of the fuels

it labels ``traditional'' are not actually waste.
    EPA's Response: EPA disagrees with the commenter. As described in
the ANPRM and proposed rule, traditional fuels, such as fossil fuels
have been burned historically as fuels and have been managed as
valuable products. They are considered unused products and are not
secondary materials and are not solid wastes unless discarded. We added
``alternative fuels'' to the definition of traditional fuel in today's
rule to recognize that changes in technology and in the energy market
have resulted in additional materials being economically viable to be
used as alternative ``traditional'' fuels. The definition is codified
in Sec.  241.2 in response to comments received on the proposal and to
provide clarity in the application and the meaning of traditional fuel.
    Comment: Other commenters suggested that, in order to further
clarify the definition of traditional fuel, if a fuel was on record as
being used before a specific year, e.g., 1980, that it be categorized
as a traditional fuel. Still other commenters suggested that additional
rule text is needed to clarify that non-hazardous secondary materials
used traditionally as fuels are not solid wastes. Finally, to address
any ambiguity about which materials are traditional fuels, another
commenter stated that EPA should include a petition process in the rule
that would allow sources to seek a determination on whether a material
may be considered a traditional fuel.
    EPA's Response: As described in the ANPRM and proposed rule,
traditional fuels, such as fossil fuels have been burned historically
as fuels and have been managed as valuable products. They are
considered unused products and are not secondary materials unless
discarded. We do not agree that a specific year should be identified to
define historically managed traditional fuels. First, it is not clear
what year should be selected and why and what the basis for picking a
particular year would be. In addition, as we noted in the proposal, the
wide variability of historic use and management of this category of
fuels does not lend itself to identification of a specific year. As
discussed above, EPA does wish to clarify that it is using the term,
``traditional,'' more in the sense that we have a product that is
created for its use as a fuel. Some traditional fuels have been used
for a long time, while others are ``traditional'' only in the sense
that they are created in the ``traditional'' way that a product is
created (or mined), even though they may be newly developed fuels.
    The Agency received only a few comments that supported a petition
process for traditional fuels. In light of the time and resource
intensive nature of such a process for the petitioner, the Agency
believes that the revised codified definition in today's rule together
with the preamble discussion should provide the basic guidance needed
for the regulated facility to determine whether the material qualifies
as a traditional fuel. Therefore, today's rule does not include a
petition process for an Agency determination that a material is, or is
not, a traditional fuel. However, any person can petition EPA under the
Administrative Procedure Act (APA), section 7004 of RCRA, and general
principles of administrative law for modifications to its regulations.
Thus, if a person believes that additional materials should be included
as a traditional fuel or alternative fuel, they may petition EPA to
request such a change through rulemaking. In addition to the specific
changes requested, the petition would also need to include a
justification and rationale for the change.
    Comments: ``Hogged fuel'' should be added to the list of ``clean''
biomass materials. Hogged fuel is bark and other wood removed from the
tree that cannot be chipped and used in making pulp, paper, and wood
products.
    EPA's Response: We believe that the materials described by the
commenter as ``hogged fuel'' are currently covered by the terms ``clean
and unadulterated bark'' and ``tree harvesting residuals from logging
and sawmill materials'' within the definition of traditional fuel.
However, we are aware that there are varying definitions of ``hogged
fuel'' and point the readers to the sections describing traditional
fuel and secondary materials to determine if their hogged fuel would be
considered a type of traditional fuel or a non-hazardous secondary
material.
2. Manure
    The proposed rule explained that the Agency lacked sufficient data
to evaluate whether manure burned for energy recovery is a waste. As a
result, we did not take a position one way or the other, but rather
requested comment, information and data on the legitimacy criteria,
which are designed to determine whether a non-hazardous secondary
material when combusted is a waste. Specifically, these criteria deal
with the levels of the various contaminants in manure, the energy
content of the manure, and on how manure is handled from its point of
generation to the point it is used as a fuel.
    The proposal also stated, however, that if manure is processed into
biofuels (for example, by anaerobic digesters), such biofuels would be
considered a legitimate non-waste fuel that has been processed from a
non-hazardous secondary material provided ``the biofuel'' meets the
legitimacy criteria--that is, provided it is managed as a valuable
commodity, has a meaningful heating value and contains contaminants at
levels that are comparable to or lower than those in traditional fuels.
The proposal again acknowledged, however, that we had limited data on
biofuels that are produced from animal manures, and requested that
commenters provide additional data on the extent to which manures are
currently processed into biofuels, as well as data to support whether
biofuels produced from manure meet our legitimacy criteria. See 75 FR
at 31863.
    Comment: The Agency received comments both supporting and opposing
the designation of manure as a waste. Specifically, two commenters
asserted that poultry litter that is burned as a fuel poses health
hazards (e.g., from arsenic that is added to poultry feed), but
provided no data to support this position. Another comment submitted in
response to the ANPRM stated that, due to the nature of manure, there
is the possibility of widespread environmental harm due to the release
of pathogens from animal manure, and that concentrated animal feeding
operation (CAFO) wastes are known to contain heavy metals, halogens,
dioxins, and other hazardous compounds. They assert chicken litter has
elevated arsenic levels and that swine waste has high amounts of
ammonia, nitrogen, and phosphorous. Still another commenter suggested
that poultry litter that is burned in power plants emit more pollutants
per million Btus when compared to coal fired power plants. Another
commenter referenced a 2008 report that described the risks associated
with CAFOs.\27\ This report stated that CAFOs are sited in rural
communities that bear the brunt of the harm caused by CAFOs, including
the frequent presence of foul odors and water contaminated by nitrogen
and pathogens, and that the use of antibiotics in CAFOs, especially for
non-therapeutic purposes, such as growth promotion, contributes to the

development of anti-biotic resistant pathogens that are more difficult
to treat. Finally, one Midwest state commented that when manure supply
significantly exceeds demand for manure as a fertilizer, the excess is
treated as a waste and should be regulated as a waste under this rule.
---------------------------------------------------------------------------

    \27\ Gurian-Sherman, Doug, CAFOs Uncovered: The Untold Costs of
Confined Animal Feeding Operations, Union of Concerned Scientists
(April 2008).
---------------------------------------------------------------------------

    On the other hand, a commenter argued that EPA should not classify
poultry litter as a solid waste and provided some contaminant data on
poultry litter generated in the United Kingdom.\28\ Another commenter
described how their company collects poultry litter from growers for
use as a fuel in dedicated (off-site) biomass power plants. The
commenter asserts that the poultry litter satisfies all the legitimacy
criteria. Specifically, this commenter describes operations (and
argues) that the poultry litter is managed as a valuable product by the
poultry litter generators and transporters, as well as by the power
plants. The commenter describes poultry litter generators as collecting
the litter on a continual basis and storing it in enclosed poultry
barns. The poultry litter is then transported in completely covered
trucks to the power plant where it is unloaded in a fully enclosed fuel
hall and is tested for fuel quality to ensure contractual obligations
are being met by the growers. After sampling, the trucks dump the
litter into a concrete reception pit within the fuel hall. Then, before
being combusted, the commenter indicates that the biomass fuel is
processed (e.g., processed in a ``de-lumper'' followed by a disc
screen) to breakdown the clumps of material and remove incidental non-
combustible tramp materials. The commenter also asserts that poultry
litter satisfies the contaminant legitimacy criterion, but only
provided data on sulfur and chlorine levels, noting the reported
chlorine levels averaged 0.7 percent (on a dry basis). They also
provided data on the heating values of poultry litter that ranged from
3-4,000 Btu/lb, explaining that this material is a self-sustaining fuel
(requiring no supplemental fuel), although they also note in their
comments that the poultry litter is mixed with other biomass before
being used as a fuel. The developer of this plant has indicated that
they have proposals to build similar type plants in North Carolina,
Virginia, and Georgia, but has not received approval from local
authorities. Another firm has a proposal for a plant in Connecticut,
designed to run on litter from an egg farm, but funding for this plant
dried up as a result of the U.S. financial crisis. Additionally, two
power plants (one in Texas and one in California), each currently
mothballed, but scheduled to reopen in 2011, would use cattle manure as
feedstock.
---------------------------------------------------------------------------

    \28\ This commenter reported poultry litter as having sulfur,
chlorine, and nitrogen levels of 0.35%, 0.16%, and 3.3%,
respectively, and a net heating value of 4,900 Btu/lb.
---------------------------------------------------------------------------

    Finally, two states commented that manure is excluded from the
definition of solid waste under their laws and regulations. One of
these states excludes manure from being defined as a solid waste when
it is returned to the soil as fertilizer or as a soil conditioner,
while the other exempts it from its statutory definition of solid
waste.
    Regarding our request for comment on the extent to which manures
are currently processed into biofuels, as well as data to support
whether biofuels meet the legitimacy criteria, one state referenced a
June 2009 Report to Congress \29\ that reviewed the current commercial
use of manure to energy systems, and found that few exist, and that it
is unlikely in the near term future for more to be developed due to
technological and economic barriers. Another state commented that they
were aware of one gasification system that has been built on a pilot
scale that uses chicken and poultry litter as a feedstock. Another
commenter stated that about 120 dairy farms and 30 hog farms use manure
as a feedstock for anaerobic digesters which are designed to capture
the methane gas in manure. Most farms then burn the gas as a feedstock
for on-farm electrical generation, which can be used to off-set the
farm's purchases and to sell electricity to the power grid. This
commenter also noted that one very large farm in the Phoenix area
further cleans the methane and sells it to a natural gas company whose
pipeline runs next to the farm.
---------------------------------------------------------------------------

    \29\ USDA, June 2009. Manure Use for Fertilizer and for Energy
Report to Congress. Economic Research Service. June 2009, pp. 32-39.
http://www.ers.usda.gov/publications/ap/ap037/ap037.pdf.
---------------------------------------------------------------------------

    A Tribe requested that EPA finalize legitimacy criteria that does
not discourage the development of biogas technology since it is a clean
carbon-neutral fuel needed to help address climate change. This Tribe
explained that its renewable energy plans focus, in part, on production
of biogas from animal, cheese, and other organic material, and
requested that EPA either exempt biogas from the contaminant legitimacy
criterion or require that, overall, contaminants in gaseous fuels not
be ``significantly higher'' in concentration than contaminants found in
traditional fuel products that the combustion unit is designed to burn.
The Tribe is concerned that a direct numerical comparison of
contaminant levels of biogas to natural gas that requires all
contaminants in biogas to be equivalent or below the concentrations
found in natural gas would discourage the development of biogas
technology.
    EPA's Response: First, based on the information provided to us, we
could not make a blanket determination that all manure is a traditional
fuel or that it is a solid waste. However, upon reviewing the few
comments and data received, we conclude that animal manure that is used
as a fuel ``as generated'' does not satisfy the legitimacy criteria,
and thus, if combusted ``as generated,'' is a solid waste. However, as
we discuss in other parts of today's preamble, there are circumstances
where manure would not be considered a solid waste when burned as a
fuel for energy recovery. We discuss these circumstances below. In
addition, we recognize that manure can have other beneficial uses and
emphasize that we are not making a solid waste determination on those
other uses through this rulemaking.
    Specifically, we find that the levels of certain pollutants, such
as nitrogen and chlorine, in certain types of manure, as generated, may
not be comparable to those levels found in traditional fuels that
otherwise would be burned. This is based on limited data found in a
North Carolina State University \30\ study that indicate some types of
manure have higher levels of nitrogen and chlorine when compared to
traditional fuels that otherwise would be burned in the energy recovery
device.\31\ Regarding the commenter's reference to pathogens, pathogens
are not included as a contaminant in today's rule, since that
definition focuses on those constituents identified in the CAA that EPA
will be evaluating to determine whether to establish emission standards
(see also the discussion in V.D.3).
---------------------------------------------------------------------------

    \30\ Animal and Poultry Manure Production & Characterization.
North Carolina State University Cooperative Extension Service.
Raleigh, NC. http://www.bae.ncsu.edu/programs/extension/manure/awm/program/barker/a&pmp&c/.
    \31\ Some manures were listed as having the following mean
levels for chlorine and nitrogen: Cl--1% by weight and N--3.5% by
weight reported as total Kjeldahl nitrogen as N. By comparison, coal
contains chlorine levels ranging from as low as 0.01% to as high as
0.74 percent and nitrogen levels ranging from 0.6% to 1.9%.
---------------------------------------------------------------------------

    We also find that manure, as generated, that is used as a fuel does
not satisfy our meaningful heating value criteria, since the limited
data we received shows that manure, as generated, has heating values
lower than 5,000 Btus/lb, as-fired. In fact, one commenter noted that
for manure to be

considered to have fuel value, that it typically should have a moisture
content of less than 25 percent, and manure, as generated, typically
has a higher moisture content. We also note that to satisfy the
legitimacy criteria, today's final rule requires that facilities that
burn non-hazardous secondary materials with a heating value of less
than 5,000 Btus/lb would need to demonstrate that such non-hazardous
secondary materials have meaningful heating values by describing
whether the energy recovery unit can cost-effectively recover
meaningful energy from the manure (see Section V.D.2).\32\ While one
commenter provided data to show that a power plant that is dedicated to
burning poultry litter would meet the meaningful heating value
criteria, even though the Btu content of the poultry litter is less
than 5,000 Btu/lb, as-fired, we believe that these limited data can't
be used to suggest that all or most manure that has a heating value of
less than 5,000 Btu/lb, as-fired, could meet this demonstration.
---------------------------------------------------------------------------

    \32\ As we note elsewhere in today's preamble, this
demonstration would be self-implementing and would not require a
petition to EPA, but the person would be required to keep
appropriate records as to the basis for this demonstration.
---------------------------------------------------------------------------

    We acknowledge, however, that farms or other facilities may manage
manure as a valuable fuel commodity and that this manure could also
satisfy EPA's contaminant and heating value legitimacy criteria. Our
limited data suggests that manure that is combusted has typically been
collected, stored, and processed. Thus, today's final rule also says
that manure would not be considered a solid waste when burned in a
combustion unit as a fuel for energy recovery under the following
circumstances:
     Within the Control of the Generator: Manure that is burned
in a combustion unit as a fuel for energy recovery would not be a solid
waste if the manure is burned in a combustion unit that is within the
control of the generator and the manure meets the legitimacy criteria.
     Processing of Manure: Manure that is ``sufficiently
processed'' \33\ would not be considered a solid waste (after
processing) when burned in a combustion unit as a fuel for energy
recovery provided the processed manure meets the legitimacy criteria.
This is a self-implementing provision, such that a petition would not
need to be submitted to EPA and is not limited to ``within the control
of the generator.'' Thus, for example, a farm or third party could
process the manure to remove or destroy contaminants that are not at
levels comparable to those contained in traditional fuels or improve
the materials heating value, and after processing, to the extent the
processed manure meets the legitimacy criteria, the processed manure
would not be a solid waste when burned as a fuel for energy
recovery.\34\ Also, as we discussed in the proposed rule, we expect
that manure can be processed into a non-waste gaseous fuel (e.g., via
anaerobic digestion or gasification processes), as suggested by
commenters. This gaseous fuel would also have to satisfy the legitimacy
criteria, and while we did not receive data on contaminant levels of
gaseous fuels that are, or could be, produced, we generally expect that
a system could be designed to produce a clean gaseous fuel that would
satisfy all of our legitimacy criteria.
---------------------------------------------------------------------------

    \33\ Processing (as it relates to fuels) means any operations
that transform the discarded non-hazardous secondary material into a
legitimate fuel product, and includes, but is not limited to,
operations that remove or destroy contaminants, operations that
significantly improve the fuel characteristics of the material,
e.g., sizing or drying the material in combination with other
operations, and operations that chemically improve the as-fired
energy content of the material. Minimal operations that result only
in modifying the size of the material do not constitute processing
for the purposes of this definition.
    \34\ As noted previously, one commenter described their
operation and noted that ``the mixed biomass fuel is lightly
processed (e.g., processed in a ``de-lumper'' followed by a disc
screen) to break down clumps of material and remove incidental non-
combustible tramp materials.'' This comment does not contain enough
information to determine whether or not this would meet the
regulatory definition of processing in today's rule. That is,
processing is designed to produce or extract a product from a
waste--not just to chop the waste up. However, to the extent that
this level of processing is considered sufficient, the processed
manure would not be a solid waste when burned in a combustion unit
as a fuel for energy recovery.
---------------------------------------------------------------------------

     Non-Waste Determination Petition Process: Manure, as
generated, that has been transferred to a third party for combustion as
a fuel for energy recovery, but has been granted a non-waste
determination from EPA would not be considered a solid waste. This
provision establishes a case-by-case process that provides persons an
administrative process for receiving a formal determination from EPA
that, in this case, manure, as generated, that has not been discarded
in the first instance and is indistinguishable in all relevant aspects
from a fuel product, is not a solid waste. Any petition submitted to
EPA requesting a non-waste determination would need to demonstrate that
the manure has not been discarded in the first instance, satisfies the
legitimacy criteria for fuels, and satisfies the following criteria:
(1) Whether market participants treat the manure as a fuel rather than
a solid waste; (2) whether the chemical and physical identity of the
manure is comparable to commercial fuels; (3) whether the manure will
be used in a reasonable time frame given the state of the market; (4)
whether the constituents in the manure are released to the air, water
or land from the point of generation to the point just prior to
combustion of the manure are released at levels that are comparable to
what would otherwise be released from traditional fuels; and (5) other
relevant factors.
    We partially agree with the commenter that was concerned about the
legitimacy criterion that would require contaminants in biofuels to
either be equivalent to, or lower than, levels found in natural gas.
While we believe it is beneficial to promote the use of clean burning
fuels, such as biofuels, non-waste fuels produced from secondary
materials should have comparable or lower levels of contaminants
relative to traditional fuels used today, since gaseous fuels that are
produced from secondary materials have the potential to have elevated
levels of contaminants (such as sulfur). As a result, we believe it is
appropriate to require, as proposed, that contaminants be comparable,
or lower than, those levels found in traditional fuels. However, as
discussed in Section V.D.3, we are not defining comparable to mean
``equivalent to or lower than'' or ``no higher than'' the level of the
contaminant in the traditional fuel. Rather, EPA is generally defining
``comparable to or lower than'' to mean contaminants can be present in
non-hazardous secondary materials within a small acceptable range, or
at lower levels, relative to the contaminants found in the traditional
fuels. Thus, biofuels that are produced from non-hazardous secondary
materials can have contaminants that are somewhat higher than the
traditional fuel that otherwise would be burned and still qualify as
being comparable, and would not be considered a solid waste.
    Comment: Manure used as a fuel that would otherwise be applied to
the land covered under a nutrient management plan\35\ is in no way
discarded.
---------------------------------------------------------------------------

    \35\ A nutrient management plan is defined in the U.S.
Department of Agriculture Natural Resources Conservation Service
(NRCS) Standard (590) as, ``Managing the amount, source, placement,
form and timing of the application of nutrients and soil
amendments.'' The NRCS nutrient management standard (590) is the
guidance provided to NRCS field staff and other planners when
providing technical assistance to producers participating in
voluntary programs. The purpose of the 590 standard is to meet the
nutrient needs of the crop to be grown, while minimizing the loss of
nutrients to surface and ground water.

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

    EPA's Response: We recognize that manure may also be beneficially
used in other end uses, such as a fertilizer. As we have noted
elsewhere in the preamble to today's rule, EPA is not making any
determination whether non-hazardous secondary materials are or are not
solid wastes for other possible beneficial end uses. Such beneficial
use determinations are generally made by the states for these other
beneficial uses, and EPA will continue to look to the states to make
such determinations.
    Comment: Combustion of manure is simply one of the ways of
realizing the carbon value of manure (for energy production/recovery
rather than as a soil amendment) and should not be considered in any
way as a means of ``discard,'' since the inherent value of manure as a
fertilizer is essentially preserved in the resultant ash. Further,
since the ash from manure combustion is still suitable as a fertilizer,
the commenter also believes that manure does not contain contaminants
that are significantly higher in concentration than traditional fuels.
    EPA's Response: Both wastes and non-wastes can be utilized as fuels
and in this rule EPA is determining what is and is not a solid waste
when combusted. As we have stated, there are circumstances when manure
would not be considered a solid waste when combusted. In the
commenter's case, it does not appear that manure being burned solely to
improve soil would meet the legitimacy criteria.
    Further, whether the resultant ash is suitable as a fertilizer is
not directly relevant to EPA's solid waste determination for non-
hazardous secondary materials used as a fuel since contaminants that
are present in the manure ``as generated'' can also be destroyed
(discarded) in the combustion process or be directly emitted to the
environment, either prior to combustion (during storage and
transportation) or if they are not sufficiently combusted and/or
controlled by the combustion unit's air pollution control system.
Contaminants in manure that may be used as a fuel must be present at
comparable or lower levels relative to traditional fuels for the manure
to satisfy the contaminant legitimacy criterion. As previously
discussed, EPA concludes that manure, as generated, may not satisfy
this criterion for nitrogen and chlorine.
    Comment: Given the biological basis of agricultural products and
by-products and the unique nature of the transfer of agricultural
commodities among entities, the commenter requests that EPA
presumptively grant a non-waste determination for manure that is used
as a combustion fuel outside the control of the generator that would
otherwise meet the legitimacy criteria. The commenter states that crops
grown from a cropping operation may be sold/provided to an animal
production operation as a feed input, with the manure from the animal
production operation being sold/provided to a community based or
regional energy production system as one of many fuel sources from that
area, with the resultant ash from the energy production system sent
back to the cropping operation as a fertilizer source. The commenter
then explains that the cropping and animal production operator may be
the same entity, and asserts that the transfer among entities in this
instance is to facilitate energy recovery, not disposal.
    EPA's Response: Unlike scrap tires and resinated wood residuals,
information and data were not provided that would allow the Agency to
presumptively grant a non-waste determination for all manure that is
used as a fuel outside the control of the generator. As a result, we
conclude that the final rule cannot presumptively grant a non-waste
determination for manure that is used as a fuel outside the control of
the generator. We note, however, that sources may petition the Agency
for a non-waste determination for materials managed outside the control
of the generator (see Section VII.G), or, as previously discussed,
process (as codified in Sec.  241.2) the manure into a non-waste fuel
that meets the legitimacy criteria.
    Comment: Modern manure management systems that are designed and
operated in accordance with applicable Federal, Tribal, State, and/or
local regulations and requirements for air and water quality should be
considered to meet the ``adequate containment'' requirements.
    EPA's Response: EPA does not agree with the commenter that the
statement ``manure management systems that are designed and operated in
accordance with applicable Federal, Tribal, State, and/or local
regulations and requirements for air and water quality should be
considered to meet the `adequate containment' requirements'' in itself,
is sufficient for EPA to conclude that these systems satisfy the
containment requirements because these systems may not have been
designed for the use of manure as a fuel. These Federal, Tribal, State,
and/or local regulations and requirements would have to be examined on
a case-specific basis to determine whether manure that is used as a
fuel is managed as a valuable commodity pursuant to EPA's legitimacy
criteria. EPA does not believe that it can conclude that the ``adequate
management'' criterion is met based on the descriptions of management
practices that have been provided to EPA, such as stockpiling manure in
open lots to facilitate drying.
    Comment: Manure satisfies EPA's meaningful heating value legitimacy
criterion since it typically has energy contents ranging from 6,000 to
8,000 Btu/lb on a dry basis.
    EPA's Response: The data provided by the commenter summarize
heating values on a ``dry basis,'' rather than on an ``as-fired'' basis
that accounts for the moisture content of the material, and thus, these
data are not relevant to the ``meaningful heating value'' legitimacy
criterion. Except as otherwise noted, to satisfy the meaningful heating
value criterion, the non-hazardous secondary material must have at
least 5,000 Btu/lb, as fired (accounting for moisture), since the as-
fired energy content is the relevant parameter that must be assessed to
determine if it is being discarded rather than used as a fuel for
energy recovery. See Section VII.H.1. As previously discussed, the data
available to EPA on an ``as fired'' basis would suggest that much of
the manure, as generated, would have heating value levels of less than
5,000 Btu/lb. If the non-hazardous secondary material has a
[meaningful] heating value of less than 5,000 Btu/lb, ``as fired,'' the
secondary material may still be considered to have a ``meaningful
heating value,'' but the source must demonstrate that a meaningful
heating value is derived from the manure, and appropriate records kept.
3. Other Biomass
    The proposed rule preamble discussed many different forms of
biomass, including cellulosic and non-cellulosic biomass.\36\ How the
final rule views clean biomass was addressed earlier in Section V.B.1,
which addresses traditional fuel. Manure was discussed in the previous
section (Section V.B.2), while pulp and paper sludges and resinated
wood residuals will be discussed in more detail in Sections V.B.4 and
V.B.6, respectively, of this preamble. This section discusses other
biomass materials that may be burned as a fuel, and whether or not they
would be considered a solid waste when combusted as a fuel.
Specifically, the proposed rule identified lead-based painted wood, and
wood treated with pentachlorophenol, copper-based and

borate-based compound treatments as solid wastes due to elevated
contaminant levels relative to traditional fuels. Moreover, the
proposed rule explained that, to the extent that any treated wood is
identified as a hazardous waste, it would not be eligible to be burned
in a non-hazardous waste combustion unit. We also specifically
requested comment on the levels of contaminants in creosote-treated
lumber due to the uncertainty associated with the level of contaminants
(e.g., levels of polycyclic aromatic hydrocarbons present in
creosote).\37\ We received comments on construction and demolition
(C&D)-derived wood, treated wood, and OCC rejects.
---------------------------------------------------------------------------

    \36\ 75 FR 31861-31863.
    \37\ 75 FR 31863.
---------------------------------------------------------------------------

    Comment: Since creosote is a derivative of coal, itself a
traditional fuel, the comments argued that creosote-treated wood should
also be considered a traditional fuel. They suggested that this
material is treated as a valuable commodity and has been used as a fuel
for over a decade. One commenter provided data that showed that the
mobility of contaminants indicates that p-cresol leaches at 75 percent
of the hazardous waste toxicity characteristic leaching procedure
(TCLP) levels in new ties, but that this is reduced to less than 10
percent in ties that are over 10 years old. Another commenter provided
the average results from 605 TCLP tests and 605 totals analyses for
metals on creosote-treated wood. These results were below TCLP limits
for all of the contaminants it contains (i.e., cresol, m,p-cresol, o-
cresol leached an average of 1.23 mg/L, 0.90 mg/L, 0.35 mg/L,
respectively), although two compounds, 2,4-dinitrotoluene and
hexachlorobenzene, leached at levels close to the toxicity
characteristic (TC) regulatory level (both leached at 0.09 mg/L with a
standard deviation of 0.03).\38\ Another commenter submitted a
compositional analysis that compared the levels of constituents in
creosote (not creosote-treated wood) to crude coke oven tar, a
traditional fuel. For example, creosote contains between 8.00-17.30% of
naphthalene and 0.50-0.80% quinoline, respectively, while crude coke
oven tar contains between 3.00-11.00% naphthalene and 0.18% quinoline).
Besides naphthalene and quinoline, data was also submitted for other
compounds on the CAA section 112 HAP list, including biphenyl and
dibenzofuran. The data submitted showed that all contaminants were
present in the creosote at levels greater than in crude coke oven
tar.\39\ Other studies compared metal contaminants (As, Cr, Pb, and Cu)
in creosote- and pentachlorophenol-treated wood (<1.97 ppm As, <4.21
ppm Cr, <64.13 ppm Pb, and 7.65 ppm Cu) to that of wood chips, bark,
yard waste, and forest residuals and found that the levels were
comparable (<3.61 ppm As, 0.12-4.77 ppm Cr, <17.5 ppm Pb, and <6.44 ppm
Cu).\40\
---------------------------------------------------------------------------

    \38\ See document EPA-HQ-RCRA-2008-0329-0875.1.
    \39\ See document EPA-HQ-RCRA-2008-0329-0767.1.
    \40\ Holtzman, M.I. and R.S. Atkins, 1995. ``Emissions from
Combustion of Treated Wood Fuel and Tires in Industrial Boilers,''
Presented to the Air and Waste Management Association's Annual
Meeting, June 18-23, 1995.
---------------------------------------------------------------------------

    Finally, a study was submitted that demonstrated that the co-firing
of creosote- and pentachlorophenol-treated wood (10/90 treated wood/
coal mix) results in a reduction of 79-107 ppm of oxides of sulfur
(SO2), 78-100 ppm of oxides of nitrogen (NOX),
and 0.4-0.5 ppm of total hydrocarbon (expressed as propane) emissions
compared to those from samples of Upper Freeport coal. The same study,
however, found that there was an increase of 17-84 ppm in HCl emissions
when co-firing with treated wood, although the study noted these levels
of HCl emissions could be within the range from coal found in other
areas of the U.S.\41\ HCl is listed on the CAA 112 HAP list. Other data
were submitted that showed that PAH emissions from a combustion unit
are less when burning treated wood (50/50 mixture of creosote- and
pentachlorophenol-treated wood) than when combusting untreated wood.
Data were also provided that indicated that pentachlorophenol and total
chlorophenols were destroyed by combustion at greater than 99.9%
removal efficiency.\42\
---------------------------------------------------------------------------

    \41\ Freeman, M.C., W.J. O'Dowd, T.D. Brown, R.A. Hargis, Jr.,
R.A. James, S.I. Plasynski, G.F. Walbert, A.F. Lowe, and J.J.
Battista, Jr. ``Pilot-Scale Air Toxics R&D Assessment of Creosote-
Treated and PCP-Treated Wood Co-firing for Pulverized Coal Utility
Boiler Applications.'' U.S. Department of Energy's National Energy
Technology Laboratory. http://www.netl.doe.gov/technologies/coalpower/cctc/cctdp/bibliography/misc/pdfs/haps/2002-710.pdf
    \42\ Smith, S.T., 1996. ``Stack Testing Report, Koppers
Industries, Inc., Grenada Plant, Tie Plant, MS,'' Submitted to the
Mississippi Department of Environmental Quality, May 6.
---------------------------------------------------------------------------

    EPA's Response: We do not agree with commenters that creosote-
treated wood should be considered a traditional fuel (either an
historically managed traditional fuel or an alternative fuel as
codified in Sec.  241.2) solely based on the fact that it is
manufactured using coal tar and wood, which are considered traditional
fuels. Creosote was not derived for the purposes of creating a fuel, or
the wood treated with creosote to produce a fuel, but the creosote was
produced and used as a wood preservative. It is not made from virgin
materials, but is a secondary material. Creosote is derived from coal
tar through a distillation process and, therefore, creosote has
different chemical concentrations than coal tar. While we recognize
that creosote-treated wood has been utilized as a fuel for over ten
years, few markets are available for creosote-treated wood due to
concerns about the contaminants. This strongly suggests that burning
this material is a waste treatment activity.
    The TCLP data generally indicates that the material, on average, is
not a hazardous waste. This does not mean, however, that the material
is not a non-hazardous solid waste. Leaching data is not relevant to
determine whether or not the treated wood is being discarded. We do
note that the average values and standard deviations provided for 2,4-
dinitrotoluene and hexachlorobenzene suggest that a few samples
actually failed the TCLP test and would be classified as a hazardous
waste. Creosote-treated wood that is classified as a hazardous waste
must be managed as a hazardous waste, which is outside the scope of
this rulemaking. Even though most creosote-treated wood is non-
hazardous, the presence of hexachlorobenze, a CAA 112 HAP, as well as
the other HAPs, in creosote-treated lumber suggests that creosote-
treated wood include contaminants at levels that are not comparable to
those found in wood or coal, the fuel that creosote-treated wood would
replace.\43\ In fact, the data provided demonstrates that combustion of
these materials results in significant destruction, which is an
indication of incineration, a waste activity. Moreover, we would note
that this concept involving destruction is also consistent with the
legitimacy criterion for contamination, which is based on the input
into the combustion unit--that is, the contaminant concentration in the
secondary material itself and not what may be emitted into the
environment. Accordingly, creosote treated wood, when burned, seems
more like a waste than a commodity and does not meet the legitimacy
criterion for contaminants and, therefore, should be considered a waste
when burned as a fuel.
---------------------------------------------------------------------------

    \43\ See Preliminary Characterization Study Prepared In Support
of the Proposed Rulemaking--Identification of Nonhazardous Secondary
Materials That Are Solid Waste: Traditional Fuels and Key
Derivatives, EPA-HQ-RCRA-2008-0329-0461.21.
---------------------------------------------------------------------------

    In regards to wood treated with pentachlorophenol, no additional

contaminant data was provided that would reverse our position from the
proposal, which determined that pentachlorophenol was a solid waste due
to concerns of elevated levels of contaminants.\44\ While some
commenters pointed to data that indicates that pentachlorophenol-
treated wood (as well as creosote-treated wood) would have similar or
lower air emissions to non-treated woods, the issue to determine
whether a material is burned as a waste or a commodity is based on
input and consequent destruction of contaminants. This is consistent
with the legitimacy criteria, under which to be considered a non-waste
fuel, the non-hazardous secondary material itself must have contaminant
levels that are comparable to (or less than) those in traditional
fuels. Thus, the final rule will retain the proposed approach, which
considered wood treated with pentachlorophenol a solid waste. Of
course, this assumes that the pentachlorophenol treated-wood is not
classified as a hazardous waste. Hazardous wastes are not covered under
the scope of this rulemaking.
---------------------------------------------------------------------------

    \44\ 75 FR 31863.
---------------------------------------------------------------------------

    Comments: Comments were submitted that argued that wood treated
with borate-based compounds or copper napthenate did not contain any
contaminants, but only contaminant data was supplied for wood treated
with borate-based compounds. That study indicated that the most
prevalent borate treatment, disodium octaborate tetrahydrate, contained
1.5 ppm of As, <1 ppm of Cd, <2.5 ppm of Cr, <5 ppm of Co, <0.02 ppm of
Hg, <2.5 ppm of Ni, and 0.67 ppm of Se.\45\ Since these levels
represent the contaminant concentration of the borate treatment, the
comments argued that the resulting wood that is treated with this
compound would contain even lower concentrations of contaminants.
---------------------------------------------------------------------------

    \45\ See document EPA-HQ-RCRA-2008-0329-1569.
---------------------------------------------------------------------------

    EPA's Response: With respect to borate-treated wood, after
reviewing data from the one commenter, which shows that the levels of
contaminants in this material are comparable to those found in
unadulterated wood for the seven contaminants for which data was
presented, we believe that such treated-wood meets the legitimacy
criterion on the level of contaminants and comparability to traditional
fuels. Therefore, borate-treated wood could be classified as a non-
waste fuel, provided they met the other two legitimacy criteria and
provided that the contaminant levels for any other HAP that may be
present in this material are also comparable to or less than those in
traditional fuels. We would also note that such borate-treated wood
would need to be burned as a fuel for energy recovery within the
control of the generator. Finally, we are aware that some borate-
treated wood is subsequently treated with other chemicals, such as
creosote, to provide an insoluble barrier to prevent the borate
compounds from leaching out of the wood. We did not receive data on the
contaminant levels of the resulting material, but data presented on
creosote treated lumber indicates that this non-hazardous secondary
material would likely no longer meet the legitimacy criteria and would
be considered a solid waste when burned as a fuel.
    We do not have information generally about the transfer of borate-
treated wood to other companies to make a broad determination about its
use as a fuel outside the control of the generator. (See Section V.A.1
for a general discussion of the issue concerning use of non-hazardous
secondary materials within and outside the control of the generator and
the EPA's response.) Thus, under today's rule, borate-treated wood
would need to be burned as a fuel for energy recovery within the
control of the generator. With that said, we encourage the use of the
non-waste determination petition process to address those instances
where transfer of the non-hazardous secondary material to a different
company meets the relevant criteria--that the secondary material has
not been discarded in the first instance and is indistinguishable in
all relevant aspects from a fuel product.
    With regard to wood treated with copper napthenate, no additional
contaminant data was provided that would reverse our position in the
proposed rule, which considered wood treated with copper napthenate a
solid waste because of concerns of elevated levels of contaminants.\46\
We acknowledge today, as we did in the proposed rule, that we do not
have sufficient information on the contaminant levels in wood treated
with copper napthenate.\47\ Thus, if a person can demonstrate that
copper napthenate treated-wood is burned in a combustion unit as a fuel
for energy recovery within the control of the generator and meets the
legitimacy criteria or, if discarded, can demonstrate that they have
sufficiently processed the material, that person can handle its copper
napthenate treated-wood as a non-waste fuel.
---------------------------------------------------------------------------

    \46\ 75 FR 31863.
    \47\ 75 FR 31863.
---------------------------------------------------------------------------

    Comments: Commenters argued that, although C&D-derived wood is
discarded by construction and demolition sites, it is sufficiently
processed into a non-waste fuel. It is received at a mixed C&D
processing facility as part of loads from construction and demolition
sites. Potential contaminants are removed as much as possible before it
enters the plant. Clean C&D wood is then separated out from the rest of
the incoming stream one of two ways; either through mechanical means or
through humans sorting along a specially built picking line. Painted
and treated wood is identified either visually or utilizing x-ray
fluorescence (XRF) analyzers. After separation, the wood is ground to a
specific size and density per the specification of the plant using the
biomass product. The creation of natural wood products follows a
similar processing path, except that C&D wood is more carefully
prepared because of the chemical analysis the C&D product undergoes.
    Commenters also stated that C&D-derived wood meets the legitimacy
criterion for having a meaningful heating value. They stated that C&D-
derived wood has a heating value of between 7,000-8,200 Btu/lb, and
thus, should be considered a non-waste fuel. Data from one plant that
combusts C&D-derived wood found that it had a heating value that ranges
from 6,700-9,000 Btu/lb, with an average value of 8,200 Btu/lb.
    One company provided chemical constituent data on C&D-derived wood
that is utilized at their plant in order to demonstrate that the
material meets the legitimacy criterion for contaminants. The results
of this analysis found that the chemical constituents were comparable
to or lower to those found in coal (of unknown source or type). See
Table 1 below for the results of this study.

Table 1--Comparison of Contaminant Concentrations in Samples of Coal and
                           C&D-Derived Wood48
------------------------------------------------------------------------
                                      Coal (unknown
             Material                source or type)    C&D-derived wood
------------------------------------------------------------------------
Sample Size.......................                 16              14-16
Median contaminant concentrations:
    Cl:
        (lb/billion Btu)..........               46.0               56.0
        (ppm).....................            391-644              459.2
         of non-detects..                  0                  0
    Hg:
        (lb/billion Btu)..........            0.00622             0.0046
        (ppm).....................    0.05287-0.08708            0.03772
         of non-detects..                  0                  0
    Pb:
        (lb/billion Btu)..........              0.374              0.488
        (ppm).....................          3.18-5.24               4.00
         of non-detects..                  0                  0
    Cd:
        (lb/billion Btu)..........            0.00465             0.0218
        (ppm).....................    0.03923-0.06510            0.17876
         of non-detects..                  7                  2
------------------------------------------------------------------------

    Some commenters discussed studies that concluded that the use of
appropriately processed C&D wood is similar in its emission profile to
that of virgin wood, although some older studies indicated an increase
in metals emissions (likely due to the inclusion of treated wood).\49\
Another commenter submitted a life-cycle assessment that described how
the recovery of C&D wood as a fuel decreased greenhouse gas emissions.
This study found that combusting all C&D wood generated in New
Hampshire per year (280,000 tons) will off-set energy from the
northeast power grid and, therefore, result in 70,000-130,000 tons less
of carbon emissions, 600 tons/year less of particulate matter, 430
tons/yr less of NOX, 2,300 tons/yr less of SOX,
890 tons/yr less of CO, and 10 pounds/yr less of lead. Even when
compared simply to the combustion of virgin wood, it was found that the
combustion of C&D-derived wood had lower impacts: 16,700 metric tons of
carbon equivalents were offset, 50 tons/yr less of particulate matter,
200 tons/yr less of NOX, 485 tons/yr less of SOX,
and 69 tons/yr less of CO.\50\
---------------------------------------------------------------------------

    \48\ Source: EPA-HQ-RCRA-2008-0329-0774; Since the legitimacy
criterion for contaminants compares concentrations per mass of the
material (not per the heating value of the material), all
concentrations reported in pounds per billion Btu (lb/billion Btu)
were converted into parts per million (ppm) with the assumption that
C&D-derived wood has a heating value of 8,200 Btu/lb (as fired) and
that sub-bituminous and bituminous coal (the most common types of
coal to be utilized in combustion units) have a heating value of
8,500-14,000 Btu/lb (per Preliminary Characterization Study Prepared
In Support of the Proposed Rulemaking--Identification of
Nonhazardous Secondary Materials That Are Solid Waste: Traditional
Fuels and Key Derivatives, EPA-HQ-RCRA-2008-0329-0461.21).
    \49\ U.S. EPA, ``Wood Products in the Waste Stream:
Characterization and Combustion Emissions, Vol. 1,'' November 1996.
    National Council for Air and Stream Improvement, Inc. Technical
Bulletin (TB) 906, ``Alternative Fuels Used in the Forest Products
Industry: Their Composition and Impact on Emissions.'' September
2005.
    Larsen, F.S., W.H. McClennen, X. Deng, G.D. Silcox-Person, and
K. Allison, 1992. ``Hydrocarbon and Formaldehyde Emissions from the
Combustion of Pulverized Wood Waste.'' Combustion Science and
Technology, 85 (1-6) p. 259-269.
    \50\ Jambeck, J., A. Carpenter, K. Gardner, and K. Wietz, 2007.
``University of New Hampshire Life-Cycle Assessment of C&D Derived
Biomass/Wood Waste Management,'' University of New Hampshire,
Durham, NH, December 5.
---------------------------------------------------------------------------

    EPA's Response: The proposed rule included clean construction wood
in the definition of traditional fuels. The final rule retains this
conclusion, although clarifies the definition of traditional fuels to
include alternative fuels. Clean cellulosic biomass is an alternative
fuel as they are clean cellulosic materials that are indistinguishable
in composition from wood that is commonly burned in combustion units
(See the explanation in Section V.A). We note that the final definition
of traditional fuels clarifies that this category includes clean
demolition wood as well.
    On the other hand, C&D-derived wood that is not clean would not be
considered a traditional fuel, but a solid waste under today's rule.
However, C&D-derived wood can be classified as a non-waste fuel if it
has been sufficiently processed and meets the legitimacy criteria. C&D-
derived wood is typically sorted to remove contaminants (e.g., lead-
painted wood, treated wood, non-wood materials), and size reduced prior
to burning, producing material that likely meets the processing and
legitimacy criteria for contaminants. (We would also note that the
technology in use today to remove contaminants from C&D-derived wood
has increased considerably.) The data provided by one company
demonstrates that C&D-derived wood can be sufficiently processed to
meet the legitimacy criterion for four contaminants, even when these
contaminants are compared to untreated wood concentrations presented in
the background document, Preliminary Characterization Study Prepared In
Support of the Proposed Rulemaking--Identification of Nonhazardous
Secondary Materials That Are Solid Waste: Traditional Fuels and Key
Derivatives.\51\ A complete determination, however, would also include
the comparison of As and Cr concentrations. We would also note that
based on the data presented, C&D derived wood also meets the meaningful
heating value criterion.
---------------------------------------------------------------------------

    \51\ EPA-HQ-RCRA-2008-0329-0461.21.
---------------------------------------------------------------------------

    With respect to those comments that argued that C&D derived wood
have an emissions profile similar to that of virgin wood and that it
would decrease greenhouse gas emissions, as we have noted previously,
the criterion or test for determining whether a material is burned as a
waste or a commodity fuel is the level of the contaminant in the
secondary material itself--that is destruction of contaminants
indicates a waste treatment activity rather than a commodity fuel. This
is also consistent with the legitimacy criteria that would require that
the non-hazardous secondary material, itself, must have contaminant
levels that are comparable to (or lower than) those in traditional

fuels. In any event, because we had no information from the studies on
the extent that these C&D materials were sufficiently processed to
remove the contaminants of concern, we do not know what the emissions
results from the submitted studies represent.
    Comment: Some comments argued that there should be a de minimis
exemption for C&D-derived wood that is processed to remove painted and
treated materials, because while most of the contaminants are removed
from the C&D derived wood, there still may be a small or de minimis
amount remaining on it. Additionally, they also argued that while most
non-wood contaminants are removed, there might still remain some small
or de minimis amounts of other materials (e.g., paper, insulation,
etc.).
    EPA's Response: C&D-derived wood can contain de minimis amounts of
contaminants and other materials provided it meets the legitimacy
criterion for contaminant levels.
    Comment: Comments argued that OCC rejects, also known in the
industry as ``recycling process residuals,'' are never discarded, and
therefore, should be considered a traditional fuel because they do not
leave the plant, but are usually burned on-site as a fuel. In some
cases, however, they do leave the plant to be burned in municipal or
commercial energy facilities or employed as a fuel pellet ingredient.
    In addition, while some commenters argued that they did not believe
OCC rejects are ever discarded, they provided information on how OCC
rejects are sufficiently processed to remove contaminants if they are
determined to be discarded. For example, strings, wires, rags, and
heavy objects are removed using manual and centrifugal force, while
plastic and non-recyclable paper fibers are removed through screens.
    Commenters also stated that OCC rejects meet the legitimacy
criterion for contaminants as they have lower contaminants than
traditional fuels. One comment provided data from 10 samples of OCC
rejects from one company and 16 samples of coal (of unknown type or
origin) to substantiate that claim (see Table 2).

Table 2--Comparison of Contaminant Concentrations in Samples of Coal and
                            OCC Rejects \52\
------------------------------------------------------------------------
                                      Coal  (unknown
             Material                type or origin)      OCC rejects
------------------------------------------------------------------------
Sample Size.......................                 16                 10
Median contaminant concentrations:
    Cl:
        (lb/billion Btu)..........               46.0               23.5
        (ppm, estimated)..........            391-644               87.0
         of non-detects..                  0                  0
    Hg:
        (lb/billion Btu)..........            0.00622            0.00324
        (ppm, estimated)..........    0.05287-0.08708            0.01199
         of non-detects..                  0                  0
    Pb:...........................
        (lb/billion Btu)..........              0.374              0.281
        (ppm, estimated)..........          3.18-5.24               1.04
         of non-detects..                  0                  1
    Cd:
        (lb/billion Btu)..........            0.00465            0.00558
        (ppm, estimated)..........    0.03923-0.06510            0.02065
         of non-detects..                  7                  2
------------------------------------------------------------------------

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    \52\ Source: EPA-HQ-RCRA-2008-0329-0774; Since the legitimacy
criterion for contaminants compares concentrations per mass of the
material (not per the heating value of the material), all
concentrations reported in pounds per billion Btu (lb/billion Btu)
were converted into parts per million (ppm) with the assumption that
OCC rejects have a heating value of 3,700 Btu/lb (as fired) and that
sub-bituminous and bituminous coal (the most common types of coal to
be utilized in combustion units) have a heating value of 8,500-
14,000 Btu/lb (per Preliminary Characterization Study Prepared In
Support of the Proposed Rulemaking--Identification of Nonhazardous
Secondary Materials That Are Solid Waste: Traditional Fuels and Key
Derivatives, EPA-HQ-RCRA-2008-0329-0461.21).
---------------------------------------------------------------------------

    Commenters also claimed that OCC rejects meet the legitimacy
criterion for being managed as a valuable commodity, as they are
managed in the same manner as analogous fuels--bark. Prior to burning,
this material is co-mingled with bark on the bark pile.
    Furthermore, commenters stated that OCC rejects pass the legitimacy
criterion for having a meaningful heating value. For example, a
commenter submitted data that indicated that, on a dry basis, OCC
rejects have a heating value of 9,100 Btu/lb, while, as fired, they
have a heating value of 3,700 Btu/lb.\53\ Another commenter submitted
ten tests at plants from one company that found that the heating value
of OCC rejects ranged from 8,700-13,600 Btu/lb on a dry basis.\54\
---------------------------------------------------------------------------

    \53\ Source: EPA-HQ-RCRA-2008-0329-0871.1.
    \54\ Source: EPA-HQ-RCRA-2008-0329-0774.1.
---------------------------------------------------------------------------

    Another commenter submitted a study by the National Council for Air
and Stream Improvement to demonstrate that air emissions from burning
OCC rejects are comparable to burning wood. In this study, emissions
results were provided from three plants that burned 4.4-30% OCC rejects
with 70%-95.6% wood and compared it to emissions from the same three
plants when they only burned wood. Emissions were tested for total
particulate matter (TPM), SO2, NOX, CO, and HCl.
The results found that burning OCC rejects did not result in increased
emissions of TPM, SO2, NOX, or CO, but
occasionally resulted in a small increase in HCl emissions.\55\
---------------------------------------------------------------------------

    \55\ National Council for Air and Stream Improvement, Inc.
Technical Bulletin (TB) 906, ``Alternative Fuels Used in the Forest
Products Industry: Their Composition and Impact on Emissions.''
September 2005.
---------------------------------------------------------------------------

    EPA's Response: We do not agree with the commenters that OCC
rejects should be considered a traditional fuel or alternative fuel
since this non-hazardous secondary material, consisting of recycled
paper and paper products, has not historically been managed as a fuel--
that is, the recycling of OCC and the subsequent use of OCC

rejects is a relatively recent activity, nor is it made from virgin
materials. However, we believe that these materials are not discarded
when used within the control of the generator, such as at pulp and
paper mills, since these non-hazardous secondary materials are part of
the industrial process.
    The data submitted during the comment period would seem to suggest
that it would or could meet the legitimacy criteria. For example, the
data received indicated that OCC rejects have contaminant
concentrations that are comparable to, if not less than, coal, wood,
and bark, which are all traditional fuels used at pulp and paper mills.
While the meaningful heating value of the OCC rejects is lower than
5,000 Btu/lb, as fired, it can still meet this criterion if it can be
demonstrated that the unit can cost-effectively recover energy from a
non-hazardous secondary material. The information submitted also
demonstrates that OCC rejects are managed as a valuable commodity as
they are managed in the same manner as the analogous fuel--bark.
    With respect to the OCC rejects that are shipped off-site for use
by another company, the limited information provided indicates that
this material is burned in municipal or commercial energy facilities
(which appears to be municipal or commercial incinerators) and thus,
would clearly indicate discard, or processed to produce a fuel pellet
ingredient, which may be a non-waste, if and after it is sufficiently
processed. That is, such limited information would appear to suggest
that when OCC rejects are shipped off-site, which may not happen very
often, it is treated more like a waste than a non-waste fuel.
Therefore, the Agency finds that OCC rejects shipped off-site for
burning would be considered a solid waste. However, as already noted,
if the OCC rejects are sufficiently processed to produce a legitimate
fuel product, or if a person submits and is granted a non-waste
determination for such OCC rejects, than such non-hazardous secondary
material when combusted as a fuel for energy recovery would be
considered a non-waste fuel.
4. Pulp and Paper Sludge
    In the proposal, EPA determined that pulp and paper sludge \56\ is
not a waste when used as a fuel within the control of the generator.
This was based on limited contaminant data and information that these
sludges are generally used on-site by generators to fuel their boilers
and are treated like valuable commodities. Comments on the ANPRM had
stated that these residuals are primarily composed of biomass and that
emissions from burning these non-hazardous secondary materials are
essentially the same as emissions from burning other biomass fuels,
such as bark or wood. Emissions data contained in one report indicated
that when sludges were burned at levels below about 10 to 15 percent of
total heat input, that such burning would not result in elevated levels
of criteria or criteria-related pollutants, forty-eight organic
compounds, and metals.
---------------------------------------------------------------------------

    \56\ Pulp and paper sludge includes both primary and secondary
wastewater treatment sludges. Primary sludges consist of wood fiber
and inorganic materials, while secondary sludges are primarily
microbial biomass.
---------------------------------------------------------------------------

    However, given the limited data, EPA requested additional comment
on contaminant levels and the appropriateness of considering these
sludges to be non-wastes. EPA also noted, as an alternative, that it
could consider these sludges to be wastes because of chlorine levels in
the sludge.\57\
---------------------------------------------------------------------------

    \57\ 75 FR 31862-63.
---------------------------------------------------------------------------

    Comment: Pulp and paper sludges should be considered a traditional
fuel because it has been utilized as a fuel since the early 1960's. In
2004, 22% of the pulp and paper sludge was used as a fuel.
    EPA's Response: We do not agree that pulp and paper sludges should
be considered a traditional fuel. While some portion of the pulp and
paper industry uses these sludges as a fuel, it is not the industry
norm or used as a fuel by a majority of the industry. For example, in
2002, 52% of pulp and paper sludges was landfilled or stored in
lagoons.\58\ Thus, these materials have not been historically managed
as fuels. Pulp and paper sludges also would not be considered an
alternative fuel, since they are not derived from virgin materials.
Pulp and paper mills burn these secondary materials for energy
recovery, but also for waste minimization purposes.\59\ Therefore, the
Agency does not consider pulp and paper sludges a traditional or
alternative fuel.
---------------------------------------------------------------------------

    \58\ Thacker, W., 2007. ``Recycling Paper Mill By-products on
Forest Lands: By-product Composition, Potential Applications, and
Industry Case Studies.'' Presentation to EPA Office of Solid Waste
Staff, Washington, DC, January 23, http://www.epa.gov/osw/conserve/rrr/imr/irc-meet/03-paper.pdf.
    \59\ Someshwar, A.V. and A.K. Jain, 2006. ``Alternative Fuels
Used in the Forest Products Industry: Their Composition and Impact
on Emissions,'' Technical Bulletin No. 906, National Council for Air
and Stream Improvement, Gainesville, Florida.
    Vance, E. 2000. ``Recycling Paper Mill By-products on Forest
Lands: By-product Composition, Potential Applications, and Industry
Case Studies'' The Forest Alternative: Principles and Practice of
Residuals Use. University of Washington College of Forest Resources
Publication, Seattle, WA, p. 193-207.
---------------------------------------------------------------------------

    Comment: The proposed approach that pulp and paper sludges burned
within the control of the generator as a fuel would not be considered a
solid waste needs clarification. Specifically, clarification is needed
to determine if pulp and paper sludges that do not leave the site and
have not been discarded (1) can be used as a fuel and (2) must pass the
legitimacy criteria.
    EPA's Response: The final rule retains the proposed approach, which
considered pulp and paper sludges that remain within the control of the
generator--whether burned at the generating facility, or burned in
combustion units that the generator controls--are considered a non-
waste fuel. However, such pulp and paper sludges must pass the
legitimacy criteria to demonstrate that these non-hazardous secondary
materials are ``legitimate fuels'' in order to be considered a non-
waste fuel.
    Comment. Commenters argued that pulp and paper sludges are not
discarded if used off-site as they are used as a legitimate fuel at
other locations. One commenter, who identified itself as a power plant,
utilizes pulp and paper sludges generated less than a mile away and
stated that the material is loaded into trucks for the short haul to
the steam boilers, dumped into the wood handling system, conveyed to
covered storage where it is contained and burned in the boiler all
within the span of several hours. They suggest that this is a
legitimate use of pulp and paper sludges off-site and is, therefore,
not a waste.
    EPA's Response: We agree that the use of secondary materials off-
site (which we assume the commenter means not within the control of the
generator) is not always indicative of waste activity and would
generally agree that the case of the power plant provides an example of
when secondary materials may be legitimately used as non-waste fuels by
a different company. However, information was not provided in the
comments which would allow EPA to generally determine that the transfer
of pulp and paper sludges to other companies should always be
considered a non-waste fuel, particularly since a large percentage of
these sludges are actually disposed. (See Section V.A.1 for a general
discussion of this issue and the EPA's response.) Thus, we will retain
the proposed approach that pulp and paper sludges that are transferred
to a different company for use as a fuel will be considered a solid
waste. With that said, we encourage the use of the non-waste
determination petition

process to address those instances where transfer of the non-hazardous
secondary material to a different company meets the relevant criteria--
that the secondary material has not been discarded in the first
instance and is indistinguishable in all relevant aspects from a fuel
product.
    Comment: Commenters stated that pulp and paper sludges are
adequately processed, such that when discarded (i.e., sent off-site to
another pulp and paper mill or to a power plant), it is a non-waste
fuel. Processing is primarily performed by dewatering. In fact, 84% of
all pulp and paper sludges are dewatered using belt filter presses or
screw presses.\60\ One state commenter stated that some mills further
process pulp and paper sludges into dried pellet products for use as a
fuel.
---------------------------------------------------------------------------

    \60\ See document EPA-HQ-RCRA-2008-0329-0871.
---------------------------------------------------------------------------

    EPA's Response: We do not agree that dewatering alone meets our
definition of processing.\61\ While dewatering does improve the fuel
characteristics of the material, this action is not sufficient to make
the material sufficiently processed into a non-waste fuel as it is
generally part of normal waste management activities (e.g., prior to
landfilling, or prior to burning the sludge for disposal in an
incinerator). In the case of pelletizing the material for use as a
fuel, we do not have sufficient information to make a general
determination on whether this would be considered sufficient
processing. However, if the pelletizing process is used to process the
sludge into a form that improves its fuel value, we would agree that
this is indicative of fuel activity (similar to pelletizing sewage
sludge, which was used as an example of sufficient processing in
Section VII.D.4 of the proposed rule) \62\ and we would consider those
activities to meet the definition of processing. Of course, to be
considered a non-waste fuel, the processed pulp and paper sludges would
need to meet the legitimacy criteria.
---------------------------------------------------------------------------

    \61\ See the discussion on dewatering of sewage sludge in
Section VII.F of the proposed rule, 75 FR 31878.
    \62\ 75 FR 31878.
---------------------------------------------------------------------------

    Comment: To show that pulp and paper sludges meet the legitimacy
criteria for contaminants, three commenters submitted a total of 24
characterizations of pulp and paper sludge cake from 16 pulp and paper
mills. These characterizations show that contaminants were found at
non-detect levels. For example, As, Cr, Hg, and Pb were at levels of
<0.4 ppm, <21.4 ppm, <0.44 ppm, and <21.6 ppm, respectively.\63\
Elevated levels (6.36-45.8 ppm) of methyl ethyl ketone (MEK) were found
in five out of eight samples from one pulp and paper mill, although we
do not know to what extent this data is reflective of pulp and paper
sludges generally since eight other samples (three from the same mill
and five from five other mills) had non-detect levels of MEK at a
detection level of <0.013 ppm.
---------------------------------------------------------------------------

    \63\ Document EPA-HQ-RCRA-2008-0329-1395; National Council for
Air and Stream Improvement, Inc. Technical Bulletin (TB) 906,
``Alternative Fuels Used in the Forest Products Industry: Their
Composition and Impact on Emissions.'' September 2005.
---------------------------------------------------------------------------

    Chlorine levels among an unknown number of pulp and paper sludge
samples were noted by one commenter to have an arithmetic mean of 465
ppm, a median of 318 ppm, a maximum level among mill means of 2,399
ppm, and a maximum among individual analyses of 4,800 ppm (all on a dry
weight basis). This is compared to a USGS database on U.S. coals to
have chlorine levels with an arithmetic mean of 614 ppm and a maximum
among individual analyses of 8,800 ppm (both on an as-is basis, which
has <10% moisture). However, one sample provided in the comments had a
chlorine concentration of 16,550 ppm (as received), while another had a
chlorine concentration of 23 ppm (as fired). Other samples had chlorine
concentrations of between 1,050-4,800 ppm (dry basis). Commenters also
argued that combustion of high chlorine content in some pulp and paper
sludge is not a waste treatment activity. Sources that produce
secondary materials that have heat value can increase their energy
efficiency by re-using these materials as a fuel. Materials are chosen
for their constituents that are beneficial to the combustion or
manufacturing process; more often, the materials are chosen for
extracting their energy value.
    In terms of meeting the legitimacy criteria for a meaningful
heating value, comments were submitted that pulp and paper sludges have
a heating value of between 3,300-9,500 Btu/lb, on a dry basis; no
information was submitted on the ``as fired'' heating value of pulp and
paper sludges. Commenters also argued that pulp and paper sludges meet
the legitimacy criterion for being managed as a valuable commodity as
they are dewatered to increase their energy value, collected on a
continual or frequent basis (as produced), further processed and
consolidated, including the removal of biosolids. One state commenter
stated that some mills make a dried pellet product from the sludges for
use as a fuel. One power plant that utilizes pulp and paper sludge
generated less than a mile away stated that the material is loaded onto
trucks for the short haul to the steam boilers, dumped into the wood
handling system, conveyed to covered storage where it is contained and
burned in the boiler all within the span of several hours.
    EPA's Response: The final rule will retain the proposed approach--
pulp and paper sludges managed within the control of the generator are
a non-waste fuel as they would seem to meet all of the legitimacy
criteria, as discussed below.
    The proposed rule acknowledged a general lack of data regarding
contaminant levels in pulp and paper sludges and specifically requested
data on the issue in order to make a determination of whether pulp and
paper sludges meets the third criterion of comparable contaminant
levels to traditional fuels. The information we received indicates that
these non-hazardous secondary materials meet the contaminant legitimacy
criterion. While commenters compared contaminant levels in pulp and