air toxics. That is, the CAA section 112 rule requires notifications
and recordkeeping, including documentation as to how the non-hazardous
secondary material meets the legitimacy criteria, and satisfies the
definition of processing and/or the requirements for the petition
process. (40 CFR 63.7530 and 63.7555). Specific recordkeeping
requirements for area source boilers using non-hazardous secondary
materials as ingredients are also found at 40 CFR 63.11225(c)(2)(ii)
under the CAA section 112 rule for area source boilers.
    Additionally, regulations at 40 CFR 60.2175(v) promulgated for
commercial and industrial solid waste incinerators under CAA section
129 requires basic recordkeeping to establish whether materials
combusted in a commercial or industrial unit meet the standards and
procedures for identification of non-hazardous secondary materials that
are not solid wastes. Owners or operators of commercial or industrial
facilities that combust non-hazardous secondary materials that are not
traditional fuels are directed to the CAA section 112 regulations for
boilers, and the CAA section 129 regulations for commercial and
industrial incinerators, to determine the recordkeeping provisions
related to the definition of solid waste that may apply to them. These
records and notifications under the CAA regulations provide assurance
that facilities will apply the legitimacy criteria, and that requiring
notification under this rule is not necessary.

F. Discarded Non-Hazardous Secondary Materials That Have Undergone
Processing To Produce Legitimate Fuel or Ingredient Products

1. Scope and Applicability
    Fuel or ingredient products that result from the processing of
discarded non-hazardous secondary materials and that meet the
legitimacy criteria as discussed below are not solid wastes. Because
the resulting fuel/ingredient products are, in effect, reclaimed or
extracted products from a recycling process, EPA considers such
materials to be ``new'' products that have not been discarded and
therefore are not solid wastes. Until the non-hazardous secondary
materials have been processed into a non-waste fuel or ingredient
product meeting the legitimacy criteria, the discarded non-hazardous
secondary material are generally assumed to be solid wastes.
    As discussed in the proposed rule, the basic principle that must be
satisfied is that the discarded non-hazardous secondary material must
undergo a sufficient level of processing that produces either a new
fuel or ingredient product (the definition of processing is codified in
Sec.  241.2). Specifically, processing includes, but is not limited to,
operations that: remove or destroy contaminants; significantly improves
the fuel characteristics of the material, e.g., sizing or drying the
material in combination with other operations, chemically improve the
as-fired energy content, or improve the ingredient characteristics. On
the other hand, processing operations that are minimal, such as
operations that result only in modifying the size of the non-hazardous
secondary material, would not constitute processing for purposes of
today's rule. In addition, the new product must have properties that
provide the end user the assurance that the fuel or ingredient product
consistently satisfies the legitimacy criteria based on the type of
combustion unit the non-hazardous secondary material is used in (e.g.,
as a fuel in a boiler or as an ingredient in a cement kiln).
     The principle that products can be produced from a waste
is common to industrial processes and commercial recycling markets.
Newspaper and aluminum cans discarded by consumers are then collected,
sorted and processed into new recycled paper and aluminum products that
are not considered solid waste. Collected plastic is generally sent to
a reclaimer, who will sort, grind, and clean the plastic. The cleaned
and sorted plastic is sent to a manufacturer who will use it as
feedstock. These are clear examples where discarded materials are
processed into legitimate non-waste products.
    Recycled fuel products are no different from recycled paper and
aluminum cans with respect to discard. If non-hazardous secondary
materials that are discarded by being abandoned, disposed of or thrown
away, but are later collected, segregated, and processed into a
homogenous fuel product that is marketed and sold as a valuable
commodity and is no different from traditional fuels used today, then
they should no longer be considered solid waste, just as recycled paper
is not a solid waste.
    There are other examples beyond consumer recycled materials where
discarded secondary materials are processed into new products. These
examples include specific exclusions from the hazardous waste
regulations, which provide insight into how secondary materials can be
processed into valuable products. For instance, discarded spent
solvents are commonly recycled via distillation into legitimate, newly
usable solvents. These regenerated solvents are clearly considered to
be products, not wastes. See 50 FR 634, January 4, 1985.
    Another example is scrap tires retrieved from waste tire piles that
have been shredded/chipped into TDF with the wire removed. In this
instance, the scrap tires have been sufficiently processed and thus,
the TDF would not be considered a solid waste when burned as a fuel. On
the other hand, scrap tires from waste tire piles that have been
shredded/chipped without the metal wire removed, would not be
considered to have been sufficiently processed, and any TDF that is
generated in such a fashion would be considered a waste-derived fuel.
For a full discussion of processing of scrap tires, see Section V.B.5,
which discusses the comments received on this issue, as well as EPA's
responses.
    Coal refuse generated from legacy piles is another example of a
discarded material that has been processed into a fuel product,
although, as discussed in Section V.B.8, the nature of the material
results in a somewhat different processing scenario. Specifically, coal
refuse that has been discarded in waste piles is unique since it was a
material generated during the fuel production process and then thrown
away (discarded). Over time, combustion technology changes allowed this
raw material to be ``re-mined'' as raw material coal. The level of
processing that occurs for this ''re-mined'' coal refuse is no
different than the level of processing that occurs for raw material
coal today. In fact, this same material is generated in current-day
coal mining operations and processed into a fuel product today.
    In that sense, we do not consider coal refuse to fit within what we
would normally consider to be a ``secondary material'' (i.e., material
that is not the primary product of a manufacturing or commercial
process), since the primary product of coal mining operations is in
fact fuel As a result, raw materials that are generated in the fuel
production process that have been discarded, but that are then
subsequently processed no differently from raw materials processed into
fuels today, would be considered to

undergo an adequate level of processing to render it a non-waste. This
would not apply to other discarded materials, such as scrap tires,
since they are truly secondary materials whose ultimate use as a fuel
is in fact ``secondary in nature.'' Off-spec used oil is another
example of a secondary material which we believe is discarded, but can
be processed into a non-waste product (see Section V.B.7). Once the
used oil is determined to be on-spec, we do not view it to be a solid
waste since it is no longer regulated under the used oil management
standards of 40 CFR part 279 and can be managed as an alternative fuel.
    Synthesis gas (or syngas as it is commonly referred) produced from
the gasification of solid waste is another material that can also meet
the requirements of a fuel product produced from the processing of
discarded non-hazardous secondary materials, provided the syngas has
been adequately processed to remove contaminants. Gasification is a
chemical production process that converts carbonaceous material into a
synthesis gas that can be used for energy production (or as a building
block for other chemical manufacturing processes). In general,
gasification systems are designed to react carbon-containing materials
and steam at high temperatures to produce a synthesis gas composed
mainly of carbon monoxide and hydrogen.
    Gasification systems include two basic components. The first is the
reactor or gasifier and the second is a gas cleanup or polishing system
used to remove various contaminants from the raw (un-polished)
synthesis gas. At a minimum, syngas cleanup generally includes removal
of sulfur and metals. These two components work together producing a
synthesis gas that can be used as a fuel in a combustion turbine.
    Coal fines, biomass, and other materials can be mixed and processed
into pellets (or other forms) that have the consistency and handling
characteristics of coal. For example, the K-Fuel process employs heat
and pressure to transform coal into a cleaner, more efficient fuel by
removing water and polluting impurities, thus increasing combustion
efficiency. When applied to different lower-rank sub-bituminous and
lignite coals, the K-Fuel process removes, on average, almost 70
percent of the coal's elemental mercury.\163\ As discussed in Section
V.B.2, manure that has been sufficiently processed (for example, by
anaerobic digesters) would also be considered a legitimate non-waste
fuel that has been processed from a non-hazardous secondary material
provided processed material meets the legitimacy criteria.
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    \163\ Evergreen Energy Company Web site. http://www.evgenergy.com/k_fuel.php.
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2. Restrictions and Requirements
a. Legitimate Use
    Discarded non-hazardous secondary materials that are sufficiently
processed to produce legitimate fuel or ingredient products must still
pass the applicable legitimacy criteria to be considered a non-waste
fuel or ingredient product. To be considered a legitimate fuel, the
fuel product must meet the criteria identified in Sec.  241.3(d)(1),
while to be considered a legitimate ingredient, the ingredient product
must meet the criteria in Sec.  241.3(d)(2).
b. Notification
    We are not requiring facilities that use discarded non-hazardous
secondary materials that are sufficiently processed to produce
legitimate fuel or ingredient products to notify EPA under this rule.
This notice would be duplicative of the notifications and recordkeeping
requirements being promulgated for boilers and process heaters at major
sources of air toxics. That is, the CAA section 112 rule requires
notifications and recordkeeping, including documentation as to how the
non-hazardous secondary material meets the legitimacy criteria, and
satisfies the definition of processing and/or the requirements for the
petition process. (40 CFR 63.7530 and 63.7555). Specific recordkeeping
requirements for area source boilers using non-hazardous secondary
materials as ingredients are also found at 40 CFR 63.11225(c)(2)(ii)
under the CAA section 112 rule for area source boilers.
    Additionally, regulations at 40 CFR 60.2175(v) promulgated for
commercial and industrial solid waste incinerators under CAA section
129 require basic recordkeeping to establish whether materials
combusted in a commercial or industrial unit meet the standards and
procedures for identification of non-hazardous secondary materials that
are not solid wastes. Owners or operators of commercial or industrial
facilities that combust materials that are not traditional fuels are
directed to the CAA section 112 regulations for boilers, and the CAA
section 129 regulations for commercial and industrial incinerators, to
determine the recordkeeping provisions related to the definition of
solid waste that may apply to them. The Agency believes that these
records and notifications under the CAA regulations provide assurance
that facilities will apply the legitimacy criteria, and that requiring
notification under this rule is not necessary.

G. Non-Waste Determination Petitions

1. Description of the Petition Criteria for the Non-Waste Determination
    The final rule establishes a non-waste determination petition
process that provides persons with an administrative process for
receiving a formal determination from the EPA Regional Administrator
that non-hazardous secondary materials that are burned as a fuel and
have not been managed within the control of the generator, have not
been discarded, and is indistinguishable in all relevant aspects from a
fuel product is not a solid waste when used as a legitimate fuel in a
combustion unit. For example, a facility combusting non-hazardous
secondary materials that is not affiliated or within the control of the
generator of the non-hazardous secondary material (and thus is
``outside the control of the generator'') can petition EPA that such
non-hazardous secondary materials they burn as fuel is not a solid
waste pursuant to the various criteria.
    This petition process is voluntary. That is, facilities may choose
to petition EPA to receive a case-specific non-waste determination.
However, any petition that is submitted to EPA that requests a non-
waste determination must demonstrate that the non-hazardous secondary
material has not been previously discarded and that it satisfies the
five criteria outlined in today's rule at Sec.  241.3(c). In addition,
the petitioner must also demonstrate that the non-hazardous secondary
material meets the legitimacy criteria in 241.3(d)(1).
    To demonstrate that the non-hazardous secondary material that is to
be burned as a fuel has not been discarded in the first instance, the
petitioner would need to demonstrate that it was not initially
abandoned or thrown away by the generator of the non-hazardous
secondary material. After demonstrating that the non-hazardous
secondary material has not been discarded in the first instance, the
petitioner must then demonstrate that the material is indistinguishable
in all relevant aspects from a fuel product by showing that it
satisfies all of the following five criteria: (1) Whether market
participants handle the non-hazardous secondary material as a fuel
rather than a waste; (2) whether the chemical and physical identify of
the non-hazardous secondary material is comparable to a commercial
fuel; (3) whether the capacity of the market would use the non-
hazardous secondary

material in a reasonable time frame; (4) whether the constituents in
the non-hazardous secondary material are released to the air, water or
land from the point of generation to the point just prior to combustion
of the non-hazardous secondary material at levels comparable to what
would otherwise be released from traditional fuels; and (5) other
relevant factors. These five criteria are listed in today's rule at
Sec.  241.3(c)(1).
    Specifically, the first criterion for a non-waste determination is
whether market participants treat the non-hazardous secondary material
as a fuel rather than a solid waste. This would include consideration
of likely markets for the non-hazardous secondary material (e.g., based
on the current positive value of the secondary material, stability of
demand, and any contractual arrangements). This evaluation of market
participation is a key element for determining whether companies view
these non-hazardous secondary materials like fuels rather than as
negatively-valued wastes.
    The second criterion for a non-waste determination is the chemical
and physical identity of the non-hazardous secondary material and
whether it is comparable to commercial fuels. This ``identity
principle'' is a key factor that the Court of Appeals for the DC
Circuit cited in Safe Food in determining whether a non-hazardous
secondary material is indistinguishable from a product. It is important
to note that the identity of a material can be comparable to a fuel
product without being identical. However, to qualify for a non-waste
determination, any differences between the non-hazardous secondary
material in question and the commercial fuel contaminants should be
within a small acceptable range. In addition, the comparison must be of
the secondary material itself to the commercial fuels and not of the
emissions from the combustion unit. The Agency also recognizes,
however, that emissions data may be used to augment data from the
material in cases where such emissions data is useful in making
legitimacy determinations and demonstrating that constituents in the
material are being used in energy recovery and not disposed of through
sham recycling.
    The third criterion for making a non-waste determination is the
capacity of the market to use the non-hazardous secondary material as a
fuel in combustion units in a reasonable time frame and ensure that it
will not be abandoned. For the non-waste determination, a person must
provide sufficient information about the non-hazardous secondary
material and the market demand for it to demonstrate that such non-
hazardous secondary materials will in fact be used as a fuel in
combustion units in a reasonable time frame. EPA is not explicitly
defining ``reasonable time frame'' because such time frames could vary
according to the non-hazardous secondary material and the industry
involved, and therefore determining this time frame should be made on a
case-specific basis.
    The fourth criterion for a non-waste determination is whether the
constituents in the non-hazardous secondary material fuels that could
be considered contaminants are at concentrations comparable to what
would otherwise be released from traditional fuels from the point of
generation of the non-hazardous secondary material, its management and
storage prior to combustion. The Agency believes that the release to
the environment of contaminants contained in the non-hazardous
secondary material is a possible indicator of risk and discard. The
Agency recognizes that combustion using traditional fuels also result
in a certain level of release and, in evaluating this criterion, would
not deny a non-waste determination if such release is comparable to
those traditional fuel releases. However, when relatively high levels
of the contaminants are released to the environment from the point of
generation to the point just prior to combustion then that may be an
indication that the non-hazardous secondary material is not being
handled as a commercial fuel.
    The fifth and final criterion for a non-waste determination
includes any other relevant factors that demonstrate that the non-
hazardous secondary material is not discarded and thus is not a solid
waste. This catch-all criterion is intended to allow the petitioner to
provide any case-specific information considered important and relevant
in making the case that its non-hazardous secondary material used as a
fuel in a combustion unit is not a solid waste.
    Any non-hazardous secondary material used as a fuel must also
satisfy the legitimacy criteria (Sec.  241.3(d)(1)) in order to be
considered a non-waste fuel. We note that there may be some overlap
between the legitimacy criteria and the five petition criteria
discussed above. Thus, the same rationale used to demonstrate that the
non-hazardous secondary material contains contaminants at levels
comparable to (or lower than) traditional fuels in combination with the
argument that such non-hazardous secondary material contains meaningful
heating value can be used to satisfy the petition criterion number two
above.
2. Non-Waste Determination Petition Process
    In order to obtain a non-waste determination, a facility must apply
to the Regional Administrator for the EPA Region where the facility
combusting the non-hazardous secondary material is located per the
procedures described in today's rule at Sec.  241.3(c). The application
must address the relevant criteria discussed above. The Regional
Administrator will evaluate the application and issue a draft notice
tentatively granting or denying the application. Notification of this
tentative decision will be provided by newspaper advertisement or radio
broadcast in the locality where the combustion unit is located. The
Regional Administrator will accept public comment on the tentative
decision for at least 30 days, and may also hold a public hearing upon
request or at his discretion. The Regional Administrator will issue a
final decision after consideration of comments and after the hearing
(if any). The Regional Administrator may draw upon the states expertise
as discussed below.
    After a formal non-waste determination has been granted, if a
change occurs that affects how the non-hazardous secondary material
meets the relevant criteria contained in today's rule at Sec.
241.3(c)(1), or affects its meeting the legitimacy criteria in Sec.
241.3(d)(1), persons must re-apply to the Regional Administrator for
another formal determination that the non-hazardous secondary material
continues to meet the relevant criteria and is not discarded and
therefore, not a solid waste. The same criteria and procedures
described above would be used for any re-application of the non-
hazardous secondary material.
    As petition decisions are made by the Agency, they will be made
available on an Agency Web site so the petition can be referenced when
similar requests are submitted. This will support national consistency
and minimize redundant efforts.
3. Petition Decisions Utilizing State Environmental Agency Program's
Input
    When analyzing a non-waste determination petition request, the EPA
Regional Administrator may request or rely on information generated
through a state's beneficial use program that certain non-hazardous
secondary materials are or are not solid waste. The state beneficial
use programs have been developed to encourage a variety of uses for
many non-hazardous secondary

materials. The process ensures that non-hazardous secondary materials
do not endanger human health and the environment, and that they are
managed in accordance with the conditions of the determination.
Generally, when a beneficial use determination has been granted (thus,
no longer considered a solid waste under a state's laws or
regulations), it would document that the chemical and physical
properties are similar to the raw material it is replacing or, when
incorporated into another product, would be beneficial to the final
product.
    State Agencies may also submit a non-waste determination request on
behalf of the regulated applicant for EPA to evaluate under the non-
waste determination criteria in today's rule at Sec.  241.3(c)(1).
States may petition for a whole category of non-hazardous secondary
materials in their state for a particular type of combustor, or for
specific individual combustors.

H. Legitimacy Criteria

1. Legitimacy Criteria for Fuels
    Non-hazardous secondary materials used as non-waste fuels in
combustion units must meet the legitimacy criteria specified in Sec.
241.3(d)(1). To meet the legitimacy criteria, the non-hazardous
secondary material must be managed as a valuable commodity, have a
meaningful heating value and be used as a fuel in a combustion unit
that recovers energy, and contain contaminants at concentrations
comparable to (or lower than) those in traditional fuels which the
combustion unit is designed to burn.
    In applying the legitimacy criteria, we would note that there are
two overall questions that the Agency needs to answer: (1) Whether or
not the non-hazardous secondary material is a fuel product or
ingredient product, or whether the material has been discarded and is
therefore a solid waste, which includes waste-derived fuels or
ingredients; and (2) whether the non-hazardous secondary material is
being legitimately and beneficially used or recycled.
    With respect to the legitimacy question, EPA believes it important
and crucial to apply a set of legitimacy criteria to make sure that the
fuel product is being legitimately and beneficially used and not simply
being discarded via sham recycling. The definition of legitimate
recycling developed for the subtitle C hazardous secondary materials
carefully considered the history surrounding the uses of these
secondary materials, as well as the applicable case law with respect to
the meaning of discard. Likewise, those same principles are pertinent
to how a non-hazardous secondary material is determined not to be a
solid waste. Therefore, we are codifying general legitimacy criteria
that use the same basic framework that has been established for the
subtitle C hazardous waste regulations, but that are also tailored
specifically for application to non-hazardous secondary materials that
are used as fuels in combustion units. See 40 CFR 241.3(d) for the
proposed regulatory text of the legitimacy criteria and, for
comparison, see 40 CFR 260.43 in final regulations for the DSW
hazardous waste legitimacy provisions.
    Specific legitimacy criteria for fuels are discussed below:
a. Manage as a Valuable Commodity
    Non-hazardous secondary materials used as fuels must be managed as
valuable commodities, including being stored for a reasonable time
frame. See Sec.  241.3(d)(1)(i). Where there is an analogous fuel, the
non-hazardous secondary material must be managed in a manner consistent
with the management of the analogous fuel or otherwise be adequately
contained so as to prevent releases to the environment. Where there is
no analogous fuel, the non-hazardous secondary material must be
adequately contained so as to prevent releases to the environment. An
``analogous fuel'' is a traditional fuel for which the non-hazardous
secondary material substitutes and which serves the same function and
has similar physical and chemical properties as the non-hazardous
secondary material.
    With respect to how long a non-hazardous secondary material can be
stored before the material is not considered to be ``managed as a
valuable commodity,'' we are requiring that the non-hazardous secondary
material be stored for a reasonable time frame. While EPA took comment
on whether it should provide a specific time-frame (e.g., one-year) as
opposed to the general standard of ``reasonable time frame,'' based on
comments submitted, the Agency has decided not to specifically define
``reasonable time frame,'' primarily because such time frames could and
will vary according to the non-hazardous secondary material and
industry involved. (See Section V. D.1 for a discussion of the comments
received and EPA's response.)
    This legitimacy factor applies to the non-hazardous secondary
materials burned under the generator-controlled exclusion, to
legitimate fuel products that have been produced from discarded non-
hazardous secondary materials that have been sufficiently processed to
produce a non-waste fuel, and to the non-hazardous secondary materials
used as fuel that have not been discarded when used outside control of
the generator (i.e., scrap tires under tire collection programs and
resinated wood residuals). For the generator-controlled provision and
for those non-hazardous secondary materials that are used as a fuel
that have not been discarded when used outside the control of the
generator (i.e., scrap tires under tire collection programs and
resinated wood residuals), the non-hazardous secondary material must be
managed as a valuable commodity upon generation through its end use as
a fuel--that is, from the initial point of generation of the non-
hazardous secondary material to the time it is actually burned as a
fuel. For discarded non-hazardous secondary materials that are
processed to produce a non-waste fuel, the fuel must be managed as a
valuable product from the point that it is first produced as a non-
waste fuel through the time that it is actually burned. As noted
previously, before the non-waste fuel product is produced from
discarded non-hazardous secondary materials, the non-hazardous
secondary material is a solid waste, and must comply with any federal,
state, or local requirements.
    This criterion requires that the non-hazardous secondary material
be managed appropriately before its end use as a fuel. In EPA's view, a
company will value non-hazardous secondary materials used as non-waste
fuels that provide an important contribution and, therefore, will
manage those secondary materials in a manner consistent with how it
manages traditional fuels. If, on the other hand, a company does not
manage the non-hazardous secondary material as it would a traditional
fuel, that behavior may indicate that the non-hazardous secondary
material is being discarded.
    This factor addresses the management of non-hazardous secondary
materials used as fuels in two distinct situations. The first situation
is when the non-hazardous secondary material is analogous to a
traditional fuel that otherwise could be burned. In this case, the non-
hazardous secondary material must be managed prior to use as a fuel in
a similar manner to how traditional fuels are managed or otherwise must
be ``contained'' so as to prevent releases to the environment. For
example, for liquid non-hazardous secondary materials that are used as
a non-waste fuel that are similar to liquid fossil fuels, the Agency
would expect that such non-hazardous secondary materials would be
managed in tanks or similar type devices that are structurally

sound to control the release of the non-hazardous secondary materials.
The Agency would also expect that the types of controls that would
typically be part of a tank or similar type device for liquid fossil
fuels would also be part of any tank system that is used to manage the
non-hazardous secondary material. For example, if liquid fossil fuels
are stored in tanks with covers or they provide for secondary
containment, the Agency would expect that the non-hazardous secondary
material would also be stored in tanks with covers, with secondary
containment so as to prevent releases to the environment.
    The second situation addresses the case where there is no analogous
traditional fuel that otherwise could be burned. This could be either
because the process is designed around a particular non-hazardous
secondary material fuel, such as resinated wood residuals, or because
physical or chemical differences between the non-hazardous secondary
material and the traditional fuel are too significant for them to be
considered ``analogous.'' Non-hazardous secondary materials that have
significantly different physical or chemical properties when compared
to traditional fuels would not be considered analogous even if they
serve the same function because it may not be appropriate to manage
them in the same way. In this situation, the non-hazardous secondary
material would have to be ``contained'' so as to prevent releases to
the environment for this criterion to be met. A non-hazardous secondary
material is ``contained'' if it is stored in a manner that both
adequately prevents releases or other hazards to human health and the
environment, considering the nature and toxicity of the non-hazardous
secondary material.\164\
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    \164\ Examples of materials that are adequately contained would
include liquid fuels stored in a tank.
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b. Meaningful Heating Value and Use as a Fuel
    Non-hazardous secondary materials must have a meaningful heating
value and be used as a fuel in a combustion unit that recovers energy.
See Sec.  241.3(d)(1)(ii). That is, since this legitimacy criterion is
intended to apply only to non-hazardous secondary materials that have a
specific end use (in this case, use as a fuel in an energy recovery
device), we believe it appropriate to highlight that point by adding
that restriction directly to the legitimacy criterion. Thus, non-
hazardous secondary materials having a meaningful heating value must
also be burned in a combustion device specifically to recover energy;
otherwise the unit that combusts such secondary materials are
considered incinerators and thus, are solid wastes.\165\ We recognize
that incinerators and similar type units may accept non-hazardous
secondary materials with a meaningful heating value and use that fuel
value to limit the other types of fuels it needs to burn. However, the
intent of an incinerator, and similar type units, is to destroy wastes,
and thus, non-hazardous secondary materials that are burned in such
units are considered discarded, and thus, solid waste.
---------------------------------------------------------------------------

    \165\ We note that incinerators that burn waste for purposes of
destruction that have a waste heat recovery boiler would not be
considered a combustion unit that satisfies this legitimacy
criterion.
---------------------------------------------------------------------------

    With respect to the requirement that the non-hazardous secondary
material have a meaningful heating value, in the context of the RCRA
subtitle C hazardous waste regulations, EPA addressed this concept--
that is, whether a hazardous secondary material has a meaningful
heating value, in the ``comparable fuels'' rule (63 FR 33781) by
defining it with a benchmark Btu content of 5,000 Btu/lb. EPA has also
previously stated that industrial furnaces (e.g., cement kilns and
industrial boilers) burning hazardous wastes with an energy value
greater than 5,000 Btu/lb may generally be considered to be burning for
energy recovery; however, we have also indicated that hazardous wastes
with a lower Btu content could conceivably be burned for energy
recovery due to the devices' general efficiency of combustion. ``Thus,
the 5,000 Btu level is not an absolute bright line measure of burning
for energy recovery * * *'' (see 62 FR 24251, May 2, 1997).
    These same concepts are also appropriate in determining whether a
non-hazardous secondary material has a meaningful heating value since
traditional fuels in general have a range of heating values from 4,000
to 23,000 Btu/lb. However, we also recognize that new technologies may
be developed in the future that can cost-effectively produce energy
from such non-hazardous secondary materials with lower energy content.
As a result, for purposes of meeting this legitimacy criterion, we
would consider non-hazardous secondary materials with an energy value
greater than 5,000 Btu/lb, as-fired, to have a meaningful heating
value. In addition, for facilities with energy recovery units that use
a non-hazardous secondary material as a fuel with an energy content
lower than 5,000 Btu/lb, as-fired, a person may demonstrate \166\ that
a meaningful heating value is derived from the non-hazardous secondary
material if the energy recovery unit can cost-effectively recover
meaningful energy from the non-hazardous secondary material used as a
fuel. Factors that are important in determining whether an energy
recovery unit can cost-effectively recover energy from the non-
hazardous secondary material include, but are not limited to, whether
the facility encounters a cost savings due to not having to purchase
significant amounts of traditional fuels they otherwise would need,
whether they are purchasing the non-hazardous secondary material to use
as a fuel, whether the non-hazardous secondary material they are
burning can self-sustain combustion, and whether their operation
produces energy that is sold for a profit (e.g., a utility boiler that
is dedicated to burning a specific type of non-hazardous secondary
material that is below 5,000 Btu/lb, but can show that their operation
produces electricity that is sold for a profit).
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    \166\ Such demonstration would be included in the recordkeeping
and reporting requirements for boiler units combusting materials
considered to be non-wastes in accordance with 40 CFR 241.3 as
specified in 40 CFR 63.7530(a) and 63.7555. See Section VII.I in
today's rule for a further discussion of these reporting and
recordkeeping requirements.
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    While not specifically included in Sec.  241.3(d)(1), EPA views
this legitimacy criterion to encompass the concept of the ``useful
contribution and valuable product'' legitimacy factors used to evaluate
hazardous secondary materials in the 2008 DSW final rule. In that rule,
with respect to useful contribution, EPA said that legitimate recycling
must involve a hazardous secondary material that provides a useful
contribution to the recycling process or to a product of the recycling
process. See Sec.  260.43(b)(1). In today's final rule, this criterion
expresses the principle that non-hazardous secondary materials should
contribute value to the manufacturing process--legitimate use is not
occurring if the secondary materials being used do not add anything to
the process. This criterion is intended to prevent the practice of
using non-hazardous secondary materials in a manufacturing operation
simply as a means of disposing or discarding them.
    With respect to the legitimacy criterion of producing a valuable
product or intermediate, the product or intermediate is valuable if it
is (i) sold to a third party or (ii) used by the recycler or the
generator as an effective substitute for a commercial product or as an
ingredient or intermediate in an industrial process. See Sec.
260.43(b)(2). In today's final rule, this criterion

expresses the principle that the non-hazardous secondary material
should be a material of value, as demonstrated by someone purchasing
the material, or using it as an effective substitute for a commercial
product that it would otherwise have to buy or obtain for its
industrial process. We believe non-hazardous secondary materials that
have meaningful heating value that are used as non-waste fuels in
combustion units provide a useful contribution and are valuable
products since they are replacing traditional fuels that otherwise
would have to be burned.
c. Contaminant Levels
    Today's rule includes a legitimacy criterion under which non-
hazardous secondary materials used as non-waste fuels in combustion
units must contain contaminants at levels that are comparable to (or
lower than) those in traditional fuel products which the combustion
unit is designed to burn (e.g., cellulosic biomass, fossil fuels and
their derivatives, as identified elsewhere in this preamble). See Sec.
241.3(d)(1)(iii). This criterion is important to ensure that a non-
hazardous secondary material being used as a fuel is not being
combusted or otherwise released to the environment wholly or in part
for the purpose of disposing of or discarding of unwanted materials.
The combustion of non-hazardous secondary materials with elevated
levels of contaminants results in the contaminants being discarded
either through incineration, or by being released to the environment.
We also believe that requiring that the non-hazardous secondary
material have contaminants at concentrations that are comparable to or
lower than traditional fuels would ensure that the burning of any non-
hazardous secondary material in combustion units will not result in
increased releases to the environment that could impact the health and
environment of the local community. Thus, ensuring that the level of
contaminants in the non-hazardous secondary material is comparable to
(or lower than) those in traditional fuels which the combustion unit is
designed to burn would be at least as protective of human health and
the environment as burning traditional fuels.
    The Agency took comment on a criterion where such contaminants
could not be significantly higher in concentration than contaminants in
traditional fuels, as this is the standard that is in the 2008 DSW
Final Rule regarding the reclamation of hazardous secondary materials.
However, we have decided not to adopt that standard in this rule
because we are concerned that contaminants that are ``not significantly
higher'' in non-hazardous secondary materials could be seen as
``discarding'' such contaminants, even if the non-hazardous secondary
material, when combusted, did not present a risk to human health and
the environment. (See Section V.D.3 for a discussion of the comments
received and EPA's response regarding the level at which contaminants
should be present in such non-hazardous secondary materials.)
    The term ``contaminants,'' as proposed, was defined to mean the HAP
listed under section 112(b) of the CAA, as well as the nine pollutants
required to be regulated under section 129(a)(4) of the CAA. We believe
that this was reasonable because this legitimacy criterion is intended
to ensure that such non-hazardous secondary materials are not being
combusted as a means of disposing of them, so the health and
environmental impacts of concern will be those resulting from the air
emissions of concern identified in the CAA, including the listed HAP,
as well as the section 129 pollutants. (See Section V.D.3 for a
discussion of the comments received and EPA's response regarding the
meaning of ``contaminants.'')
    In determining which traditional fuel(s) the owner or operator of
the boiler unit would make a comparison to with respect to contaminant
levels, the Agency will allow any traditional fuel(s) that can be or is
burned in the particular type of boiler. For example, if the boiler
burns fuel oil, the level of contaminants to be compared would be the
level of contaminants in fuel oil or other liquid traditional fuels
that is or can be burned in such unit. For gas-fired boilers, the level
of contaminants in the non-hazardous secondary material fuels would be
compared to natural gas or other gaseous traditional fuels. The Agency
believes that this approach is most appropriate since the non-hazardous
secondary material would be replacing the use of a particular type(s)
of fuel. In addition, as discussed in the preamble to the boiler MACT,
boilers designed to combust different types of fuels (e.g., coal vs.
oil) cannot easily be modified to burn another fuel. Therefore we have
determined that any comparison of the contaminants in a non-hazardous
secondary material should be to the type(s) of fuel that are (or can
be) used in the boiler.
    EPA is not establishing specific numerical maximum contaminant
levels that a non-hazardous secondary material would have to meet, but
rather the rule allows the owner or operator to make the comparison
based on information he has or can acquire regarding the level of
contaminants found in the traditional fuels he burns or could burn. The
assessment of whether the non-hazardous secondary material has
contaminants comparable to (or lower than) traditional fuel products is
to be made by directly comparing the numerical contaminant levels in
the non-hazardous secondary material to the contaminant levels in
traditional fuels.
    The legitimacy criterion is tailored specifically to the use of
these non-hazardous secondary materials as fuels in combustion units.
As a result, we believe that contaminant levels in non-hazardous
secondary materials must be comparable in concentration to (or lower
than) those levels in traditional fuels to be legitimately used as a
non-waste fuel product. While the Agency did solicit comment on whether
or not it should establish a bright line level or establish a set of
levels in the final rule in defining comparable, the Agency has
concluded that establishing such levels would be difficult since the
level of any contaminant in a particular type of fossil fuel or other
traditional fuels can vary quite a bit. Thus, the Agency is defining
``comparable to or lower than'' to mean any contaminants present in the
non-hazardous secondary materials that are within a small acceptable
range of the concentrations found in traditional fuels. See Section
V.D.3 for a discussion of the comments received and EPA's response
regarding establishing specific levels in defining a comparable fuel.
2. Legitimacy Criteria for Ingredients
    Non-hazardous secondary materials used as ingredients in combustion
units must meet the legitimacy criteria specified in 40 CFR
241.3(d)(2). As discussed for the legitimate fuels criteria, EPA
believes it important and crucial to apply a set of legitimacy criteria
to make sure that the ingredient products are being legitimately and
beneficially used and not simply being discarded via sham recycling.
Specifically, a non-hazardous secondary material used as an ingredient
in a combustion unit must be managed as a valuable commodity, provide a
useful contribution, be used to produce a valuable product or
intermediate, and must result in products that contain contaminants at
levels that are comparable in concentration to (or lower than) those
found in traditional products that are manufactured without the non-
hazardous secondary material. Our reasoning for establishing the
particular criteria is discussed below.
a. Managed as Valuable Commodities
    Non-hazardous secondary materials used as ingredients must be
managed as

valuable commodities, including being stored for a reasonable time
frame. See Sec.  241.3(d)(2)(i). Where there is an analogous
ingredient, the non-hazardous secondary material must be managed in a
manner consistent with the management of the analogous ingredient or
otherwise be adequately contained so as to prevent releases to the
environment. Where there is no analogous ingredient, the non-hazardous
secondary material must be adequately contained so as to prevent
releases to the environment. An ``analogous ingredient'' is an
ingredient for which the non-hazardous secondary material substitutes
and which serves the same function and has similar physical and
chemical properties as the non-hazardous secondary material.
    With respect to how long a non-hazardous secondary material can be
stored before the material is not considered to be ``managed as a
valuable commodity,'' we are requiring that the non-hazardous secondary
material be stored for a reasonable time frame. While EPA took comment
on whether it should provide a specific time frame (e.g., one-year) as
opposed to the general standard of ``reasonable time frame,'' based on
comments submitted, the Agency has decided not to specifically define
``reasonable time frame,'' primarily because such time frames could and
will vary according to the non-hazardous secondary material and
industry involved. (See Section V.D.1 for a discussion of the comments
received and EPA's response.)
    For discarded non-hazardous secondary materials that are processed
to produce a non-waste ingredient, the ingredient product must be
managed as a valuable product from the point that it is first produced
as a non-waste through its use in the combustion unit. As noted
previously, before the non-waste product is produced, the non-hazardous
secondary material is a solid waste, and must comply with any federal,
state, or local requirements.
    This criterion requires that the non-hazardous secondary material
be managed appropriately before its end use as an ingredient. In EPA's
view, a company will value non-hazardous secondary materials used as
ingredients that provide an important contribution and, therefore, will
manage those non-hazardous secondary materials in a manner consistent
with how it manages traditional ingredients. If, on the other hand, a
company does not manage the non-hazardous secondary material as it
would traditional ingredients, that behavior may indicate that the non-
hazardous secondary material is being discarded.
    This factor addresses the management of non-hazardous secondary
materials used as ingredients in two distinct situations. The first
situation is when the non-hazardous secondary material is analogous to
a traditional ingredient that otherwise could be burned. In this case,
the non-hazardous secondary material must be managed prior to use as an
ingredient in a similar manner to how traditional ingredients are
managed or otherwise must be ``contained'' so as to prevent releases to
the environment. For example, for liquid non-hazardous secondary
materials that are used as a non-waste ingredient that are similar to
traditional ingredients, the Agency would expect that such non-
hazardous secondary materials would be managed in tanks or similar type
devices that are structurally sound to control the release of the non-
hazardous secondary materials. The Agency would also expect that the
types of controls that would typically be part of a tank or similar
type device for traditional ingredients would also be part of any tank
system that is used to manage the non-hazardous secondary material. For
example, if traditional ingredients are stored in tanks with covers or
they provide for secondary containment, the Agency would expect that
the non-hazardous secondary material would also be stored in tanks with
covers, with secondary containment so as to prevent releases to the
environment.
    The second situation addresses the case where there is no analogous
traditional ingredient that otherwise could be burned. This could be
either because the process is designed around a particular non-
hazardous secondary material ingredient, or because physical or
chemical differences between the non-hazardous secondary material and
the traditional ingredient are too significant for them to be
considered ``analogous.'' Non-hazardous secondary materials that have
significantly different physical or chemical properties when compared
to traditional ingredients would not be considered analogous even if
they serve the same function because it may not be appropriate to
manage them in the same way. In this situation, the non-hazardous
secondary material would have to be ``contained'' so as to prevent
releases to the environment for this criterion to be met. A non-
hazardous secondary material is ``contained'' if it is stored in a
manner that both adequately prevents releases or other hazards to human
health and the environment, considering the nature and toxicity of the
non-hazardous secondary material.\167\
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    \167\ Examples of materials that are adequately contained would
include liquids stored in a tank.
---------------------------------------------------------------------------

b. Useful Contribution
    We are requiring that non-hazardous secondary materials used as
ingredients in combustion units provide a useful contribution to the
production/manufacturing process. See Sec.  241.3(d)(2)(ii). A non-
hazardous secondary material used as an ingredient in combustion
systems provides a useful contribution if it contributes valuable
ingredients to the production/manufacturing process or to the product
or intermediate of the production/manufacturing process. This criterion
is an essential component in the determination of legitimacy because
legitimate use is not occurring if the non-hazardous secondary material
doesn't add anything to the process, such that the non-hazardous
secondary material is basically being disposed of or discarded. This
criterion is intended to prevent the practice of ``sham'' recycling by
adding non-hazardous secondary materials to a manufacturing operation
simply as a means of disposing of them.
    For purposes of satisfying this criterion, not every constituent or
component of the non-hazardous secondary material has to make a
contribution to the production/manufacturing activity. For example,
non-hazardous secondary materials used as ingredients may contain some
constituents that are needed in the manufacturing process, such as, for
example, zinc in non-hazardous secondary materials that are used to
produce zinc-containing micronutrient fertilizers, while other
constituents in the non-hazardous secondary material, such as lead, do
not provide a useful contribution. Provided the zinc is at levels that
provides a useful contribution, we believe the non-hazardous secondary
material would satisfy this criterion, although we would note that the
constituents not directly contributing to the manufacturing process
could still result in the non-hazardous secondary material not meeting
the contaminant part of the legitimacy criteria. The Agency is not
quantitatively defining how much of the non-hazardous secondary
material needs to provide a useful contribution for this criterion to
be met, since we believe that defining such a level would be difficult
and is likely to be different, depending on the non-hazardous secondary
material. The Agency recognizes that this could be an issue if

persons argue that a non-hazardous secondary material is being
legitimately used as an ingredient, but in fact, only a small amount or
percentage of the non-hazardous secondary material is used. Because of
the differences in the emissions standards that the non-hazardous
secondary material would be subject to--between CAA sections 112 and
129, persons may argue that such non-hazardous secondary materials are
not wastes, when in fact, the operation is really discard, and
therefore, sham recycling. Thus, as part of the recordkeeping
requirements under the CAA, persons need to provide the basis or
rationale on why the particular non-hazardous secondary material meets
the legitimacy criteria, including how the secondary material provides
a useful contribution.
c. Valuable Product
    We are requiring that non-hazardous secondary materials used as
ingredients in combustion units must be used to produce a valuable
product or intermediate. See Sec.  241.3(d)(2)(iii). The product or
intermediate is valuable if it is (i) sold to a third party or (ii)
used as an effective substitute for a commercial product or as an
ingredient or intermediate in an industrial process.
    This criterion expresses the principle that the product or
intermediate of the manufacturing/production process should be a
material of value, either to a third party who buys it from the
manufacturer, or to the same manufacturer that subsequently uses it as
a substitute for another material that it would otherwise have to buy
or obtain for its industrial process. This criterion is an essential
component of the concept of legitimacy because legitimate use cannot be
occurring if the product or intermediate is not of use to anyone and,
therefore, has no real value. This criterion is intended to prevent the
practice of introducing a non-hazardous secondary material through an
industrial process to make something just for the purpose of avoiding
the costs of disposal. Such a practice would be sham recycling.
    One way that the use of the non-hazardous secondary material as an
ingredient in the production/manufacturing process can be shown to
produce a valuable product would be to have documentation on the sale
of the product to a third party. Such documentation could be in the
form of receipts or contracts and agreements that establish the terms
of the sale or transaction. This transaction could include money
changing hands or, in other circumstances, may involve trade or barter.
A manufacturer that has not yet arranged for the sale of its product to
a third party could also establish value by demonstrating that it can
replace another product or intermediate that is available in the
marketplace.
    Production/manufacturing processes that use non-hazardous secondary
materials as ingredients may produce outputs that are not sold to
another party, but are instead used by the same manufacturer. These
products or intermediates may be used as a feedstock in a manufacturing
process, but have no established monetary value in the marketplace.
Such products or intermediates would be considered to have intrinsic
value, though demonstrating intrinsic value may be less straightforward
than demonstrating value for products that are sold in the marketplace.
Demonstrations of intrinsic value could involve showing that the
product or intermediate of the production/manufacturing process
replaces another material that would otherwise have to be purchased or
could involve a showing that the non-hazardous secondary material meets
specific product specifications or specific industry standards. Another
approach could be to compare the non-hazardous secondary material's
physical and chemical properties or efficacy for certain uses with
those of comparable products or intermediates made from raw materials.
    Some production/manufacturing processes that use non-hazardous
secondary materials as ingredients may consist of multiple steps that
may occur at separate facilities. In some cases, each processing step
will yield a valuable product or intermediate. When each step in the
process yields a valuable product or intermediate that is salable or
usable in that form, the activity would conform to this criterion.
d. Contaminant Levels
    We are requiring that non-hazardous secondary materials used as an
ingredient must result in products that contain contaminants at levels
that are comparable in concentration to (or lower than) those found in
traditional products that are manufactured without the non-hazardous
secondary material. See Sec.  241.3(d)(2)(iv). The term
``contaminants'' refers to constituents in non-hazardous secondary
materials that will result in emissions of the air pollutants
identified as HAP listed under CAA section 112(b), the nine pollutants
listed under CAA section 129(a)(4).
    The assessment of whether the products produced from the use of
non-hazardous secondary materials that have contaminants that are
comparable to (or lower) in concentration can be made by a comparison
of contaminant levels in the ingredients themselves to the traditional
ingredients they are replacing, or by comparing the contaminant levels
in the product itself with and without the use of the non-hazardous
secondary material. In determining which traditional ingredient(s) the
owner or operator of the unit would make a comparison to with respect
to contaminant levels, the Agency believes that any traditional
ingredient that can be or is used in the particular type of unit is
appropriate. For example, for cement kilns, if the ingredient is CKD,
the level of contaminants to be compared would be the level of
contaminants in limestone or other ingredients that can be used in such
unit. Alternatively, a product comparison can be made. See Section V.E
for a further discussion of the comments received regarding the
legitimacy criteria for ingredients, as well as our responses to those
comments.

I. Determining That Non-Hazardous Secondary Materials Meet the
Legitimacy Criteria

    Owners and operators of affected facilities combusting non-
hazardous secondary materials that are not considered solid wastes must
ensure that the non-hazardous secondary materials meet the legitimacy
criteria in Sec.  241.3(d) (and continue to meet those criteria) when
combusted. Non-hazardous secondary materials that no longer meet these
legitimacy criteria would be considered solid wastes and the units
combusting those non-hazardous secondary materials would be considered
a commercial or industrial solid waste incineration (CISWI) unit (see
40 CFR 60.2875).
    The CAA section 112 rule requires notifications and recordkeeping,
including documentation as to how the non-hazardous secondary material
meets the legitimacy criteria, and satisfies the definition of
processing and/or the requirements for the petition process. (40 CFR
63.7530 and 63.7555). Specific recordkeeping requirements for area
source boilers combusting non-hazardous secondary materials are found
at 40 CFR 63.11225(c)(2)(ii) under the CAA section 112 rule for area
source boilers. Additionally, regulations at 40 CFR 60.2175(v)
promulgated for commercial and industrial solid waste incinerators
under CAA section 129 require basic recordkeeping to establish whether
materials combusted in a commercial or industrial unit meet the
standards and procedures for identification of non-hazardous

secondary materials that are not solid wastes. Owners or operators of
commercial or industrial facilities that combust materials that are not
traditional fuels are directed to the CAA section 112 regulations for
boilers and process heaters, and the CAA section 129 regulations for
commercial and industrial incinerators, to determine the recordkeeping
provisions related to the definition of solid waste that may apply to
them. The Agency believes that these records and notifications under
the CAA regulations provide assurance that facilities will apply the
legitimacy criteria.

VIII. Effect of Today's Final Rule on Other Programs

    The construct of this rule is to determine which non-hazardous
secondary materials are solid wastes when combusted either as a fuel or
ingredient in order to determine CAA section 129 applicability. Thus,
this rules applicability is to the universe of combustion facilities
using non-hazardous secondary materials as fuels or ingredients.

A. Clean Air Act

    The definition of solid waste incineration unit in CAA section
129(g)(6) states that the term ``solid waste'' will have the meaning
established by the Administrator of EPA under RCRA. Today's rule would
establish under RCRA which non-hazardous secondary materials constitute
``solid waste'' when used as a fuel or an ingredient. This definition
of ``solid waste'' is being used by EPA to establish CAA emissions
standards for CISWI units (under CAA section 129) and boilers and
process heaters (under CAA section 112). Any unit combusting ``solid
waste'' is subject to the emission standards for ``solid waste
incineration units'' under CAA section 129. The waste determinations in
this rule do not subject combustion units to the CAA section 129
standards if the units are exempt under CAA section 129(g)(1).\168\
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    \168\ CAA 129 (g)(1).
    ``(1) * * * The term ``solid waste incineration unit'' does not
include
    (A) materials recovery facilities (including primary or
secondary smelters) which combust waste for the primary purpose of
recovering metals,
    (B) qualifying small power production facilities, as defined in
section 796 (17)(C) of title 16, or qualifying cogeneration
facilities, as defined in section 796 (18)(B) of title 16, which
burn homogeneous waste (such as units which burn tires or used oil,
but not including refuse-derived fuel) for the production of
electric energy or in the case of qualifying cogeneration facilities
which burn homogeneous waste for the production of electric energy
and steam or forms of useful energy (such as heat) which are used
for industrial, commercial, heating or cooling purposes, or
    (C) air curtain incinerators provided that such incinerators
only burn wood wastes, yard wastes and clean lumber and that such
air curtain incinerators comply with opacity limitations to be
established by the Administrator by rule. * * *''
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B. Renewable Energy

    This rule may impact how some non-hazardous secondary materials
could be used to help supply renewable energy to the U.S. and through
state programs. Congress has passed several laws, such as the Energy
Independence and Security Act of 2007 (Pub. L. 110-140), that supports
the development and use of renewable sources of energy, both for power
generation and for the production of transportation fuels. Qualified
sources would include wind, solar, and geothermal power, but could also
include power generated by the combustion of biogenic materials, which
may include some non-hazardous secondary materials burned for energy
recovery. Biogenic materials are materials that result from the
activity of living organisms. A number of non-hazardous secondary
materials are partially or completely biogenic. For example, woody
biomass contains recoverable energy and would be considered biogenic in
origin. Energy from biogenic sources is generally preferable to fossil
fuels.
    In addition to these federal programs that may be impacted,
Renewable Portfolio Standards (RPS) currently provide states with a
mechanism to increase renewable energy generation using renewable
energy sources (including biofuels) and a cost-effective, market-based
approach. An RPS requires electric utilities and other retail electric
providers to supply a specified minimum amount of customer load with
electricity from eligible renewable energy sources. The goal of an RPS
is to stimulate market and technology development so that, ultimately,
renewable energy will be economically competitive with conventional
forms of electric power. States create RPS programs because of the
energy, environmental, and economic benefits of renewable energy and
sometimes other clean energy approaches, such as energy efficiency and
combined heat and power.
    If these renewable energy sources or biogenic fuels qualify as
clean cellulosic biomass, they are an alternative fuel (see the full
definition in today's rule at Sec.  241.2) and are not subject to the
section 129 CAA standards, but rather, would be subject to the section
112 CAA standards.

C. Subtitle C Hazardous Waste Program

    The result of this rule will have no effect on the RCRA subtitle C
hazardous waste program because it does not address hazardous waste.
The RCRA subtitle C hazardous waste federal program has a long
regulatory history in defining ``solid waste'' for purposes of the
hazardous waste regulations. However, the 40 CFR 261.2 definition of
solid waste explicitly applies only to wastes that also are hazardous
for purposes of the subtitle C regulations (see 40 CFR 261.1(b)(1)).
CAA section 129 also specifically excludes subtitle C combustion units
from coverage under that section.
    RCRA section 7003 gives EPA the authority to compel actions to
abate conditions that may present an ``imminent and substantial
endangerment'' involving both solid and hazardous wastes. EPA uses this
authority on a case-by-case basis. The Agency can determine in a
specific factual context whether a non-hazardous secondary material
which causes an endangerment is discarded. RCRA sections 3007 and 3008
establish EPA's inspection and Federal enforcement authority to address
violations of the subtitle C hazardous waste regulations. Nothing in
this rule shall impact EPA's ability to act pursuant to RCRA sections
3007, 3008 and 7003. The rule also does not limit or otherwise affect
EPA's ability to pursue potentially responsible persons under section
107 of CERCLA for releases or threatened releases of hazardous
substances.
    Finally, we would note that on October 30, 2008, EPA issued a final
rule excluding certain hazardous secondary materials from the
definition of solid waste issued under the hazardous waste provisions
found in RCRA subtitle C (73 FR 64688). EPA is currently re-examining
these exclusions, and as part of a settlement agreement with Sierra
Club, EPA will issue a proposed rule by June 2011. This proposal will
address, at minimum, issues raised in an administrative petition filed
by the Sierra Club, including the four issues discussed in a public
meeting, which was announced in a Federal Register notice (74 FR 25200,
May 27, 2009). The four issues are (1) the definition of ``contained,''
(2) notification before operating under the exclusion (3) the
definition of ``legitimacy'' and (4) the transfer-based exclusion. Many
of the issues to be addressed in the upcoming subtitle C definition of
solid waste proposal are similar to the issues addressed in today's
final rule. However, there are

significant differences between today's final rule and the scope of the
planned June 2011 subtitle C definition of solid waste proposal. The
planned proposal will only address the regulation of hazardous
secondary materials (not non-hazardous secondary materials) going to
reclamation (not burning for energy recovery) under RCRA subtitle C
(not subtitle D). In developing the planned subtitle C proposal, EPA
will carefully consider the difference in scope between the two
rulemakings and address it as appropriate.

IX. State Authority

    Subtitle D of RCRA establishes a framework for state, federal, and
local government cooperation in controlling the management of non-
hazardous solid waste. The federal role in this arrangement is to
establish the overall regulatory direction, by providing minimum
nationwide standards for protecting human health and the environment,
and to provide technical assistance to states for planning and
developing their own solid waste management practices. The actual
planning and direct implementation of solid waste programs under RCRA
subtitle D, however, remains largely a state and local function, and
states have authority to devise programs to deal with state specific
conditions and needs.
    EPA has not promulgated detailed regulations of what is included in
the definition of solid waste for the RCRA subtitle D (non-hazardous
waste) programs. State environmental agencies have promulgated their
own laws and regulations as to what constitutes a solid waste and have
interpreted those laws and regulations to determine what types of non-
hazardous secondary material activities involve the management of a
solid waste for the purposes of their authorities. Many states have a
process or promulgated regulations to determine when these materials
are wastes, and when they can be used beneficially and safely in
products in commerce.
    Through this rulemaking, EPA is articulating a definition of which
non-hazardous secondary materials are or are not solid waste when used
as a fuel for energy recovery in combustion units or as an ingredient
in combustion units. We are not imposing solid waste requirements for
determining other possible secondary material end uses nor does this
rulemaking apply to general materials management in state programs.

A. Applicability of State Solid Waste Definitions and Beneficial Use
Determinations

    CAA section 129 states that the term ``solid waste'' shall have the
meaning ``established by the Administrator pursuant to the Solid Waste
Disposal Act'' Id. at 7429(g)(6). Accordingly, the states' definition
of solid waste would not be applicable in determining whether the CAA
section 129 standards apply. Specifically, state determinations
regarding a material's beneficial use that may exempt a non-hazardous
secondary material from the state solid waste standards would not
necessarily impact the status of such non-hazardous secondary materials
under EPA's solid waste definition as it relates to which combustion
units are subject to the CAA section 129 standards. Likewise,
combustion units that use non-hazardous secondary materials as fuels or
ingredients that are not solid waste under today's rule would not be
subject to the solid waste incineration standards under CAA section
129, even though the state standards may define the same material as
solid wastes for their recycling and waste management programs.
    If a non-waste determination is sought by petition at a combustion
unit, the Agency (EPA Regional Administrator or delegate) will make the
decision to grant or deny the petition. The Agency can, however,
utilize the information and contaminant data from state beneficial use
determinations if it is applicable to the non-hazardous secondary
material when used as a fuel or as an ingredient. These state
beneficial use programs have been developed to encourage recycling and
reuse, provided that such use maintains the specified state's
acceptable level of risk and are managed in accordance with the
conditions of the determination. Generally, when a beneficial use
determination has been granted, it would have chemical and physical
properties that are comparable to the raw material it is replacing or,
when incorporated into another product, its use would be beneficial to
the final product. If the data to support the beneficial use
determination was available, it could help support the research on
contaminant concentrations for the legitimacy criteria in order to make
the petition decision.
    A discussion on state program involvement in the petition process
and on states submitting petitions in lieu of a regulated applicant is
described in Section V.F. Implementation and enforcement issues related
to state programs are covered in Section VII.I.

B. State Adoption of the Rulemaking

    No federal approval procedures for state adoption of today's rule
are included in this rule under RCRA subtitle D. Although EPA does
promulgate criteria for solid waste landfills and approves state
municipal solid waste landfill permitting programs, RCRA does not
provide EPA with authority to approve state programs beyond municipal
solid waste landfill permitting programs. While states are not required
to adopt today's rule, some states incorporate federal regulations by
reference or have specific state statutory requirements that their
state program can be no more stringent than the federal regulations. In
those cases, EPA anticipates that, if required by state law, the
changes in today's rule will be incorporated (or possibly adopted by
authorized state air programs) consistent with the state's laws and
administrative procedures.

C. Clarifications on the Relationship to State Programs

    State Agencies that responded to the proposal requested further
clarification in the final rule. Specifically, the Federal rule applies
only to the RCRA subtitle D definition of solid waste for determining
use as a fuel or ingredient in combustion units (as regulated by the
CAA). Today's rule does not preempt a State's statutory or regulatory
definition of solid waste, and only applies for purposes of determining
which facilities must comply with the CAA section 129 standards.
    Non-hazardous secondary materials may be simultaneously regulated
as a non-waste fuel or ingredient for use in combustion units under
Sec.  241.3, but as a solid waste by the State's solid waste programs
for management purposes. Also, see the discussion in the beginning of
this Section (IX. State Authority). Combustors using non-hazardous
secondary materials that are designated as a non-waste when used as a
fuel or ingredient, would not be subject to the CAA section 129
standards, even though the state standards may define the non-hazardous
secondary material as a solid waste.
    Finally, owners and operators of affected facilities combusting
non-hazardous secondary materials considered to be non-wastes based on
the non-waste determination petition process, and the application of
the criteria outlined in Sec.  241.3(c) must ensure that the non-
hazardous secondary materials continue to meet those provisions when
combusted. Non-hazardous secondary materials that no longer meet those
criteria, even though

they may be in compliance with state recycling and management
requirements, would require the combustor to re-apply for the non-waste
determination (per Sec.  241.3(c)(2)(iv)) through the EPA Regional
Administrator (otherwise they would be considered solid wastes and the
units combusting those non-hazardous secondary materials would be
subject to the commercial or industrial solid waste incineration
(CISWI) regulations (see 40 CFR 60.2875)).

X. Cost and Benefits of the Final Rule

    The value of any regulatory action is traditionally measured by the
net change in social welfare that it generates. This final rule alone
does not directly invoke any costs \169\ or benefits. This rule is
published as part of a four-rule package that includes the Boiler MACT
and CISWI rules.\170\ Costs to the regulated community and
corresponding benefits to human health and the environment are captured
under those rules. As such, the Agency has not prepared a separate
economic assessment in support of this final rule.
---------------------------------------------------------------------------

    \169\ Excluding minor administrative burden/cost (e.g., rule
familiarization) and costs related to submitting a voluntary
petition.
    \170\ National Emission Standards for Hazardous Air Pollutants
for Area Sources: Industrial, Commercial, and Institutional Boilers;
National Emission Standards for Hazardous Air Pollutants for
Industrial/Commercial/Institutional Boilers and Process Heaters; and
Standards of Performance for New Stationary Sources and Emission
Guidelines for Existing Sources: Commercial and Industrial Solid
Waste Incineration (CISWI) Units.
---------------------------------------------------------------------------

    The costs and benefits indirectly associated with this action are
the corresponding impacts assessed in the regulatory impact analyses
prepared in support of the Boiler MACT and CISWI rules. These
independent regulatory impact analyses measure, among other factors,
the estimated net change in social welfare associated with these
actions. In the development of these analyses, EPA worked to ensure
that the methodologies and data applied in these assessments captured
appropriate RCRA related costs (e.g., secondary material diversions).
These assessments were designed to adhere to EPA and Office of
Management and Budget guidelines and procedures. These documents are
available in the docket established for this action.

XI. Statutory and Executive Order Reviews

A. Executive Orders 12866 and 13563: Improving Regulatory Planning and
Review

    Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993),
and EO 13563 (76 FR 3821, January 21, 2011), this action is a
``significant regulatory action.'' Pursuant to the terms of the Orders,
the Agency, in conjunction with the Office of Management and Budget
(OMB), has determined that this rule is a significant regulatory action
because it contains novel policy issues, as defined under part 3(f)(4)
of EO 12866. Accordingly, EPA submitted this action to OMB for review.
Any changes made in response to OMB recommendations have been
documented in the docket for this action.

B. Paperwork Reduction Act

    The information collection requirements in this rule have been
submitted for approval to OMB under the Paperwork Reduction Act, 44
U.S.C. 3501 et seq. The information collection requirements are not
enforceable until OMB approves them.
    This rule establishes a voluntary non-waste determination petition
process for non-hazardous secondary materials identified as solid
wastes. Facilities claiming this solid waste exclusion are required to
seek approval from the Agency through the submission of a petition
prior to operating under this exclusion. Sufficient information about
the non-hazardous secondary material and the market demand for this
material will be necessary to demonstrate that the non-hazardous
secondary material in fact has not been discarded and is a legitimate
non-waste fuel or ingredient in the combustion process. Specifically,
the petition will need to contain information to assess the following
criteria: (1) Whether market participants handle the non-hazardous
secondary material as a fuel rather than a waste; (2) whether the
chemical and physical identities of the non-hazardous secondary
material is comparable to a commercial fuel; (3) whether the capacity
of the market would use the non-hazardous secondary material in a
reasonable time frame; (4) whether the constituents in the non-
hazardous secondary material are not discarded to the air, water or
land from the point of generation to the point just prior to combustion
of the non-hazardous secondary material at levels comparable to what
would otherwise be released from traditional fuels; and (5) other
relevant factors.
    The facility-level burden associated with this voluntary petition
option is estimated to have an average total burden of each non-waste
determination petition of approximately 149 hours per facility, with a
total cost per facility of approximately $10,100. The total number of
facilities likely to take advantage of this option is undetermined, but
we would expect that only a limited number of facilities may submit
such a petition. Burden is defined at 5 CFR 1320.3(b).
    An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR part 9. EPA is amending the table in
40 CFR part 9 of currently approved OMB control numbers for various
regulations to list the regulatory citations for the information
requirements contained in this final rule.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of today's rule on small
entities, small entity is defined as: (1) A small business, as defined
by the Small Business Administration's (SBA) regulations at 13 CFR
121.201; (2) a small governmental jurisdiction that is a government of
a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and
operated, and is not dominant in its field.
    After considering the economic impacts of today's final rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. No small
entities are directly regulated by this final rule (see discussion
above under costs and benefits). Any potential impacts to small
entities in these or any other potentially affected sectors are
addressed in the regulatory flexibility analyses prepared in support of
the CAA rules that are linked to this action.\171\
---------------------------------------------------------------------------

    \171\ National Emission Standards for Hazardous Air Pollutants
for Area Sources: Industrial, Commercial, and Institutional Boilers;
National Emission Standards for Hazardous Air Pollutants for
Industrial/Commercial/Institutional Boilers and Process Heaters; and
Standards of Performance for New Stationary Sources and Emission
Guidelines for Existing Sources: Commercial and Industrial Solid
Waste Incineration (CISWI) Units.
---------------------------------------------------------------------------

    Although this final rule will not have a significant economic
impact on a

substantial number of small entities, EPA, nonetheless, has tried to
reduce the impact of this rule on small entities through the careful
and targeted identification of which non-hazardous secondary materials
are solid wastes. In addition, we have established a voluntary petition
process that allows for material-specific non-waste determinations.

D. Unfunded Mandates Reform Act

    This final rule does not contain a Federal mandate that may result
in expenditures of $100 million or more for State, local, and tribal
governments, in the aggregate, or the private sector in any one year.
Because this action is linked to the CAA rules, this rule alone will
not result in significant economic impacts on States, local and tribal
governments, in the aggregate, or the private sector in any one year.
Thus, this rule is not subject to the requirements of sections 202 or
205 of UMRA.
    This rule is also not subject to the requirements of section 203 of
UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments. As described above,
this action alone does not result in unique effects, or significant
economic impacts.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132. This final rule, independent of the
CAA rules, will not result in substantial direct effects on the states.
Furthermore, this rule will not preempt state laws related to the
affected non-hazardous secondary materials. States will remain free to
manage these non-hazardous secondary materials, as appropriate under
their existing regulatory programs, including their solid waste
programs. Thus, Executive Order 13132 does not apply to this action.
    In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA and State and local
governments, EPA specifically solicited comment on the proposed action
from State and local officials.

F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

    Subject to the Executive Order 13175 (65 FR 67249, November 9,
2000), EPA may not issue a regulation that has tribal implications,
that imposes substantial direct compliance costs, and that is not
required by statute, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by tribal
governments, or EPA consults with tribal officials early in the process
of developing the proposed regulation and develops a tribal summary
impact statement.
    EPA has concluded that this action may have tribal implications.
However, it will neither impose substantial direct compliance costs on
tribal governments, nor preempt Tribal law. The rule may have minor
indirect tribal implications to the extent that entities generating or
burning solid wastes on tribal lands could be affected in response to
the corresponding CAA rules.\172\ EPA consulted with tribal officials
early in the process of developing this regulation to permit them to
have meaningful and timely input into its development.
---------------------------------------------------------------------------

    \172\ National Emission Standards for Hazardous Air Pollutants
for Area Sources: Industrial, Commercial, and Institutional Boilers;
National Emission Standards for Hazardous Air Pollutants for
Industrial/Commercial/Institutional Boilers and Process Heaters; and
Standards of Performance for New Stationary Sources and Emission
Guidelines for Existing Sources: Commercial and Industrial Solid
Waste Incineration (CISWI) Units.
---------------------------------------------------------------------------

G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks

    This action is not subject to Executive Order 13045 (62 FR 19885,
April 23, 1997) because it is not economically significant as defined
in Executive Order 12866, and because the Agency does not believe the
environmental health or safety risks addressed by this action present a
disproportionate risk to children. This action's health and risk
assessments are contained in support documents prepared for the CAA
section 129 CISWI and section 112 Boiler MACT rules.

H. Executive Order 13211: Actions that Significantly Affect Energy
Supply, Distribution or Usage

    This action is not a ``significant energy action'' as defined in
Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not
likely to have a significant adverse effect on the supply,
distribution, or use of energy. This action, independent of the CAA
rules,\173\ is not expected to directly affect energy use or use
patterns. The purpose of this rule is to determine which non-hazardous
secondary materials are solid waste when combusted. On its own, this
rule will not lead to direct changes in the ability of facilities to
use non-hazardous secondary materials as a source of energy. However,
the Agency acknowledges that interactions between this rule and the
section 112 and section 129 CAA emission standards rules being
promulgated today may affect the use of non-hazardous secondary
materials as a source of energy. We refer persons to the dockets for
those rules for information on these energy impacts.
---------------------------------------------------------------------------

    \173\ National Emission Standards for Hazardous Air Pollutants
for Area Sources: Industrial, Commercial, and Institutional Boilers;
National Emission Standards for Hazardous Air Pollutants for
Industrial/Commercial/Institutional Boilers and Process Heaters; and
Standards of Performance for New Stationary Sources and Emission
Guidelines for Existing Sources: Commercial and Industrial Solid
Waste Incineration (CISWI) Units.
---------------------------------------------------------------------------

I. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
    This action does not involve technical standards. Therefore, EPA
did not consider the use of any voluntary consensus standards.

J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.

    EPA has determined that this final rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations. The four-rule package
that consists of this rule plus the three CAA rules \174\ will
generally result in an improved level of environmental protection. No
disproportionately high and adverse human health or environmental
effects on any population, including any minority or low-income
population is expected.
---------------------------------------------------------------------------

    \174\ National Emission Standards for Hazardous Air Pollutants
for Area Sources: Industrial, Commercial, and Institutional Boilers;
National Emission Standards for Hazardous Air Pollutants for
Industrial/Commercial/Institutional Boilers and Process Heaters;
and, Standards of Performance for New Stationary Sources and
Emission Guidelines for Existing Sources: Commercial and Industrial
Solid Waste Incineration (CISWI) Units
---------------------------------------------------------------------------

    Because the four rules are fully interdependent, isolating the
environmental justice impacts of each of the four rules individually
may result in a distorted assessment. For example, the emissions
standards established in the three air rules depend on which non-
hazardous secondary materials are considered solid wastes. As a result,
any changes in the way that combustion units manage non hazardous
secondary materials (i.e. switching to an alternative fuel) will depend
upon the costs of implementing the various emissions standards.
Furthermore, the demographic characteristics of areas experiencing
changes in environmental effects will determine whether the rules
result in adverse and disproportionate impacts to low-income and
minority populations.
    We have developed a broad environmental justice assessment, looking
at the four rules together, that accounts for the combined impacts on
minority and low income communities. Any environmental justice impacts
that may result from these four interdependent rules are likely to
include one or more of the following: (1) Changes in emissions from
regulated combustion units, (2) changes in emissions from the potential
diversion of non hazardous secondary materials away from combustion
units to alternative recycling or landfills, and, (3) other impacts
related to material diversion (e.g., noise, aesthetics, water
pollution, etc.). Based on our assessment of the emissions changes and
other environmental impacts of the rules, and the demographics of
populations near affected combustion units and waste management
facilities, our main conclusions with respect to the environmental
justice impacts of the four rules indicate the following:
    1. Emissions changes from affected combustion units are unlikely to
lead to adverse and disproportionate impacts on low-income and minority
populations. Following implementation of the CISWI, Boiler MACT, and
Area Source rules, emissions from affected facilities are likely to
decline. As a result, populations near these facilities, overall, are
likely to experience positive impacts (e.g., reduced incidence of
adverse health effects). The demographic data for the Census blocks
near the Boiler MACT and CISWI facilities \175\ suggest that the
percentages of low-income and minority populations are generally higher
than the national average in these areas.
---------------------------------------------------------------------------

    \175\ The CISWI facility list contains combustors projected to
combust waste after the rules are finalized (some were not regulated
as CISWIs prior to these rules). The demographic assessment does not
include area source facilities.
---------------------------------------------------------------------------

    2. Low-income and minority populations located near non combustion
waste management facilities (e.g., recyclers, landfills) are higher,
proportionally, than the national average. Our analysis of the
demographic characteristics of populations living within three miles of
these facilities suggests that they are located in areas with high low-
income and minority populations. Therefore, to the extent that non
hazardous secondary materials diverted to alternative recycling or
landfills may lead to adverse environmental impacts, low-income and
minority populations could be adversely affected. However, we believe
that any such increases would be negligible relative to the reductions
achieved due to the Boiler MACT and CISWI controls. Furthermore,
considering the low quantity of materials potentially diverted,\176\
the extent of any negative impacts is expected to be minimal, and will
likely vary significantly by material and facility type.
---------------------------------------------------------------------------

    \176\ Review of Costs, Benefits, Economic Impacts, Environmental
Justice, and Other Impacts for the Following Interrelated Proposed
Rules: Standards of Performance for New Stationary Sources and
Emission Guidelines for Existing Sources: Commercial and Industrial
Solid Waste Incineration Units; RIN 2060-AO12, National Emission
Standards for Hazardous Air Pollutants for Area Sources: Industrial,
Commercial, and Institutional Boilers; RIN 2060-AM44, National
Emission Standards for Hazardous Air Pollutants for Major Sources:
Industrial, Commercial and Institutional Boilers and Process
Heaters; RIN 2060-AG69, Identification of Non-hazardous Secondary
Materials That Are Solid Waste RIN 2050-AG44. April 29, 2010. (See
Exhibit 14).
---------------------------------------------------------------------------

    A comprehensive discussion of these findings is presented in the
document: ``Summary of Environmental Justice Impacts for the Non-
Hazardous Secondary Material (NHSM) Rule, the 2010 Commercial and
Industrial Solid Waste Incinerator (CISWI) Standards, the 2010 Major
Source Boiler NESHAP, and the 2010 Area Source Boiler NESHAP.'' This
document is available in the Docket established for today's action.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A Major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective on May 20, 2011.

List of Subjects in 40 CFR Part 241

    Environmental protection, Air pollution control, Waste treatment
and disposal.

    Dated: February 21, 2011.
Lisa P. Jackson,
Administrator.

    For the reasons stated in the preamble, title 40, chapter I of the
Code of Federal Regulations, is amended by adding part 241 to read as
follows:

PART 241--SOLID WASTES USED AS FUELS OR INGREDIENTS IN COMBUSTION
UNITS

Subpart A--General
Sec.
241.1 Purpose.
241.2 Definitions.
Subpart B--Identification of Non-Hazardous Secondary Materials That Are
Solid Wastes When Used as Fuels or Ingredients In Combustion Units
Sec.
241.3 Standards and procedures for identification of non-hazardous
secondary materials that are solid wastes when used as fuels or
ingredients in combustion units.

    Authority: 42 U.S.C. 6903, 6912, 7429.

Subpart A--General

Sec.  241.1  Purpose.

    This part identifies the requirements and procedures for the
identification of

solid wastes used as fuels or ingredients in combustion units under
section 1004 of the Resource Conservation and Recovery Act and section
129 of the Clean Air Act.

Sec.  241.2  Definitions.

    For the purposes of this subpart:
    Clean cellulosic biomass means those residuals that are akin to
traditional cellulosic biomass such as forest-derived biomass (e.g.,
green wood, forest thinnings, clean and unadulterated bark, sawdust,
trim, and tree harvesting residuals from logging and sawmill
materials), corn stover and other biomass crops used specifically for
energy production (e.g., energy cane, other fast growing grasses),
bagasse and other crop residues (e.g., peanut shells), wood collected
from forest fire clearance activities, trees and clean wood found in
disaster debris, clean biomass from land clearing operations, and clean
construction and demolition wood. These fuels are not secondary
materials or solid wastes unless discarded. Clean biomass is biomass
that does not contain contaminants at concentrations not normally
associated with virgin biomass materials.
    Contaminants means any constituent in non-hazardous secondary
materials that will result in emissions of the air pollutants
identified in Clean Air Act section 112(b) or the nine pollutants
listed under Clean Air Act section 129(a)(4)) when such non-hazardous
secondary materials are burned as a fuel or used as an ingredient,
including those constituents that could generate products of incomplete
combustion.
    Contained means the non-hazardous secondary material is stored in a
manner that adequately prevents releases or other hazards to human
health and the environment considering the nature and toxicity of the
non-hazardous secondary material.
    Control means the power to direct the policies of the facility,
whether by the ownership of stock, voting rights, or otherwise, except
that contractors who operate facilities on behalf of a different person
as defined in this section shall not be deemed to ``control'' such
facilities.
    Established tire collection program means a comprehensive
collection system that ensures scrap tires are not discarded and are
handled as valuable commodities in accordance with section
241.3(b)(2)(i) from the point of removal from the vehicle through
arrival at the combustion facility.
    Generating facility means all contiguous property owned, leased, or
otherwise controlled by the non-hazardous secondary material generator.
    Ingredient means a non-hazardous secondary material that is a
component in a compound, process or product.
    Non-hazardous secondary material means a secondary material that,
when discarded, would not be identified as a hazardous waste under Part
261 of this chapter.
    Person is defined as an individual, trust, firm, joint stock
company, Federal agency, corporation (including government
corporation), partnership, association, State, municipality,
commission, political subdivision of a state, or any interstate body.
    Processing means any operations that transform discarded non-
hazardous secondary material into a non-waste fuel or non-waste
ingredient product. Processing includes, but is not limited to,
operations necessary to: Remove or destroy contaminants; significantly
improve the fuel characteristics of the material, e.g., sizing or
drying the material in combination with other operations; chemically
improve the as-fired energy content; or improve the ingredient
characteristics. Minimal operations that result only in modifying the
size of the material by shredding do not constitute processing for
purposes of this definition.
    Resinated wood means wood products (containing resin adhesives)
derived from primary and secondary wood products manufacturing and
comprised of such items as board trim, sander dust, and panel trim.
    Secondary material means any material that is not the primary
product of a manufacturing or commercial process, and can include post-
consumer material, off-specification commercial chemical products or
manufacturing chemical intermediates, post-industrial material, and
scrap.
    Solid waste means the term solid waste as defined in 40 CFR 258.2.
    Traditional fuels means materials that are produced as fuels and
are unused products that have not been discarded and therefore, are not
solid wastes, including: (1) Fuels that have been historically managed
as valuable fuel products rather than being managed as waste materials,
including fossil fuels (e.g., coal, oil and natural gas), their
derivatives (e.g., petroleum coke, bituminous coke, coal tar oil,
refinery gas, synthetic fuel, heavy recycle, asphalts, blast furnace
gas, recovered gaseous butane, and coke oven gas) and cellulosic
biomass (virgin wood); and (2) alternative fuels developed from virgin
materials that can now be used as fuel products, including used oil
which meets the specifications outlined in 40 CFR 279.11, currently
mined coal refuse that previously had not been usable as coal, and
clean cellulosic biomass. These fuels are not secondary materials or
solid wastes unless discarded.
    Within control of the generator means that the non-hazardous
secondary material is generated and burned in combustion units at the
generating facility; or that such material is generated and burned in
combustion units at different facilities, provided the facility
combusting the non-hazardous secondary material is controlled by the
generator; or both the generating facility and the facility combusting
the non-hazardous secondary material are under the control of the same
person as defined in this section.

Subpart B--Identification of Non-Hazardous Secondary Materials That
Are Solid Wastes When Used as Fuels or Ingredients in Combustion
Units

Sec.  241.3  Standards and procedures for identification of non-
hazardous secondary materials that are solid wastes when used as fuels
or ingredients in combustion units.

    (a) Except as provided in paragraph (b) of this section, non-
hazardous secondary materials that are combusted are solid wastes,
unless a petition is submitted to, and a determination granted by, the
Regional Administrator pursuant to paragraph (c) of this section. The
criteria to be addressed in the petition, as well as the process for
making the non-waste determination, are specified in paragraph (c) of
this section.
    (b) The following non-hazardous secondary materials are not solid
wastes when combusted:
    (1) Non-hazardous secondary materials used as a fuel in a
combustion unit that remain within the control of the generator and
that meet the legitimacy criteria specified in paragraph (d)(1) of this
section.
    (2) The following non-hazardous secondary materials that have not
been discarded and meet the legitimacy criteria specified in paragraph
(d)(1) of this section when used in a combustion unit (by the generator
or outside the control of the generator):
    (i) Scrap tires used in a combustion unit that are removed from
vehicles and managed under the oversight of established tire collection
programs.
    (ii) Resinated wood used in a combustion unit.
    (3) Non-hazardous secondary materials used as an ingredient in a
combustion unit that meet the legitimacy criteria specified in
paragraph (d)(2) of this section.
    (4) Fuel or ingredient products that are used in a combustion unit,
and are produced from the processing of

discarded non-hazardous secondary materials and that meet the
legitimacy criteria specified in paragraph (d)(1) of this section, with
respect to fuels, and paragraph (d)(2) of this section, with respect to
ingredients. The legitimacy criteria apply after the non-hazardous
secondary material is processed to produce a fuel or ingredient
product. Until the discarded non-hazardous secondary material is
processed to produce a non-waste fuel or ingredient, the discarded non-
hazardous secondary material is considered a solid waste and would be
subject to all appropriate federal, state, and local requirements.
    (c) The Regional Administrator may grant a non-waste determination
that a non-hazardous secondary material that is used as a fuel, which
is not managed within the control of the generator, is not discarded
and is not a solid waste when combusted. The criteria and process for
making such non-waste determinations includes the following:
    (1) Submittal of an application to the Regional Administrator for
the EPA Region where the facility combusting the non-hazardous
secondary material is located for a determination that the non-
hazardous secondary material, even though it has been transferred to a
third party, has not been discarded and is indistinguishable in all
relevant aspects from a product fuel. The determination will be based
on whether the non-hazardous secondary material that has been
discarded, is a legitimate fuel as specified in paragraph (d)(1) of
this section and on the following criteria:
    (i) Whether market participants treat the non-hazardous secondary
material as a product rather than as a solid waste;
    (ii) Whether the chemical and physical identity of the non-
hazardous secondary material is comparable to commercial fuels;
    (iii) Whether the non-hazardous secondary material will be used in
a reasonable time frame given the state of the market;
    (iv) Whether the constituents in the non-hazardous secondary
material are released to the air, water or land from the point of
generation to the point just prior to combustion of the secondary
material at levels comparable to what would otherwise be released from
traditional fuels; and
    (v) Other relevant factors.
    (2) The Regional Administrator will evaluate the application
pursuant to the following procedures:
    (i) The applicant must submit an application for the non-waste
determination addressing the legitimacy criteria in paragraph (d)(1) of
this section and the relevant criteria in paragraphs (c)(1)(i) through
(v) of this section. In addition, the applicant must also show that the
non-hazardous secondary material has not been discarded in the first
instance.
    (ii) The Regional Administrator will evaluate the application and
issue a draft notice tentatively granting or denying the application.
Notification of this tentative decision will be published in a
newspaper advertisement or radio broadcast in the locality where the
facility combusting the non-hazardous secondary material is located,
and be made available on EPA's Web site.
    (iii) The Regional Administrator will accept public comments on the
tentative decision for at least 30 days, and may also hold a public
hearing upon request or at his discretion. The Regional Administrator
will issue a final decision after receipt of comments and after the
hearing (if any).
    (iv) If a change occurs that affects how a non-hazardous secondary
material meets the relevant criteria contained in this paragraph after
a formal non-waste determination has been granted, the applicant must
re-apply to the Regional Administrator for a formal determination that
the non-hazardous secondary material continues to meet the relevant
criteria and, thus is not a solid waste.
    (d) Legitimacy criteria for non-hazardous secondary materials.
    (1) Legitimacy criteria for non-hazardous secondary materials used
as a fuel in combustion units include the following:
    (i) The non-hazardous secondary material must be managed as a
valuable commodity based on the following factors:
    (A) The storage of the non-hazardous secondary material prior to
use must not exceed reasonable time frames;
    (B) Where there is an analogous fuel, the non-hazardous secondary
material must be managed in a manner consistent with the analogous fuel
or otherwise be adequately contained to prevent releases to the
environment;
    (C) If there is no analogous fuel, the non-hazardous secondary
material must be adequately contained so as to prevent releases to the
environment;
    (ii) The non-hazardous secondary material must have a meaningful
heating value and be used as a fuel in a combustion unit that recovers
energy.
    (iii) The non-hazardous secondary material must contain
contaminants at levels comparable in concentration to or lower than
those in traditional fuels which the combustion unit is designed to
burn. Such comparison is to be based on a direct comparison of the
contaminant levels in the non-hazardous secondary material to the
traditional fuel itself.
    (2) Legitimacy criteria for non-hazardous secondary materials used
as an ingredient in combustion units include the following:
    (i) The non-hazardous secondary material must be managed as a
valuable commodity based on the following factors:
    (A) The storage of the non-hazardous secondary material prior to
use must not exceed reasonable time frames;
    (B) Where there is an analogous ingredient, the non-hazardous
secondary material must be managed in a manner consistent with the
analogous ingredient or otherwise be adequately contained to prevent
releases to the environment;
    (C) If there is no analogous ingredient, the non-hazardous
secondary material must be adequately contained to prevent releases to
the environment;
    (ii) The non-hazardous secondary material must provide a useful
contribution to the production or manufacturing process. The non-
hazardous secondary material provides a useful contribution if it
contributes a valuable ingredient to the product or intermediate or is
an effective substitute for a commercial product.
    (iii) The non-hazardous secondary material must be used to produce
a valuable product or intermediate. The product or intermediate is
valuable if:
    (A) The non-hazardous secondary material is sold to a third party,
or
    (B) The non-hazardous secondary material is used as an effective
substitute for a commercial product or as an ingredient or intermediate
in an industrial process.
    (iv) The non-hazardous secondary material must result in products
that contain contaminants at levels that are comparable in
concentration to or lower than those found in traditional products that
are manufactured without the non-hazardous secondary material.

[FR Doc. 2011-4492 Filed 3-18-11; 8:45 am]
BILLING CODE 6560-50-P