fuel or ingredient, and thus a solid waste, no matter how legitimate
their use is as a fuel or ingredient. In addition, non-hazardous
secondary materials that are processed and used as fuels or ingredients
in combustion units, but do not meet the legitimacy criteria, would be
considered to be sham use and thus a solid waste. The Agency seeks
comment on the proposed definition of processing, including whether
such definition provides sufficient clarity that it can be implemented
under the self-implementing provision in today's proposed rule (this
approach is discussed further in this section).
    b. Rationale for Processing Discarded Material Into Non-Waste
Products. Today's proposed rule identifies circumstances where
materials that have been discarded in the first instance, and are thus
solid wastes, can be rendered into new non-waste products through
legitimate processing consistent with the definition outlined above.
The basic principle that must be satisfied is that the discarded
material must undergo sufficient processing that produces either a new
fuel or ingredient product. The new product must have properties that
provide the end user the assurance that the material consistently
satisfies the fuel/ingredient product criteria based on the type of
combustion unit the 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 are no different that 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 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. Scrap metal that has been discarded is
another example of a non-hazardous secondary material that is processed
into a non-waste. (EPA specifically exempted scrap metal that has been
processed from the definition of solid waste (see 261.4(a)(13).) For
scrap metal to be considered ``processed,'' it must have been
``manually or physically altered to either separate it into distinct
materials to enhance the economic value or improve the handling of
these materials. Processed scrap metal includes * * * scrap metal which
has been baled, shredded, chopped, crushed, flattened, cut, melted, or
separated by metal type (i.e. sorted) * * * '' (see 40 CFR
261.1(c)(10)). We believe this is a good example of where the level of
processing necessary to convert a waste material to a non-waste
material is dependent on the material itself.

    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 VII.C.5.d.). Once 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 a traditional fuel.\60\
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    \60\ Once used oil is claimed to be on-spec and the marketer
complies with the requirements for analysis and record retention,
notification, and record tracking shipment to on-specification
burners, it is no longer subject to the management standards.
---------------------------------------------------------------------------

    One of the difficulties the Agency faces with determining whether
non-waste fuels can be processed from discarded materials is that the
combustion of materials is commonly associated with disposal, whether
it is waste disposal in incinerators or waste disposal in energy
recovery devices (e.g., municipal waste combustors that recover energy
by producing electricity). Therefore, many equate the burning of any
secondary material to discard, as some commenters have argued. This
approach does not take into account that the secondary material has in
fact been produced in a process that uses the discarded material as a
feed stream to produce a safe fuel product that is a valuable commodity
and sold in the marketplace no differently than traditional fuels. We
view such an approach being a common sense interpretation of the
statutory definition of solid waste under RCRA. Again, fuel produced
from discarded non-hazardous secondary materials should not be
considered solid waste just as recycled newspapers are not considered
solid waste, since the material has been processed or ``manufactured''
into a new fuel product. The use of these energy containing secondary
materials can be an effective substitute for traditional fuels. Such
materials can provide economic efficiencies due to lower overall
resource use, while still protecting human health and the environment.
    Another difficulty the Agency faces is the misconception that
discarded material that is burned, either for destruction or energy
recovery, by definition has high levels of contaminants. We do not
believe this is the case for many of the non-hazardous secondary
materials we are assessing. The manner in which the secondary material
is managed is a key factor that determines discard (abandoned, disposed
of, or thrown away); contaminant levels are part of that consideration,
such that if a secondary material has high levels of contaminants, it
would be considered sham recycling, which is one type of way a material
can be ``disposed of.'' Clean materials can be discarded just like
contaminated materials can. This, combined with the perception that
combustion of secondary materials is equated to discard, results in the
perception that there needs to be a very high threshold with respect to
the level of processing that must take place to render a discarded
material into a non-waste product. We believe, however, that a strict,
but appropriate level of processing is necessary which is reflected in
the processing definition outlined in today's proposed rule. We also
note that in order for any secondary material to be considered a non-
waste fuel, it must contain contaminants at levels that are comparable
to traditional fuels in use today.
    To put this into context, we believe it would help to include
examples of processing of discarded non-hazardous secondary materials--
those which we believe are clearly adequate processing to render the
material into a non-waste fuel or ingredient product in accordance with
the definition of processing in Sec.  241.2 and those that do not.
c. Examples of Adequate Processing
    Examples of non-hazardous secondary materials that have been
discarded, but can be processed into a non-waste fuel or ingredient
product include, but are not limited to, used tires, solid waste
processed in gasifiers to produce synthesis gas, off-spec used oil
(discussed above), sewage sludge processed into pellets, painted wood,
and coal fines and biomasss processed into pellets with the impurities
removed. Each of these are described in more detail below.
    Used Tires. EPA views used tire processers as facilities that take
solid waste that can produce valuable non-waste products. Used tires
undergo various processing steps to meet certain specifications that
are necessary for a particular end use, whether it be for use as TDF,
or for use in other non-combustion applications, such as ground rubber
applications (e.g., for use in sidewalks).\61\ Used tire processors
typically enter into contracts with the end users of these tire derived
products that specify that the processed tires meet certain
specifications (i.e. size of tire pieces, wire content) to ensure the
material consistently meets the needs of that particular end use. This
is common for TDF.
---------------------------------------------------------------------------

    \61\ As discussed previously, today's proposal only addresses
non-hazardous secondary materials that are used in combustion
process, and not in other applications.
---------------------------------------------------------------------------

    Used tires are often processed by shredding and removing dirt or
other contaminants to produce TDF. Processing scrap tires into TDF can
involve two physical processing steps: chipping/shredding (usually
ranging in size from 1 to 4 inches) and (in some cases) metal removal,
with the amount of metal in TDF varying depending on how much of the
tires have been processed. For some units, such as cement kilns, metal
in the wire can be used in the manufacturing process.\62\ However, most
other units benefit from TDF that has been processed to minimize the
amount of metal and improve heating efficiency.
---------------------------------------------------------------------------

    \62\ We note that most cement kilns use whole tires as fuels, as
opposed to TDF chips, because their process does not require the TDF
to be in the form of small chips to use it as a fuel, and does not
require removal of the metal (since they use the metal as an
ingredient). Under today's proposal, cement kilns that burn whole
tires would be subject to the CAA section 129 requirements, unless
the tires were processed to produce TDF or a non-waste determination
was issued by EPA regarding the burning of whole tires.
---------------------------------------------------------------------------

    EPA considers used tires that have been shredded/chipped into TDF
and with the metal belts or wire removed, to meet the definition of
processing discussed above. Thus, used tires that have been shredded/
chipped without the removal of the metal belts or wire 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.
Removing the metal belts or wire will help reduce metal contaminants in
the emissions and ash, and may improve the burning characteristics for
some uses of the TDF. As is the case for all types of solid fuel,
proper characterization of the size and composition of TDF are
important factors that combustion unit operators assess to determine if
TDF is a suitable fuel for their specific combustion unit design.\63\
For example, ASTM Standard 6700-01, describes standard practices for
using TDF as fuels, and also specifies sampling and analysis methods
and procedures that apply to TDF that cover composition, and fuel
characterization analyses. The standards also address the size of the
tire pieces

and metal content in order to optimize combustion. The standards for
metals range from wire free, to relatively wire free to no wire
removed. To meet the processing definition for combusting scrap tires,
those materials should have the metal belts or wire removed consistent
with the ASTM standard for relatively wire free. However, as noted in
footnote 62, certain types of combustion units, such as cement kilns
also use the wire in the tire as an ingredient to producing cement
clinker. Therefore, we are soliciting comment on whether to adopt an
additional definition for processing that would not require the metal
belts or wire to be removed for those combustion units, such as cement
kilns where the metals serve a useful purpose in the process of making
clinker.
---------------------------------------------------------------------------

    \63\ With regard to the legitimacy criteria discussed in Section
VII.B.3, the heating value of scrap tires (12,000 Btu/lb to 16,000
Btu/lb) is the highest of all secondary materials, except used oil
(17,800 Btu/lb), and higher than typical coal values. Contaminants
of potential concern have been measured for both materials: Mercury
is below detectable levels for TDF, and average 0.11 ppm for coal;
barium is also below detectable levels in TDF; cadmium, chromium,
lead and manganese levels are comparable; zinc is present in higher
concentrations in TDF than coal.
---------------------------------------------------------------------------

    Syngas Produced from Gasification of Solid Waste. Although not
specifically discussed in the ANPRM, synthesis gas (or syngas as it is
commonly referred) produced from the gasification of solid waste is a
material that can also meet the requirements of a fuel product produced
from processing discarded non-hazardous secondary materials, provided
the syngas has been adequately processed to remove contaminants.
    A variety of solid waste streams are available for conversion to
energy, including conversion through gasification technologies.
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.
    Other Non-Hazardous Secondary Materials That are Processed. Sewage
sludge can be processed into fuel pellets by biosolid drying that
destroys pathogens and bacteria. Specifically, raw sewage sludge is
moved to digesters where microbes decompose the organic solids. The
resulting biosludge is pressed with wide fabric belts into sheets and
water is removed. This sludge cake is then baked in ``tumble-drying''
ovens that destroy the pathogens and bacteria, removing any remaining
water, and rotate the sludge into the final pelletized product.
    Although we consider this to meet our definition of processing, the
fuel pellets would still have to meet the legitimacy criteria to be
considered a non-waste fuel. As discussed in section VII.C.5.f., we
generally believe sewage sludge itself has contaminant levels that are
higher than traditional fuels in use today, and thus would not satisfy
the contaminant part of the legitimacy criteria.
    Wood with lead-based paint that is shaved to remove the lead-based
paint is another example of processing a discarded non-hazardous
secondary material to produce a legitimate product; in this case, the
underlying wood can be used as a non-waste, traditional fuel, and the
lead-based paint can be safely disposed of or sent for lead recovery.
    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.\64\
---------------------------------------------------------------------------

    \64\ Evergreen Energy Company Web site. http://
www.evgenergy.com/k_fuel.php.
---------------------------------------------------------------------------

    In the examples above, we view the non-hazardous secondary
materials to have been sufficiently processed to produce a fuel product
that would not be a solid waste if it met the legitimacy criteria
specified in section VII.D.6; however, as noted previously, the non-
hazardous secondary materials would be considered solid wastes prior to
processing and would be subject to appropriate federal, state, and
local requirements.
d. Examples of Minimal Processing That Would Not Meet Proposed
Definition of Processing.
    Sewage sludge, and other non-hazardous secondary materials that
have a high moisture content can be dewatered to effectively increase
the Btu/lb of the material prior to burning as a fuel. We do not
consider dewatering, by itself, to meet our definition of adequate or
sufficient processing. For example, dewatering sewage sludge would
likely be required processing as part of normal waste management
activities (e.g., prior to landfilling, or prior to burning the sludge
for disposal in an incinerator). As such, we do not view this to be
sufficient processing to convert discarded materials into non-waste
fuel products.
    Whole tires that are, for example, removed from waste tire piles or
collected and managed pursuant to state tire collection programs, that
are marketed to cement kilns or other industrial furnaces and used as
fuels absent processing into what we consider processed TDF would be
another example of insufficient processing to produce a non-waste fuel.
However, we are also requesting comment on whether discarded materials
that have been collected and that otherwise have not been processed (as
defined in this proposal), should not be considered solid wastes if
they are indistinguishable in all relevant aspects from a product
(again, of course they must be legitimate), and such whole tires are
marketed to cement kilns or other industrial furnaces and are used as
fuels. For example, if a discarded non-hazardous secondary material
that has not been processed based on our proposed definition can be
shown to be no different than other non-waste fuels in use today, could
that secondary material be considered a non-waste fuel/ingredient
product even though it was discarded in the first instance? Commenters
should provide the rationale supporting this approach.
e. Alternative Approach for Addressing Non-Hazardous Secondary
Materials That Are Processed Into Non-Waste Fuels or Ingredients
    As proposed, this particular provision is self-implementing, where
each person would make the determination whether or not the non-
hazardous secondary material has been ``sufficiently processed'' to
produce a non-waste fuel or ingredient. The Agency believes that such
an approach is appropriate considering the large number of non-
hazardous secondary materials that are generated that may be processed
into a non-waste fuel or ingredient. However, there is also the
question of whether the definition of processing is sufficiently clear
so that the regulated community can appropriately apply the definition.
Therefore, the Agency is also considering and requests comment on
whether this particular provision should be addressed through the non-
waste determination process under Sec.  241.3(c) (rather than as a
self-implementing provision), such that the Agency would

consider and evaluate each type of processing activity on a case-by-
case basis and approve it before the processed fuel or ingredient would
be considered a non-waste fuel or ingredient. We also request comment
on whether the Agency should promulgate a general rulemaking provision,
similar to 40 CFR 260.20,\65\ that would allow EPA to evaluate various
processing activities generally, as opposed to on a site-by-site basis,
such that the Agency would identify in the regulations which processing
activities would produce a non-waste fuel or ingredient. While such an
approach would put a much greater burden on EPA, it would also provide
greater certainty to the regulated community as to which non-hazardous
secondary materials have been sufficiently processed to produce a non-
waste fuel or ingredient.
---------------------------------------------------------------------------

    \65\ 40 CFR 260.20 allows any person to petition the
Administrator of EPA to modify or revoke any provision of the
hazardous waste rules. A similar ``general rulemaking authority''
could also be promulgated under RCRA subtitle D.
---------------------------------------------------------------------------

5. Non-Waste Determination Process
    This proposal would establish a non-waste determination process
that provides persons with an administrative process for receiving a
formal determination from EPA that non-hazardous secondary material
fuel that has not been managed within the control of the generator has
not been discarded, and is indistinguishable in all relevant aspects
from a fuel product, and thus, is not a solid waste when used as a fuel
in a combustion unit. For example, a facility that is not affiliated
with the generator of the non-hazardous secondary material fuel (and
thus is ``outside the control of the generator'') can petition EPA to
determine that the secondary material they burn as fuel is not a solid
waste because the material has not been discarded and is
indistinguishable in all relevant aspects from a fuel.
    This proposed process would be voluntary. The non-waste
determination process would require the petitioner to request such a
case-specific non-waste determination from EPA. Any petition that is
submitted to EPA that requests that the non-hazardous secondary
material be considered a non-waste fuel would need to demonstrate that
the material has not been discarded in the first instance, as well as
describe how the non-hazardous secondary material satisfies the five
proposed criteria outlined in Sec.  241.3(c).
    To demonstrate that the non-hazardous secondary material used a
fuel has not been discarded in the first instance, the petitioner would
need to demonstrate that the non-hazardous secondary material was not
initially abandoned or thrown away by the generator of the material. It
may not always be clear whether secondary materials would be considered
to be discarded in the first instance. For example, secondary material
retrieved from a landfill or tires retrieved from waste tire piles
would be considered materials that are discarded in the first instance.
We may not, however, consider used tires collected from tire
dealerships and managed pursuant to state tire collection programs to
be discarded in the first instance, depending on how they are managed.
    After demonstrating that the 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 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 timeframe; (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
combustion of the secondary material at levels comparable to what would
otherwise be released from traditional fuels; and (5) other relevant
factors.
    Specifically, the first criterion for a non-waste determination is
whether market participants handle 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 materials used as
fuels (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 from a fuel products
standpoint 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 Foods in determining whether a 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 should not be significant from a health and
environmental risk perspective.
    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 will
need to 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 proposing to
explicitly define ``reasonable time frame'' because such time frames
could vary according to the non-hazardous secondary material and
industry involved, and therefore determining this time frame should be
made on a case-specific basis. However, the Agency solicits comments on
whether it should propose a specific timeframe as part of this
criterion.
    The fourth criterion for a non-waste determination is whether the
constituents in the non-hazardous secondary material fuels are released
to the air, water, or land water at concentrations comparable to what
would otherwise be released from traditional fuels. The process that
the Agency would be considering would encompass the point of generation
of the material, management and storage prior to use through combustion
and the end use of the secondary material. The Agency believes that to
the extent the constituents are an extension of the original secondary
material, their release to the environment 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
the increase in release is not significant from either a statistical or
a health and environmental risk perspective. However, when relatively
high levels of the constituents in the non-hazardous secondary material
are released to the environment in looking from the point of generation
of the secondary material to its 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 a solid waste. This catch-all criterion is intended to allow the
person 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 our proposed legitimacy criteria in order to be considered a
non-waste fuel. In order for a non-waste determination to be granted,
the applicant must also therefore show that the material satisfies the
proposed legitimacy criteria. We note that there is 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
traditional fuels in combination with the argument that such secondary
material contains meaningful heating value can be used to satisfy
petition criterion number 2 above. Similarly, the rationale used to
demonstrate that the secondary material contains contaminants at levels
comparable to traditional fuels can be used as the rationale for
petition criterion number 4 above.
    Non-Waste Determination Process. EPA is proposing that the process
for the non-waste determination be similar to that for the solid waste
variances found in Sec.  260.33, except that such requests can only be
addressed by EPA. In order to obtain a non-waste determination, a
facility that manages non-hazardous secondary materials that would
otherwise be regulated must apply to the Regional Administrator per the
procedures described in proposed Sec.  241.3(c). The application must
address the relevant criteria discussed above. The Regional
Administrator for the EPA Region where the facility combusting the
material 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 recycler is located. The Regional
Administrator will accept 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 receipt of comments and after the hearing (if any).
    The Agency recognizes that many states have programs in place to
make such determinations under state statute, and EPA would support the
states to also make such determinations--that is, allow the states to
act on behalf of EPA in making such case-specific determinations.
Therefore, we are specifically soliciting comment as to whether the
Agency can (and if so) should allow a state, for example, under a
state's beneficial use program, to also make case-specific
determinations without EPA's approval. We note that under the Revisions
to the Definition of Solid Waste Rule (70 FR 64668), a non-waste
determination may be granted by the state if the state is either
authorized for this provision or if the following conditions are met:
(1) The state determines the hazardous secondary material meets the
applicable criteria for the non-waste determination; (2) the state
requests that EPA review its determination; and (3) EPA approves the
state determination. Should EPA allow this type of non-waste
determination process in determining whether or not such non-hazardous
secondary material is or is not a solid waste?
    We note that states may submit these determinations on behalf of
the petitioner for EPA to evaluate under the proposed non-waste
determination criteria in proposed Sec.  241.3(c)(1). If EPA determines
through the petition process that the secondary material in the state
determinations are not solid waste, then they would not be subject to
the CAA section 129 standards, but instead would be subject to the CAA
section 112 standards. Conversely, EPA may make a non-waste
determination for non-hazardous secondary materials under the Federal
regulations that still remains subject to the state solid waste
regulations.
    After a formal non-waste determination has been granted, if a
change occurs that affects how a non-hazardous secondary material meets
the relevant criteria contained in proposed Sec.  241.3(c)(1), persons
must re-apply to the Regional Administrator for a formal determination
that the non-hazardous secondary material continues to meet the
relevant criteria and is not discarded and therefore, not a solid
waste.
6. Legitimacy Criteria
    a. Legitimacy Criteria for Fuels. This notice is proposing that
non-hazardous secondary materials used as fuels in combustion units
must meet the legitimacy criteria specified in proposed Sec.
241.3(d)(1) in order to be considered a non-waste fuel.\66\ To meet the
fuel legitimacy criteria, the non-hazardous secondary material must be
handled as a valuable commodity, have a meaningful heating value and be
used as a fuel in a combustion unit that recovers energy, and contain
contaminants at levels comparable to those in traditional fuels which
the combustion unit is designed to burn. These criteria are discussed
below.
---------------------------------------------------------------------------

    \66\ We note, however, that non-hazardous secondary materials
that satisfy the legitimacy criteria would still be considered a
solid waste if they were discarded (abandoned, disposed of, or
thrown away), unless they were processed into legitimate non-waste
fuel products.
---------------------------------------------------------------------------

    Manage as a Valuable Commodity. We are proposing to require that
non-hazardous secondary materials used as fuels be managed as valuable
commodities, including being stored for a reasonable timeframe. See
proposed 241.3(d)(1)(i). Where there is an analogous fuel, the
secondary material used as a fuel 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 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 not specifying a specific timeframe, but
requiring that the non-hazardous secondary material be stored for a
reasonable timeframe. EPA is not proposing to specifically define
``reasonable timeframe'' because such timeframes could vary according
to the non-hazardous secondary material and industry involved. On the
other hand, the Agency also recognizes that with this flexibility, also
comes the potential for non-hazardous secondary materials to be over-
accumulated, which has been demonstrated to be a problem with hazardous
secondary materials. It also could raise questions from an
implementation standpoint since the question of ``reasonable
timeframe'' may differ depending on each person's perspective. Thus,
while we think that ``reasonable timeframe'' is an appropriate
standard, considering the large number of non-hazardous materials that
may be subject to this rule, and is flexible enough to allow
accumulation to be cost-effective, the Agency solicits comment on
whether it should define a specific timeframe or range of timeframes as
part of this criterion. For example, one approach is to adopt the
speculative accumulation provision (see 40 CFR 261.1(c)(8)) that

is defined in the hazardous waste regulations for determining how much
secondary material must be recycled within a specific timeframe before
the material is considered to have been discarded. Another approach
would be for the Agency to determine how long fuels are generally held
before they are used, and adopt such a standard. To this end, the
Agency specifically solicits comment on the time period or range of
time periods that fossil fuels are typically held before they are used
as a fuel.
    We are proposing that this legitimacy factor apply to both the
nonhazardous secondary materials burned under the generator-controlled
exclusion, as well as to materials that have been processed into a
product fuel. For the generator-controlled provision, 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 either on-site or at another facility
that is under the control of the generator. For non-hazardous secondary
materials that are processed to produce a fuel product, the processed
material must be managed as a valuable product from the point that it
is first produced through its end use. As noted previously, before the
fuel product is produced, the non-hazardous secondary materials are
solid wastes, 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 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
similarly to the way traditional fuels are managed or otherwise must be
adequately contained so as to prevent releases to the environment. For
example, for liquid non-hazardous secondary materials that are used as
a 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 to control the release of the 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 fossil
fuels would also be part of any tank system that is used to manage non-
hazardous secondary material. The second situation the factor addresses
is 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, or because
physical or chemical differences between the 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
adequately contained so as to prevent releases to the environment for
this factor to be met. A non-hazardous secondary material is
``adequately 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 secondary
material.\67\ We note that this definition of ``contained'' differs
slightly from the description used in the DSW final rule preamble,
which defined ``contained'' to mean placing the material in a unit that
controls the movement of that material out of the unit.\68\ We believe
this slightly revised definition is appropriate because of the wide
range of non-hazardous secondary materials that are used as fuels, some
of which may not need to be ``contained'' in a dedicated storage unit.
However, the Agency solicits comment on this aspect of this criterion,
including whether a ``contained'' standard, which is a general
performance standard, provides sufficient direction to the regulated
community. Other approaches that EPA is considering is whether to
provide a more specific definition of ``contained'' in the rules, or
whether the Agency should include specific technical standards or limit
the types of units that such non-hazardous secondary materials may be
managed, in order for them to be considered to be ``managed as a
valuable commodity.''
---------------------------------------------------------------------------

    \67\ Examples of materials that are adequately contained would
include liquid fuels stored in a tank. Examples of other hazards
include tire fires resulting from improper storage of scrap tires
(see section VII.D.2.).
    \68\ See October 30, 2008; 73 FR 64681.
---------------------------------------------------------------------------

    The definition of legitimacy in the DSW final rule required that
this factor be considered, but not necessarily met. Under that rule,
the Agency was aware of situations in which the contained factor is not
met, but the secondary material is still being managed as a valuable
commodity. One example given was a hazardous secondary material that is
a powder-like material that is shipped in a woven super sack and stored
in an indoor containment area that has an analogous raw material that
is shipped and stored in drums. A strict reading of this factor may
determine that the hazardous secondary material is not being managed in
a manner consistent with the analogous secondary material even if the
differences in management are not actually impacting the likelihood of
a release.
    This proposal includes a requirement for analogous raw materials to
``* * * be managed in a manner consistent with the analogous fuel or
otherwise be adequately contained to prevent releases to the
environment'' (Sec.  241.3(d)(1)(i)(B)). This is similar to the DSW
final rule provision, but is also different in that the requirement in
today's proposal has to be met (not just considered). Thus, today's
proposal would require that this factor be met (not optional) because
we believe that in all situations where the factors in Sec.
241.3(d)(1)(i) are not met, the material would be discarded.
    Meaningful Heating Value and Use as a Fuel. We are proposing that
non-hazardous secondary materials have a meaningful heating value and
be used as a fuel in a combustion unit that recovers energy. See
proposed Sec.  241.3(d)(1)(ii). We are proposing the requirement for
the non-hazardous secondary material to be used as a fuel in a
combustion unit that recovers energy for two reasons. First, we want to
be clear that non-hazardous secondary materials having a meaningful
heating value, but that are not burned in a combustion device
specifically for energy recovery (e.g., are burned in an incinerator)
are solid wastes.\69\ 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, such non-hazardous secondary materials that are
burned in such units are considered discarded, and thus a solid waste.
Second, since these provisions are 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 this legitimacy criteria.
---------------------------------------------------------------------------

    \69\ 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
hazardous waste regulations, EPA addressed this concept--that is,
whether a hazardous secondary material has an adequate, meaningful
heating value, in the so-called ``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 (i.e., cement kilns and
industrial boilers) burning hazardous wastes with an energy value
greater than 5,000 Btu/lb may generally be said 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 measure of burning for energy
recovery * * *'' (see 62 FR 24251, May 2, 1997).
    We believe these same concepts may also be appropriate in
determining whether non-hazardous secondary materials have a meaningful
heating value since traditional fuels have a range of heating values in
general from 4,000 to 23,000 Btu/lb, and since we recognize that new
technologies may be developed in the future that can cost-effectively
produce energy from secondary materials with lower energy content. As a
result, for purposes of meeting the legitimacy criteria for fuels, 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, and satisfy this legitimacy criterion. For facilities with
energy recovery units that use non-hazardous secondary materials as
fuels with an energy content lower than 5,000 Btu/lb, as fired, it may
also be appropriate to allow a person to demonstrate 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 materials used as fuels. Factors that
may be 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 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 could show that their operation produces electricity that is
sold for a profit).
    However, the Agency requests comment on whether it should
promulgate a bright-line test for determining what is considered a
meaningful heating value in an effort to provide greater certainty to
both the regulated community and regulatory officials. For example, the
Agency could establish 5,000 Btu/lb or some other value as the bright-
line test. Commenters that suggest that the Agency establish a bright-
line test should indicate what value the Agency should select, as well
as the basis or rationale for selecting that value. We also request
comment on whether we should identify a Btu/lb cutoff below which the
Agency would assume that the non-hazardous secondary material is burned
for destruction as opposed to energy recovery. Under this approach,
non-hazardous secondary materials between this lower level and 5,000
Btu/lb (assuming there is a difference) could pass this criterion
provided the facility demonstrates the energy recovery unit can cost-
effectively recover meaningful energy from the non-hazardous secondary
materials used as fuels.
    EPA views this proposed legitimacy criterion to encompass the
useful contribution and valuable product legitimacy factors used to
evaluate hazardous secondary materials in the 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). This factor expresses the
principle that the 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 factor is intended to prevent the practice of using secondary
materials in a manufacturing operation simply as a means of disposing
or discarding them. We believe that non-hazardous secondary materials
that are used as a fuel in a combustion unit that have meaningful
heating value provide a useful contribution.
    With respect to the other mandatory legitimacy factor, the DSW
final rule stated the recycling process must produce 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). This
factor expresses the principle that the 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 fuels in combustion units are valuable products
since they would be replacing traditional fuels that otherwise would
have to be burned.
    Contaminant Levels. We are proposing a legitimacy criterion under
which non-hazardous secondary materials used as fuels in combustion
units must contain contaminants at levels that are comparable to 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 proposed 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.
Combustion of non-hazardous secondary material 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 secondary material have contaminants at levels
comparable to traditional fuels would ensure that the burning of any
secondary materials in combustion units will not have 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 would be the most protective
of human health and the environment.
    We are proposing to define the term ``contaminants'' to mean the
HAP listed under CAA section 112(b), as well as the nine pollutants
required to be regulated under CAA section 129. We believe this is
reasonable because this legitimacy criterion is intended to ensure that
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 air emissions, and the air emissions of concern identified in the
CAA include the listed HAP, as well as the section 129 pollutants.
However, the Agency solicits comment on whether the list of
contaminants should be narrower or broader, or whether the Agency
should look at other possible lists. In particular, since the Agency is
determining which non-hazardous secondary materials are considered
solid waste under RCRA, the Agency could consider the list of hazardous
constituents promulgated in Appendix VIII of part 261, which is a list
of hazardous constituents that have been shown in scientific studies to
have toxic, carcinogenic, mutagenic or teratogenic effects on humans
and other life forms.
    In determining which traditional fuel(s) the owner or operator of
the boiler unit would make a comparison with respect to contaminant
levels, the Agency is proposing to 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, while for gas-
fired boilers, the level of contaminants in the non-hazardous secondary
material fuels would be compared to natural gas. 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 proposed
boiler MACT, boilers designed to combust different types of fuels
(e.g., coal vs. oil) cannot easily be modified to burn another fuel.
Therefore it would not be appropriate to compare the contaminants in a
secondary material that is to be combusted in a boiler designed to burn
oil to the contaminant levels of coal.
    EPA is not proposing to establish specific numerical maximum
contaminant levels that a non-hazardous secondary material would have
to meet, but rather the proposal allows the owner or operator to make
the comparison based on information he has or can acquire regarding the
level of contaminants found in traditional fuels he burns. However, the
Agency solicits comment on whether it would be more appropriate for the
Agency to establish bright-line levels of various contaminants in the
various traditional fuels or a single set of contaminant levels that
would apply regardless of the type of traditional fuel that is burned
(as EPA promulgated in the hazardous waste Comparable Fuel Rule \70\)
so that the regulated community would have certainty as to whether a
particular non-hazardous secondary material met this legitimacy
criterion.
---------------------------------------------------------------------------

    \70\ See 40 CFR 261.38 as an example of maximum contaminant
levels EPA has promulgated to determine whether a material is a
comparable fuel for purposes of EPA's subtitle C hazardous waste
regulations.
---------------------------------------------------------------------------

    The assessment of whether the non-hazardous secondary material has
contaminants comparable to 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. In making this comparison, the Agency solicits comment on
whether the comparison should be based upon the total level of
contaminants, or on the level of contaminants per Btu of heat value. In
either case, we believe that a direct numerical comparison is necessary
since the level of contaminants must be comparable to the level of
contaminants in traditional fuels. The Agency also solicits comments on
how EPA should interpret ``comparable.'' For example, should comparable
mean the same as or lower, taking into consideration natural variations
in sampling events?
    The Agency recognizes that there may be instances where the
contaminant levels in non-hazardous secondary materials may be somewhat
higher than found in traditional fuels, but the resulting air pollutant
emissions would be inconsequential in terms of risks to human health
and the environment in relation to the burning of traditional fuel
products and thus possibly not indicative of discard. Therefore, the
Agency requests comment on whether, instead of requiring that
contaminant levels in non-hazardous secondary materials be comparable
to traditional fuels, the Agency should adopt a criterion under which
contaminants in non-hazardous secondary material used as a fuel in
combustion units could not be significantly higher in concentration
than contaminants in traditional fuel products. Under such an approach,
the Agency believes that a qualitative approach would be appropriate in
determining whether such secondary materials contain ``significantly
higher concentrations of contaminants'' compared to traditional fuels.
That is, a contaminant concentration could be elevated without
indicating the secondary material is discarded and without posing an
unacceptable risk, and therefore, may not be considered ``significantly
higher'' for the purposes of determining whether the non-hazardous
secondary material is legitimately being burned as a fuel in a
combustion unit.
    The proposed rule contemplates that this legitimacy criterion must
be met, rather than merely considered. The proposed 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 secondary materials must be
comparable to be legitimately used as a non-waste fuel product. We are
therefore proposing that this legitimacy criterion be a requirement for
the secondary material to be considered a legitimate fuel.
    Since these requirements are self implementing in nature (i.e.,
they do not need up front approval from the regulatory agency),
facilities may choose to keep supporting documentation on-site in the
event they are inspected by regulatory officials. EPA is not proposing
to require that such documentation be maintained, since the proposed
definition of non-hazardous solid waste is intended to be self-
implementing. However, the Agency solicits comment on whether we should
require owners and operators of combustion units to prepare and
maintain documentation that this particular legitimacy criterion has
been met.
    b. Legitimacy Criteria for Ingredients. Today's notice is proposing
that non-hazardous secondary materials used as ingredients in
combustion units meet the legitimacy criteria specified in proposed 40
CFR 241.3(d)(2). An ingredient used 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 those found in traditional products that are
manufactured without the non-hazardous secondary material. These
criteria are discussed below.
    Managed as Valuable Commodities. We are proposing to require that
non-hazardous secondary materials used as ingredients in combustion
units be managed as valuable commodities and

be stored for a reasonable timeframe. See proposed 241.3(d)(2)(i).
Where there is an analogous ingredient, the non-hazardous secondary
material used as an ingredient 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 a manufacturing process
ingredient for which the secondary material substitutes and which
serves the same function and has similar physical and chemical
properties as the non-hazardous secondary material.
    We are proposing the same storage time and containment requirements
that were discussed earlier for the legitimacy criteria for fuels, and
are also proposing that this criterion be met. Consistent with the
legitimacy criteria for fuels, this criterion 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 an ingredient that otherwise would
be used in the production process. In this case, the non-hazardous
secondary material should be managed prior to use as an ingredient
similarly to the way analogous ingredients are managed in the course of
normal manufacturing, or otherwise be adequately contained.
    The second situation this criterion addresses is the case where
there is no analogous ingredient that otherwise would be used in the
production process. This could be either because the process is
designed around a particular non-hazardous secondary material, or
because physical or chemical differences between the non-hazardous
secondary material and the ingredient are too significant for them to
be considered ``analogous.'' See Managed as a Valuable Commodity under
the legitimacy criteria for fuels for additional discussion of this
criterion, as well as the specific issues on which EPA is soliciting
comment. That is, to the extent that changes are made to this criterion
with respect to those non-hazardous secondary materials that are used
as fuels, we would likewise make the same changes with respect to those
non-hazardous secondary materials used as an ingredient, unless
comments are submitted which explain, and provide appropriate data and
information, on why this criterion should be different between those
non-hazardous secondary materials that are used as a fuel and those
that are used as ingredients.
    Useful Contribution. We are proposing that the non-hazardous
secondary materials used as ingredients in combustion units provide a
useful contribution to the production/manufacturing process. See
proposed 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 element in the
determination of legitimate use as an ingredient because legitimate use
is not occurring if the non-hazardous secondary materials being added
do not add anything to the process. This criterion is intended to
prevent the practice of adding non-hazardous secondary materials to a
manufacturing operation simply as a means of disposing of them, which
EPA would consider sham recycling.
    The ANPRM listed five ways in which a non-hazardous secondary
material can add value and usefully contribute to a recycling process:
(i) The secondary material contributes valuable ingredients to a
product or intermediate; or (ii) replaces a catalyst or carrier in the
recycling process; or (iii) is the source of a valuable constituent
recovered in the recycling process; or (iv) is recovered or regenerated
by the recycling process; or (v) is used as an effective substitute for
a commercial product. Since today's proposal addresses non-hazardous
secondary materials that are used as ingredients in combustion units,
we believe that only items (i) and (v) are specifically relevant to our
assessment of whether these non-hazardous secondary materials provide a
useful contribution in combustion scenarios. We request comment,
however, on whether this is correct, or whether the secondary materials
we are assessing as ingredients can provide useful contribution in
other ways.
    For purposes of satisfying this proposed criterion, not every
constituent or component of the non-hazardous secondary material has to
make a contribution to the production/manufacturing activity. That is,
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, and satisfy this
criterion (although we would also note that the constituents not
directly contributing to the manufacturing process could still result
in the material failing the contaminant part of the legitimacy
criteria). The Agency is not defining quantitatively 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, however,
that this could be an issue if persons argue that a material is being
legitimately used as an ingredient, but in fact, only a small amount or
percentage of it is used. Because of the differences in the emission
standards that the non-hazardous secondary material would be subject
to--between CAA section 112 and 129, persons may argue that such non-
hazardous secondary materials are not wastes, when in fact, the
operation is really discard--that is sham recycling. Therefore, the
Agency solicits comment on whether the Agency should quantitatively
define how much of the non-hazardous secondary material must provide a
useful contribution, or alternatively, how much constituents or
components in a non-hazardous secondary material there would need to
be, before the material would not be considered to provide a useful
contribution.
    Valuable Product. We are proposing that the non-hazardous secondary
materials used as ingredients in combustion units must be used to
produce a valuable product or intermediate. See proposed
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
element of the concept of legitimate use of secondary materials as
ingredients 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 running 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 that involves a
combustion unit 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
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 in combustion systems 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 in combustion systems 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.
    Contaminant Levels. We are proposing that the non-hazardous
secondary material used as an ingredient must result in products that
contain contaminants at levels that are comparable in concentration to
those found in traditional products that are manufactured without the
non-hazardous secondary material. See proposed 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) and the nine
pollutants listed under CAA section 129(a)(4)) when such secondary
materials are burned as fuel or used as ingredients, including those
constituents that could generate products of incomplete combustion. The
Agency requests comments on whether we should have a different
definition of contaminants that applies specifically to ingredients.
Since contaminant comparisons for the contaminant legitimacy criterion
apply to a comparison of the products rather than to the secondary
material, we request comment on whether a different list of
contaminants should apply, or whether we should generically define
contaminants to be constituents that may be a concern with respect to
the product that is produced (e.g., clinker).
    The assessment of whether products produced from the use of non-
hazardous secondary material ingredients in combustion units that have
contaminants that are comparable in concentration to traditional
products can be made by a comparison of contaminant levels in the
ingredients themselves to traditional ingredients they are replacing,
or by comparing the contaminant levels in the product itself with and
without use of the non-hazardous secondary material ingredient.
    The Agency recognizes that there may be instances where the
contaminant levels in the products manufactured from non-hazardous
secondary material ingredients may be somewhat higher than found in the
traditional products that are manufactured without the non-hazardous
secondary material, but the resulting concentrations would not be an
indication of discard and would not pose a risk to human health and the
environment. Therefore, the Agency requests comment on whether, instead
of requiring that contaminant levels in products manufactured from
secondary material ingredients be comparable in concentration, the
Agency should adopt a criterion under which contaminants in the product
could not be significantly higher than found in the traditional
products that are manufactured without the non-hazardous secondary
material. Under such an approach, the Agency believes that a
qualitative approach would be appropriate in determining whether such
products contain ``significantly higher concentrations of
contaminants.'' That is, a contaminant concentration could be elevated
without indicating the secondary material is discarded and without
posing an unacceptable risk, and therefore, may not be considered
``significantly higher'' for the purposes of determining whether the
non-hazardous secondary material is legitimately used as an ingredient
in a combustion unit.
    Similar to fuels, we are proposing that the legitimacy criterion
addressing contaminant levels in non-hazardous secondary materials used
as an ingredient in combustion systems be one that must be met, as
opposed to one that must only be considered. As we noted in the
legitimacy criteria for fuels, this criterion is tailored specifically
to the use of these non-hazardous secondary materials in combustion
units, and thus, we do not believe that there are case-specific
situations where this criterion could not be met, but the material
would still be considered legitimately used as an ingredient.

E. Alternative Approach

    In addition to the proposed approach described in Section VII.D.,
the Agency is identifying an alternative approach for consideration and
comment. As explained below, this alternative approach, which is
broader than the proposed solid waste definition discussed above, we
believe could be constructed in a manner consistent with RCRA and
relevant caselaw although it may raise important policy questions. This
alternative may be adopted by the Agency in the final rule if warranted
by information presented during the public comment period or otherwise
available in the rulemaking record. Under this alternative, traditional
fuels that we have identified earlier, which includes clean biomass,
and that have been burned historically as fuels and managed as valuable
products (as discussed in section VII.C.5.) would not be solid wastes.
In addition, non-hazardous secondary materials used as fuels or
ingredients are excluded from the definition of solid waste if they
both remain within the control of the generator and meet the legitimacy
criteria.
    In contrast to the proposed approach described above, all other
non-hazardous secondary materials that are burned as a fuel or used as
an ingredient in the combustion process would be solid wastes subject
to the CAA section 129 standards if burned in a combustion

unit. Also, all materials that result from processing of discarded non-
hazardous secondary materials would be solid wastes. As with the
proposed approach, wastes would include those secondary materials used
as a fuel or ingredient not passing the legitimacy criteria, and those
secondary materials used as a fuel that are managed outside the control
of the generator. This solid waste designation would include materials,
such as secondary wood products combusted on-site, coal refuse, and
tires processed into TDF, on-spec used oil, and all secondary materials
used as ingredients managed outside the control of the generator in
combustion units. No petition process would be offered under this
alternative.
    We request comment on all aspects of this alternative. Comments are
specifically requested related to the potential impact this alternative
may have on traditional non-combustion recycling activities, potential
changes in the quantity of non-hazardous secondary materials that may
be landfilled, and any collateral regulatory impacts, such as the
impact on the MACT floors proposed today for the Commercial and
Industrial Solid Waste Incinerators if a significant number of
additional sources are subject to that rule.
    This alternative approach is closer to the views expressed by some
commenters that any secondary material combusted for energy recovery is
a solid waste and should be regulated under CAA section 129. Thus, only
traditional fuels and clean biomass may be burned in a combustion unit
under CAA section 112. These commenters believe that the combustion of
non-hazardous secondary materials by definition constitutes discard,
and therefore all such materials are solid wastes. They have also
expressed concerns that section 129 mandates stringent requirements for
emissions control, monitoring and reporting for all sources
irrespective of size, while section 112 allows EPA discretion to treat
smaller sources differently by setting standards based on generally
available control technology for sources emitting less than 10 tons per
year or more of any single HAP or 25 tons per year or more of any
combination of HAPs (i.e. area sources). If non-hazardous secondary
materials burned on site for energy recovery are excluded from the
definition of solid waste, these commenters argue that many smaller
facilities that burn such materials will not be subject to any
significant pollution control, monitoring, or reporting requirements.
As a result, they believe such an exclusion could have significant
adverse health and welfare effects on communities across the country
that are located near area sources burning such secondary materials on
site for energy recovery.
    We solicit comment on whether EPA should include such non-hazardous
secondary materials as solid waste, and whether such a definition is
consistent with or required by RCRA and/or the CAA. Further, as
explained below, while we believe that the approach favored by the
commenters may raise legal concerns as to the definition of
``discard,'' as we have discussed previously and further discuss in
this section of the preamble, we solicit comment on whether the Agency
has the authority to regulate all non-hazardous secondary materials
that are burned in combustion units either as a fuel or ingredient as
solid wastes. In providing comments on this approach, we specifically
request that commenters provide the basis for their recommended
position in light of the existing case law on the issue of ``discard.''
    Some commenters have also argued that, as more non-hazardous
secondary materials would be subject to CAA section 129 standards when
combusted, this option would help promote traditional recycling, while
ensuring more stringent emissions standards under CAA section 129 for
those sources that elect to continue to burn these secondary materials.
Depending upon local disposal and virgin material costs, increased
recycling may occur as a result of market adjustments in response to
higher materials management costs.
    EPA wishes to clarify, however, that simply because a waste has, or
may have, value does not mean the material loses its status as a solid
waste. See API I, 906 F.2d at 741 n.16; United States v. ILCO Inc., 996
F.2d 1126, 1131-32 (11th Cir. 1993); Owen Steel v. Browner, 37 F.3d
146, 150 (4th Cir. 1994). Wastes may be used beneficially. Even
assuming beneficial reuse takes place, therefore, a material once
discarded cannot cease to be a waste solely by being beneficially
reused. In the case of this rule, beneficial resuse would be, for
example, use as a fuel--as opposed to incineration, where the material
is combusted primarily to be destroyed.
    It is also important to note that a secondary material could still
be a waste even if it is recycled on site or under the control of the
generator. See ``API II,'' 216 F.3d at 55-58, where the DC Circuit
overturned EPA's determination that certain recycled oil bearing
wastewaters are wastes. The court overturned this decision and remanded
it to EPA for a better explanation. Importantly for the rule we are
considering today, the court neither accepted EPA's view nor the
contrary industry view, noting that the relevant determination that had
to be made was whether primary treatment of wastewater is simply a step
in the act of discarding or the last step in a production process
before discard. 213 F.3d at 57. The court rejected both EPA's and
industry's views because they were only stated in broad generalities.
Relevant for today's alternative approach, we note that oil bearing
wastewaters discussed in API II were in fact recycled on-site, but that
the court could not determine whether they were wastes or not. Clearly,
the issue was not whether the recycling occurred on site, or even under
the control of the generator. Rather, the relevant determination is
whether the material is discarded or not.
    To remedy the ``on-site'' problem raised by API II, EPA for this
proposed rule also requires that for the material not to be a waste it
must be a legitimate fuel or ingredient. This means, to summarize the
legitimacy criteria very generally, if used as a fuel, it is handled as
though it is a valuable product (loss must be minimal), it is a true
fuel with legitimate heating value, and the material has comparable
levels of contaminants to those contained in traditional fuels. In
particular, if there are higher than comparable levels of contaminants,
that would be an indication that the material is really a waste and it
is being combusted to destroy the waste materials. If the material is
used as an ingredient, under the proposed rule it must be managed as a
valuable commodity, must provide a useful contribution to the
production or manufacturing process, must be used to produce a valuable
product or intermediate, and cannot result in products that contain
contaminants that are not comparable to the concentrations found in
traditional products. For details on the legitimacy requirement, see
section VII.D.6, above. In fact, as noted below, EPA has determined,
for purposes of this alternative approach, that certain secondary
materials [see wood residuals and pulp and paper sludge below], even
though they are recycled on-site or under the control of the generator,
they are still considered solid wastes.
    The key point regarding the legal basis of this alternative
approach is that EPA is accounting for the likelihood that material
recycled within a continuous industrial process by being burned for
energy recovery or as an ingredient is not a solid waste. The
alternative approach, accordingly, requires that the secondary material

material is both recycled under the control of the generator and
complies with the legitimacy criteria to ensure that it is in fact not
handled as a waste and is a truly beneficial fuel or ingredient
product. An example of a material burned for energy recovery under the
control of the generator and meeting the legitimacy requirements is on-
spec used oil generated on-site and combusted in an industrial boiler.
    With respect to other examples, such as pulp and paper sludge and
wood manufacturing residuals burned on-site for energy recovery, the
Agency may reach a different conclusion. Specifically, commenters to
the ANPRM indicated that these materials are primarily composed of
biomass and that emissions from burning these materials are essentially
the same as emissions from burning other biomass fuels, such as bark or
unadulterated wood (see section VII.C.5.). For purposes of the primary
proposal, EPA has determined that wood residuals and pulp and paper
sludge are not wastes based on limited contaminant data collected to
date and the on-site use of the secondary material. However, for this
alternative approach, for the reasons described below, EPA is proposing
to classify these materials as solid waste.
    This alternative acknowledges that for some categories of secondary
materials, it is difficult to determine whether those materials may or
may not be discarded. The DC Circuit has also acknowledged the
ambiguity of the term ``solid waste'' under RCRA as applied to
particular situations. Specifically, the court stated that ``[the] term
may be ambiguous as applied to some situations, but not as applied to
others.'' ABR at 1056. Thus, there could be some secondary materials
that are clearly legitimately recycled within a continuous industrial
process and others that are less clear. EPA believes that wood
residuals and pulp and paper sludges are just the kinds of materials
that present this kind of ambiguity.
    Based on information the Agency has received, pulp and paper
sludges are generally used on-site by generators to fuel their boilers
and are treated like valuable commodities. However, there appear to be
questions with respect to contaminants in the sludges that give EPA
pause as to whether the combustion of these materials is primarily a
waste treatment activity--specifically because of levels of chlorine in
pulp and paper sludge. The Agency has similar concerns with levels of
formaldehyde in wood residuals.
    Accordingly, EPA believes that with respect to contaminant levels
the wood residuals and pulp and paper sludge present a situation in
which reasonable persons can disagree as to whether they are discarded
materials or not. EPA solicits comments on whether these secondary
materials should be classified as wastes or non-wastes.
    EPA believes that its formulation that secondary material recycled
or reused legitimately under the control of the generator will cover
all, or almost all, secondary material recycled or reused in a
continuous industrial process. The Agency requests comment on the
adequacy of this formulation and any data commenters may have
indicating whether particular secondary materials that will fall within
or outside of this framework and whether, and why, those materials are
discarded or not.
    Comments are specifically requested related to the potential impact
this alternative may have on traditional non-combustion recycling
activities and potential changes in the quantity of non-hazardous
secondary materials that may be landfilled. In addition, we request
comment as to whether this alternative approach should include a
petition process that provides persons with an administrative process
for a formal determination that their non-hazardous secondary material
fuel or ingredient is indistinguishable in all relevant aspects from a
fuel or ingredient, and thus is not discarded and not a solid waste.
    EPA believes that an even more far reaching regulatory approach, as
suggested by some comments, in which only traditional fuels are not
solid wastes and all secondary materials burned for energy recovery or
as an ingredient are considered discarded may not be legally acceptable
in that the approach provides too broad a definition of solid waste in
light of the RCRA case law on the definition of solid waste.
Specifically, EPA is concerned about the case law holding that, the
RCRA definition of solid waste does not extend to secondary material
beneficially reused in a continuous industrial process, as that
material has not been discarded and is not a solid waste. See ``AMC
I,'' 824 F.2d 1177 at 1190 in which the court stated that the term
``discarded materials'' could not include materials ``* * * destined
for beneficial reuse or recycling in a continuous process by the
generating industry itself.'' Accord, Association of Battery Recyclers
v. EPA, 208 F.3d 1047 (DC Cir. 2000) (``ABR''). The provisions under
consideration in AMC I and ABR dealt specifically with material
``reclaimed'' in a continuous process--that is, material regenerated
from a secondary material in a continuous process. It seems highly
likely the courts would extend this same reasoning to secondary
materials that are otherwise reused or recycled in a continuous
industrial process, such as material used, or combusted, to recover
energy or as an ingredient. Thus, EPA is hesitant to define all reused
or recycled secondary materials as solid waste under RCRA.

F. Effect of Today's Proposal on Other Programs

    The construct of this proposed rule for determining when non-
hazardous secondary materials are legitimately burned as non-waste
fuels or ingredients has applicability to the universe of facilities
subject to CAA sections 112 and 129, as well as other rules and agency
regulatory programs.
1. Clean Air Act
    As discussed in Section IV, the CAA section 129 definition of solid
waste incineration unit states that the term ``solid waste'' will have
the meaning established by the Administrator of EPA under RCRA. Today's
proposed rule would establish under RCRA which non-hazardous secondary
materials constitute ``solid waste.'' This proposed definition of
``solid waste'' has been used by EPA in its concurrent proposed CAA
emissions standards for CISWI units (under CAA section 129) and boilers
and process heaters (under CAA section 112). Any unit combusting
``solid waste'' under today's proposed definition would be regulated as
a ``solid waste incineration unit'' under CAA section 129. If a non-
hazardous secondary material is not a ``solid waste'' under the
proposed definition and such material is burned as a legitimate fuel or
used as a legitimate ingredient in a manufacturing process, the
combustion unit would be regulated pursuant to CAA section 112 (by
statute, a source cannot be regulated under both CAA sections 112 and
129).
2. Renewable Energy
    This proposal may impact how some non-hazardous secondary materials
could be used to help supply renewable energy to the U.S. and through
state programs. Given the Congressional mandate for renewable energy,
it is important to assess the impact of this proposed regulation on
those programs. Congress has passed several laws, such as the Energy
Independence and Security Act of 2007 (Pub. L. 110-140), that support
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. Today's proposed rule determining which non-
hazardous secondary materials constitute solid waste may impact the
requirements for secondary materials that may be burned for energy
generation under the RPS program.
3. Subtitle C Hazardous Waste Program
    The result of this rulemaking effort will have no effect on the
subtitle C Hazardous Waste Program. 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 units from coverage under that section. EPA
emphasizes that it is not modifying or reopening its hazardous waste
regulations; EPA does not intend to respond to any comments directed to
those regulations.
    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 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 proposed
rule shall impact EPA's ability to act pursuant to RCRA sections 3007,
3008 and 7003. The proposed 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.

VIII. 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)
programs. States have promulgated their own laws and regulations as to
what constitutes 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. 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 the narrow definition
of which non-hazardous secondary materials are or are not solid waste
when used as fuel for energy recovery or as ingredients in combustion
units. We are not making solid waste determinations that cover other
possible secondary material end uses.

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 state's definitions
of solid waste would not be applicable in determining whether the
section 129 standards apply. Specifically, state determinations
regarding a material's beneficial use that may exempt that non-
hazardous secondary material from the state solid waste standards would
not necessarily impact the status of that secondary material under
EPA's solid waste definition as it relates to which combustion units
are subject to the CAA section 129 standards, except perhaps as
discussed in section VII.D.5, where we discuss a state's ability to
submit, on behalf of the petitioner, a petition for EPA to evaluate
under the proposed non-waste determination criteria.\71\ Likewise, non-
hazardous secondary materials that are exempted from being a solid
waste by EPA's proposed rule, if finalized, would be exempt from the
CAA section 129 standards, even though the state standards may define
the non-hazardous secondary material as a solid waste.
---------------------------------------------------------------------------

    \71\ If EPA determines through the petition process that the
secondary materials in the state determinations are not solid waste
per 40 CFR 241.3(c), then the units that burn such materials would
not be subject to the CAA section 129 requirements.
---------------------------------------------------------------------------

    The language in CAA section 129, however, may be interpreted to
provide the Administrator with flexibility in determining the meaning
of solid waste under that section. EPA is requesting comment on an
option where, to determine applicability of the CAA section 129
requirements, the Agency would rely on a determination through a
state's beneficial use program that certain secondary materials are or
are not solid waste. Such state programs are meant to encourage the use
of non-hazardous secondary materials, provided that the uses maintain
the specified state's acceptable level of risk, protect human health
and the environment, and are managed in accordance with the conditions
of the determination. Generally, for a secondary material to be
beneficially used and thus no longer a solid waste, it would have
chemical and physical properties similar to the raw material it is
replacing or, when incorporated into another product, its use would be
beneficial to the final product. Relying on these beneficial use
determinations

would recognize state interests in defining solid waste in the context
of their own solid waste program, as well as help to mitigate potential
inconsistencies between federal and state solid waste determinations.
    Consideration of this option, however, where the Agency could rely
on determinations by a state's beneficial use program in deciding
whether certain materials are solid wastes when used as fuels or
ingredients in combustion units, must take into account the current
legal rationale for defining solid waste under EPA authority.
Specifically, the courts have held that a secondary material that has
been discarded is a solid waste regardless of whether it may be reused
at some time in the future and simply because a waste has, or may have,
beneficial value does not mean the secondary material loses its status
as a solid waste.\72\
---------------------------------------------------------------------------

    \72\ See AMC II, 907 F.2d at 1186; API I, 906 F.2d at 741 n.16;
United States v. ILCO Inc., 996 F.2d at 1131-32; Owen Steel v.
Browner, 37 F.3d at 150.
---------------------------------------------------------------------------

    See the ANPRM for this rulemaking for the complete discussion of
case law pertaining to the solid waste definition (74 FR 51).

B. State Adoption of the Rulemaking

    No federal approval procedures for state adoption of today's
proposed rule are included in today's proposal 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 any additional authority to approve state programs
beyond municipal solid waste. 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 the changes in today's rule will be adopted by
these states, consistent with state laws and state administrative
procedures.

IX. Costs and Benefits of the Proposed Rule

    The value of any regulatory action is traditionally measured by the
net change in social welfare that it generates. This action alone does
not directly invoke any costs \73\ or benefits. This proposal is being
developed and published in conjunction with the upcoming Boiler MACT
and CISWI proposed rules.\74\ Costs to the regulated community and
corresponding benefits to human health and the environment fall under
the jurisdiction of these rules. As such, the Agency has not prepared a
separate economic assessment in support of this proposal. However, we
recognize that this action, as proposed, may affect various State
materials management programs, and we are sensitive to these concerns.
The Agency encourages comment on any potential direct impacts this
action may have on State materials management programs.
---------------------------------------------------------------------------

    \73\ Excluding minor administrative burden/cost (e.g. rule
familiarization) and voluntary petition costs.
    \74\ 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 CAA proposed 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 Agency and the Office of
Management and Budget (OMB) guidelines and procedures. The Agency has
also prepared a general executive summary document that addresses
overall impacts of this rulemaking package. These documents are
available in the docket established for today's action. The reader is
encouraged to review and comment on all aspects of these documents.

X. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993),
this action is a ``significant regulatory action.'' Pursuant to the
terms of Executive Order 12866, the Agency, in conjunction with the
Office of Management and Budget (OMB) has determined that this proposed
rule is a significant regulatory action because it contains novel
policy issues, as defined under part 3(f)(4) of the Order. Accordingly,
EPA submitted this action to OMB for review under EO 12866. 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 proposed rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The
Information Collection Request (ICR) document prepared by EPA has been
assigned EPA ICR number 2382.01.
    This proposal establishes a voluntary non-waste determination
petition process for materials identified as solid wastes. Facilities
claiming this non-hazardous 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
secondary material and the market demand for this material will be
necessary to demonstrate that the non-hazardous secondary material will
in fact be used as a 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 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 timeframe; (4) whether the constituents in the non-hazardous
secondary material are not discarded to the air, water or land from the
point of generation through combustion of the secondary material at
significantly higher levels from either a statistical or from a health
and environmental risk perspective than would otherwise be released;
and (5) other relevant factors.
    The facility-level burden associated with this voluntary petition
option is uncertain. However, we estimate an average total one-time
burden of approximately 700 hours per facility, with a total cost per
facility of approximately $71,400. 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. The Agency requests comment on the number of petitions that
are likely to be submitted to EPA for consideration. 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 in 40 CFR
are listed in 40 CFR part 9.
    To comment on the Agency's need for this information, the accuracy
of the provided burden estimates, and any suggested methods for
minimizing respondent burden, EPA has established a public docket for
this rule, which includes this ICR, under Docket ID number EPA-HQ-RCRA-
2008-0329. Submit any comments related to the ICR to EPA and OMB. See
the ADDRESSES section at the beginning of this notice for where to
submit comments to EPA. Send comments to OMB at the Office of
Information and Regulatory Affairs, Office of Management and Budget,
725 17th Street, NW., Washington, DC 20503, Attention: Desk Office for
EPA. Since OMB is required to make a decision concerning the ICR
between 30 and 60 days after June 4, 2010, a comment to OMB is best
assured of having its full effect if OMB receives it by July 6, 2010.
The final rule will respond to any OMB or public comments on the
information collection requirements contained in this proposal.

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 proposed 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 proposed rule (see discussion
above under costs and benefits). Small entities potentially affected
indirectly by this action include: major source industrial, commercial,
and institutional boilers and process heaters, area source industrial,
commercial, and institutional boilers and commercial and industrial
solid waste incineration units. We estimate that these units operate in
approximately 50 different industry categories based on the NAICS three
digit sector code level. These sectors include: crop production;
forestry and logging; support activities for agriculture and forestry;
oil and gas extraction; mining (except oil and gas); utilities; heavy
and civil engineering construction; food manufacturing; beverage and
tobacco product manufacturing; textile mills and textile product mills;
wood product manufacturing; paper manufacturing; petroleum and coal
products manufacturing; chemical manufacturing; plastics and rubber
products manufacturing; nonmetallic mineral product manufacturing;
primary metal manufacturing; fabricated metal product manufacturing;
machinery manufacturing; computer and electronic product manufacturing;
transportation equipment manufacturing; furniture and related product
manufacturing; merchant wholesalers; motor vehicle and parts dealers;
air, rail, and pipeline transportation; warehousing and storage; waste
management and remediation services; educational services; hospitals;
accommodation; repair and maintenance; and public administration. Any
potential impacts to small entities under these and any other
potentially affected sectors are addressed in the regulatory
flexibility analysis prepared in support of the CAA proposed rules that
are linked to this action.\75\
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    \75\ 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.
---------------------------------------------------------------------------

    We have determined that, because no small entities are directly
impacted by this proposed action, there will not be a significant
economic impact on a substantial number of small entities. This
determination is based on the findings, as discussed above.
    Although this proposed rule will not have a significant economic
impact on a substantial number of small entities, EPA nonetheless has
tried to reduce the (indirect) impact of this rule on small entities
through the careful and targeted identification of solid waste
materials. We continue to be interested in the potential impacts of the
proposed rule on small entities and welcome comments on issues related
to such impacts.

D. Unfunded Mandates Reform Act

    This proposed 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 (see footnote
under section C), 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 proposed 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 action, independent of the CAA
rules, as proposed (see footnote 81), will not result in substantial
direct effects on the states. Furthermore, this action will not preempt
state laws related to the affected materials. States will remain free
to manage these materials as appropriate under their Subtitle D
programs. Thus, Executive Order 13132 does not apply to this action.
    Although we believe that this action, as proposed, will not result
in substantial direct effects on the states, we are sensitive to the
perceptions States may have of this action in regard to their solid
waste management programs. On January 2, 2009 we published an ANPRM
(Identification of Non-Hazardous Materials That Are Solid Waste) that
presented the Agency's anticipated approach for this action. We
received numerous comments on this ANPRM, many of which came from
States. Furthermore, we have reached out to the States with various
informational conference calls throughout the development of this
proposal. .
    In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA

and State and local governments, EPA specifically solicits comment on
this 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 proposed rule may have
minor tribal implications to the extent that entities generating or
burning solid wastes on tribal lands could be affected.
    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. EPA specifically solicits additional
comment on this proposed action from tribal officials.

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

    This action is not subject to EO 13045 (62 FR 19885, April 23,
1997) because it is not economically significant as defined in EO
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 related to
this action are contained in the support documents prepared for the CAA
section 129 CISWI and section 112 boiler MACT proposed 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, as proposed, is not expected to directly affect energy use or
use patterns. Energy impacts resulting for the CAA (see rule
identification in footnote 72) application of this action are assessed
and discussed in the preambles and supporting materials for those
rules.

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 proposed rulemaking does not involve technical standards.
Therefore, EPA is not considering 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 is evaluating the question of whether this proposed rule will
or will not have disproportionately high and adverse human health or
environmental effects on minority or low-income populations. We have
completed preliminary environmental justice analyses, in conjunction
with the Boiler MACT and CISWI proposed rules (see section IV.A.).
These preliminary environmental justice analyses are compiled in the
``Review of Environmental Justice Impacts'' for both this proposal and
the Boiler MACT and CISWI proposed rules. This document is available in
the docket for today's rule (Docket ID No: EPA-HQ-RCRA-2008-0329).
    EPA is committed to addressing environmental justice concerns and
has assumed a leadership role in environmental justice initiatives to
enhance environmental quality for all citizens of the United States.
The Agency's goals are to ensure that no segment of the population,
regardless of race, color, national origin, income, or net worth, bears
disproportionately high and adverse human health and environmental
impacts as a result of EPA's policies, programs, and activities. Our
goal is to ensure that all citizens live in clean and sustainable
communities. In response to Executive Order 12898, and to the concerns
voiced by many groups outside the Agency, EPA's Office of Solid Waste
and Emergency Response (OSWER) formed an Environmental Justice Task
Force to analyze the array of environmental justice issues specific to
waste programs and to develop an overall strategy to identify and
address these issues (OSWER Directive No. 9200.3-17).
    The Environmental Justice analysis in today's proposal includes two
main parts: (1) Demographic analysis and environmental impacts; and (2)
outreach.
Demographics Analysis and Environmental Impacts
    For this proposal, the demographic analysis focuses on the
management of secondary materials that have been proposed to be solid
waste under this proposed rule (versus the emissions from the
combustion of the non-hazardous secondary materials which will be
covered in the Boiler MACT and CISWI proposed rules). Specifically, the
analysis focuses on the populations around the facilities accepting
non-hazardous secondary materials that under the proposal would be
considered to be solid waste. These wastes would be diverted from units
previously combusting materials in accordance with the CAA section 112
standards for non-wastes according to today's proposed rulemaking. The
analysis includes a demographic evaluation (focusing on the presence of
low-income and minority populations) and possible impacts associated
with solid waste being sent to municipal waste combustors and landfills
(which are projected to receive the majority of the diverted materials
as assessed by the impacts of the CISWI and Boiler MACT proposed rules
using the least cost approach). The analysis also covers additional
diversion implications. The assessment includes impacts on the
abatement of scrap tire piles, stockpiling of secondary materials, and
the disposal of used oil not in compliance with applicable standards.
    The impacts of the new proposed emissions standards are included in
the

Boiler MACT and CISWI proposed rules. The analysis in those proposals
includes the following efforts: identification of sources,
identification of demographic characteristics near sources, evaluation
of area wide air quality, estimation of Boiler MACT/CISWI emission
reductions of HAPs from the proposed standards and work practices.
Outreach
    The outreach aspect of the environmental justice analysis will help
stakeholders participate in the rulemaking process and build a dialog
during the comment period for the proposed rule. The first step in the
outreach process took place at the EPA Community Engagement in
Rulemaking Roundtable Discussion in New Orleans, LA on January 28,
2010. This discussion was held concurrently with the National
Environmental Justice Advisory Council public meeting. At the
roundtable meeting, the basics of the advanced notice of proposed
rulemaking were discussed, including how it interacts with EPA's
upcoming CAA section 112 and section 129 rulemakings, and provided an
educational forum to bring together EPA technical experts, community
leaders, nonprofit groups, and others to discuss key themes of the
proposed rulemaking. Based on the results of the roundtable meeting,
the Agency developed an approach for public participation and outreach
during the comment period for the proposal (including planned forums to
discuss the proposed rules and/or learn more about environmental
impacts of the rule). The activities associated with the outreach are
posted at http://www.epa.gov/waste/nonhaz/definition.htm.

List of Subjects in 40 CFR Part 241

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

    Dated: April 29, 2010.
Lisa P. Jackson,
Administrator.

    For the reasons stated in the preamble, title 40, chapter I of the
Code of Federal Regulations, is proposed to be 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
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:
    Contained means the non-hazardous secondary material 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
material.
    Contaminants means any constituent in non-hazardous secondary
materials that will result in emissions of the air pollutants
identified in CAA section 112(b) and the nine pollutants listed under
CAA section 129(a)(4)) when such secondary materials are burned as fuel
or used as ingredients, including those constituents that could
generate products of incomplete combustion.
    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.
    Generating facility means all contiguous property owned, leased, or
otherwise controlled by the non-hazardous secondary material generator.
    Intermediate product means a finished product traded usually among
producers or suppliers rather than end users.
    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 new fuel or new ingredient product.
Minimal operations, such as operations that result only in modifying
the size of the material by shredding, do not constitute processing for
purposes of this definition. Processing includes, but is not limited
to, operations that: 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; and improve the ingredient
characteristics.
    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.
    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, if the facility combusting
the material is controlled by the generator; or if both the generating
facility and the facility combusting the material are under 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 remains within the control of the generator (as
defined in Sec.  241.2) and that meets the legitimacy criteria
specified in paragraph (d)(1) of this section.

    (2) Non-hazardous secondary materials used as an ingredient in a
combustion unit and that meets the legitimacy criteria specified in
paragraph (d)(2) of this section.
    (3) Fuel or ingredient products that have undergone processing (as