adequately contained so as to prevent releases to the environment.
Where there is no analogous fuel, the non-hazardous secondary material
must be adequately contained so as to prevent releases to the
environment. An ``analogous fuel'' is a traditional fuel for which the
non-hazardous secondary material substitutes, and which serves the same
function and has similar physical and chemical properties as the non-
hazardous secondary material. In addition to requesting comment on this
criterion, the Agency solicited comment on whether it should define a
specific ``reasonable'' time frame or range of time frames for storage
as part of this criterion and on the time period or range of time
periods that traditional fuels are typically held before they are used
as a fuel. Comment was also solicited as to whether the ``contained''
standard, which is a general performance standard, provides sufficient
direction to the regulated community or whether the Agency should
include specific technical standards or limit the types of units in
which such non-hazardous secondary materials may be managed, in order
for them to be considered to be ``managed as a valuable commodity.''
    Comment: Recommendations on a reasonable time frame to determine if
a non-hazardous secondary material is managed as a valuable commodity
brought a range of responses. Many commented that a one-rule-fits-all
policy for the reasonable time frame of storage of non-hazardous
secondary materials is impractical and arbitrary, since the definition
of what is ``reasonable'' will vary by secondary material, industry,
and facility. Instead, they argued that facilities should be allowed to
determine what constitutes the most reasonable time frame, based on
what is most economical. The most appropriate time frame will vary
depending upon the non-hazardous secondary material and the industry
and may reflect the rate at which the non-hazardous secondary material
at issue is generated. If a non-hazardous secondary material is
generated continuously, then use and storage is predictable and can be
kept consistent. However, some non-hazardous secondary materials are
stored for long periods and may be removed only once or twice per year.
    While many commenters rejected the idea of a specific storage time
limit, a limited number were supportive of such an approach. For
example, one commenter recommended that no more than 180 days of
inventory using the design process rate be stored at any given time and
no more than 49 percent of the inventory be in storage for more than 2
years. These time frames allow the energy/material recovery facility a
reasonable amount of time to make arrangements to establish, buy, and
sell the non-hazardous secondary material. Other commenters recommended
a time frame of one year, consistent with the hazardous waste
requirements for speculative accumulation.
    EPA's Response: After further evaluation, EPA agrees with the
majority of commenters that ``reasonable time frame'' should not be
specifically defined as such time frames vary according to the non-
hazardous secondary material and industry involved. The ``reasonable
time frame'' 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 of these materials to be cost-
effective. In addition, persons will need to document in their records
the ``reasonable time frame'' selected and the basis for such time
frames. (See Section VII.I for further discussion on documentation of
legitimacy decisions.) The Agency did not receive information that such
flexibility would lead to non-hazardous secondary materials being over-
accumulated.
    Comment: The Agency solicited 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 considered were: (1)
Providing a more specific definition of ``contained'' in the rules, or
(2) including specific technical standards or (3) limiting the types of
units in which such non-hazardous secondary materials may be managed,
in

order for them to be considered to be ``managed as a valuable
commodity.''
    Several commenters recommended that the definition of ``contained''
be clarified and to include the concept of maintaining the
recyclability of the non-hazardous secondary material. In contrast,
other commenters stated that the proposed ``contained'' standard
provides sufficient direction to the regulated community and that the
definition of ``contained'' in the proposed rule adequately describes
how and when a non-hazardous secondary material will be considered
``contained.'' They asserted that industry will use this definition as
a general guideline for the safe handling and storage of non-hazardous
secondary materials and that further ``specific'' definitions or other
approaches would not be beneficial since the current guidance provides
clear and sensible direction.
    Others commented that the ``contained'' standard is inadequate to
determine whether a material is ``valuable'' or discarded. They argue
that the standard does not explain what adequately contained means nor
does it account for differences in the necessary level of containment
for different materials.
    EPA's Response: The Agency recognizes that the ``contained''
concept can be somewhat difficult to grasp, but also notes that the
``contained'' standard is to be used only in those situations where
there is not an analogous fuel product. That is, if there is an
analogous fuel product to the non-hazardous secondary material, then
the non-hazardous secondary material must be stored in a similar manner
and, since it is indeed a valuable material, EPA could reasonably
expect it to be contained so as not to be lost to the environment. In
EPA's view, a recycler will value non-hazardous secondary materials
that are contributing fuel value to its process or product and,
therefore, will manage those non-hazardous secondary materials in a
manner consistent with how it manages a valuable fuel. If, on the other
hand, the recycler does not manage the non-hazardous secondary
materials as it would a valuable fuel, that behavior may indicate that
the non-hazardous secondary materials may not be burned as fuel, but
rather released into the environment and discarded. This criterion's
primary focus is on storage in a manner consistent with the analogous
valuable raw material.
    However, EPA realizes that in some processes, there is not a raw
material that can be called ``analogous'' and, in order to allow
facilities with those processes to evaluate the legitimacy of their
recycling, EPA added the requirement that the materials be
``contained'' if there is no analogous product to achieve the same
relative standard of secondary materials being managed as valuable
commodities. Furthermore, EPA has explained what it means to be
contained in today's preamble and includes that definition in the
regulatory text. Specifically, a non-hazardous secondary material is
``adequately contained'' if it is stored in a manner that adequately
prevents releases or other hazards to human health and the environment,
considering the nature and toxicity of the secondary material. Thus, we
are finalizing the contained standard, as proposed.
    Nevertheless, the Agency recognizes that providing greater clarity
to this definition may be useful to the regulated community and the
public. To this end, EPA has agreed to issue a proposed rule by June
2011 on the definition of solid waste under the hazardous waste
provisions of RCRA (see Section VIII.C for additional details). One of
the issues that EPA will be evaluating as part of that proposal is the
``contained'' standard, as promulgated in that rule.\152\
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    \152\ In a Federal Register notice where EPA announced a public
meeting on the Definition of Solid Waste under the hazardous waste
provisions of RCRA, we specifically identified the definition of
``contained'' as one of the provisions that EPA was further
evaluating. (74 FR 25202, May 27, 2009.) Among other things, the
Agency noted that it could ``address this issue by setting specific
performance or storage standards as a condition of the transfer-
based exclusion. Finally, EPA could address this concern by
developing more detailed guidance on what might constitute
``contained,'' for different types of units or management
practices.''
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    Comment: Several commenters expressed uncertainty about the meaning
of ``valuable commodity,'' noting that the definition of valuable
commodity should be clarified, or requested that EPA specify clear
criteria for determining whether a non-hazardous secondary material is
managed as a valuable commodity.
    EPA's Response: Given the nature of this legitimacy criterion and
the need to apply it to a variety of non-hazardous secondary materials
that are managed in various ways, we have determined that it is not
appropriate or practicable for EPA to develop specific technical
standards. The Agency is using this criterion: Materials must be
managed as analogous raw materials or, if there are no analogous raw
materials, the materials must be adequately contained; contained is
defined to mean ``the non-hazardous secondary material is stored in a
manner that adequately prevents releases or other hazards to human
health and the environment considering the nature and toxicity of the
non-hazardous secondary material.'' This definition provides ample
direction and guidance, as a number of commenters argued, while at the
same time provides the flexibility needed since this criterion will
apply to a large number of non-hazardous secondary materials and
industries. As an example, resinated wood residuals are adequately
contained since they are pneumatically transferred through enclosed
ducts, stored temporarily in a fuel silo, and then utilized in boilers
to provide heat to hot presses and dryers (see Section V.B.6).
    Regarding the term ``valuable commodity,'' EPA's intent with this
criterion is that non-hazardous secondary materials are managed in the
same manner as materials that have been purchased or obtained at some
cost, just as fuels or raw materials are. We expect non-hazardous
secondary materials that are used as fuels or ingredients to be managed
effectively and efficiently in order that their full value to the
combustion process is realized. The standard for management of the non-
hazardous secondary materials is reasonable for helping assess whether
disposal in the guise of normal manufacturing is occurring. As an
example, scrap tires collected under the oversight of established tire
collection programs (see Section VII.C) would generally be considered
managed as a valuable commodity. These programs promote the beneficial
use of scrap tires and form established collection infrastructures
through coordination with tire dealerships, haulers, processors and end
users. On the other hand, scrap tires that are managed in waste tire
piles would not be considered to be managed as a valuable commodity
because they are stored for long periods of time without any
safeguards.
    Comments: One commenter suggested that the tests to determine if a
material is managed as a valuable commodity (determining if it is
managed consistent with the management of an analogous ingredient and
used within a reasonable time frame) are irrelevant because solid
wastes are managed in ways similar to commodities (i.e., solid wastes
and solid commodities are stored in piles on the ground, liquid wastes
and commodities are stored in tanks and barrels). Another commenter
asked that EPA provide clarity on managing a non-hazardous secondary
material as a valuable commodity and the kinds of practices a facility
must implement to demonstrate that it is managing the non-hazardous
secondary material as a valuable commodity.

    EPA's Response: We disagree with the commenter that this criterion
is irrelevant because we cannot determine (nor does our experience
suggest) that solid wastes and commodities are always managed in a
similar manner. Commodities, on the one hand, are handled specifically
to prevent the loss of material because of its value. Solid wastes, on
the other hand, when they are not highly regarded for a beneficial
reuse, are often not managed in a way that minimizes the release of the
material itself, but more in a way that protects the surrounding
environment from the material. However, we also know that solid wastes,
if not properly managed, have created damages to the environment. For
example, the over-accumulation of scrap tires is well known and has
resulted in massive piles of discarded tires that have contributed to
the overall solid waste management problem due to the threat of fires,
such as the Rhinehart Tire Fire Dump,\153\ and because they provide an
ideal breeding ground for mosquitoes and rodents.
---------------------------------------------------------------------------

    \153\ See 51 FR 21054, June 10, 1986.
---------------------------------------------------------------------------

    As discussed previously, given the nature of this legitimacy
criterion and the need to apply it to a variety of non-hazardous
secondary materials that are managed in various ways, we are not
identifying specific standards or practices for managing a material as
a valuable commodity beyond those examples for resinated wood and scrap
tires outlined above. If any material, whether a non-hazardous
secondary material or a raw material commodity, is mis-managed in a
manner that releases significant material to the environment, a waste
problem may result. Although the raw material commodity is not subject
to the RCRA definition of solid waste, the released material may be. In
this rule, where the Agency is dealing with secondary materials that
could either be wastes or commodities, if non-hazardous secondary
material is being released to the environment, it would not be
considered a commodity material. All site-specific practices designed
to meet the legitimacy criteria must be documented as outlined in
Section VII.I.
    Thus, the final rule will retain the proposed approach that non-
hazardous secondary materials used as a fuel must be managed in a
manner consistent with the management of an analogous fuel (where there
is an analogous fuel), or otherwise be adequately contained so as to
prevent releases to the environment.
2. Meaningful Heating Value and Use as a Fuel
    Under the proposed rule, the non-hazardous secondary material must
have a meaningful heating value and be used as a fuel in a combustion
unit that recovers energy. In addition to requesting comment on this
criterion, the Agency also requested 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. In addition, EPA requested comment on whether we should
identify a Btu/lb cutoff below which the Agency would declare that the
non-hazardous secondary material is being 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; below this lower level, all non-hazardous secondary materials
that are burned in a combustion unit would be considered to be burned
for destruction and thus a solid waste if combusted.
    Comment: Many comments related to the establishment of a Btu
threshold claimed that any heating value is ``meaningful.'' Other
commenters expressed opposition to the imposition of a bright-line
test, with one commenter arguing that inflexible Btu/lb cutoffs, as
well as ``benchmark'' values could prevent utilities and other
industries from using alternative fuels to recover energy. Another
commenter echoed opposition to a bright-line test since the use of a
non-hazardous secondary material with any heating value reduces the use
of fossil fuels, indicating that any value for the bright line test
would be arbitrary and would result in costly impacts to current
production systems and would stifle technological advancements in
combustion unit designs.
    Other commenters stated that a minimum heating value, below which
the non-hazardous secondary material would not be considered to have a
meaningful heating value will restrict the marketplace, hamper advances
and innovation in energy recovery, and add costs where they are not
justified from an environmental standpoint. If EPA insists on a minimum
heating value, they recommend including a cost effectiveness provision
in the rule that would enable facilities to demonstrate the value of
using a material below this threshold.
    Commenters from state agencies differed somewhat in their positions
regarding the 5,000 Btu/lb threshold. Two state agencies requested that
EPA lower the minimum Btu threshold from 5,000 Btu/lb to 4,000 Btu/lb,
but another State agency supports the 5,000 Btu/lb threshold. Still
another state commenter recommends that if EPA establishes a lower
threshold, below which the non-hazardous secondary material would not
be considered to have a meaningful heating value, that this value be
based on innovation in energy recovery technologies from secondary
materials with lower heating values. Due to the continuing evolution of
energy recovery technologies, this commenter argues that EPA should
include a ``safe harbor'' cut-off level in the rule with a provision
for case-by-case approvals based on the most current proven technology.
Another commenter recommends that if such a lower threshold is
established, that it be based on the high moisture content of wood
products that prevent these materials from reaching the minimum 5,000
Btu/lb threshold.
    EPA's Response: After further evaluation, the Agency agrees with
commenters that imposition of a strict bright-line test for minimum
heating value could hamper advances and innovation in energy recovery,
and add costs where they are not justified. The Agency also did not
receive persuasive information that a lower than 5,000 Btu/lb
threshold, or entirely eliminating the threshold, would be an
appropriate measure in establishing this legitimacy criterion.
    As discussed in the proposed rule, the concept of a 5,000 Btu/lb
benchmark was addressed in the ``comparable fuels'' rule (63 FR 33781)
for hazardous secondary materials. EPA had 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, hazardous
wastes with a lower Btu content could conceivably be burned for energy
recovery due to the devices' general efficiency of combustion. At the
same time, EPA is trying to avoid sham situations where non-hazardous
secondary materials with low Btu value are burned for destruction in
lieu of proper disposal.
    Thus, the 5,000 Btu/lb limit is a general guideline, which is being
adopted in this final rule, but allows

some flexibility. To allow such flexibility 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, a person may
demonstrate (see Section VII.I Determining That Non-Hazardous Secondary
Material Meets the Legitimacy Criteria) 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
appropriate in determining whether an energy recovery unit can cost-
effectively recover energy from the non-hazardous secondary material
include, but are not limited to, whether the facility encounters a cost
savings due to not having to purchase significant amounts of
traditional fuels they otherwise would need, whether they are
purchasing the non-hazardous secondary material to use as a fuel,
whether the non-hazardous secondary material they are burning can self-
sustain combustion, and whether their operation produces energy that is
sold for a profit (e.g., a utility boiler that is dedicated to burning
a specific type of non-hazardous secondary material that is below 5,000
Btu/lb could show that their operation produces electricity that is
sold for a profit).
3. Have Contaminants at Comparable Levels or Lower Than Traditional
Fuels
    Under the proposed rule, non-hazardous secondary materials must
contain contaminants at levels comparable to or lower than those in
traditional fuels which the combustion unit is designed to burn. Such
comparison is to be based on a direct comparison of the contaminant
levels in the non-hazardous secondary material to the traditional fuel
itself. Contaminants were defined under the proposal as 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 a fuel or used as an ingredient, including
those constituents that could generate products of incomplete
combustion.
    The Agency specifically solicited comments on how EPA should
interpret the ``comparable to or lower than'' standard. For example,
should comparable mean the same as or lower, taking into consideration
natural variations in sampling events? Also, instead of requiring that
contaminant levels in non-hazardous secondary materials be comparable
to traditional fuels, the Agency also requested comment as to whether
to adopt a ``not significantly higher'' standard--that is, 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.
    The Agency also solicited 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, whether the list of contaminants
should be narrower or broader, or whether the Agency should look at
other possible lists. For example, 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 40 CFR 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. Finally, comment was solicited as to
whether the comparison should be based on an established ``bright
line'' level of contaminants to those contained in traditional fuels.
    Comment: Several commenters addressed the ``comparable'' standard
and the ``not significantly higher'' standard. Many of these comments
stated that ``comparable'' should be understood to mean ``similar,
higher or lower,'' not ``equal'' or the ``same.'' Commenters also
requested that EPA clarify the definition of ``comparable'' and
specifically requested that EPA explain the concept in greater detail.
Of the comments that expressed a preference for either the
``comparable'' or ``not significantly higher'' standard, most preferred
the latter, stating that it is more consistent with the approach used
by EPA for hazardous waste in the 2008 DSW Final Rule and would not
discourage beneficial use as much as the ``comparable'' standard. Two
other commenters argued that instead of using a ``not significantly
higher'' standard, the total environmental impact of using a non-
hazardous material should be considered. For example, a non-hazardous
secondary material may be lower in all contaminants, except one that
may be considered higher than ``comparable,'' but the overall impact is
beneficial in terms of less total contaminants and improved emissions.
    Other commenters offered suggestions on how to interpret
``comparable,'' but also on how to implement the ``comparable''
standard. For example, ``comparable'' should refer to the traditional
fuel that would be used if the non-hazardous secondary material was not
being burned or allowed to be burned. Another commenter believed that
the ``comparable'' standard should only be used as an initial step to
determine if the material is a legitimate fuel. For example, where a
material has high levels of a low-impact contaminant or a contaminant
is controlled by the emission control device in the incineration unit,
there should be a process to see whether the material can still be
considered a fuel. Similarly, another commenter also recommended using
the ``comparable'' standard as an initial determination step, with the
``not significantly higher'' standard being used as a secondary
determination step in some situations. These situations would primarily
be when there is a low-impact contaminant without environmental,
health, or product quality impacts present in concentrations above
those found in traditional raw materials.
    EPA's Response: EPA has retained the legitimacy criterion that non-
hazardous secondary materials used as a fuel must contain contaminants
at levels that are comparable to or lower than the concentrations found
in traditional fuels which the combustion unit is designed to burn. The
``comparable to or lower than'' standard means any contaminants present
in non-hazardous secondary materials that are within a small acceptable
range, or lower than, the contaminant in the traditional fuel. We have
decided to select this standard since we have determined it more
closely reflects EPA's intent with respect to this legitimacy criterion
than the phrase ``not significantly higher,'' which suggests that
contaminants can be present in non-hazardous secondary materials at
levels that could reflect discard, especially since we are addressing
non-hazardous secondary materials that are being combusted.
    EPA recognizes that combustion is an inherently destructive
process, even when energy is recovered. If a non-hazardous secondary
material contains contaminants that are not comparable to those found
in traditional fuels, and those contaminants are related to pollutants
that are of concern at solid waste combustion units, then it follows
that discard is occurring. The contaminants in these cases could not be
considered a normal part of a legitimate fuel and are being discarded,
either through destruction in the combustion unit or through releases
into the air. Units that burn such materials are therefore most
appropriately

regulated under the CAA section 129 standards for solid waste
incinerators.
    In response to those commenters requesting further guidance on how
to interpret the ``comparable to or lower than'' standard, the
following examples are provided.
     A non-hazardous secondary material contains 500 parts per
million (ppm) of lead, while the traditional fuel that would or could
be burned in the combustion unit contains 475 ppm of lead. These levels
would be considered comparable (since it falls within a small
acceptable range) and thus, would meet this factor. If, on the other
hand, the level of lead in the non-hazardous secondary material was
1,000 ppm, these levels would not be comparable and it may indicate
that the non-hazardous secondary material was being burned to dispose
of the material and that the activity is sham recycling.
     A traditional fuel contains no detectable amounts of
barium, while the non-hazardous secondary material contains a minimal
amount of barium (e.g., 1 ppm). In this situation, the levels would be
considered comparable since it falls within a small acceptable range.
If, however, the barium were at much higher levels in the non-hazardous
secondary material (such as 50 ppm), the levels would not be comparable
and it may indicate discard of the barium and sham recycling.
    EPA does not agree with those commenters who suggest that in
evaluating the constituent concentrations in non-hazardous secondary
materials, that the total environmental impact should be considered,
rather than comparing each constituent to levels found in traditional
fuels. Under such an approach, a non-hazardous secondary material may
be judged not to present an environmental problem when assessing all
contaminants together, although significantly higher levels for one or
more contaminants may be present such that they are destroyed or
discarded by means of combustion. This, we have determined, is
inconsistent with the concept of discard under the statute, since it
would allow a solid waste to be subject to the CAA section 112
standards, even though the non-hazardous secondary material has been
discarded.
    We also disagree with commenters who believe that the comparable
standard should only be used as an initial step to determine if the
material is a legitimate fuel, particularly in those situations
involving low-impact contaminants. Today's rule does not differentiate
low-impact contaminants from other contaminants, since such an
assessment would require a risk analysis of each chemical. We believe
that ``comparable'' is protective because it ensures that no more
contaminants than those found in traditional fuels are released into
the environment. EPA has already determined that these contaminants
pose a threat to human health and the environment. Therefore, the
Agency will finalize the proposed approach of evaluating all of the
contaminants to ensure that they are present in the non-hazardous
secondary material at levels that are comparable to (or lower than) the
concentrations found in traditional fuels that the combustion unit is
designed to burn.
    Comments: Many comments discussed whether contaminants, and their
concentrations in the non-hazardous secondary material, should have any
bearing on the legitimacy determination for a given non-hazardous
secondary material. Many of these commenters expressed opposition to
using contaminants, and their concentrations in the non-hazardous
secondary material, as a basis for legitimacy decisions. Some of these
commenters argued that comparing contaminant levels would impose an
unnecessary burden on emissions sources that are already stringently
controlled under the CAA regulations. Other comments indicated that it
would be more appropriate to compare emissions profiles from the
combustion units rather than contaminant levels in the non-hazardous
secondary materials themselves using the CAA section 129 pollutant list
and the 112 HAP list. Referring to existing stack testing data and the
risk assessment performed by the cement industry, the commenter states
that ``it is accepted that organics in fuels do not survive intact to
exit a cement kiln or cause harm to human health and the environment.
In addition, stack testing comparing different fuels (tires, waste-
derived fuel, coal, coke, etc.) on a single kiln system under normal
operating conditions supports the same conclusion.''
    States offered a range of comments on this issue. One state
contends that using the list of contaminants in CAA section 129(a)(4)
is inadequate because it does not address all heavy metals or organic
hazardous air pollutants. Another commenter argued that while section
112 of the CAA and Appendix VIII of 40 CFR part 261 would be
impractical if parameter testing was required, the Appendix VIII list
of constituents in 40 CFR part 261 would serve as a useful starting
point for evaluating different issues related to those contaminants.
    Other commenters suggested that EPA narrow the list of contaminants
considered in the legitimacy criteria. One commenter recommends that
those constituents that contribute to the secondary material's value as
a fuel be excluded from the contaminant list. Another commenter states
that the list of contaminants should be limited to only the subset of
HAP and pollutants listed in CAA section 129 that have the potential of
being present in the emissions from burning the non-hazardous secondary
materials. Broadening the list and requiring the evaluation and
analysis of more constituents would be unnecessary and a waste of
resources. The commenter, therefore, recommends that the list of
contaminants be limited to only those pollutants found in section 112
of the CAA. Furthermore, this commenter argued that organic HAP do not
need to be included in the legitimacy criteria because the rule is
intended to define which non-hazardous secondary materials are non-
wastes, as opposed to which HAP emission standards should be developed.
The commenter further notes that the Boiler and Process Heater MACT
will ensure that the organic HAP are properly controlled. Finally,
although not specifically commenting on the legitimacy criterion for
contaminants in the contaminant definition, the Agency received several
comments that pathogens are present in both manure and sewage sludge,
and received specific monitoring data confirming the presence of
pathogens in certain varieties of chicken litter.
    EPA's Response: EPA is defining the term ``contaminant,'' as
constituents 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 non-hazardous secondary materials are
burned as a fuel or used as ingredients, including those constituents
that could generate products of incomplete combustion. EPA has decided
that these constituents are appropriate for the comparisons required by
this criterion because these are the contaminants identified in the CAA
that are to be considered by EPA in evaluating which contaminants to
establish emission standards. Thus, we disagree with those commenters
who believe that the list should be narrowed, including the commenter
who argued that those contaminants that contribute to the material's
value as a fuel be excluded from the list of contaminants, as well as
all organic HAP since they will be burned during the combustion
process. Because EPA is to consider these contaminants as part of the
CAA regulations, they should also be

considered in determining whether non-hazardous secondary materials
that contain these contaminants are being discarded, and thus, subject
to the section 129 CAA standards.
    We also disagree with the commenters who argue that the list is not
broad enough because it does not address all heavy metals, organic
hazardous pollutants or pathogens for the same reasons described
above--that is, we should be focusing, in general, on those
contaminants identified in the CAA that EPA will be evaluating to
determine whether to establish emission standards. The Agency also
disagrees that Appendix VIII to 40 CFR part 261 is an appropriate list
for determining which contaminants to consider for the purposes of
defining non-hazardous solid waste, since the purpose of Appendix VIII
is to be used by the Agency to make hazardous waste listing
determinations (see 40 CFR 261.11(a)(3)) and the chemicals in Appendix
VIII would not apply to non-hazardous wastes.
    Finally, we disagree with those commenters who argue that we should
not be considering the contaminants in the non-hazardous secondary
materials themselves as part of the legitimacy criteria, but, if
considered necessary, compare the emissions profiles from the
combustion units. In order for a non-hazardous secondary material to be
considered a non-waste fuel, it must be similar in composition, whereas
comparing the emissions profiles between combustion units that burn
traditional fuels and non-hazardous secondary materials only tells one
how well the combustion unit is operating, not what the secondary
material is that is being burned. Thus, while the Agency recognizes
that such data can be useful in determining whether or not burning such
secondary materials present a risk to human health or the environment,
such a concept says nothing in terms of whether or not the non-
hazardous secondary material is a legitimate non-waste commodity fuel.
    Moreover, when contaminants have no fuel value, and are being
destroyed, they do not have an energy recovery intention. Burning is an
inherently destructive process, even if there is a beneficial use.
Therefore, the Agency needs to be cautious in evaluating whether
burning a non-hazardous material for energy recovery, also has a waste
destroying intention.
    Comment: Some commenters believe the approach of measuring
contaminants per Btu was more scientifically sound, while one commenter
argued that comparisons of contaminants should focus on the loading of
contaminants to the process rather than concentrations, which they
believe is similar to measuring contaminants per Btu in ingredients.
For example, the commenter indicates that coal fly ash is utilized in
place of bauxite in cement manufacturing. Because coal fly ash may
contain only 20 percent of the alumina found in bauxite, the process
requires five times more coal fly ash than alumina for a given quantity
of cement product. Under this scenario, even if coal fly ash contains a
mercury concentration comparable to bauxite, the loading of mercury to
the combustion unit would be five times higher than that if traditional
feedstock was used. The commenter maintains that the rule should be
changed to require a comparison of loading rates rather than
concentrations.
    Another commenter argues that any comparison between contaminant
levels in the non-hazardous secondary material and contaminant levels
in traditional fuels should consider the entire characteristics of the
material. Some non-hazardous secondary materials may have high
concentrations of some constituents and low concentrations of others,
relative to traditional fuels. Thus, decisions regarding legitimacy
will not always be clear cut and the overall characteristics need to be
considered qualitatively. In addition, given the variability of
constituent concentrations in traditional fuels and non-hazardous
secondary materials, solid waste determinations which requires a
comparison, should allow for such variability in a reasonable manner.
The commenter supports the method that looks at constituent
concentrations (e.g., percent by weight or ppm by weight) as a
reasonable approach that limits the impact of variability, whereas
using lb/MMBtu compounds the impacts of variability. Since either the
Boiler/Process Heater MACT or CISWI rule will adequately limit
emissions from combustion of non-hazardous secondary materials, there
is no justification for evaluating contaminant comparisons on a heating
value basis.
    EPA's Response: The Agency agrees with commenters that a lb/MMBtu
approach can serve to normalize contaminant concentration comparisons
across a range of material loading scenarios. At this time, however,
the Agency lacks sufficient lb/MMBtu information for all non-hazardous
secondary materials under consideration. Accordingly, this approach is
not being adopted for today's final rule. As guidance is developed for
implementation, a lb/MMBtu approach may be further considered. Thus, in
today's final rule, 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 based on the total level of contaminants,
and not on contaminants per Btu of heat value. This approach is most
appropriate because contaminant information is readily available to the
respondent.
    The Agency recognizes that variability in constituent levels exist
in non-hazardous secondary materials and traditional fuels, generally
based on the source and geographic region that the material came from.
Thus, we agree that such considerations can be taken into account in a
reasonable manner when comparing constituent levels in the non-
hazardous secondary material and the traditional fuel.
    We disagree with the commenters that comparison between contaminant
levels in the non-hazardous secondary material and contaminant levels
in traditional fuels should consider the entire characteristics of the
material. Such an approach would suggest that contaminants can be
present in the non-hazardous secondary material at levels that are not
comparable in concentration to those contained in traditional fuel
products, which could result in contaminants being combusted as a means
of discarding them.
    Comment: Commenters disagreed about whether to implement a bright-
line test for contaminants. One commenter supports the delineation of
bright-line contaminant levels that would apply regardless of the type
of traditional fuel burned, while another commenter maintains that it
would not be appropriate to compare contaminant concentrations between
non-hazardous secondary materials and traditional fuels based on a
bright line approach. Another commenter states that the need to
classify non-hazardous secondary materials as waste or non-waste may
dictate the need for a bright line test rather than emissions testing
from combustion units, given that emissions controls and limits are
established in permits. Other commenters also disagreed with the
establishment of a bright-line level comparison, with one commenter
objecting to the establishment of any other contaminant level
comparison, arguing that such a comparison would provide no benefit to
the regulated community and arbitrarily assigns levels of contaminants
without

accounting for differences in materials and/or facilities.
    EPA's Response: EPA recognizes that the ``bright line'' approach
may provide greater clarity and predictability to the regulated
community, but that in both cases, the Agency would have to establish a
line for what is acceptable and the line may either be somewhat
arbitrary or it may exclude materials that, if carefully considered,
should be considered legitimate. Based on the comments received on
those approaches, we are convinced that they would not be workable. On
the other hand, case-by-case comparisons by each person evaluating this
legitimacy criterion can take into account the wide variety of non-
hazardous secondary materials, as well as the appropriate traditional
fuel to which it is being compared. Because this factor must apply to
various different recycling activities and industries, the case-by-case
approach is most appropriate.

E. Comments on Legitimacy Criteria for Ingredients

    In the proposed rule, non-hazardous secondary materials used as an
ingredient in combustion units must meet the legitimacy criteria
specified in 241.3(d)(2) in order to be considered a non-waste
ingredient. To meet the ingredient legitimacy criteria, the non-
hazardous secondary material must be handled 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 must result in products that contain contaminants at levels that
are comparable in concentration to or lower than those found in
traditional products that are manufactured without non-hazardous
secondary materials.
1. Managed as Valuable Commodities
    Because the criterion ``managing as a valuable commodity'' for non-
hazardous secondary materials used as an ingredient (storage not
exceeding reasonable time frames, manage it consistent with an
analogous ingredient or adequately contain to prevent release) are the
same as those for non-hazardous secondary materials used as a fuel, EPA
indicated that if changes are made to the criteria 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 ingredients. We did solicit
comments, however, on whether using these criteria for managing as
valuable commodities (similar to the type of criteria for fuels) are
appropriate for ingredients.
    Comment: As discussed in the section on legitimacy criteria for
fuels, one commenter suggested that the criterion that a non-hazardous
secondary material be managed as a valuable commodity (determining if
it is managed consistent with the management of an analogous ingredient
and used within a reasonable time frame) is irrelevant because solid
wastes are managed in ways similar to commodities (i.e., solid wastes
and solid commodities are stored in piles on the ground, liquid wastes
and commodities are stored in tanks and barrels). Another commenter
requested that EPA provide clarity on managing a non-hazardous
secondary material as a valuable commodity and the kinds of practices a
facility must implement to demonstrate that it is managing the material
as a valuable commodity.
    EPA's Response: The final rule will retain the proposed approach
that this legitimacy criterion for non-hazardous secondary material
used as ingredients (i.e., that they must be managed as valuable
commodities) will be consistent with that of fuels. As we noted
previously, we disagree with the commenter that solid wastes and
commodities are always managed in a similar manner. That is,
commodities, on the one hand, are handled specifically to prevent the
loss of the material because of its value. Solid wastes, on the other
hand, when they are not highly regarded for a beneficial reuse, are
often not managed in a way that minimizes the release of the material
itself, but more in a way that protects the surrounding environment
from the material. However, we also know that solid wastes, if not
properly managed have created damages to the environment. Thus, non-
hazardous secondary materials used as an ingredient must be managed in
a manner consistent with the management of an analogous ingredient
(where there is an analogous ingredient), or otherwise be adequately
contained so as to prevent releases to the environment. For example,
non-hazardous secondary materials that are used as ingredients in
cement kilns must be managed in a manner consistent with the analogous
ingredients that these secondary materials are replacing. An
``analogous ingredient'' is defined as 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. Where there is no
analogous ingredient, the non-hazardous secondary material must be
adequately contained so as to prevent releases to the environment.
However, the Agency may provide further guidance on what we consider to
be managed as a valuable commodity.
2. Useful Contribution
    EPA received comments on the five ways the proposed rule states
that a non-hazardous secondary material can add value and usefully
contribute to a recycling process (based on criteria initially
developed for hazardous secondary materials): (i) The non-hazardous
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. The proposed rule stated that 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 requested comment, however, on
whether the non-hazardous secondary materials we are assessing as
ingredients can provide useful contributions in other ways.
    Comment: A commenter requested that the EPA remain flexible and
acknowledge that there may be other ways to demonstrate a secondary
materials' useful contribution.
    EPA's Response: The Agency was unable to identify, and commenters
did not identify any other way a non-hazardous secondary material could
contribute to the recycling process, so the language in the final rule
was not changed. The two ways to determine if the material provides a
useful contribution are sufficiently flexible and will provide for
accurate assessments. Thus, the final rule will continue to maintain
that non-hazardous secondary materials contribute valuable ingredients
to a product or intermediate and that non-hazardous secondary materials
are used as an effective substitute for a commercial product will be
used to determine if a material provides a useful contribution as an
ingredient.
3. Quantifying an Ingredient's Contribution to Production/Manufacturing
Activity
    Not all of the constituents or components of the non-hazardous
secondary material have to make a contribution to the production/
manufacturing activity. EPA solicited comments on whether the Agency

should quantitatively define how much of the non-hazardous secondary
material must provide a useful contribution, or alternatively, the
quantity of constituents or components in a non-hazardous secondary
material there would need to be before the non-hazardous secondary
material would not be considered to provide a useful contribution.
    Comment: Generally, commenters disagreed with the establishment of
a quantitative definition as to how much of a material must provide a
useful contribution. One state agency is opposed to a quantitative
definition because the numbers will vary by non-hazardous secondary
material. Similarly, another state commenter also opposed a nationwide
definition or percentage stipulating what constitutes a ``useful
contribution'' because of the different possible reuse processes that
may vary in terms of the amount of material that is deemed useful. One
other commenter also objected to the establishment of any limits, but
specifically commented on the establishment of a quantitative
definition. They explain that a given non-hazardous secondary material
can have several useful components, but the ability to use those
components is dependent on the available manufacturing process or
technology type. This variation would make it difficult and inefficient
to apply a general quantitative rule of useful contribution.
    EPA's Response: We agree with the commenters that quantifying the
amount that all non-hazardous secondary materials must contribute to a
production/manufacturing activity would be a challenge, if at all
possible, given the breadth and depth of ways that non-hazardous
secondary materials may be used as ingredients in combustion processes.
As the non-hazardous secondary materials vary significantly in their
character, composition and uses, trying to define useful contribution
quantitatively would not, in our view, be practical. The complexities
of defining ``useful contribution'' so that it can be determined
through a bright-line test, and remain appropriate across industries,
different recycling processes, and a variety of recycled non-hazardous
secondary materials are too great for the Agency to design in a simple
and straightforward manner so as to be used in making such
determinations. In addition, legitimacy determinations are best made on
a case-by-case basis, with the facts of a specific situation in hand.
Thus, we have not defined a quantitative amount that non-hazardous
secondary materials must contribute.
    In general, the regulated community should look to typical industry
recovery rates in similar manufacturing processes to determine if the
recycling recovery rates are reasonably efficient in terms of the
ingredient making a useful contribution to the recycling process or
product. In addition, it should be noted that EPA would generally look
at the quantity required, the duration, and the extent of processing,
and/or the rate of recovery of the overall process, not the recovery
rate of a single step in the process, when analyzing this criterion for
legitimacy. For example, if one step in the process recovers a small
percentage of the constituent, but the overall process recovers a much
larger percentage, the Agency would consider the overall efficiency of
the recycling process in determining whether the non-hazardous
secondary materials are providing a useful contribution. This assumes
that there is enough of the target constituent or component present in
the non-hazardous secondary materials to contribute meaningfully as an
ingredient to the recycling process.
    In addition, the Agency is reiterating its longstanding position
that not every constituent or component in a non-hazardous secondary
material would have to contribute to a recycled product or intermediate
or to the recycling process in order for there to be an overall
contribution. Thus, we agree with commenters who raised questions about
this and have restated our position in this preamble to the final rule.
4. Contaminants in Ingredients
    The Agency requested comments on whether we should have a different
definition of contaminants that applies specifically to ingredients.
That is, since contaminant comparisons for the contaminant legitimacy
criterion apply to a comparison of products rather than to the non-
hazardous secondary material, we requested 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.
    Comment: Commenters suggested that when comparing the products
derived from non-hazardous secondary materials and traditional raw
materials, the Agency be mindful of the fact that the concentrations of
contaminants can vary geographically. In terms of cement production, a
few commenters said that the current stringent product standards
effectively keep cement kilns from using contaminated ingredients. One
state supports the use of the same contaminant list for non-hazardous
secondary material fuels and ingredients, but notes that EPA should
recognize that constituent concentrations for a given virgin fuel or
feedstock can vary dependent on the geographic region of where it is
produced. Another commenter said that since all processes differ, the
states should be allowed to establish a petition process for
ingredients where industry can demonstrate that the higher
contamination in a given non-hazardous secondary material will not
result in harm to human health or the environment (i.e., through either
risk assessment or handling restrictions). Another commenter argued
that using the list of contaminants in CAA section 129(a)(4) is
inadequate because it does not address all heavy metals or organic
hazardous air pollutants. Still, another commenter suggested that
although the CAA section 112 HAP list and the list of constituents in
Appendix VIII of 40 CFR part 261 would be impractical if parameter
testing was required, Appendix VIII of 40 CFR part 261 would be a good
starting point for evaluating different issues related to those
contaminants. Finally, one state agency recommends the Agency develop a
list of currently acceptable non-hazardous secondary materials used as
ingredients for quick reference and develop guidance to assess
materials not on the list.
    EPA's Response: EPA is defining the term ``contaminant'' to include
constituents that may result in emissions of air pollutants identified
in CAA section 112(b) and the nine pollutants listed under CAA section
129(a)(4)) when such non-hazardous secondary materials are burned as a
fuel or used as an ingredient, including those constituents that could
generate products of incomplete combustion. These constituents are
appropriate for the comparisons required by this criterion because
these are the contaminants identified in the CAA that are to be
considered by EPA in evaluating which contaminants to establish
emission standards. That is, the contaminants to be considered in the
legitimacy criteria should generally be the same that EPA is to
consider in establishing emission standards. Thus, we disagree with the
commenter who argues that this list is not broad enough because it does
not address all heavy metals or organic hazardous pollutants. Appendix
VIII to 40 CFR Part 261 is also not an appropriate list for determining
which contaminants to consider for the purposes of defining non-
hazardous

solid waste, since the purpose of Appendix VIII is to be used by the
Agency to make hazardous waste listing determinations (see 40 CFR
261.11(a)(3)) and the chemicals in Appendix VIII would not apply to
non-hazardous wastes. Please see the related response on usage of the
Appendix VIII list with regard to fuels (Section V.D.3).
    With that said, the Agency recognizes and agrees with the
commenters that variability in constituents exist between non-hazardous
secondary materials based on the source and geographic region that it
may come from. Thus, such considerations can be taken into account in
determining which contaminants to evaluate. Regarding the comments
dealing with state program involvement, EPA's response to these
comments is described in Section IX. ``State Authority.'' Finally, with
respect to the commenter who requested that EPA develop a list of
acceptable non-hazardous secondary materials that are used as
ingredients for quick reference and develop guidance to assess non-
hazardous secondary materials on this list, we have made some general
conclusions throughout the preamble on which non-hazardous secondary
materials when used as an ingredient in a combustion process would
generally meet the legitimacy criteria. Persons may also refer to the
various Materials Characterization Papers that are in the docket to
today's rule. However, each person will need to confirm that such non-
hazardous secondary material ingredients meet the legitimacy criteria
and provide documentation, as required in the CAA rules.
5. Comparing Contaminant Levels in Products
    EPA requested comment on whether, instead of requiring that
contaminant levels in products manufactured from non-hazardous
secondary material ingredients be comparable in concentration than
those found in traditional products, that the Agency 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.
    Comment: A number of commenters disagree with the contaminant
comparison criteria for non-hazardous secondary material ingredients to
the final product. One commenter asserts that EPA should not use the
term ``contaminant'' in connection with the legitimacy criteria for
ingredients. Instead, the Agency should refer to constituents that may
actually be a concern with respect to the product that is produced. The
same commenter also recommends that the ``toxics along for the ride''
criterion only should be considered and not required, and that the
Agency should adopt a ``not significantly higher'' standard. Also,
while the Agency should retain the focus of the ``toxics along for the
ride'' criterion upon products, that criterion should refer to
constituents that may actually be a concern with respect to the
products that are produced and should not use the defined term
``contaminant.''
    Other commenters oppose any limits on contaminants in ingredients.
It was argued that portland cement is manufactured to meet strict
chemical and performance specifications under such organizations as
ASTM and the American Association of State Highway and Transportation
Officials (AASHTO). These specifications dictate, to a large degree,
the ingredients that can be used in cement manufacturing. There are a
wide range of raw materials and fuels that can be used to meet cement
manufacturing quality objectives. The levels of contaminants in these
traditional raw materials and fuels can vary significantly. These
variations occur within materials taken from the same source (e.g.,
single quarry) and also between different sources. For the purpose of
comparing levels of contaminants found in non-hazardous secondary
materials with levels found in traditional products, the non-hazardous
secondary material contaminant should be allowed to be compared to
multiple sources of the traditional raw materials that are available
across the market to the facility. Such a comparison should be allowed
regardless of whether or not the traditional material is being used by
the facility at the time of the comparison. Doing so would allow for
the variability of constituent levels to be properly accounted for when
going through the comparison process. Variability needs to be
considered because multiple sources of a single traditional material
are typically available to a facility
    EPA's Response: In today's action, EPA is finalizing this criterion
as a part of the legitimacy requirement because it is essential in
determining whether a non-hazardous secondary material that is
combusted is in fact being legitimately used or is essentially being
discarded--that is destroyed, in the name of legitimate recycling. EPA
is also retaining the requirement that the recycling process must
result in products that contain contaminants at levels that are
comparable to (or lower than) concentrations found in traditional
products that are manufactured without the non-hazardous secondary
material. Establishing ``comparable to or lower than'' contaminant
levels more closely reflects its intent that non-hazardous secondary
materials that are legitimately used must have levels of contaminants
within a small acceptable range of those found in traditional products
than the phrase ``not significantly higher.'' (See Section V.D.3 for
further discussion of this issue and EPA's response.) With that said,
we agree with those commenters who argue that there are a wide range of
raw materials and fuels that can be used and that the level of
contaminants in these secondary materials can also vary. Thus, for
purposes of comparing levels of contaminants found in non-hazardous
secondary materials to traditional products, a person can make that
comparison with traditional raw materials and fuels that come from
multiple sources, provided such sources can be used in the combustion
unit. Such a comparison, as the commenters argue, would account for the
natural variability that needs to be considered in making such a
comparison.
    With respect to the comment requesting that EPA change the word
``contaminant'' to ``constituent'' when referring to the legitimacy
criteria, EPA is retaining the use of the word ``contaminant'' in this
criterion as it has been defined in this rule and accurately describes
which individual constituents EPA is seeking to control in this
criterion. The selection of that term was originally discussed in the
ANPRM and was chosen since it refers to the constituents in secondary
materials that may be of a concern when burned as a fuel or used as an
ingredient.
    Finally, EPA notes that industry specifications can be very useful
in making a legitimacy determination and, in particular, in evaluating
compliance with this criterion. However, EPA cannot rely solely on
product specifications to cover all possible situations and is
including the contaminant comparison between products as a critical
part of the legitimacy requirement.

F. Comments on Non-Waste Determination Petitions

    The proposed rule established a non-waste determination process
that would provide persons with an administrative process for receiving
a formal determination from the EPA Regional Administrator that non-
hazardous secondary materials that are burned as a fuel in a combustion
unit and have not been managed within the control of the generator,
have not been discarded in the first instance, and are

indistinguishable in all relevant aspects from a fuel product are not
solid wastes. This assumes all the criteria for the non-waste
determination at Sec.  241.3(c) are met.
    Industry and state agencies both submitted a number of comments on
the non-waste determination process included in the proposed rule.
While many of these comments supported the idea of a non-waste
determination process in order to include appropriate fuels, many
commenters suggested that the process would be difficult to implement
since the requirements are vague, and too resource intensive. Many
commenters did not want the process at all for opposing reasons; some
said it was too lenient in that the process could allow the
inappropriate use of non-hazardous secondary materials, while others
said it was unnecessary in that CAA section 112 third-party combustors
should be able to use appropriate comparable fuels without the
inconvenience of a petition process. The specific comments are detailed
below. The overview of the petition process is described in Section
VII.G. The petition requirements in today's rule are found at Sec.
241.3(c).
    Comment: A large number of commenters (including many from state
agencies) argued that state agencies should be provided the authority
to make non-waste determinations as part of the petition process. Some
commenters suggested that States be allowed to grant such petitions
under their existing beneficial use programs and encouraged EPA to
allow the States' existing regulatory structures to remain in place.
Many commenters expressed a preference for the approach currently used
by States to determine the acceptability of used materials for
beneficial use whereby specific classes of non-hazardous secondary
materials considered wastes (in that State) are assessed and, if
determined acceptable, are considered non-waste or exempt from the
State waste licensing, permitting and other requirements. State
procedures for beneficial use determinations vary, some requiring more
extensive characterization of materials and uses than others, and some
requiring a degree of processing and others not. Some beneficial use
designations are more stringent than others since they are material-
specific.
    Many commenters, including state agencies were still concerned that
this rule could jeopardize or interfere with the State beneficial use
designations and procedures and requested that EPA clearly indicate
that today's rule applies only for purposes of determining CAA 129
applicability to non-hazardous secondary materials that are burned for
energy recovery. They do not want today's rule to set a precedent or
interfere with their ongoing programs to allow and encourage the
beneficial use of secondary materials which otherwise would be waste.
    EPA's Response: 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 Administrator (or Regional Administrator) must
establish the meaning and make the determinations, and the states'
definition of solid waste would not be applicable for purposes of the
definition of solid waste under RCRA for establishing emissions
standards under the CAA. No federal approval procedures for state
adoption of today's rule are included in this rule under RCRA subtitle
D. Although EPA does promulgate criteria for solid waste landfills and
approves state municipal solid waste landfill permitting programs, RCRA
does not provide EPA with authority to approve state programs beyond
municipal solid waste landfill permitting programs.
    With that said, EPA would like to utilize the expertise and
interest residing in the state beneficial use programs to bolster
Agency decisions on non-waste determination petitions. The Agency may
request the assistance of states or may utilize the information and
contaminant data from state beneficial use determinations if it is
applicable to the non-hazardous secondary material when used as a fuel
or an ingredient in combustion units. These state beneficial use
programs have been developed to encourage recycling and reuse, 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, when a state beneficial use determination has been
granted (thus no longer a solid waste within that state), it may have
chemical and physical properties that are comparable to the raw
material it is replacing or, when incorporated into a product, its use
is beneficial to the final product. Assuming the data to support the
beneficial use determination remains available, it could help support
EPA's investigation of the contaminant concentrations for the purpose
of making the legitimacy criteria determination.
    State beneficial use determinations and procedures will continue
intact for purposes of State laws, regulations, and programs. Thus, we
do not expect that this rule will set a precedent or interfere with the
States' solid waste programs and the States will continue to employ
their procedures to assess and regulate the management and use of non-
hazardous secondary materials for purposes of State laws and
regulations. In addition, as we have stated elsewhere in today's
preamble, this rule is limited for purposes of determining CAA 129
applicability for non-hazardous secondary materials that are burned for
energy recovery or as an ingredient in a combustion unit. Thus, EPA
will not be making any determination that non-hazardous secondary
materials are or are not solid wastes for other possible beneficial
uses. Such beneficial use determinations are generally made by the
state for these other beneficial uses and EPA will continue to look to
the states to make such determinations (e.g., land application, reuse
as non-waste, etc.).
    Comment: Commenters indicated that the petition process does not
consider potential scheduling issues regarding compliance with the
section 112 Boiler MACT or the 129 CISWI standards. Therefore, the non-
waste determination petition process should include deadlines for both
petition submissions and rulings from regulators so that the applicant
would know which emission standards requirements they would be subject
to--that is, the CAA section 112 standards or the CAA section 129
standards. Some commenters (including many state agencies) also
expressed concern that EPA would not have the resources necessary to
address such non-waste determination petitions within a schedule
consistent with State deadlines for their air permits (e.g., 90 days).
In addition, a few commenters questioned the environmental benefits of
shifting the burden of determination to EPA instead of the generators
in question.
    EPA's Response: EPA is not imposing deadlines for the petition
decisions, either for the submission of such petitions or on EPA making
decisions on petitions that are submitted, since the Agency believes
that before a final decision is made, that the necessary information be
submitted, and the public afforded an opportunity to comment on such
draft decisions. Setting a time limit may make it difficult to make
such informed decisions. Nevertheless, EPA commits to work with the
State (where the combustor is located) in an effort to not hold up, to
the extent practicable, the State air permitting process. We recognize
that the non-waste determination decision should be finalized prior to
any related State air

permit. We would also note that EPA's responsibility for the petition
decisions in the final rule should maintain national consistency, while
recognizing the state's interest and expertise in this area.
    Comment: If EPA maintains authority for non-waste determinations,
commenters request that EPA Regional offices notify States when
requests and determinations are made. In addition, several
environmental groups requested that the public notification be required
for any petitions for non-waste classification.
    EPA's Response: Today's rule outlines the petition process for the
Regional Administrator to follow. As part of that process, the draft
decision will be published in local media and will be available on
EPA's Web site, and thus, all draft decisions will be available to the
public for comment. In addition, although not in the regulations, EPA
will inform the State Agency of a petition request in their states, and
work with them, to the extent practicable.
    Comment: State Agencies recommended that EPA maintain a state or
publicly available database of non-waste determination decisions if the
Agency maintains decision-making authority under the petition process.
    EPA's Response: EPA agrees that it would be appropriate for EPA to
maintain a database that is a compilation of decisions made on non-
hazardous secondary material non-waste determinations. This would allow
decisions made in one EPA Region, including the basis for the decision,
to be available to other EPA Regions pertaining to the same or similar
non-hazardous secondary materials and would support national
consistency and minimize redundant efforts. Thus, the Agency expects to
put together such a database and will make it available not only to its
Regions, but will also make such a database publicly available.
    Comment: Some commenters said States (or non-State Agencies) should
be able to submit a non-waste determination on behalf of the
petitioner.
    EPA's Response: As stated in the proposal and in the final rule,
states, or private entities, can submit non-waste determination
petitions to the EPA Regional Administrator on behalf of petitioners.
They can petition for a single combustor or a class of combustors
(e.g., a specific usage of a non-hazardous secondary material in a
particular state).
    Comment: Many commenters did not want the petition process included
in the rule. Some commenters said it was too lenient in that the
process could allow the inappropriate use of non-hazardous secondary
materials.
    EPA's Response: We disagree with the commenters since the petition
process provides a vehicle to accommodate those instances where it is
not apparent that the non-hazardous secondary material is not discarded
and that it complies with the legitimacy criteria and thus, is not a
solid waste under RCRA. Those requirements would be documented in
addition to the other petition requirements. This would provide the
needed assurance that it is an appropriate non-waste fuel. In addition,
all draft decisions will be made available to the public (local
newspaper advertisement or radio broadcast and on EPA's Web site) and
the Regional Administrator may hold public hearings, such that the
public will be informed and has the opportunity to comment and be
involved in the process.
    Comment: Commenters mentioned that the process will be difficult to
implement since the requirements in proposed Sec.  241.3(c) are too
vague. A few commenters mentioned that they preferred the clarity in
state determinations where they have criteria specific to each
secondary material they regulate or make specific beneficial use
determinations, as opposed to this petition process where all non-
hazardous secondary materials have to comply with the same guidelines.
Commenters requested that we create clear guidance on the petition
process and on related implementation.
    EPA's Response: We disagree with the commenters who argue that the
petition process is vague and will be difficult to implement. All
petitions that are submitted must clearly explain how the non-hazardous
secondary material has not been discarded and meets the other relevant
criteria, including the legitimacy criteria. All draft decisions will
also be subject to notice and comment, so any particular issues or
concerns can be raised for the Agency's consideration. With that said,
the Agency expects to develop additional guidance to assist petitioners
in the implementation of the petition process.

G. Comments on the Other Approaches for Defining Solid Wastes

    In addition to the proposed approach, EPA also identified and
solicited comment on two other approaches for defining which non-
hazardous secondary materials are solid wastes when combusted. One
approach, which was called the ``alternative approach,'' was intended
to be broader than the proposed approach, but still consistent, in the
Agency's judgment, with RCRA and relevant case law. Under the
alternative approach, non-hazardous secondary materials that are burned
in a combustion unit would be considered solid wastes, unless such non-
hazardous secondary materials would remain within the control of the
generator and meet the legitimacy criteria; in this limited instance,
the non-hazardous secondary materials would not be considered solid
wastes. Thus, under the alternative approach, fuels and ingredients
that are generated from the processing of discarded non-hazardous
secondary materials would be considered a solid waste, as well as non-
hazardous secondary materials used as ingredients that are combusted at
facilities that are not within the control of the generator. In
addition, the alternative approach did not provide for a non-waste
determination petition process, as described elsewhere in this
preamble. The proposed rule noted that this approach could be adopted
in a final rule if warranted by information presented during the public
comment period and solicited comment on all aspects of the alternative
approach.
    The other approach on which we requested comment was to identify
all non-hazardous secondary materials that are burned in combustion
units for energy recovery or as an ingredient as solid wastes and thus,
all non-hazardous secondary materials would be subject to the section
129 CAA requirements. The proposal noted that while the Agency believes
there are legal constraints to taking such a broad approach in defining
solid waste under RCRA, we solicited comment on this approach and
specifically requested that commenters provide the basis for their
position, in light of the existing case law on the issue of
``discard.''
    Comment: All commenters addressing the alternative approach were
opposed to the Agency adopting such an approach in the final rule.
Several commenters argued generally against any approach that would
allow any non-hazardous secondary material to ever be burned as non-
waste fuels or ingredients, regardless of whether or not the secondary
materials remained within the control of the generator. These
commenters strongly urged the Agency to adopt a final rule that
considers all non-hazardous secondary materials burned in a combustion
unit for energy recovery or used as an ingredient to be included within
the definition of solid waste and therefore, subject to the CAA section
129 requirements. These commenters argue that non-hazardous secondary
materials that are burned in combustion units fall within the
unambiguous meaning of the

term ``discarded material,'' and therefore, both EPA's proposed and
alternative approach are unlawful, as well as arbitrary and capricious.
    On the other hand, industry commenters generally contended that the
alternative approach was unacceptable as a matter of law and policy,
but for different reasons. These commenters, who also disagreed with
the proposed approach's classification that non-hazardous secondary
materials used as fuels which did not remain within the control of the
generator are solid waste unless granted a non-waste determination,
strongly opposed the alternative approach for many of the same reasons.
Of particular concern of the commenters was their disagreement with EPA
that one may not look to a material's transfer between entities to
determine whether the non-hazardous secondary material has been
discarded and constitutes a solid waste under RCRA, a concept which
would apply equally to non-hazardous secondary materials being used as
ingredients, as well as to non-hazardous secondary materials used as
fuels. In addition, these same commenters also strongly disagreed with
the other approach on which the Agency solicited comment--that is, the
approach that would characterize all non-hazardous secondary materials
as solid waste when burned in a combustion unit for energy recovery or
as an ingredient. These commenters argued that this would exceed the
Agency's authority to regulate secondary materials that have not been
discarded.
    EPA's Response: Although some commenters supported a broader
definition of solid waste than described in the alternative approach,
the Agency did not receive any support for the alternative approach,
and has therefore decided not to adopt it in this final rule. Regarding
comments that advocated for all non-hazardous secondary materials
burned in a combustion unit for energy recovery or as an ingredient to
be discarded and, thus, solid waste, EPA has replied to this comment
above in Section V.A. The Agency presumes that these commenters would
like neither our proposed approach nor any alternative that allows any
non-hazardous secondary material to be burned as other than a waste.
    Regarding industry comments which opposed the alternative approach
because its characterization that all non-hazardous secondary materials
that do not remain within the control of the generator are solid waste,
we respond to the issue of transferring non-hazardous secondary
materials off-site in Section V.A.
    EPA continues to believe that today's final rule is a reasonable
interpretation of the statutory definition of discard to consider that
non-hazardous secondary materials under the control of its generator
that are legitimately burned as fuels are not solid waste, that certain
non-hazardous secondary materials (i.e., scrap tires under the
oversight of established tire collection programs and resinated wood)
that are not discarded and are legitimately used as fuels or
ingredients are not solid waste, that non-hazardous secondary materials
that are legitimately burned as ingredients are not solid wastes, and
that fuels and ingredients that are produced from the processing of
discarded non-hazardous secondary materials are not solid wastes.

VI. Summary of Major Differences Between the Proposed Rule and Final
Rule

    The basic framework outlined in the proposed rule is being adopted
in today's final rule. However, as indicated in the discussions in
Section VII, the Agency has made several significant changes to the
proposal regarding: (1) The status of scrap tires when they are
combusted and used as a fuel; (2) the status of resinated wood
residuals when they are combusted and used as a fuel; (3) the status of
coal refuse that has been previously discarded, but has been processed
in the same way as coal is today; and (4) the definition of traditional
fuel and several other terms to clarify their meaning in the final
rule. Specifically,
     Under the proposed rule, scrap tires were considered to be
solid waste when combusted and used as a fuel unless they were
sufficiently processed into a non-waste fuel product. Today's rule
continues to include this concept of processing of scrap tires that
have been discarded, particularly for tires in waste tire piles.
However, after reviewing the comments, as well as reviewing the
approach that was discussed in the ANPRM for scrap tires, the Agency
has concluded that scrap tires used as fuel in a combustion unit that
are removed from vehicles and managed and collected under the oversight
of an established tire collection program would not be considered a
solid waste In this situation, the scrap tires have not been discarded
and therefore, should not be considered a solid waste. See Section
VII.C for a full discussion of the rationale and changes to the
approach for scrap tires.
     Under the proposed rule, resinated wood residuals that
were burned in a combustion unit within the control of the generator
and which met the legitimacy criteria was considered a non-waste fuel.
However, if such resinated wood residuals were transferred off-site to
a different company, there were considered a solid waste when burned in
a combustion unit, unless they were ``sufficiently processed to produce
a non-waste fuel. However, after reviewing the comments, the Agency has
concluded that resinated wood residuals when burned in a combustion
unit (whether within the control of the generator or outside the
control of the generator) would not be a solid waste, provided the
resinated wood residuals met the legitimacy criteria. In this
situation, the Agency finds that the resinated wood residuals have not
been discarded and therefore, should not be considered a solid waste.
See Section VII.D for a full discussion of the rational and changes to
the approach for resinated wood residuals.
     Under the proposed rule, coal refuse that has been
previously abandoned and was processed, even if such processing was the
same as coal is processed today, was considered a solid waste and, if
combusted, would be subject to the CAA section 129 emission standards.
However, after reviewing the comments and after further evaluation, we
have decided that coal refuse that is processed the same as coal is
today, which serves to both increase its energy value, as well as
reduce the level of contaminants in coal refuse, should not be
considered a solid waste. (Of course, prior to such processing, the
coal refuse that has been abandoned is a solid waste and would be
subject to appropriate federal, state and local laws and regulations.)
This change is based on the fact that coal refuse is distinctive from
other non-hazardous secondary materials at issue in today's rule in
that it is in fact raw material coal (even if it has been previously
abandoned) that is generated as a result of coal mining operations
whose primary product is a fuel.
     In response to comments received on the proposal, under
today's rule, we have added an ``alternative fuels'' category to the
definition of traditional fuels, so the definition now includes
``alternative traditional fuels'' and ``historically managed''
traditional fuels. EPA is recognizing that changes in technology and in
the energy market over time have resulted in additional materials being
economically viable to be used as alternative ``traditional'' fuels. In
addition, to provide clarity in the application and the meaning of
traditional fuel and clean cellulosic biomass, we have codified these
definitions in Sec.  241.2. The new definition of traditional fuel also

clarifies that traditional fuels are not secondary materials and are
not solid wastes unless discarded.

VII. Detailed Discussion and Rationale for Today's Final Rule

    As indicated previously, today's final rule identifies those non-
hazardous secondary materials that, when burned in a combustion unit,
are solid wastes. In general, EPA defines non-hazardous secondary
materials that are used as fuels or ingredients in combustion units as
solid waste unless: \154\
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    \154\ Traditional fuels are not secondary materials or solid
waste, unless discarded.
---------------------------------------------------------------------------

     The non-hazardous secondary material is used as a fuel and
remains within the control of the generator (whether at the site of
generation or another site the generator has control over) and it meets
the legitimacy criteria;
     They are the following materials that meet the legitimacy
criteria when used as a fuel (by the generator or outside the control
of the generator):
    [cir] Scrap tires removed from vehicles under the oversight of
established tire collection programs;
    [cir] Resinated wood;
     The non-hazardous secondary material is used as an
ingredient (whether by the generator or outside the control of the
generator) and it meets the legitimacy criteria;
     The discarded non-hazardous secondary material is
sufficiently processed to produce legitimate fuel or ingredient
products and it meets the legitimacy criteria;
     The non-hazardous secondary material is used as a fuel and
is handled outside the control of the generator where it is determined
through a case-by-case non-waste determination petition process that
the material has not been discarded and is indistinguishable in all
relevant aspects from a fuel product.

The following sections discuss in detail the rationale and regulations
being promulgated today in 40 CFR part 241 for the identification of
non-hazardous secondary materials that are solid waste when used in
combustion units. We use this rationale to support the final rule based
on information the Agency has received and public comments. To the
extent we have decided not to alter our supporting reasoning or have
rejected comments received on the proposed rule, we also discuss these
matters in Section V. Reasoning, information and arguments provided in
the ANPRM and proposed rule that support these decisions are also
incorporated into the reasoning for the final decisions.

A. Traditional Fuels \155\
---------------------------------------------------------------------------

    \155\ While the Agency believes that traditional fuels are not
secondary materials, we believe it appropriate to provide a general
definition and description of what is considered a traditional fuel.
---------------------------------------------------------------------------

    As discussed in Section V, the definition of traditional fuels has
been modified in today's final rule. The new definition encompasses two
categories of fuels: (1) ``Historically managed'' fuels, as identified
in the proposed rule, and (2) ``alternative'' fuels, as described in
the ANPRM. Through this revised definition, EPA is recognizing that
changes in technology and in the energy market over time have resulted
in additional materials being economically viable, or for policy
reasons, to be used as alternative ``traditional'' fuels. Thus,
``traditional fuels'' is defined in today's final rule as materials
that are produced as fuels and are unused products that have not been
discarded and therefore, are not solid waste including: (1) Fuels that
have been historically managed as valuable fuel products rather than
being managed as waste materials, including fossil fuels (e.g., coal,
oil and natural gas), their derivatives (e.g., petroleum coke,
bituminous coke, coal tar oil, refinery gas, synthetic fuel, heavy
recycle, asphalts, blast furnace gas, recovered gaseous butane, and
coke oven gas) and cellulosic biomass (virgin wood); and (2)
alternative fuels developed from virgin materials that can now be used
as valuable fuel products rather than waste materials. Alternative
fuels include used oil which meets the specifications outlined in 40
CFR 279.11; currently mined coal refuse that previously had not been
usable coal; and clean cellulosic biomass. Clean cellulosic biomass is
defined as those residuals that are akin to traditional cellulosic
biomass, such as forest-derived biomass (e.g., green wood, forest
thinnings, clean and unadulterated bark, sawdust, trim, and tree
harvesting residuals from logging and sawmill materials), corn stover
and other biomass crops used specifically for energy production (e.g.,
energy cane, other fast growing grasses), bagasse and other crop
residues (e.g., peanut shells), wood collected from forest fire
clearance activities, trees and clean wood found in disaster debris,
clean biomass from land clearing operations, and clean construction and
demolition wood. Clean biomass is defined as biomass that does not
contain contaminants at concentrations not normally associated with
virgin biomass materials. Such historically managed traditional fuels
and alternative fuels are not secondary materials or solid wastes
unless discarded. The revised definition also clarifies that clean wood
includes, similar to clean disaster debris, clean construction and
demolition material.
    Both clean cellulosic biomass and on-specification used oil were
identified in the proposed rule definition as historically managed
traditional fuels. However, as the viability of these materials as
fuels reflects relatively recent changes in market conditions and
technology, they are more appropriately characterized as alternative
traditional fuels.
    The new definition also adds currently generated coal refuse as an
alternative traditional fuel. As discussed in Section V.B.8., this
material is distinctive among the other non-hazardous secondary
materials. Coal refuse is in fact raw material coal that is generated
as a result of coal mining operations whose primary product is fuel. We
consider currently generated coal refuse to be more akin to a raw
material that, due to technological developments, can now be processed
and utilized to produce a marketable fuel. Coal refuse is different
from other non-hazardous secondary materials, such as scrap tires or
resinated wood residuals, in that it is generated in the production of
a traditional fuel and can be used, itself, as fuel.
    The definition goes on to clarify that traditional fuels are not
secondary materials and are not solid wastes unless discarded. In
response to comments received on the proposal and to provide clarity in
the application and the meaning of traditional fuel, both the new
definition of traditional fuels and the definition of clean cellulosic
biomass are codified in Sec.  241.2
    Recommendations from commenters to the proposed rule on specific
materials that should be considered traditional fuels are discussed in
Section V.B. That section also includes responses to the Agency's
request for comment regarding a possible petition process to make
determinations on traditional fuels.

B. Non-Hazardous Secondary Materials Used as Fuel That Remain Within
the Control of the Generator

1. Scope and Applicability
    Non-hazardous secondary materials used as a fuel in combustion
units that remain within the control of the generator and that meet the
legitimacy criteria specified in Sec.  241.3(d)(1) would not be solid
waste. Such non-hazardous secondary materials are referred to as
legitimate (non-waste) fuel products.
    As discussed previously in Section V.A, if the non-hazardous
secondary material remains within the control of

the generator, it is more likely to be material that is saved and not
thrown away. The Agency has explained that case law would not allow it
to determine that secondary material is a waste if it is recycled as a
fuel within a continuous industrial process. EPA cannot evaluate every
non-hazardous secondary material, but considers that this standard
would cover all such non-hazardous secondary materials that are
recycled as a fuel within a continuous process. EPA, however,
acknowledges that this may capture certain non-hazardous secondary
materials which may be a waste, but is unlikely. Thus, this is a
reasonable interpretation of the statutory definition of discard to
consider non-hazardous secondary materials that are managed within the
control of its generator and legitimately burned as fuels to not be
solid waste.
    The Agency also recognizes that there may also be non-hazardous
secondary materials transferred to another party that are not discarded
in the first instance, and thus may not be a solid waste. EPA is
dealing with those categories of non-hazardous secondary materials on a
case-by-case basis by specifically identifying such non-hazardous
secondary materials in the regulations (see discussions in Section
VII.C on scrap tires managed under an established tire collection
program and Section VII.D for resinated wood or through the non-waste
determination process (Section VII.G).
    Non-hazardous secondary materials used as fuels remain within the
control of the generator under two scenarios (See Sec.  241.2). As
such, the regulation consists of two parts in determining whether these
non-hazardous secondary materials qualify for being ``within the
control of the generator.'' The first part applies to non-hazardous
secondary materials generated and used as fuels at the generating
facility. For purposes of this criteria, ``generating facility'' means
all contiguous property owned, leased, or otherwise controlled by the
secondary material generator; ``secondary material generator'' means
any person whose act or process produces non-hazardous secondary
materials at the generating facility.
    If a generator hires or contracts with a different company to use
the non-hazardous secondary materials at the generator's facility as
fuel, either temporarily or permanently, these materials remain within
the control of the generator. However, generators sometimes contract
with a second company to collect non-hazardous secondary materials at
the generating facility and such materials are subsequently used as
fuels in a combustion unit at another facility. In that situation, if
the facility that burns the non-hazardous secondary material is not
``within the control of the generator'' as defined below in the second
part of the definition, then the non-hazardous secondary material fuel
would be considered a solid waste unless a non-waste determination has
been granted pursuant to the petition process.
    The second part of the definition applies to non-hazardous
secondary materials generated and used as fuels at a different facility
that is controlled by the generator (or if a person as codified in
Sec.  241.2 controls both the generator and the facility using the fuel
in a combustion unit). For purposes of this criterion, ``control''
means the power to direct the policies of the facility, whether by
ownership of stock, voting rights, or otherwise, except that
contractors who operate facilities on behalf of a different person as
codified in Sec.  241.2 shall not be deemed to ``control'' such
facilities. Thus, when a contractor operates two facilities, each of
which is owned by a different company, the non-hazardous secondary
materials generated at the first facility and used as a fuel at the
second facility is not considered ``within the control of the
generator.''
    In the proposed rule, the Agency also indicated that the 2008 DSW
Final Rule included a third part in the definition of ``within the
control of the generator;'' specifically, hazardous secondary materials
that are generated pursuant to a written contract between a tolling
contractor and a toll manufacturer and legitimately reclaimed by the
tolling contractor. For purposes of that exclusion, a tolling
contractor is a person who arranges for the production of a product or
intermediate made from specified raw or virgin materials through a
written contract with a toll manufacturer. We did not propose to
include this arrangement as being ``within the control of the
generator'' as we viewed this as a specific type of arrangement used in
the production of materials, and were unaware of these types of
contractual arrangements where both products and secondary material
fuel are sent to what we are calling tolling contractors. Nevertheless,
the Agency requested comment on whether to include this option in the
final rule. We have decided not to include this option in the final
rule. See Section V.A.1.
2. Restrictions and Requirements
a. Legitimate Use
    Under this rule, non-hazardous secondary materials used as fuels in
combustion units that remain within the control of the generator must
meet the legitimacy criteria in Sec.  241.3(d)(1) to be considered a
non-waste fuel. To satisfy the legitimacy criteria, the non-hazardous
secondary material (non-waste) fuel 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 (or lower than) those in traditional fuels which
the combustion unit is designed to burn as discussed in Section VII.H.
b. Notification
    We are not requiring facilities that use non-hazardous secondary
material fuels within the control of the generator and that meet the
legitimacy criteria to notify EPA under this rule. This notice would be
duplicative of the notification and recordkeeping requirements being
promulgated for boilers and process heaters at major sources of air
toxics. That is, the CAA section 112 rule requires notifications and
recordkeeping, including documentation as to how the non-hazardous
secondary material meets the legitimacy criteria, and satisfies the
definition of processing and/or the requirements for the petition
process. (40 CFR 63.7530 and 63.7555). Specific recordkeeping
requirements for area source boilers combusting non-hazardous secondary
materials are also found at 40 CFR 63.11225(c)(2)(ii) under the CAA
section 112 rule for area source boilers.
    Additionally, regulations at 40 CFR 60.2175(v) promulgated for
commercial and industrial solid waste incinerators under CAA section
129 requires basic recordkeeping to establish whether materials
combusted in a commercial or industrial unit meet the standards and
procedures for identification of non-hazardous secondary materials that
are not solid wastes. Owners or operators of commercial or industrial
facilities that combust non-hazardous secondary materials that are not
traditional fuels are directed to the CAA section 112 regulations for
boilers, and the CAA section 129 regulations for commercial and
industrial incinerators, to determine the recordkeeping provisions
related to the definition of solid waste that may apply to them. These
records and notifications under the CAA regulations provide assurance
that facilities will apply the legitimacy criteria, and that requiring
notification under this rule is not necessary.

C. Non-Hazardous Secondary Materials That Have Not Been Discarded:
Scrap Tires Collected Under Established Tire Collection Programs

1. Scope and Applicability
    EPA has determined that scrap tires removed from vehicles and
managed under the oversight of state and other established tire
collection programs are not ``discarded in the first instance.'' Such
tires (including both whole tires and tires that have been shredded--
with or without metal removal \156\) are non-waste when legitimately
used as a fuel in combustion units. These collection programs (codified
in Sec.  241.2) ensure that the scrap tires are not discarded en route
to the combustor for use as a fuel and are handled as a valuable
commodity (Sec.  241.3(d)(1)(i)).
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    \156\ If scrap tires are not discarded in the first place, they
do not have to be processed per the standards in today's rule, but
can be converted to rough shreds or processed into TDF chips at the
discretion of the combustor and still be non-waste fuel. If the
scrap tires were discarded, they have to be processed (with metal
removal, see Section V.B.5) per the standards in today's rule in
order to be a non-waste fuel.
---------------------------------------------------------------------------

    State programs and other established tire collection programs
promote the collection of scrap tires in coordination with tire
dealerships, haulers, processors, and end users, forming an established
collection infrastructure. These established tire collection programs
together with state bans on landfilling in most states \157\
effectively result in the beneficial reuse of tires (as fuel or used in
other scrap tire markets) as the sole \158\ end use option for scrap
tires in those states.
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    \157\ A few states allow tires cut up in smaller pieces to be
landfilled, while fewer still allow whole tires in landfills.
    \158\ Note, a commenter has indicated that some states are
considering revoking their tire landfill ban if combustors are no
longer choosing to use tires for fuel based on the outcome of this
rule.
---------------------------------------------------------------------------

    While the Agency recognizes that there will be differences between
the various established tire collection programs, at a minimum, the
following components would need to be included as part of any
established tire collection program: (1) A comprehensive system that
prevents tires from being abandoned when the scrap tires are harvested
from vehicles and collected at the various businesses where they are
removed; these tires are not considered ``discarded in the first
instance'' per this rule; and (2) standards for the scrap tires to be
managed as a valuable commodity. These programs would ensure storage
does not exceed reasonable time frames, the scrap tires are managed in
a manner consistent with the analogous fuel (coal), and a system is in
place to prevent scrap tires from being discarded (according to the
plain language definition) en route to the combustor (and during any
processing prior to combustion).
    An example of this type of program is a tire dealership that has
pre-arranged agreements where the combustor pays for the delivery of
the tires harvested from automobiles and can track the delivery and has
contractual obligations for a safe delivery. Another example is the
Texas system where tires are not seen as waste, but have specifications
for tracking and safe delivery to the end use markets.
    In essence, these programs are ones that neither allow for an
opportunity for scrap tires intended as a fuel to be discarded in the
first place nor discarded in transit. A definition of established tire
collection programs is codified in today's rule at Sec.  241.2.
According to the plain English meaning of discard, these tires would
not have been ``disposed of, abandoned, or thrown away'' through the
initial process of removing them from cars or collecting them under
established tire collection programs.
    In reaching this position, the Agency considered several factors:
a. Some Specific Types of Secondary Materials Are More Like Valuable
Commodities Than Solid Wastes
    As noted above, when non-hazardous secondary material fuels are
transferred to another party, the secondary material is generally
discarded since the generator has relinquished control of the secondary
material and the entity receiving such materials may not have the same
incentives to manage them as a useful product, which results in the
materials being discarded. At the same time, EPA acknowledges that some
specific types of secondary materials are more like valuable
commodities than solid wastes, and the mere act of transferring them to
a third-party does not automatically involve discard.
    After reviewing the comments on the proposal and all other
information in the rulemaking record, EPA has determined that, unlike
the historic management of scrap tires that resulted in many waste tire
piles, the annually generated scrap tires that are removed from
vehicles under established tire collection programs shows that they are
not being discarded, as evidenced by the dramatic decrease in the
number of tires in waste tire dumps. Fewer than one million tires
remain in tire piles, as compared to an estimate of one billion tires
in 1990. In addition, scrap tires have nearly the highest percentage of
reuse, recycling, or otherwise being beneficially used in the markets.
That is, of the 300 million scrap tires being generated every year,
nearly 90% of those tires go to beneficial use markets. The change in
market conditions since the historic management of scrap tires in piles
have helped ensure that scrap tires collected as part of established
tire collection programs are not discarded.
    Under the scrap tire program, oversight starts at the point the
tires are removed from the vehicle and continues until they are used as
a fuel at combustion units (or used in other scrap tire markets),
ensuring that discard does not occur. Although we mentioned in the
proposed rule that there was a pattern of discard at third party-off
site reclaimers, based on the information in the record, we understand
that it is no longer the case for scrap tires, while acknowledging that
there was a problem in the past.
    In regard to the proposed rule statement that state environmental
agencies often consider tires to have entered the ``waste stream'' and
were concerned about conflicting interpretations, we recognize that
states \159\ typically call tires a waste until beneficially used. As
described above, discard is not occurring (according to the plain
language definition since they have not been abandoned, disposed of, or
thrown away) for tires collected from vehicles under established tire
collection programs (as defined). Secondly, this rule is specifically
for use of non-hazardous secondary materials as fuels and ingredients
(including scrap tires) in combustion units and this rule has different
criteria than State Agency definitions for general use of scrap tires.
These issues are discussed further in Sections IX (State Authority) and
in Section V.B.5 (Response to Comments on Scrap Tires).
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    \159\ There are many variations on how scrap tires are regarded
in State Environmental Agencies, of note, Texas considers that tires
are non-waste, but that the shipments have to be documented. For
details, please refer to comments by the Texas Commission on
Environmental Quality (TCEQ), commenter ID EPA-HQ-RCRA-2008-0329-
1306.
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    Typically, the state and private programs work together to
encourage processing, reuse, and/or recycling, that would result in a
market demand for scrap tires to be collected; however, the market for
fuel use is more independently sustainable in the free market, while
other markets for scrap tire reuse and recycling often need to function
with state subsidies to support them.\160\
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    \160\ The recovery and management of scrap tires that are
recovered from tire piles are largely supported or subsidized by
State Agencies and these whole tires are considered discarded and
waste when used as fuel, unless they are sufficiently processed.

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b. Beneficial Use of Whole Scrap Tires
    Since most combustion units will continue to use tires that have
been processed into TDF chips, the biggest change in the final rule
(with regard to the use of scrap tires) is that cement kilns will be
able to use whole tires as non-waste fuels if those tires are removed
from vehicles under established tire collection programs. In
particular, cement kilns operate at much higher temperatures and need,
not only the fuel from the tires, but also the non-combustible portions
in order to produce cement clinker, creating a strong market for this
type of beneficial use. Whole tires removed from vehicles under
established tire collection programs still meet the legitimacy criteria
and using whole tires for their fuel value would lead to an overall
decrease in the emissions of HAP or the section 129 pollutants in the
CAA when replacing traditional fuel sources (e.g., coal) in cement
kilns due to the contaminant levels and combustion properties. Many
state environmental agencies and cement kilns supplied data and support
for use of whole tires in cement kilns.
    Since cement kilns' use of whole tires as a non-waste would be a
change from the proposal, EPA considered potential environmental
justice impacts. The assessment of the demographic analysis at the
cement kilns using scrap tires showed a decreased chance of impacting
environmental justice communities based on the demographic analysis at
cement kilns versus the alternative sites. The demographics at cement
kilns showed that they were sited in areas that were lower in minority
and had less poverty that the alternative CISWI combustors, tire
processors, or disposal sites. In addition, scrap tires are prevented
from being disposed of in states that ban whole tires from landfills
\161\ and that have an established collection infrastructure. Not all
states have programs that prevent landfilling and tires recovered from
tire dumps are not always suitable for market use. However, as we have
noted previously, scrap tires have nearly the highest percentage of
reuse, recycling, or are otherwise being beneficially used in the
markets to ensure that scrap tires collected as part of established
tire collection programs are not discarded.
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    \161\ A few states allow tires cut up in smaller pieces to be
landfilled, while fewer states still allow whole tires in landfills.
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2. Restrictions and Requirements
a. Legitimate Use
    Consistent with other non-hazardous secondary materials used as a
non-waste fuel, scrap tires collected pursuant to established tire
collection programs must meet the legitimacy criteria in Sec.
241.3(d)(1) to be considered a non-waste fuel under this rule.
Specifically:
     Scrap tires are considered to be handled as a valuable
commodity when they are collected from vehicles under established scrap
tire collection programs. If at any point these tires or tires that
otherwise qualify to be non-waste (processed or petitioned) are not
managed as a valuable commodity, they would become a solid waste. See
Sec.  241.3(d)(1)(i).
     Scrap tires (whole or TDF chips) have an exceptionally
high heating value; they are considered to meet the legitimacy criteria
for meaningful heating value established in today's rule at Sec.
241.3(d)(1)(ii). In fact, the heating value of scrap tires (12,000 Btu/
lb to 16,000 Btu/lb) is higher than typical coal values and other solid
fuels.
     EPA's analysis of the contaminant concentrations in scrap
tires shows that it is comparable to the traditional fuel it replaces
(i.e., coal); therefore, it is considered to meet the legitimacy
criteria for comparable contaminants established in today's rule at
Sec.  241.3(d)(1)(iii). The comparison to the contaminant
concentrations is given in the scrap tire response to comments. See
Section V.B.5.
b. Notification
    We are not requiring facilities that use scrap tires collected
under established tire collection programs and that meet the legitimacy
criteria to notify EPA under this rule. This notice would be
duplicative of the notifications and recordkeeping requirements being
promulgated for boilers and process heaters at major sources of air
toxics. That is, the CAA section 112 rule requires notifications and
recordkeeping, including documentation as to how the non-hazardous
secondary material meets the legitimacy criteria, and satisfies the
definition of processing and/or the requirements for the petition
process. (40 CFR 63.7530 and 63.7555). Specific recordkeeping
requirements for area source boilers combusting non-hazardous secondary
materials are also found at 40 CFR 63.11225(c)(2)(ii) under the CAA
section 112 rule for area source boilers.
    Additionally, regulations at 40 CFR 60.2175(v) promulgated for
commercial and industrial solid waste incinerators under CAA section
129 requires basic recordkeeping to establish whether materials
combusted in a commercial or industrial unit meet the standards and
procedures for identification of non-hazardous secondary materials that
are not solid wastes. Under the provisions of Sec.  60.2175(w), for
combustors burning scrap tires, a certification must be maintained
stating that the scrap tires combusted under Sec.  241.3(b)(2)(i) were
obtained through an established tire collection program.
    Owners or operators of commercial or industrial facilities that
combust materials that are not traditional fuels are directed to the
CAA section 112 regulations for boilers, and the CAA section 129
regulations for commercial and industrial incinerators, to determine
the recordkeeping provisions related to the definition of solid waste
that may apply to them. These records and notifications under the CAA
regulations provide assurance that facilities will apply the legitimacy
criteria, and that requiring notification under this rule is not
necessary.

D. Non-Hazardous Secondary Materials That Have Not Been Discarded:
Resinated Wood Residuals

1. Scope and Applicability
    Resinated wood (also referred to as resinated wood residuals) is
another secondary material that, upon examination, is not discarded
when used on-site or transferred off-site. EPA would consider resinated
wood used as a fuel in a combustion unit as not being a solid waste,
provided these materials satisfy the specified legitimacy criteria for
fuels (Sec.  241.3(d)(1)).
    The definition of ``resinated wood'' has been codified in Sec.
241.2 and means wood products (containing resin adhesives) derived from
primary and secondary wood products manufacturing and comprised of such
items as board trim, sander dust, and panel trim. Wood products
manufacturers in many cases have constructed their facilities to
utilize resinated wood residuals as fuels. Specialized burners
specifically to fire sander dust and replace oil and natural gas were
developed and were integral to the growth of the industry. This
secondary material is routinely transferred between either intra- or
inter-company facilities and used as either ``furnish'' (i.e., raw
materials) or fuel at the receiving facilities. This material when
transferred off-site is used and handled in the same manner that
resinated wood residuals are used when generated on-site, such that it
is impossible to distinguish between

materials that are being used as a raw material and those that are
being used as a fuel.
    Consistent with the approach taken for scrap tires, EPA recognizes
that some specific types of non-hazardous secondary materials, such as
resinated wood residuals, are more like valuable commodities than solid
wastes, and per the holding of the Safe Food case, the act of
transferring them to a third-party does not automatically involve
discard. Consistent with Safe Food, EPA's determination that resinated
wood is not a solid waste, even if it is transferred between industries
or ownership of the material is relinquished, ``is reasonable and
consistent with the statutory purpose.'' 35 F.3d at 1269.
2. Restrictions and Requirements
a. Legitimate Use
    As we have noted above, the combustor of these secondary materials
would still need to demonstrate that such residuals meet the legitimacy
criteria. Thus, they would need to show the material is handled as a
valuable commodity, has meaningful heating value and is used as a fuel
in a combustion unit that recovers energy, and contains contaminants at
levels comparable to (or lower than) those in traditional fuels for
which the combustion unit is designed to burn.
b. Notification
    We are not requiring facilities that use resinated wood residuals
and that meet the legitimacy criteria to notify EPA under this rule.
This notice would be duplicative of the notifications and recordkeeping
requirements being promulgated for boilers and process heaters at major
sources of air toxics. That is, the CAA section 112 rule requires
notifications and recordkeeping, including documentation as to how the
non-hazardous secondary material meets the legitimacy criteria, and
satisfies the definition of processing and/or the requirements for the
petition process. (40 CFR 63.7530 and 63.7555). Specific recordkeeping
requirements for area source boilers combusting non-hazardous secondary
materials are also found at 40 CFR 63.11225(c)(2)(ii) under the CAA
section 112 rule for area source boilers.
    Additionally, regulations at 40 CFR 60.2175(v) promulgated for
commercial and industrial solid waste incinerators under CAA section
129 requires basic recordkeeping to establish whether materials
combusted in a commercial or industrial unit meet the standards and
procedures for identification of non-hazardous secondary materials that
are not solid wastes. Owners or operators of commercial or industrial
facilities that combust materials that are not traditional fuels are
directed to the CAA section 112 regulations for boilers, and the CAA
section 129 regulations for commercial and industrial incinerators, to
determine the recordkeeping provisions related to the definition of
solid waste that may apply to them. These records and notifications
under the CAA regulations provide assurance that facilities will apply
the legitimacy criteria, and that requiring notification under this
rule is not necessary.

E. Non-Hazardous Secondary Materials Used as Ingredients

1. Scope and Applicability
    Non-hazardous secondary materials used as ingredients in combustion
units would not be solid wastes provided they satisfy the legitimacy
criteria discussed in Sec.  241.3(d)(2). We are not differentiating
between ingredients that are used within the control of the generator
from those that are not since the use of non-hazardous secondary
materials as ingredients is more integral or akin to use in a
commercial manufacturing process and thus, these non-hazardous
secondary materials should not be considered discarded provided they
satisfy the legitimacy criteria. However, non-hazardous secondary
materials that are used as ingredients, but have been discarded in the
first instance (e.g., landfilled) would be considered a solid waste
unless processed into a new ingredient product.
    The Agency received comments on the proposed rule that ingredients
should not be included in this rule since ingredients are not
``combusted,'' but rather, are incorporated into the product. As
explained in the response to comments in Section V.A, this issue is not
relevant to this regulation, which determines whether non-hazardous
secondary materials are a solid waste, or not under RCRA. EPA has clear
authority to interpret RCRA to decide whether non-hazardous secondary
materials are solid wastes or not. Whether EPA may cover ingredients
used in combustors under section 129 of the CAA is a matter for
regulations under that statute.
    The proposal identified a number of non-hazardous secondary
materials that are currently being used as ingredients in combustion
processes that would not be considered solid waste, provided they meet
the legitimacy criteria for ingredients and were not discarded in the
first instance (e.g., blast furnace slag; CKD; the coal combustion
residual group (fly ash, bottom ash, and boiler slag); and foundry
sand). For example, coal fly ash can be added to the raw material feed
in clinker manufacturing to contribute specific required elements, such
as silica, alumina, and calcium, in the final composition of cement,
with such levels of key metals needing to be carefully calibrated with
other ingredients to ensure that the final cement product has the
correct mineral and metal content. There is every incentive for the
company to ensure that the metals content are within specifications to
ensure that the clinker product meets specifications. In clinker
manufacture, coal fly ash partially offsets the need for raw materials,
such as silica, iron, and alumina sources. This reduction of raw
feedstock materials can result in reduced emissions of certain
pollutants.\162\
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    \162\ For more detailed information on the benefits of using
coal fly ash and other recovered mineral components in manufacturing
processes, please see: ``Study on Increasing the Usage of Recovered
Mineral Components in Federally Funded Projects Involving
Procurement of Cement or Concrete to Address the Safe, Accountable,
Flexible, Efficient Transportation Equity Act: A Legacy for Users.''
June 23, 2008. (EPA530-R-08-007)
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    Another non-hazardous secondary material used as an ingredient,
CKD, can be directly reused in a closed-loop process back into the
cement kiln for clinker manufacture. In fact, the cement industry is
estimated to recycle more than 75 percent of its CKD each year.
Significant increases in U.S. clinker capacity are expected over the
2008 to 2012 period resulting in an anticipated increase in CKD
production and usage. In clinker manufacture, CKD partially offsets the
need for raw material feed, such as limestone and natural constituents
(rock), thus avoiding the energy usage and emissions related to their
extraction and processing.
2. Restrictions and Requirements
a. Legitimate Use
    Under this rule, non-hazardous secondary materials used as
ingredients in combustion units cannot be discarded in the first
instance and must meet the legitimacy criteria in Sec.  241.3(d)(2) to
be considered a non-waste ingredient. To satisfy the legitimacy
criteria, the non-hazardous secondary material (non-waste) ingredient
must: be managed as a valuable commodity, provide a useful contribution
to the production or manufacturing process, used to produce a valuable
product, and result in products that contain contaminants at
concentrations comparable to or lower than those found in traditional
products

manufactured without the non-hazardous secondary material.
b. Notification
    We are not requiring facilities that use non-hazardous secondary
materials as ingredients to notify EPA under this rule. This notice
would be duplicative of the notification and recordkeeping requirements
being promulgated for boilers and process heaters at major sources of