# Identification of Non-Hazardous Secondary Materials That Are Solid Waste > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2010-10837 ## Record - **Collection:** Federal Register - **Document type:** Proposed Rule - **Published:** June 4, 2010 - **Citation:** 75 FR 31844 ## Text ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 241 [EPA-HQ-RCRA-2008-0329; FRL-9148-2] RIN 2050-AG44 Identification of Non-Hazardous Secondary Materials That Are Solid Waste AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: On January 2, 2009, the Environmental Protection Agency (EPA or the Agency) issued an Advanced Notice of Proposed Rulemaking (ANPRM) to solicit comment on which non-hazardous secondary materials that are used as fuels or ingredients in combustion units are solid wastes under the Resource Conservation and Recovery Act (RCRA). The meaning of “solid waste” as defined under RCRA is of particular importance since it will determine whether a combustion unit is required to meet emissions standards for solid waste incineration units issued under section 129 of the Clean Air Act (CAA) or emissions standards for commercial, industrial, and institutional boilers issued under CAA section 112. CAA section 129 states that the term “solid waste” shall have the meaning “established by the Administrator pursuant to [RCRA].” EPA is proposing a definition of non-hazardous solid waste that would be used to identify whether non-hazardous secondary materials burned as fuels or used as ingredients in combustion units are solid waste. EPA is also proposing that non-hazardous secondary materials that have been discarded, and are therefore solid wastes, may be rendered products after they have been processed (altered chemically or physically) into a fuel or ingredient product. This proposed rule is necessary to identify units for the purpose of developing certain standards under sections 112 and 129 of the CAA. In addition to this proposed rule, EPA is concurrently proposing air emission requirements under CAA section 112 for industrial, commercial, and institutional boilers and process heaters, as well as air emission requirements under CAA section 129 for commercial and industrial solid waste incineration units. DATES: Comments. Comments must be received on or before July 19, 2010. Under the Paperwork Reduction Act, comments on the information collection provisions are best assured of having full effect if the Office of Management and Budget (OMB) receives a copy of your comments on or before July 6, 2010. Public Hearing. We will hold a public hearing concerning this proposed rule and the interrelated proposed CAA rules, discussed in this proposal and published in the proposed rules section of today's Federal Register , on June 21, 2010. Persons requesting to speak at a public hearing must contact EPA by June 14, 2010. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-RCRA-2008-0329, by one of the following methods: • http://www.regulations.gov: Follow the on-line instructions for submitting comments. • E-mail: Comments may be sent by electronic mail (e-mail) to: rcra-docket@epa.gov , Attention Docket ID No. EPA-HQ-RCRA-2008-0329. In contrast to EPA's electronic public docket, EPA's e-mail system is not an “anonymous access” system. If you send an e-mail comment directly to the docket without going through EPA's electronic public docket, EPA's e-mail system automatically captures your e-mail address. E-mail addresses that are automatically captured by EPA's e-mail system are included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket. • Fax: Comments may be faxed to 202-566-9744, Attention Docket ID No. EPA-HQ-RCRA-2008-0329. • Mail: Proposed Rulemaking—Identification of Non-Hazardous Secondary Materials That Are Solid Waste, Environmental Protection Agency, Mailcode: 28221T, 1200 Pennsylvania Ave., NW., Washington, DC 20460. Please include a total of 2 copies. In addition, please mail a copy of your comments on the information collection provisions to the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Attn: Desk Officer for EPA, 725 17th St., NW., Washington, DC 20503. • Hand Delivery: Deliver two copies of your comments to Proposed Rulemaking—Identification of Non-Hazardous Secondary Materials That Are Solid Waste, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC 20460. Attention Docket ID No. EPA-HQ-RCRA-2008-0329. Such deliveries are only accepted during the Docket's normal hours of operation and special arrangements should be made for deliveries of boxed information. Instructions: Direct your comments to Docket ID No. EPA-HQ-RCRA-2008-0329. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through http://www.regulations.gov , your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. For additional instructions on submitting comments, go to the SUPPLEMENTARY INFORMATION section of this document. We also request that interested parties who would like information they previously submitted to EPA to be considered as part of this action, to identify the relevant information by docket entry numbers and page numbers. Public Hearing: We will hold a public hearing concerning the proposed rule on June 21, 2010. Persons interested in presenting oral testimony at the hearing should contact Ms. Odessa Bowling, Program Implementation and Information Division, Office of Resource Conservation and Recovery, at (703) 308-8404 by June 14, 2010. The public hearing will be held in the Washington DC area at a location and time that will be posted at the following Web site: http://www.epa.gov/osw/nonhaz/definition.htm. Please refer to this Web site to confirm the date of the public hearing as well. If no one requests to speak at the public hearing by June 14, 2010 then the public hearing will be cancelled and a notification of cancellation posted on the following web site: http://www.epa.gov/osw/nonhaz/definition.htm. Information regarding the interrelated CAA proposals referenced can be found at http://www.epa.gov/airquality/combustion. Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g. , CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at the RCRA Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the RCRA Docket is (202) 566-0270. FOR FURTHER INFORMATION CONTACT: George Faison, Program Implementation and Information Division, Office of Resource Conservation and Recovery, 5303P, Environmental Protection Agency, Ariel Rios Building, 1200 Pennsylvania Avenue, NW., Washington, DC 20460-0002; telephone number: 703-305-7652; fax number: 703-308-0509; e-mail address: faison.george@epa.gov. SUPPLEMENTARY INFORMATION: A. Does This Action Apply to Me? Categories and entities potentially affected by this action include: Generators Major generator category NAICS* Users Major boiler type and primary industry category NAICS* Iron and Steel Mills 331111 Industrial Boilers: Food Manufacturing 311, 312 Pulp and Paper Mills 3221 Chemical Manufacturing 325 Other Rubber Product Manufacturing 32629 Petroleum Refining 32411 Primary Metal Manufacturing 331 Fabricated Metal Manufacturing 332 Logging 113310 Other Manufacturing 313, 339, 321, 333, 336, 511, 326, 316, 327 Sawmills and Wood Preservation 32111 Veneer, Plywood, and Engineered Wood Product Manufacturing 32121 Commercial Boilers: Pulp, Paper, and Paperboard Mills 3221 Office 813, 541, 921 Cattle Ranching and Farming 1121 Warehouse 493 Hog and Pig Farming 1122 Retail 442-454 Poultry and Egg Production 1123 Education 611 Sheep and Goat Farming 1124 Social Assistance 624 Horses and Other Equine Production 112920 Lodging, Restaurant 721, 722 Crop Production 111 Health Care Facilities 621 Support Activities for Crop Production 11511 Other 922140, others Food Manufacturing 311 Beverage and Tobacco Product Manufacturing 312 Common Non-Manufacturing Boilers: Construction of Buildings 236 Agriculture (crop & livestock production) 111, 112, 115 Site Preparation Contractors 238910 All Mining 212 Landscaping Services 561730 Construction 236 Iron and Steel Mills 331111 Fossil Fuel Electric Power Generation 221112 Other Boilers: Cement Manufacturing 327310 Electric Utility Boilers 2211 Bituminous Coal and Lignite Surface Mining 212111 Bituminous Coal Underground Mining 212112 Non HW Burning Cement Kilns 327310 Anthracite Mining 212113 Sewage Treatment Facilities 221320 Solid Waste Collection and Solid Waste Landfill 562111, 562212 Metal-casting industry 331522 Glass and Glass Product Manufacturing 3272 Packaging 32611 Plastic manufacturers 325211 Electrometallurgical Ferroalloy Product Manufacturing 331112 Recycling Services for Degreasing Solvents Manufacturing 325998 Solvent Dyes Manufacturing 325132 Solvents Made in Petroleum Refineries 324110 Automotive Repair and Replacement Shops 811111 Recyclable Material Wholesalers 423930 Engineered Wood Members Manufacturing 321213 All Other Miscellaneous Chemical Product and Preparation Manufacturing 325998 * NAICS = North American Industrial Classification System. This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be impacted by this action. This table lists examples of the types of entities of which EPA is aware that could potentially be affected by this action. Other types of entities not listed could also be affected. To determine whether your facility, company, business, organization, etc., is affected by this action, you should examine the applicability criteria in this rule. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding section: FOR FURTHER INFORMATION CONTACT . B. What Should I Consider as I Prepare My Comments for EPA? 1. Submitting CBI. Do not submit this information to EPA through http://www.regulations.gov or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with the procedures set forth in 40 CFR part 2. 2. Tips for Preparing Your Comments. When submitting comments, remember to: • Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date, and page number). • Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number. • Explain why you agree or disagree, suggest alternatives, and substitute language for your requested changes. • Describe any assumptions and provide any technical information and/or data that you used. • If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. • Provide specific examples to illustrate your concerns, and suggest alternatives. • Explain your views as clearly as possible. • Make sure to submit your comments by the comment period deadline identified. 3. Docket Copying Costs. Many documents are available only in the original and, therefore, must be photocopied. Patrons are allowed 100 free photocopies. Thereafter, they are charged 15 cents per page. When necessary, an invoice indicating how many copies were made, the cost of the order, and where to send a check will be issued to the patron. Documents also are available on microfilm. The EPA/DC staff assist patrons locate the needed documents and operate the microfilm machines. The billing fee for printing microfilm documents is the same as for photocopying documents. Patrons who are outside of the metropolitan Washington, DC, area can request documents by telephone. The photocopying and microfilming fee is the same as for walk-in patrons. If an invoice is necessary, EPA/DC staff can mail one with the order. Preamble Outline I. Statutory Authority II. List of Abbreviations and Acronyms III. Introduction IV. Background A. What Is the History of CISWI, CISWI Definitions, and Boiler Rulemakings? B. Why Is the Court's Decision Affecting the CAA Rules Relevant to RCRA? C. What Do Sections 112 and 129 of the CAA Require? V. Use of Secondary Materials A. Introduction B. Secondary Materials Use and Benefits VI. History of the Definition of Solid Waste A. Statutory Definition of Solid Waste B. Case Law on Definition of Solid Waste C. The Concept of Legitimacy VII. ANPRM Discussion, Summary of the Proposed Approach, Comments Received on the ANPRM, and Rationale for and Detailed Description of the Proposed Rule A. Summary of the ANPRM Approach 1. Traditional Fuels 2. Guiding Principles Used To Determine if Secondary Materials Used in Combustion Units Are Solid Wastes 3. Secondary Materials Used as Legitimate “Alternative” Fuels That Have Not Been Previously Discarded 4. Secondary Materials Used as Legitimate “Alternative” Fuels Resulting From the Processing of Discarded Secondary Materials 5. Secondary Materials Used as Legitimate Ingredients 6. Hazardous Secondary Materials That May Be Excluded From the Definition of Solid Waste Under RCRA Subtitle C Because They Are More Like Commodities Than Wastes 7. Additional Areas for Comment in the ANPRM a. Fuels or Materials That Have Been Discarded That Are Generally Considered To Be Solid Wastes b. Other Approaches for Determining Whether Secondary Materials Are Fuels and Not Solid Wastes c. Materials for Which State Beneficial Use Determinations Have Been Made d. Biofuels B. Summary of the Proposed Approach 1. Changes From the ANPRM Approach 2. General Proposed Approach 3. Legitimacy Criteria 4. Traditional Fuels 5. Circumstances Under Which a Non-Hazardous Secondary Material Would Not Be Considered a Solid Waste 6. Petition Process C. What Were the Major Comments on the ANPRM? 1. Comments From State Agencies 2. Meaning of Discard 3. General Approach 4. Level of Processing Needed to Produce a Non-Waste Product From Discarded Waste Material 5. Comments on Specific Materials Used as Fuels a. Traditional Fuels b. Biomass c. Used Tires d. Used Oil e. Coal Refuse/Coal Combustion Residuals f. Sewage Sludge 6. Comments on Specific Materials Used as Ingredients a. Cement Kiln Dust b. Coal Combustion Residuals c. Foundry Sand d. Blast Furnace Slag/Steel Slag 7. Legitimacy Criteria a. General b. Fuels or Ingredients Being Managed as Valuable Commodities c. Fuels Must Have Meaningful Heating Value d. Fuel/Ingredient Contaminant Levels e. Ingredients Must Provide Useful Contribution f. Ingredients Must Produce a Valuable Product 8. De Minimis Concept D. Rationale for, and Detailed Description of, Proposed Approach 1. Non-Hazardous Secondary Materials Used as Fuel Within the Control of the Generator a. Scope and Applicability b. Restrictions and Requirements 2. Non-Hazardous Secondary Materials Used as Fuel Outside the Control of the Generator 3. Non-Hazardous Secondary Materials Used as Ingredients in Combustion Units 4. Non-Hazardous Secondary Materials Processed Into Non-Waste Fuel/Ingredient Products a. Proposed Definition of Processing b. Rationale for Processing Discarded Material Into Non-Waste Product c. Examples of Adequate Processing d. Examples of Minimal Processing That Would Not Meet Proposed Definition of Processing e. Alternative Approach for Addressing Non-Hazardous Secondary Materials That Are Processed Into Non-Waste Fuels or Ingredients 5. Non-Waste Determination Process 6. Legitimacy Criteria a. Legitimacy Criteria for Fuels b. Legitimacy Criteria for Ingredients E. Alternative Approach F. Effect of Today's Proposal on Other Programs 1. Clean Air Act 2. Renewable Energy 3. Subtitle C Hazardous Waste Program VIII. State Authority A. Applicability of State Solid Waste Definitions and Beneficial Use Determinations B. State Adoption of the Rulemaking IX. Cost and Benefits of the Proposed Rule X. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution or Usage I. National Technology Transfer Advancement Act J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations I. Statutory Authority The U.S. Environmental Protection Agency (EPA) is promulgating these regulations under the authority of sections 2002(a)(1) and 1004(27) of the Resource Conservation and Recovery Act (RCRA), as amended, 42 U.S.C. 6912(a)(1) and 6903(27). Section 129(a)(1)(D) of the CAA directs EPA to establish standards for Commercial and Industrial Solid Waste Incinerators (CISWI), which burn solid waste (section 129(g)(6) of the Clean Air Act (CAA), 42 U.S.C. 7429). Section 129(g)(6) provides that the term, solid waste, is to be established by EPA under RCRA. Section 2002(a)(1) of RCRA authorizes the Agency to promulgate regulations as are necessary to carry out its functions under the Act. The statutory definition of “solid waste” is provided in RCRA section 1004(27). II. List of Abbreviations and Acronyms ANPRM Advanced Notice of Proposed Rulemaking ASME American Society of Mechanical Engineers Btu British Thermal Unit CAA Clean Air Act CAFO Concentrated Animal Feeding Operations CCA Chromated Copper Arsenate CCR Coal Combustion Residuals CFR Code of Federal Regulations CISWI Commercial and Industrial Solid Waste Incinerator CKD Cement Kiln Dust CWA Clean Water Act DSE Domestic Sewage Exemption DSW Definition of Solid Waste EG Emission Guidelines EGU Electric Utility Steam Generating Unit EPA U.S. Environmental Protection Agency GACT Generally Available Control Technology GHG Greenhouse Gas HAP Hazardous Air Pollutant IWI Institutional Waste Incinerator LCA Life Cycle Analysis MACT Maximum Achievable Control Technology NESHAP National Emission Standards for Hazardous Air Pollutants NSPS New Source Performance Standards OSWI Other Solid Waste Incinerator PC Portland Cement PIC Product of Incomplete Combustion POTW Publicly Owned Treatment Works PVC Polyvinyl Chloride RCRA Resource Conservation and Recovery Act SWDA Solid Waste Disposal Act TDF Tire Derived Fuel VSMWC Very Small Municipal Waste Combustor III. Introduction In 1990, Congress added section 129 to the CAA to address emissions from solid waste incinerators. CAA section 129 directs EPA to promulgate emission standards for categories of “solid waste incineration units.” 42 U.S.C. 7429(a)(1). The term “solid waste incineration unit” is defined, in pertinent part, to mean “a distinct operating unit of any facility which combusts any solid waste material from commercial or industrial establishments * * *” Id. at § 7429(g)(1). The CAA specifically excludes the following types of units from the definition of “solid waste incineration unit”: (1) Incinerators or other units required to have a permit under section 3005 of RCRA; (2) material recovery facilities (including primary and secondary smelters) which combust waste for the primary purpose of recovering metals; (3) qualifying small power production facilities, as defined in section 3(17)(C) of the Federal Power Act, or qualifying cogeneration facilities, as defined in section 3(18)(B) of the Federal Power Act, which burn homogeneous waste (such as units which burn tires or used oil, but not including refuse-derived fuel) for the production of electric energy or in the case of qualifying cogeneration facilities which burn homogeneous waste for the production of electric energy or steam or forms of useful energy (such as heat) which are used for industrial, commercial, heating or cooling purposes, or (4) air curtain incinerators, provided that such incinerators only burn wood wastes, yard wastes and clean lumber and that such air curtain incinerators comply with the opacity limitations to be established by the Administrator by rule. Id. CAA section 129 further 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). CAA section 129 refers to the Solid Waste Disposal Act (SWDA). However, this act, as amended, is commonly referred to as RCRA. Thus, the term “RCRA” is used in place of SWDA in this Notice. RCRA in turn defines the term “solid waste” to mean “* * * any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations, and from community activities, * * *” Section 1004 (27). IV. Background The discussion below was previously included in the Advanced Notice of Proposed Rulemaking (ANPRM). However, because it is also pertinent to the development of today's proposal, it also is included here for the benefit of the reader. The entire record for the ANPRM is included in the record for this rulemaking. To the extent there are any inconsistencies or differences between the ANPRM and this proposal, the statements in this proposal apply. A. What is the history of CISWI, CISWI definitions, and boiler rulemakings? EPA promulgated a final rule setting forth performance emissions standards for Commercial and Industrial Solid Waste Incineration Units (referred to as the “CISWI Rule”). 65 FR 75338 (December 1, 2000). Under CAA section 129, the emissions standards for new sources must be at least as stringent as the emissions control achieved in practice by the best-controlled similar source. For existing sources, the emissions standards must be at least as stringent as the average emissions limitation achieved by the best-performing 12 percent of units in the category. CAA section 129 (a)(2). This level of stringency is commonly referred to as the maximum achievable control technology (MACT) “floor.” EPA must also consider more stringent “beyond-the-floor” emissions controls, taking into account cost, energy, and non-air quality environmental impacts. The Administrator may also distinguish among classes, types (including mass-burn, refuse-derived fuel, modular and other types of units), and sizes of units within a category in establishing such standards. Id. at 7429(a)(2). The CISWI Rule established emission limitations for new and existing CISWI units for the following pollutants: Cadmium, carbon monoxide, dioxins/furans, hydrogen chloride, lead, mercury, oxides of nitrogen (NO X ), particulate matter (PM), sulfur dioxide (SO 2 ), and opacity. In addition, the rule established certain monitoring and operator training and certification requirements. See 65 FR 75338 for a more detailed discussion of the CISWI Rule. The CISWI Rule was challenged in Sierra Club v. EPA (No. 01-1048) (DC Cir.). After promulgation of the CISWI Rule, the DC Circuit issued its decision in a challenge to EPA's MACT standards for the cement kiln industry. Cement Kiln Recycling Coalition v. EPA, 255 F.3d 855 (DC Cir. 2001) (“Cement Kiln”). As a result of the courts decision in Cement Kiln, EPA requested a voluntary remand of the CISWI Rule, in order to address concerns related to the issues that were raised by the court in Cement Kiln. The court granted EPA's request for a voluntary remand and remanded, without vacatur, the CISWI Rule back to EPA. Because the CISWI Rule was not vacated, its requirements remain in effect. See Sierra Club. v. EPA, 374 F. Supp.2d 30, 32-33 (D.D.C. 2005). On September 22, 2005, EPA issued revised definitions of “solid waste,” “commercial or industrial solid waste incineration unit,” and “commercial or industrial waste” (the “CISWI Definitions Rule”). See 70 FR 55568. In the CISWI Definitions Rule, EPA defined “commercial and industrial solid waste” to exclude solid waste that is combusted at a facility in a combustion unit whose design provides for energy recovery or which operates with energy recovery. Therefore, a unit combusting solid waste with energy recovery was not considered a CISWI unit. The CISWI Definitions Rule was vacated by the DC Circuit in NRDC v. EPA ( 489 F.3d 1250 (DC Cir. 2007)). The court stated that the statute unambiguously requires any unit that combusts “any solid waste material at all”—regardless of whether the material is being burned for energy recovery—to be regulated as a “solid waste incineration unit.” Id. at 1260. In the same decision, the court also vacated and remanded EPA's emissions standards for commercial, industrial, and institutional major source boilers and process heaters (the Boiler MACT Rule), concluding that the universe of sources subject to that rule would be much smaller if it did not include units that combust solid waste for the purposes of energy recovery. B. Why is the court's decision affecting the CAA rules relevant to RCRA? In responding to the court's vacatur and remand of the CISWI Definitions Rule and the Boiler MACT Rule, EPA is establishing, under RCRA, which non-hazardous secondary materials 1 are “solid waste.” This is necessary because, under the court's decision, any unit combusting any “solid waste” at all must be regulated as a “solid waste incineration unit,” regardless of the function of the combustion device. If a non-hazardous secondary material (also referred to as secondary materials in this notice) is not a “solid waste” under RCRA, then a unit combusting that material must be regulated pursuant to CAA section 112 if it is a source of HAP. Alternatively, if such material is a “solid waste” under RCRA, then a unit combusting that material must be regulated under CAA section 129. 1 A secondary material is any material that is not the primary product of a manufacturing or commercial process, and can include post-consumer material, post-industrial material, and scrap. Many types of secondary materials have Btu or material value, and can be reclaimed or reused in industrial processes. For purposes of this notice, the term secondary materials include only non-hazardous secondary materials. See also American Mining Congress v. EPA, 824 F.2d 1177 (DC Cir. 1987) in which the U.S. Court of Appeals for the District of Columbia Circuit discussed secondary materials. C. What do CAA Sections 112 and 129 require? CAA section 112 requires EPA to promulgate regulations to control emissions of 187 2 hazardous air pollutants (HAP) from sources in each source category listed by EPA under section 112(c). The statute requires the regulations for major sources 3 to reflect the maximum degree of reduction in emissions of HAP that is achievable taking into consideration the cost of achieving the emission reduction, any non-air quality health and environmental impacts, and energy requirements. For existing sources, the emissions standards must be at least as stringent as the average emissions limitation achieved by the best- performing 12 percent of units in the category or subcategory for categories and subcategories with at least 30 sources, and by the best-performing five sources in the category or subcategory for categories and subcategories with fewer than 30 sources. For new sources, the emissions standard must be at least as stringent as the emissions limitation achieved by the best-performing similar source. CAA section 112(d)(3). This level of stringency is commonly referred to as the MACT “floor.” 2 EPA has delisted 3 of the 190 HAP initially listed in section 112(b)(1): Methyl ethyl ketone, glycol ethers, and caprolactam. 3 A “major source” is any stationary source that emits or has the potential to emit considering controls, in the aggregate, 10 tons per year or more of any HAP or 25 tons per year or more of any combination of HAP. CAA section 112(a)(1). Like the CAA section 112 standards, the CAA section 129 standards are based on a MACT floor. Also, as with the section 112 standards, above-the-floor standards may be established where EPA determines it is “achievable” taking into account costs and other factors. Although CAA section 129 “establishes emission requirements virtually identical to section [112's],” Nat'l Lime Ass'n v. EPA, 233 F.3d at 631, the two sections differ in three primary respects. First, CAA section 112 requires that MACT standards be established for major sources of HAP emissions, but provides discretionary authority to establish standards based on “generally available control technology” (GACT) for area sources of HAP emissions. 4 On the other hand, under CAA section 129, EPA must issue MACT standards for all solid waste incineration units in a given category regardless of size. Second, CAA section 129 requires that numeric emission limitations must be established for the following nine pollutants, plus opacity (as appropriate): cadmium, carbon monoxide, dioxins/furans, hydrogen chloride, lead, mercury, NOx, particulate matter (total and fine), and SO 2. 5 These nine pollutants represent the minimum that must be regulated; EPA has the discretion to establish standards for other pollutants as well. Third, CAA section 129 includes specific requirements for operator training, pre-construction site assessments, and monitoring that are not included in CAA section 112. See CAA section 129(a)(3), (c) and (d). Rather, CAA section 112's implicit authority and CAA sections 113 and 114's explicit authority is relied upon to include provisions as necessary to assure compliance with and enforcement of the section 112 emission limitations. It is important to note that CAA section 129(h)(2) specifies that no solid waste incineration unit subject to the performance standards under CAA sections 111 and 129 shall be subject to the standards under CAA section 112(d). 4 An “area source” is any stationary source of HAP that is not a major source. CAA section 112(a)(2). Area sources may be regulated under CAA section 112(d)(2) standards if the Administrator finds that the sources “presen[t] a threat of adverse effects to human health or the environment (by such sources individually or in the aggregate) warranting regulation under this section.” Section 112(c)(3). Certain categories of area sources must be regulated in accordance with section 112(c)(3) and (k)(3)(B). 5 Of these nine pollutants, cadmium, dioxins/furans, hydrogen chloride, lead, and mercury are also regulated HAP pursuant to CAA section 112, and particulate matter and carbon monoxide are commonly used as surrogate emission standards to control specific CAA section 112 HAP ( e.g., CAA section 112 HAP metal and organic emissions). V. Use of Secondary Materials A. Introduction The U.S. is pursuing an approach to materials management that employs the concepts of life cycle assessment 6 and full cost accounting. 7 Within the context of RCRA, 8 this proposal aims to facilitate materials management to the extent allowed by the statute, through the establishment of a regulatory framework that guides the beneficial use of various secondary materials, while ensuring that such use is protective of human health and the environment. EPA, in conjunction with the states, seeks to further facilitate this objective through research, analysis, incentives, and communication. The Agency recognizes that secondary materials are widely used today as raw materials, as products, and as fuels and/or ingredients in industrial processes. We expect these uses will continue and expand in future years as effective materials management becomes more critical to a sustainable society. The use of materials from a variety of non-traditional sources, including the use of energy-containing secondary materials, is expected to play an important role in future resource conservation efforts. 6 The terms “life cycle analysis” and “life cycle assessment” are commonly used interchangeably. Life cycle assessment is a system-wide analytical technique for assessing the environmental (and sometimes economic) effects of a product, process, or activity across all life stages. 7 Full cost accounting is an accounting system that incorporates economic, environmental, health, and social costs of a product, action, or decision. 8 RCRA Section 6901(c)—Materials: The Congress finds with respect to materials, that—(1) Millions of tons of recoverable material which could be used are needlessly buried each year; (2) methods are available to separate usable materials from solid waste; and (3) the recovery and conservation of such materials can reduce the dependence of the United States on foreign resources and reduce the deficit in its balance of payments. The use of secondary materials as alternative fuels and/or ingredients in manufacturing processes using combustion not only recovers valuable resources, it is known to contribute to emission reductions. For example, both greenhouse gas (GHG) and particulate matter (PM) emissions have been reduced as a co-benefit of the use of secondary materials. 9 The use of secondary materials, such as use as a fuel in industrial processes may also result in other benefits. These may include reduced fuel imports, reducing negative environmental impacts caused by previous dumping ( e.g., tires), and reduced methane gas generation from landfills. 9 For example, the GHG rate associated with the combustion of scrap tires is approximately 0.081 MTCO 2 E per MMBtu of scrap tires combusted, while the GHG emissions rate for coal is approximately 0.094 MTCO 2 E per MMBtu. Combined with the avoided extraction and processing emissions 0.006 MTCO 2 E/MMBtu for coal, the total avoided GHG is 0.019 MTCO 2 E per MMBtu. Substituting tire-derived fuel for coal would also avoid an estimated 0.246 Lbs/MMBtu of PM associated with extraction and processing of the coal. Please see the Materials Characterization Papers in the docket for further details on these estimates, and other estimates of avoided emissions associated with burning tires and other secondary materials as fuel. Secondary materials may, in most cases, be more appropriately defined as “by-products,” 10 reflecting their inherent resource recovery value in the generation and production of heat, energy, and/or marketable products. These secondary materials can provide micro (firm level) and macroeconomic benefits when legitimately used as an effective substitute for, or supplement to primary materials. Economic efficiency can be improved with the use of secondary materials, when substituted for increasingly scarce primary materials, because the use of such materials often results in an equivalent level of output at lower overall resource use, or in turn, more output could be generated using the same amount of resource inputs. When this occurs, monetary savings resulting from reduced resources would, theoretically, be applied to a higher and better use in the economy. This helps advance economic growth as a result of improved industrial efficiency, 11 which, in turn, helps move the country toward material sustainability and energy self sufficiency, while protecting human health and the environment. 10 For purposes of this action, we define by-product as a secondary or incidental material derived from the primary use or production process that has value in the marketplace, or value to the user. 11 Opportunities for improved economic efficiency are recognized through the Action Statement of the U.S. Business Council For Sustainable Development: “Promoting Sustainable Development by Creating Value Through Action Establishing Networks and Partnerships, and Providing a Voice for Industry.” B. Secondary Materials Use and Benefits A wide and diverse range of secondary materials are currently used as fuels and/or ingredients in manufacturing or service processes. Based on our research conducted in support of the January 2, 2009 ANPRM, we identified eight non-hazardous secondary material fuels or fuel groups and six non-hazardous ingredients, or ingredient groups. The eight fuel source materials were: The biomass group (pulp and paper residuals, forest derived biomass, agricultural residues, food scraps, animal manure, and gaseous fuels); construction and demolition materials (building related, disaster debris, and land clearing debris); scrap tires; scrap plastics; spent solvents; coal refuse; waste water treatment sludge, and used oil. The six secondary material ingredients were: blast furnace slag; cement kiln dust (CKD); the coal combustion product group (fly ash, bottom ash, and boiler slag); foundry sand; silica fume; and secondary glass material. The ANPRM discussed and described these key secondary materials. In addition, we developed comprehensive Materials Characterization Papers for each of these fuel and ingredient materials. These papers were included in the docket for the ANPRM, which as we note above is incorporated into the docket for this proposed rule. Based on our review of the public comments submitted in response to the ANPRM, plus further research, we have identified three additional secondary materials not addressed in the ANPRM. These additional secondary materials are auto shredder residue, purification process byproducts, and resinated wood products. We have prepared Materials Characterization Papers for these newly identified secondary materials, which are also included in the docket for today's proposed rule. In addition, we have updated and revised nearly all 12 of the existing Materials Characterization Papers to incorporate commenter information, as appropriate, plus relevant information derived from the 2008 combustion survey database (OMB Control Number 2060-0616). We believe that our newly defined list of secondary fuels and ingredients accounts for the vast majority of all secondary materials used in combustion processes in the U.S. However, as part of this proposal, we again solicit comment on these and any other non-hazardous secondary materials potentially used as fuels and/or ingredients. Comments containing detailed, quality controlled data are welcome and will be very useful as we move forward in this rulemaking effort. Information on the annual quantity of material generated, used, and stored; major uses ( i.e., fuel v. non-fuel); management practices; major markets; processing requirements; contaminants; and life cycle inventory data would be most helpful. 12 The materials characterization paper on Silica Fume was the only paper not requiring updating. VI. History of the Definition of Solid Waste A. Statutory Definition of Solid Waste RCRA defines “solid waste” as “* * *any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material * * * resulting from industrial, commercial, mining, and agricultural operations, and from community activities * * *” (RCRA section 1004 (27) (emphasis added)). The key concept is that of “discard” and, in fact, this definition turns on the meaning of the phrase, “other discarded material,” since this term encompasses all other examples provided in the definition. The ANPRM provides a complete discussion on the concept of discard, as well as a description of the solid waste program under RCRA subtitle D, and the hazardous waste program under RCRA subtitle C. We refer the reader to the ANPRM for a detailed discussion on these subjects regarding the definition of solid waste. The ANPRM also includes a detailed discussion on the case law on the definition of solid waste, which we repeat below, and on the concept of legitimacy, or legitimate recycling. That discussion is relevant to this proposal and is incorporated into this rulemaking. We are repeating parts of the discussion on legitimacy below to the extent it helps in understanding this proposal. B. Case Law on Definition of Solid Waste Partly because the interpretation of the definition of solid waste is the foundation of the hazardous waste regulatory program, there has been a great deal of litigation over the meaning of “solid waste” under RCRA subtitle C. From these cases, a few key principles emerge which guide our thinking on the definition of solid waste. First, the ordinary plain-English meaning of the term, “discard” controls when determining whether a material is a solid waste. See American Mining Congress v. EPA, 824 F.2d 1177 (DC Cir. 1987) (“AMC I”). The ordinary plain-English meaning of the term discarded means “disposed of,” “thrown away,” or “abandoned.” The DC Circuit in AMC I specifically rejected a more expansive meaning for discard that would encompass any materials “no longer useful in their original capacity” even if they were not destined for disposal. 824 F.2d at 1185-87. The Court further held that the term “discarded materials” could not include materials “* * * destined for beneficial reuse or recycling in a continuous process by the generating industry itself. (824 F.2d at 1190). Subsequent to AMC I, the DC Circuit discussed the meaning of discard in particular cases. In American Petroleum Institute v. EPA, 906 F.2d 729 (DC Cir. 1990) (“API I”), the court rejected EPA's decision not to regulate recycled air pollution control equipment slag based on an Agency determination that waste “ceases to be a ‘solid waste' when it arrives at a metals reclamation facility because at that point it is no longer ‘discarded material.' ” 906 F.2d at 740. Instead, the court held that the materials were part of a mandatory waste treatment plan for hazardous wastes prescribed by EPA and continued to be wastes even if recycled. 906 F.2d at 741. Further, a material is a solid waste regardless of whether it “may” be reused at some time in the future. American Mining Congress v. EPA, 907 F.2d 1179 (DC Cir. 1990) (“AMC II”). One of the more important holdings of a number of court decisions is that simply because a waste has, or may have, value does not mean the material loses its status as a solid waste. See API I, 906 F.2d at 741 n.16; United States v. ILCO Inc., 996 F.2d 1126, 1131-32 (11th Cir. 1993); Owen Steel v. Browner, 37 F.3d 146, 150 (4th Cir. 1994). ILCO and Owen Steel, however, recognize that products made from wastes are, themselves, products and not wastes. The DC Circuit's decision in Association of Battery Recyclers v. EPA, 208 F.3d 1047 (DC Cir. 2000) (“ABR”) reiterated the concepts discussed in the previous cases. The Court held that it had already resolved the issue presented in ABR in its opinion in AMC I, where it found that “* * * Congress unambiguously expressed its intent that ‘solid waste' (and therefore EPA's regulatory authority) be limited to materials that are ‘discarded' by virtue of being disposed of, abandoned, or thrown away” (208 F.2d at 1051). It repeated that materials reused within an ongoing industrial process are neither disposed of nor abandoned (208 F.3d at 1051-52). The court also explained that the intervening API I and AMC II decisions had not narrowed the holding in AMC I (208 F.3d at 1054-1056). Notably, the Court in ABR did not hold that storage before reclamation automatically makes materials “discarded.” Rather, it held that “* * * at least some of the secondary material EPA seeks to regulate as solid waste (in the mineral processing rule) is destined for reuse as part of a continuous industrial process and thus is not abandoned or thrown away” (208 F.3d at 1056). In this regard, the court criticized all parties in the case—industry as well as EPA—because they “presented this aspect of the case in broad abstraction, providing little detail about the many processes throughout the industry that generate residual material of the sort EPA is attempting to regulate * * *. ” (Ibid). American Petroleum Institute v. EPA, 216 F.3d 50, 55 (DC Cir. 2000) (“API II”), decided shortly after ABR and considered by the court at the same time, provides further guidance for defining solid waste, but in the context of two specific waste streams in the petroleum refining industry. The court overturned EPA's determination that certain recycled oil bearing wastewaters are wastes (216 F.3d at 55-58) and upheld conditions imposed by the Agency in excluding petrochemical recovered oil from the definition of solid waste (216 F.3d at 58-59). In the case of oil-bearing wastewaters, EPA had determined that the first phase of treatment, primary treatment, results in a waste being created. 216 F.3d at 55. The court overturned this decision and remanded it to EPA for a better explanation, neither accepting EPA's view nor the contrary industry view. The court noted that the ultimate determination that had to be made was whether primary treatment is simply a step in the act of discarding or the last step in a production process before discard. 213 F.3d at 57. In particular, the court rejected EPA's argument that primary treatment was required by regulation, instead stating that the Agency needed to “set forth why it has concluded that the compliance motivation predominates over the reclamation motivation” and “why that conclusion, even if validly reached, compels the further conclusion that the wastewater has been discarded.” 213 F.3d at 58. The court also considered whether material is discarded in Safe Food and Fertilizer v. EPA, 350 F.3d 1263 (DC Cir. 2003) (“Safe Food”). In that case, among other things, the court rejected the argument that, as a matter of plain meaning, recycled material destined for immediate reuse within an ongoing industrial process is never considered “discarded,” whereas material that is transferred to another firm or industry for subsequent recycling must always be solid wastes. 350 F.3d at 1268. Instead, the court evaluated “whether the agency's interpretation of * * * ‘discarded' * * * is, reasonable and consistent with the statutory purpose* * * .” Id. Thus, EPA has the discretion to determine that a material is not a solid waste, even if it is transferred between industries. We also note that the Ninth Circuit has specifically found that non-hazardous secondary materials may, under certain circumstances, be burned and not constitute a solid waste under RCRA. See Safe Air For Everyone v. Waynemeyer (“Safe Air”), 373 F.3d 1035 (9th Cir., 2004) (Kentucky bluegrass stubble may be burned to return nutrients to the soil and not be a solid waste). C. The Concept of Legitimacy An important element under the RCRA subtitle C definition of solid waste (and an important element of today's proposal) is the concept of legitimate use and recycling. Under RCRA subtitle C, some hazardous secondary materials that would otherwise be subject to regulation under RCRA's “cradle to grave” system are not considered solid wastes if they are “legitimately recycled” or legitimately used as an ingredient or substitute for a commercial product. The principal reasoning behind this construct is that use or recycling of such materials often closely resembles normal industrial production, rather than waste management. However, since there can be considerable economic incentive to manage recyclable materials outside of the RCRA hazardous waste regulatory system, there is a clear potential for and historical evidence of some handlers claiming they are recycling, when in fact they are conducting waste treatment and/or disposal in the guise of recycling. EPA considers such “sham” recycling to be, in fact, discard and such secondary materials being sham recycled are solid wastes. To guard against hazardous secondary materials being discarded in the guise of recycling, EPA has long articulated the need to distinguish between “legitimate” ( i.e., true) recycling or other use and “sham” ( i.e., fake) recycling; see the preamble to the 1985 hazardous waste regulations that established the definition of solid waste under RCRA subtitle C (50 FR 638; January 4, 1985). A similar discussion that addressed legitimacy as it pertains to burning hazardous secondary materials for energy recovery (considered a form of recycling under RCRA subtitle C) was presented in the January 9, 1988 proposed amendments to the definition of solid waste (53 FR 522). Then on April 26, 1989, the Office of Solid Waste 13 issued a memorandum that consolidated the various preamble and other statements concerning legitimate recycling into a list of questions to be considered in evaluating the legitimacy of hazardous secondary materials recycling (OSWER directive 9441.1989(19)). This memorandum (known to many as the “Lowrance Memo,” a copy of which is included in the Docket to today's preamble) has been a primary source of information for the regulated community and for overseeing agencies in distinguishing between legitimate and sham recycling. 13 On January 9, 2009, the Office of Solid Waste was renamed the Office of Resource Conservation and Recovery. On October 30, 2008, EPA finalized several exclusions from the definition of solid waste for hazardous secondary materials being reclaimed and a non-waste determination process for persons to receive a formal determination that their hazardous secondary materials are not solid wastes when legitimately reclaimed. 14 In that action, EPA codified in 40 CFR 260.43 the requirement that materials be legitimately recycled as a condition for the exclusion for hazardous secondary materials that are legitimately reclaimed under the control of the generator (40 CFR 261.2(a)(2)(ii) and 40 CFR 261.4(a)(23)) and as a condition of the exclusion for hazardous secondary materials that are transferred for the purpose of legitimate reclamation (40 CFR 261.4(a)(24) and 40 CFR 261.4(a)(25)). As part of that final rule, EPA also codified a legitimate recycling provision specifically as a requirement or condition of these exclusions and the non-waste determination process (40 CFR 260.34). 14 See 73 FR 64668. Although this proposed rule does not address the Agency's hazardous waste regulations, EPA believes the concept of legitimacy is an important one in determining when a secondary material is genuinely recycled and not discarded under the guise of recycling. Therefore, the Agency is including the following discussion in today's preamble to provide the context in which EPA has integrated the concept of legitimacy into the recently promulgated hazardous waste exclusions from the definition of solid waste. 15 15 The hazardous waste exclusions from the definition of solid waste became effective on December 29, 2008. On January 29, 2009, the Sierra Club submitted a petition under RCRA section 7004(a), 42 U.S.C. 6974(a), to the Administrator of EPA requesting that the Agency repeal the revisions to the definition of solid waste rule and stay the implementation of the rule. In addition, the Sierra Club and the American Petroleum Institute have filed petitions for judicial review of a rule with the United States Court Of Appeals for The District Of Columbia Circuit. One of the issues that EPA will consider is the definition of legitimate recycling. However, until that occurs, the final rule, including the definition of legitimate recycling remains in effect until and unless EPA goes through another rulemaking process (proposed and final) to repeal or amend it. The legitimacy provision in the October 2008 final rule, which applies specifically to hazardous secondary materials excluded under the rule, has two parts. The first part includes two factors: (1) the hazardous secondary materials being recycled must provide a useful contribution to the recycling process or to the product or intermediate of the recycling process, and (2) the product or intermediate produced by the recycling process must be valuable. These two legitimacy factors make up the core of legitimacy, and, therefore, a process that does not conform to them cannot be a legitimate recycling process, but would be considered sham recycling. The second part of the legitimacy provision consists of two factors that must be considered when determining if a particular hazardous secondary material recycling process is legitimate for the purposes of the exclusion. These two factors are: (1) The generator and the recycler should manage the hazardous secondary material as a valuable commodity, and (2) the product of the recycling process does not contain significant concentrations of hazardous constituents that are not in analogous products. EPA believes these two factors are important in determining legitimacy, but has not made them factors that must be met because the Agency is aware of situations where a legitimate recycling process exists, but may not conform to one or both of these two factors. In making a determination that a hazardous secondary material is legitimately recycled, persons must evaluate all factors and consider legitimacy as a whole. If, after careful evaluation of these other considerations, one or both of the non-mandatory factors are not met, then this fact may be an indication that the material is not legitimately recycled. To evaluate the extent to which these factors are met and in determining the legitimacy of a recycling process that does not meet one or both of these factors, persons can consider the protectiveness of the storage methods, exposure from toxics in the product, the bioavailability of the toxics in the product, and other relevant considerations. EPA stated in the preamble to the October 2008 final rule that, although the Agency was only codifying the legitimacy provision as part of the new hazardous secondary materials recycling exclusions and non-waste determination process, it was stressing that EPA retains its long-standing policy that all recycling of hazardous secondary materials must be legitimate and that the four legitimacy factors codified at 40 CFR 260.43 are substantively the same as the Agency's long-standing legitimacy policy, as stated in the 1989 Lowrance Memo and in various definition of solid waste rulemakings. EPA believes the same principle of “legitimacy” is likewise an important element in the recycling of non-hazardous secondary materials. That is, the concept of legitimate recycling is crucial to determining whether a non-hazardous secondary material being recycled is truly being recycled or is, in fact, being discarded through sham recycling. In the January 2, 2009 ANPRM, the Agency sought comment on the appropriate construct for determining when such non-hazardous secondary materials are legitimately burned as a fuel or used as a legitimate ingredient in an industrial process that involved combustion ( see Section V, 74 FR 53-9). A general discussion of the comments EPA received follows in Section VII.C. VII. ANPRM Discussion, Summary of the Proposed Approach, Comments Received on the ANPRM, and Rationale for and Detailed Description of the Proposed Rule A. Summary of the ANPRM Approach In the ANPRM, the Agency considered various scenarios in evaluating the usage of secondary materials ( e.g., as fuels or ingredients) and whether these materials should be considered solid wastes under RCRA when used in combustion devices, such that units burning these secondary materials would be subject to regulation under CAA section 129, rather than subject to CAA section 112. Specifically, the ANPRM identified several cases where such non-hazardous secondary materials are not solid wastes when combusted, and thus, subject to CAA section 112. These were: (1) Traditional fuels, (2) secondary materials used as legitimate “alternative” fuels that have not been previously discarded, (3) secondary materials used as legitimate “alternative fuels” resulting from the processing of discarded secondary materials, (4) secondary materials used as legitimate ingredients, and (5) hazardous secondary materials that may be excluded from the definition of solid waste under RCRA subtitle C because they are more like commodities than wastes. All other cases where non-hazardous secondary materials are combusted would be considered “solid wastes” and subject to CAA section 129. 1. Traditional Fuels The ANPRM categorized cellulosic biomass ( e.g., wood) and fossil fuels ( e.g., coal, oil, natural gas) and their derivatives ( e.g., petroleum coke, bituminous coke, coal tar oil, refinery gas, synthetic fuel, heavy recycle, asphalts, blast furnace gas, recovered gaseous butane, coke oven gas) as traditional fuels that have been burned historically as fuels and have been managed as valuable products, and stated that they are considered unused products that have not been discarded and therefore are not solid wastes. The ANPRM further stated that wood collected from forest fire clearance activities and trees and uncontaminated wood found in disaster debris would not be discarded if managed properly and burned as a legitimate fuel, and therefore not a solid waste. 2. Guiding Principles Used To Determine if Secondary Materials Used in Combustion Units Are Solid Wastes The ANPRM explained key factors in determining if alternative fuels or ingredients are solid wastes under RCRA, including whether they have been discarded, and if they have been discarded, whether they have been processed to produce a fuel or ingredient product that would not be considered a solid waste. The ANPRM further explained that the plain-English meaning of the term discard applies to the RCRA definition of solid waste. That is, a material is discarded if it is disposed of, thrown away, or abandoned. Moreover, the ANPRM stated the term “discarded materials” could not include materials “ * * * destined for beneficial reuse or recycling in a continuous process by the generating industry itself,” and that determining whether a secondary material is used in a continuous process is important because certain materials under consideration are produced and managed in a continuous process within an industry ( e.g., cement kiln dust that is recycled in cement kilns). The ANPRM went on to say that even if the secondary material is not used in a continuous process, if it is used as a legitimate fuel or ingredient, these secondary materials are not solid wastes if they were not previously discarded. For alternative fuels or ingredients not to be considered discarded, and thus not to be solid wastes, the ANPRM stated that they must be legitimate fuels or ingredients. It then described EPA's criteria for determining if a secondary material is a legitimate fuel or ingredient. The Agency explained that it generally considers secondary materials to be legitimate non-waste fuels if they are handled as valuable commodities, have meaningful heating value, and contain contaminants that are not significantly higher in concentration than traditional fuel products. If these criteria are not met, sham recycling may be indicated and the secondary material might be a solid waste. Similarly, for non-hazardous secondary materials to be considered a non-waste ingredient, the ANPRM stated that it would generally consider secondary materials to be non-waste ingredients if the secondary material is handled as a valuable commodity, the secondary material provides a useful contribution, the recycling results in a valuable product, and the product does not contain contaminants that are significantly higher in concentration than traditional products. 3. Secondary Materials Used as Legitimate “Alternative” Fuels That Have Not Been Previously Discarded For legitimate “alternative” fuels that have not been previously discarded, the ANPRM stated that the question of what constitutes a legitimate “fuel” reflects the availability of fuel materials generally, the demand for fuel, and technology developments. Thus, in addition to traditional fuels, the ANPRM stated that there is a category of secondary materials that are legitimate alternative fuels; that is, there are secondary materials that may not have been traditionally used as fuels, but that are nonetheless legitimate fuels today because of changes in technology and in the energy market. In cases where these legitimate alternative fuels have not been discarded, EPA said that it would not consider them to be solid wastes. We stated that much of the biomass currently used as alternative fuels are not solid waste since they have not been discarded in the first instance and are legitimate fuel products, noting that biomass can include a wide range of alternative fuels, and can be broken down into two different categories—cellulosic biomass and non-cellulosic biomass. Cellulosic biomass was described to include forest-derived biomass ( e.g., green wood, forest thinnings, clean and unadulterated bark, sawdust, trim, and tree harvesting residuals from logging and sawmill materials), food scraps, pulp and paper mill wood residuals ( e.g., hog fuel, such as clean and unadulterated bark, sawdust, trim screenings; and residuals from tree harvesting), and agricultural residues ( e.g., straw, corn husks, peanut shells, and bagasse). Non-cellulosic biomass was described to include manures and gaseous fuels ( e.g., from landfills and manures). The ANPRM stated that biomass, especially cellulosic biomass, has a comparable composition to traditional fuel products due to the nature of the plants and animals ( i.e., they would not be considered to have additional “contaminants”). Thus, if they are managed as valuable commodities and have meaningful heating value, they would not be considered solid wastes. The ANPRM also noted that tires used as tire-derived fuel (TDF), which include whole or shredded tires, that have not been previously discarded, are legitimate fuels if they meet the legitimacy criteria i.e., they are handled as valuable commodities, have meaningful heating value, and do not contain contaminants that are significantly higher in concentration when compared to traditional fuel products ( see Materials Characterization Paper on Scrap Tires in the docket for today's rule for a complete discussion on contaminants in TDF [EPA-HQ-RCRA-2008-0329]). We noted that in many cases, used tires that are collected pursuant to state tire oversight programs ( e.g., used tires from tire dealerships that are sent to used tire processing facilities) are handled as valuable commodities, and, therefore, have not been abandoned, disposed of, or thrown away. We noted that because states typically regulate these programs under their state solid waste authorities, it is not the Agency's intent to undercut the state's authority in this area. We requested comment on whether tires collected pursuant to state tire oversight programs have been discarded, and also requested comment on whether an EPA designation specifying that used tires, for example, managed pursuant to state collection programs are not solid wastes, would adversely impact a state's ability to manage such a program. EPA notes that it is considering a change regarding the issue of tires collected under state programs, which is discussed later in the preamble. In particular, the Agency proposes that tires collected under these recycling programs are discarded and are solid wastes. EPA proposes this formulation for tires, but is asking for further comment on the ANPRM formulation that secondary material collected and sent for legitimate use as fuels are not discarded and are not solid wastes. For more discussion, see sections VII.C.5.c. and VII.D.2 of today's proposal. EPA may issue a final rule containing either set of provisions depending on information received in the comment period and other information available to the Agency. The ANPRM described other non-traditional alternative fuels in use today that we are evaluating to determine whether they have been discarded and whether they are legitimate alternative fuels ( e.g., construction and demolition materials, 16 scrap plastics, non-hazardous non-halogenated solvents and lubricants, and wastewater treatment sludge). The ANPRM then described secondary materials we considered to be questionable as to whether they are legitimate fuels because they lack adequate heating value (wet biomass), or because they may contain contaminants that are significantly higher 17 in concentration than those in traditional fuel products to the degree that sham recycling is indicated. The materials that were described in the ANPRM that could fall into this category include polyvinyl chloride (PVC), halogenated plastics, chromated copper arsenate (CCA) lumber, creosote lumber, copper-based treated lumber, lead-based treated lumber, and secondary mill residues, such as board, trim and breakage from the manufacture of reconstituted wood/panel products. 16 EPA is completing a study evaluating the use of a mobile unit for the combustion of vegetative and construction and demolition debris generated from natural disasters. This study includes monitoring of the source and ambient emissions, and a screening risk assessment. Results are projected to be available later in 2010. Extreme care needs to be taken to exclude specific materials in C&D debris, especially regulated-asbestos containing materials (RACM). Additionally, the wiring, plastics, and painted surfaces may contribute to emissions of concern and might not equate to traditional fuels. Upon publication, this study will be available at EPA's National Risk Management Research Laboratory (NRMRL) publications Web site at http://www.epa.gov/nrmrl/publications.html . 17 In determining whether the concentration of contaminants in secondary materials is “significantly higher,” the Agency stated in the ANPRM that it could use a qualitative evaluation of the potential human health and environmental risks posed. A contaminant concentration could be elevated without posing unacceptable risk, and therefore may not be considered “significant” for the purposes of determining whether the secondary material is a legitimate fuel. 4. Secondary Materials Used as Legitimate “Alternative” Fuels Resulting From the Processing of Discarded Secondary Materials The ANPRM also stated that legitimate fuel products may be extracted, processed, or reclaimed from non-hazardous secondary materials that have been discarded in the first instance and that such products would generally not be considered solid waste. Once processed to make a legitimate non-waste fuel product, such a product would not be discarded and therefore would not be a solid waste, provided it met the general principles discussed in today's preamble for being a legitimate fuel. However, until a legitimate product has been processed, the secondary material that has been discarded is a solid waste, and must comply with any federal, state or local regulations. In addition, any waste generated in the “processing” of these materials would need to be managed properly and comply with the appropriate requirements. The ANPRM described various secondary materials that can be processed into fuels, including discarded biomass ( e.g., with dewatering/drying techniques to increase the Btu/lb, or stripping the paint off wood to produce clean biomass), coal fines, used oil, tires, 18 landfill ash, and secondary materials that are mixed and processed into pellets (or other forms) that have the consistency and handling characteristics of coal ( e.g., K-Fuel, N-Viro). The ANPRM stated that the degree of processing necessarily will vary depending on the specific material, but the objective remains the same—the product from the processing must be a legitimate fuel ( i.e., a material with meaningful heating value, with contaminants that are not present at significantly higher concentrations than those of traditional fuel products, and managed as a valuable commodity). 18 Turning scrap tires into TDF can involve two physical processing steps: Chipping/shredding and in some cases metal removal. The ANPRM stated that, at that point, the Agency's view was that tire shredding/chipping alone (without metal recovery), as well as in combination with metal recovery, are legitimate processing activities sufficient to convert a discarded material into a fuel product. Although the ANPRM stated that forest-derived biomass is not considered to have been discarded, we requested comment on whether any forest-derived biomass that was determined to have been discarded and was subsequently processed by chipping or sorting prior to use as a fuel through combustion would be considered to have undergone adequate processing to convert the discarded material into a fuel product. We also requested comment on whether mined landfill power plant residuals that is crushed, screened, and/or separated into its fundamental components through density separation is adequately processed to convert it into a fuel product or ingredient (under the assumption that it meets our previously described legitimacy criteria). With respect to used oil, the ANPRM stated that off-specification used oil that is collected from repair shops is generally thought to be originally discarded, but that on-spec used oil was considered to be a product fuel, not a waste. We also requested comment on whether off-specification used oil managed pursuant to the 40 CFR part 279 used oil management standards which are burned for energy recovery should be considered to be discarded, and thus whether such off-specification used oil should be considered a non-waste fuel. We stated that although off-specification used oil may contain contaminant levels that are higher in concentration than traditional (virgin) fossil fuels, they still are managed within the constraints of the used oil management standards, and may only be burned in specific types of combustion devices. 5. Secondary Materials Used as Legitimate Ingredients For secondary materials used as ingredients, the ANPRM also stated we must determine whether alternative ingredients, such as CKD, bottom ash, boiler slag, blast furnace slag, foundry sand, and secondary glass material have been discarded, or whether they are being used as legitimate non-waste ingredients. For example, the ANPRM stated that coal fly ash is handled as a commodity within continuous commerce when it is marketed to cement kilns as an alternative ingredient, and would not be considered a waste if it met the legitimacy criteria. The ANPRM also stated that secondary materials used as ingredients that were previously discarded could be processed into legitimate non-waste ingredients. 6. Hazardous Secondary Materials That May Be Excluded From the Definition of Solid Waste Under RCRA Subtitle C Because They Are More Like Commodities Than Wastes In the ANPRM, the Agency explained that, under the hazardous waste regulations, EPA has evaluated a number of hazardous secondary materials that are legitimately used or recycled and determined that such materials, while they either met a listing description or exhibited one or more of the hazardous waste characteristics, were not “solid wastes” for purposes of the subtitle C hazardous waste regulations. Specifically, black liquor, spent sulfuric acid, and comparable fuels may be burned under certain conditions and would not be solid wastes. The ANPRM discussed EPA's interest in extending this determination so that these materials are not considered solid wastes under RCRA subtitle D as well. 7. Additional Areas for Comment in the ANPRM a. Fuels or Materials That Have Been Discarded That Are Generally Considered To Be Solid Wastes The ANPRM explained that secondary materials that have been previously discarded and not subsequently processed into legitimate fuels or ingredients are considered solid wastes under RCRA. However, the Agency requested comment as to whether these discarded materials—once recovered from the discard environment—should no longer be considered solid waste (assuming they are in fact valuable fuels or ingredients and otherwise meet the legitimacy criteria once recovered). EPA recognized that waste can be burned for energy or material recovery. Such materials, once they have been discarded, generally are considered “solid wastes” and units that burn these materials would be subject to the CAA section 129 incineration standards if they have not been processed into a legitimate non-waste ingredient or fuel. However, the ANPRM explained that as prices for primary materials have increased, in many cases, the economics of using secondary materials as a substitute for primary materials has shifted, changing how the secondary materials are considered in commerce. In addition, new technologies can expand the universe of secondary materials that could be considered legitimate fuels. The ANPRM therefore requested comment on those situations where discarded materials ( e.g., used tires and coal refuse) can be directly used as a legitimate fuel or ingredient without processing because they are indistinguishable in all relevant aspects from a fuel or ingredient product. (Note that the Agency only requested comment on these secondary materials at the point they have been removed from their “discard” environment and managed as valuable commodities. Materials that have been disposed of in abandoned piles or landfills are clearly discarded while they remain in those environments and are subject to appropriate federal, state and local regulations.) b. Other Approaches for Determining Whether Secondary Materials Are Fuels and Not Solid Wastes The ANPRM requested comment on an approach, as presented to the Agency by industry representatives, for determining when non-hazardous secondary materials are fuels and thus, not solid waste, and how the process may be implemented. 19 Industry representatives suggested that non-hazardous secondary materials should be evaluated, on a case-by-case basis, to identify which criteria have been satisfied and determine whether the material is legitimately handled as a fuel. Criteria identified by industry stakeholders include: handling and storage of materials to minimize loss, use of materials within a reasonable period of time, material value ( e.g., whether there is a market for the material as a fuel, internal or external to the company), material managed and treated as a commodity, and processing of material to enhance fuel value. Under the industry recommended approach, the secondary material would not necessarily have to satisfy all criteria. To implement the aforementioned concepts for determining when or which secondary materials are fuels, the ANPRM described two methods presented by industry, which were not meant to be mutually exclusive. One method is self-implementing, by which an owner or operator of a combustion device must determine that the secondary material meets the criteria set forth and maintain records to demonstrate that these criteria are met. The other method is not self-implementing, but would allow an owner or operator to petition EPA or the state to specifically list a secondary material as a legitimate non-waste fuel (in addition to a pre-established list of materials). In the petition, the owner or operator would use the criteria as the basis for proposing that EPA or the state list the secondary material, or the owner or operator could submit additional information to demonstrate the environmental equivalence of the material to other listed fuels. 19 A copy of this industry-recommended approach entitled, “Outline of Regulatory Approach to Determine Materials Considered Fuels—not Solid Wastes—under RCRA,” is included in the docket to today's proposed rule. c. Materials for Which State Beneficial Use Determinations Have Been Made The ANPRM explained that states regulate the management of non-hazardous solid waste, including secondary industrial materials, and that many states have a process or promulgated regulations to determine when these materials are no longer wastes because they can beneficially and safely be used as products in commerce. Materials are no longer subject to the state's solid waste regulations under the state rules when the state determines that the secondary materials are no longer solid wastes when beneficially used. The ANPRM further explained that the states are the lead Agencies for implementing the non-hazardous waste programs and, as such, the Agency wanted to make sure that state programs are not adversely affected by any decisions that are made by EPA, noting that we see a benefit to deferring to state decisions, which are able to consider site-specific information. As a result, the Agency requested comments on whether to consider secondary materials that receive a state beneficial use determination for use as a fuel or as an ingredient as not a solid waste, also not be considered a solid waste under federal law. d. Biofuels Biofuels can be generally described as a gas or liquid fuel made from biological materials, including plants, animal manure, and other organic sources. The ANPRM noted that biofuel production has increased dramatically in the past few years and is expected to continue increasing over the coming years, and stated that biofuels produced from secondary materials, such as ethanol and biodiesel, are not considered to be solid wastes themselves, but rather are viewed as legitimate fuel products. Secondary materials associated with biofuel production can be viewed to include both the feedstock materials that are used to produce biofuels, as well as the byproducts generated from the production of biofuels. The ANPRM stated that these materials are considered legitimate alternative fuels when they have meaningful heating value, do not contain contaminants that are significantly higher in concentration than traditional fuels, and are handled as a valuable commodity. B. Summary of the Proposed Approach 1. Changes from the ANPRM Approach While many of the concepts and provisions that were discussed in the ANPRM are included in this proposal, including discard and the legitimacy criteria, the basic framework is different based partly on the approach taken in the Definition of Solid Waste (DSW) final rule promulgated on October 30, 2008 ( see 73 FR 64668) under subtitle C of RCRA, based partly on the comments received ( see section VII.C for the comments and EPA's response), as well as on our interpretation of whether these secondary materials are considered to be discarded ( see section VII.C.2 for the comments and EPA's response). The ANPRM indicated that there may be a number of secondary materials that would not be considered discarded even if the original generator sent them to another entity outside of its control. For example, used tires collected from automobiles at tire dealerships and managed pursuant to state tire collection programs were not viewed as solid wastes in the ANPRM. Comments received from some states suggested that non-hazardous secondary material fuels that are transferred to a third party have entered what is traditionally considered to be the “waste stream” (and have been regulated by the states as wastes) and therefore should appropriately be considered wastes ( e.g., scrap tires) unless/until they are processed into non-waste fuel products. As discussed below, this proposal assumes that non-hazardous secondary materials that are used as fuels and are managed outside the control of the generator are solid wastes unless they are processed into non-waste fuel products. (Note: The same non-hazardous secondary material that is burned for energy recovery under the control of the generator and meets the legitimacy criteria would not be considered a solid waste since the non-hazardous secondary material would not be considered discarded.) We are also proposing, as discussed below, a non-waste determination petition process. That process will allow those persons who burn non-hazardous secondary material fuels that are not managed within the control of the generator (that this proposal would consider to be solid wastes), to petition EPA for a determination that such non-hazardous secondary materials are not discarded and therefore, are not solid wastes (assuming these materials have met the applicable legitimacy criteria). While the Agency recognizes that a petition process can be resource intensive, we also believe it necessary and appropriate to provide an opportunity for persons to demonstrate to EPA that their non-hazardous secondary material fuels would not be considered “discarded” under RCRA and therefore, not solid waste. Furthermore, some other important changes were made between the ANPRM and this proposal based on comments received and further investigation. One of the differences is the classification of “clean” biomass and on-specification used oil as a traditional fuel ( see section VII.C.5.b.). In addition, EPA is only addressing non-hazardous secondary materials in this rulemaking, and thus, has decided not to address hazardous secondary materials that have been excluded from the definition of solid waste under subtitle C of RCRA in this rulemaking proceeding. Instead, facilities combusting hazardous secondary materials should refer to EPA's Subtitle C hazardous waste regulations to determine whether the materials they are combusting are solid wastes. Each of these changes is discussed in detail in the referenced sections. 2. General Proposed Approach This proposal maintains the same general principles for determining whether a non-hazardous secondary material is or is not a solid waste as expressed in the ANPRM. Under the proposed rule, the following are not solid wastes when combusted for purposes of the CAA: non-hazardous secondary materials used as fuels that remain within and are combusted within the control of the generator and that meet the legitimacy criteria; non-hazardous secondary materials that meet the legitimacy criteria and are used as ingredients in a manufacturing process; materials that meet the legitimacy criteria and have been sufficiently processed into a fuel or ingredient from discarded non-hazardous secondary materials that have been discarded; and non-hazardous secondary materials used as a fuel that does not remain within the control of the generator for which EPA grants a facility's petition for a “non-solid waste” determination. The term “discarded” is intended to encompass material handling and management scenarios that meet the plain meaning of discard (abandoned, disposed of, or thrown away). For example, a secondary material that is thrown away and disposed of in a landfill is considered to have been discarded in the first instance. Materials that have been discarded in the first instance are solid waste even if they satisfy the legitimacy criteria (unless they are processed into a legitimate non-waste product) since both wastes and non-wastes may be legitimately recycled. 3. Legitimacy Criteria This proposal also maintains the same general principles as described in the ANPRM for determining whether a non-hazardous secondary material is or is not a legitimate fuel or ingredient. Secondary materials used in a combustion unit that are not a legitimate fuel or ingredient would be considered sham recycling and thus, a solid waste. For legitimate fuels, non-hazardous secondary materials must be handled as a valuable commodity, have meaningful heating value, be used as a fuel in a combustion unit that recovers energy, and contain contaminants at levels comparable to those in traditional fuels. As used throughout today's proposal, “comparable” levels of contaminants refer to levels that are comparable or less than those in traditional fuels. For legitimate ingredients, the non-hazardous secondary material must be handled as a valuable commodity, provide a useful contribution, result in a valuable product or intermediate, and result in products that contain contaminants at levels that are comparable in concentration to those found in traditional products that are manufactured without the non-hazardous secondary material. As with fuels, contaminant levels that are comparable refers to levels that are comparable or less than contaminant levels found in traditional products that are manufactured without the non-hazardous secondary material ingredients. 4. Traditional Fuels This proposal recognizes that traditional fuels are not solid wastes when burned in a combustion unit. Traditional fuels are those fuels that have been historically managed as valuable fuel products rather than being managed as waste materials. Traditional fuels include fossil fuels ( e.g., coal, oil, including used oil meeting on-specification levels, natural gas) and 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). Clean cellulosic biomass materials are also traditional fuels rather than wastes when burned as a fuel. “Clean” material is defined as those non-hazardous secondary materials that have not been altered (either chemically or through some type of production process), such that it contains contaminants at concentrations normally associated with virgin biomass materials. Clean cellulosic biomass includes 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 20 and other crop residues ( e.g., peanut shells), wood collected from forest fire clearance activities, trees and clean wood found in disaster debris, and clean biomass from land clearing operations. 20 Bagasse is the matted cellulose fiber residue from sugar cane that has been processed in a sugar mill. For more information on bagasse, see the Materials Characterization Paper on Biomass-Agricultural Residues and Food Scraps, which is located in the docket of today's proposed rule. We request comment on whether other fuels in use today also should be classified as traditional fuels, and also whether other types of cellulosic biomass should be designated as clean biomass, and thus a traditional fuel. In identifying other secondary materials as a traditional fuel, commenters will need to explain why such materials should be considered a traditional fuel—that is, an explanation of how the materials have historically been managed as a valuable fuel product and not a waste. EPA acknowledges that changes in technology and in the energy market over time may result in additional secondary materials being economically viable to be used as “traditional” fuels. It also may not always be clear whether a fuel material is a traditional fuel. We agree with commenters to the ANPRM that this rulemaking should be flexible to account for increasing use and changes in commodities, technologies, markets, and fuel prices. We, therefore, request comment on whether we should provide a petition process that would allow a facility or person to request that EPA determine whether the fuel that they burn qualifies as a traditional fuel. If we adopt such a petition process, it would be implemented through the same process as the non-waste determination petition process discussed in section VII.D.5. 5. Circumstances Under Which a Non-Hazardous Secondary Material Would Not Be Considered a Solid Waste Non-hazardous secondary materials used as fuels in combustion units would be considered solid wastes unless: (1) The non-hazardous secondary materials (not otherwise discarded) remain under the control of the generator as discussed in section VII.D.1, and meet the legitimacy criteria; or (2) they are legitimate non-waste fuels that meet the legitimacy criteria and are produced from the processing of discarded non-hazardous secondary materials as discussed in section VII.D.4. Non-hazardous secondary materials used as a fuel in combustion units that are transferred to a third party are considered solid wastes unless a non-waste determination has been granted pursuant to the proposed petition process (discussed below). Non-hazardous secondary materials used as ingredients that are combusted in combustion units would not be considered solid waste if they have not been discarded in the first instance and if they are legitimate ingredients, irrespective of whether they have been transferred to a third party. We are not proposing to differentiate ingredients that are used within the control of the generator from those that are not since we believe the use of non-hazardous secondary materials as ingredients is considered to be more integral or akin to use in a commercial manufacturing process and thus these non-hazardous secondary materials would not be considered discarded provided they satisfy the legitimacy criteria. Except for the petition process, the proposed criteria are designed to be self-implementing in nature, not requiring Agency action. As such, we are proposing that it will be the facility's ( i.e., the facility that burns the material) responsibility to determine if the secondary material satisfies the proposed criteria that identifies which material is a solid waste when burned in a combustion unit. 6. Petition Process EPA is also proposing to establish a non-waste determination petition process for secondary materials used as fuels outside the control of the generator. The petition process provides persons with an administrative process for a formal determination that their non-hazardous secondary material fuel has not been discarded and is indistinguishable in all relevant aspects from a fuel and therefore not a solid waste. The determination will be based on whether the non-hazardous secondary material has been discarded, is a legitimate fuel and the following criteria: (1) Whether market participants handle the non-hazardous secondary material as a fuel rather than a solid waste; (2) whether the chemical and physical identity of the non-hazardous secondary material is comparable to commercial fuels; (3) whether the non-hazardous secondary material will be used in a reasonable time frame given the state of the market; (4) whether the constituents in the non-hazardous secondary material will be released to the air, water, or land from the point of generation to the combustion of the secondary material at levels comparable to what would otherwise be released from traditional fuels; and (5) other relevant factors. For further information regarding the non-waste determination petition process, see section VII.D.5. EPA developed two flowcharts that generally illustrate the process of determining whether nonhazardous secondary materials burned as a fuel or ingredient in combustion units are or are not solid waste. These diagrams present the proposed rule's basic framework as a series of questions that should be considered when determining the appropriate characterization of a nonhazardous secondary material ( i.e. as a solid waste or not when burned in a combustion unit). See “Flow Chart for Determining Whether Non-Hazardous Secondary Material Ingredients Burned In Combustion Units are Solid Wastes”, and “Flow Chart for Determining Whether Non-Hazardous Materials Used as Fuel In Combustion Units are Solid Waste” in the docket for today's proposal. We are soliciting comments on whether these flow charts should be included in the Code of Federal Regulations (CFR) as part of the final rule. C. What were the major comments on the ANPRM? 1. Comments from State Agencies EPA received comments from several states and state organizations in response to the ANPRM. Comments received expressed a range of viewpoints representing states with differing solid waste management programs and authorities. Consequently, it was not surprising that the comments received often articulated competing suggestions and recommendations based upon different state programs and experiences. Comment: Some states did not want EPA to define what is or is not a waste at the federal level if it impacts or limits the scope of what states currently regulate under their solid waste management authority. Some states noted a potential problem related to existing “stringency provisions” in some state laws. For example, if a solid waste determination is made at the federal level, it could be argued that the state is less stringent through their issued exemptions and the state rule must be rescinded. Conversely, some states argued they cannot, by state statute, be more stringent than the Federal regulations, and even if they don't have this statutory limitation, they may feel pressure to not be more restrictive than the federal definition. Many states said we should defer the determination of whether those non-hazardous secondary materials used as fuels or ingredients are solid wastes to the states and urged flexibility in how each state could incorporate any new regulations into its existing solid waste management programs. EPA's Response: The Clean Air Act (section 129(g)(6)) states that the term “solid waste” shall have the meaning established by the Administrator pursuant to the Solid Waste Disposal Act. Accordingly, EPA must define which non-hazardous secondary materials used as fuels or ingredients in combustion units are solid waste at the national level in order to identify the universe of sources subject to the boilers emissions standards to be issued under CAA section 112 and the CISWI emissions standards to be issued under CAA section 129. See section VIII of today's proposal for a discussion on the applicability of state solid waste definitions and beneficial use determinations, as well as a discussion on state adoption of this rulemaking. Comment: Many states commented that they had long-standing “waste” management programs regulating non-hazardous secondary materials, that no one had questioned the legitimacy of their regulatory programs in the past, and that it was inappropriate and contrary to the intent of RCRA for EPA to exclude this material, which had been considered “waste” for many decades, from regulation under RCRA. On the other hand, other states were concerned a federal designation that some of these non-hazardous secondary materials are “wastes” would disrupt existing recycling markets by creating a deterrent from using these non-hazardous secondary materials as fuels or ingredients. These states emphasized the importance of promoting beneficial use of non-hazardous secondary materials and were concerned that regulation of certain materials (especially used tires) under CAA section 129 would create negative incentives to their beneficial use and consequently could have negative environmental impacts. Many states explained that they manage/regulate many of these secondary materials as solid waste ( e.g., tires), but determine they are not wastes (via beneficial use determinations) when after analysis the state has determined they are going to a legitimate use ( e.g., as a fuel). These states recommended that these materials remain a solid waste until they are approved for, procured and delivered to the potential end user in order to retain their ability to regulate the management of these secondary materials, usually under its solid waste management authority. 21 For example, some states recommended that EPA exclude whole tires from the definition of solid waste at the point of combustion. 22 21 Many states regulate used tires under a statutory authority outside of their solid waste management statutory authority, while some states regulate used tires pursuant to both their solid waste management authority, as well as separate tire statutory authority. 22 Subsequent to the closing of the comment period, the Environmental Council of States (ECOS) approved Resolution 09-7, entitled “Meaning of `Solid Waste' under the Resource Conservation and Recovery Act (RCRA) as it Applies to Non- Hazardous Waste Programs.” This resolution, which was revised on March 23, 2010, urges EPA to exclude whole tires from the definition of solid waste for the purposes of combustion. Both the original (dated September 22, 2009) and revised versions are included in the docket for today's rule. EPA's Response: In developing this proposed rule, EPA attempted to balance and address the concerns raised by the states regarding potential impacts on their existing solid waste programs in determining which non-hazardous secondary materials are solid wastes when combusted, while at the same time, recognizing that the proposed rule needed to be based on whether these secondary materials are considered to have been managed in a way that meets the plain meaning of discard, as defined in AMC I. We believe we have addressed that balance, considering the statutory limitations, but also understand that today's proposal could impact existing state solid waste management programs, as well as states' beneficial use programs, and specifically request comment on how today's proposal impacts or could impact such state programs. For example, does the proposed approach impact the ability of the states to continue to regulate the management of secondary materials prior to their final end use. Comment: Some state commenters suggested that the Agency address CAA section 129 implementation issues by subcategorizing energy recovery units that burn waste materials and regulate this combustion similarly to the CAA section 112 requirements. 23 23 Id. ECOS Resolution 09-7 presents this position as an alternative to excluding whole tires from the definition of solid waste for the purposes of combustion. EPA's Response: This comment relates to EPA's regulation of solid waste incineration units under section 129 and is not relevant to this action, which proposes to define “solid waste” under RCRA for non-hazardous secondary materials. 2. Meaning of Discard As discussed in Section VI, RCRA defines “solid waste” as “ * * * any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material * * * resulting from industrial, commercial, mining, and agricultural operations, and from community activities * * * ” (RCRA section 1004 (27) (emphasis added)). The ANPRM provided a thorough discussion on the definition of solid waste, including a summary of relevant case law. See also Section VI.B in today's preamble. Further, the ANPRM highlighted the importance of the concept of “discard,” noting that the definition of solid waste turns on the meaning of the phrase, “other discarded material,” as this term encompasses all other examples provided in the definition. Comment: Several comments stressed that the Agency use the plain meaning of discard ( i.e., disposed of, abandoned, or thrown away) in defining the term “solid waste” for the purpose of establishing the appropriate standards for combustion units under CAA sections 112 and 129. EPA's Response: EPA agrees with the premise of using the “plain meaning” of discard, as this position is consistent with case law on the issue (for a more detailed discussion, please refer to the ANPRM and section VI.B of today's preamble). Comment: Some commenters noted that the same rationale and principles related to “discarded materials” should apply whether these materials are regulated under RCRA subtitles C or D, as the principles related to “discarded materials” are the same. Other commenters argued that the subtitle C approach should not be used for non-hazardous secondary materials since these materials pose less risk relative to hazardous wastes. EPA's Response: EPA believes it is appropriate to use the same general framework that has been used to define solid waste for purposes of RCRA subtitles C and D (albeit tailored to specifically address non-hazardous secondary materials used as fuels or ingredients in combustion units), noting that the same statutory definition of solid waste applies to both RCRA subtitles D and C. However, EPA is not proposing in today's action any revisions to its hazardous waste regulations. Comment: Some commenters argued that any secondary materials that are beneficially reused or recycled are not waste, regardless of whether or not the reuse or recycling is conducted in the same or different location or industry (on-site and off-site). EPA's Response: The Agency does not agree with this assertion, as this position is not consistent with case law. Again, the question of whether a material is or is not a solid waste depends on the issue of discard. In Safe Food and Fertilizer v. EPA, 350 F. 3d 1263, the court rejected the argument that, as a matter of plain meaning, recycled material destined for immediate reuse within an ongoing industrial process is never considered “discarded,” whereas material that is transferred to another firm or industry for subsequent recycling must always be solid wastes. 350 F. 3d at 1268. Instead, the court evaluated “whether the Agency's interpretation of * * * “discarded” * * * is, reasonable and consistent with the statutory purpose.” Id. Thus, EPA has discretion to determine if non-hazardous secondary materials are not a solid waste if it is managed within the control of the generator, as well as if it is transferred outside the control of the generator. As previously described, this proposal states that non-hazardous secondary materials used as a fuel in combustion units that remain under the control of the generator and meet the legitimacy criteria are not solid waste, but that non-hazardous secondary materials that are transferred to a third party and combusted are considered solid wastes, unless a petition for a non-waste determination has been granted. Ingredients, on the other hand, are determined not to be solid waste even if they are managed outside the control of the generator as long as they meet the legitimacy criteria. See section VII.D.6 for a discussion on EPA's rationale for these determinations. Comment: One commenter noted that EPA's hazardous waste regulations under subtitle C provide that hazardous secondary materials “burned to recover energy” or “used to produce a fuel” are “discarded” and, therefore, are solid wastes. 40 CFR.261.2(c)(2). The commenter went on to point out that under the ANPRM approach, EPA is interpreting the definition of solid waste to mean that burning of non-hazardous secondary material, under appropriate conditions, is not “discard” under RCRA. According to the comment, the ANPRM is inconsistent with the interpretation in 40 CFR 261.2. Regardless of whether EPA believes that it can issue separate definitions of solid waste for hazardous waste and non-hazardous waste, the commenter suggests “discarded” cannot be read both to include materials that are “burned to recover energy” or “used to produce a fuel” and to exclude such materials. EPA's Response: EPA disagrees with this comment and does not believe the regulations are inconsistent. The hazardous waste definition may be considered a “presumption” that secondary materials burned for energy recovery, or used to produce a fuel, are solid wastes. EPA has, through rulemaking, excluded from the definition of solid waste a number of materials burned for energy recovery under certain conditions. See 40 CFR 261.2(c)(2)(A)(ii) (off specification commercial chemicals otherwise listed as hazardous wastes); 261.4(a)(6)(“black liquor” in pulping processes); 261.4(a)(7) (spent sulfuric acid); and 261.4(a)(16) (comparable fuels). In addition, EPA has excluded materials used to produce fuels. See, 40 CFR 261.4(a)(12) (oil bearing hazardous secondary material inserted into the petroleum refining process), and 261.4(a)(18) (petrochemical recovered oil inserted into the refining process). Regardless of the appropriateness of these exclusions, or whether the Agency may appropriately exclude any secondary materials from the solid waste definition, consistency between the regulations for hazardous and non-hazardous secondary materials is not an issue. This proposed rule, which identifies certain secondary materials burned for energy recovery as not being solid wastes, is comparable to the conditional exclusions for the definition of solid waste in the hazardous waste regulations. Conditions apply to all of the secondary materials being considered for determinations as to whether they are solid wastes. The legitimacy criteria apply to all of the secondary materials. It is reasonable and within EPA's discretion to determine that non-hazardous secondary materials may be burned as products and are not wastes. Today's proposal acknowledges the difficulty that the combustion of secondary materials is commonly associated with disposal. However, this view does not take into account that the secondary material may often be used to produce a safe fuel product that is a valuable commodity and is sold in the marketplace no differently from traditional fuels. This position seems like a common sense interpretation of the term, “solid waste,” under RCRA. Another difficulty the Agency faces is the misconception that secondary material that is burned, either for destruction or energy recovery, by definition has high levels of contaminants. The manner in which the secondary material is managed is a key factor that determines discard. Contaminant levels are part of that consideration. If a material has high levels of contaminants, it would be considered sham recycling, which is one type of way a material can be “discarded.” Hazardous secondary materials—those that would be hazardous wastes under RCRA subtitle C, if discarded—are more likely to contain high levels of contaminants. Thus, EPA could reasonably presume that burning such secondary materials, even if burned for energy recovery, is likely a waste activity. This was the Agency's rationale for issuing the subtitle C rule at 40 CFR 261.2(c)(2), which specifies that burning for energy recovery is a waste disposal activity. In EPA's rule establishing the comparable fuels exclusion from the definition of solid waste for hazardous secondary materials, the Agency stated that these hazardous secondary materials (comparable fuels) are lower in hazardous contaminants than the normal hazardous wastes and that burning of the comparable fuels “does not present the element of discarding hazardous constituents through combustion that underlies the typical classification of hazardous waste-derived fuels as a solid waste. 50 FR at 629-630 (Jan. 4, 1985).” 63 FR at 33783 (1998). We may, after looking at certain secondary materials, decide that they are not in fact solid wastes and are being burned as valuable commodities to recover energy. This interpretation, however, is consistent with today's proposal, which also evaluates whether materials burned for energy recovery are wastes or non-wastes. Moreover, the case law supports the conclusion that materials burned for energy recovery or used to produce fuels may or may not be solid wastes. American Mining Congress v. EPA, 824 F.2d 1177 (DC Cir. 1987) (“AMC I”), held that the term “discarded materials” could not include materials “ * * * destined for beneficial reuse or recycling in a continuous process by the generating industry itself. 824 F.2d at 1190. The provision under consideration in this case dealt specifically with material “reclaimed” in a continuous process. That is, material is regenerated from a secondary material in a continuous process. However, it is highly likely the courts would apply this same reasoning to secondary materials that are otherwise reused or recycled in a continuous industrial process, such as material used, or combusted, to recover energy. Accord, Association of Battery Recyclers v. EPA, 208 F.3d 1047 (DC Cir. 2000) (“ABR”). It is also worth noting that the Ninth Circuit has specifically found that non-hazardous secondary materials may, under certain circumstances, be burned and not constitute solid waste under RCRA. See Safe Air For Everyone v. Waynemeyer (“Safe Air”), 373 F.3d 1035 (9th Cir., 2004) (Kentucky bluegrass stubble may be burned to return nutrients to the soil and not be a solid waste). This activity is not waste treatment even in the absence of energy recovery. We believe, therefore, that burning material for another useful purpose ( e.g., energy recovery) does not necessarily constitute a disposal activity. With respect to materials used to produce fuels, in American Petroleum Institute v. EPA, 216 F.3d 50 (DC Cir. 2000) (“API II”), the court overturned EPA's determination that certain recycled oil bearing wastewaters are wastes (216 F.3d at 55-58) and upheld conditions imposed by the Agency in excluding petrochemical recovered oil from the definition of solid waste (216 F.3d at 58-59). Both of these materials are returned to the petroleum refinery process and used to produce fuel. The court in this case was clearly considering the conditions under which two types of material may be excluded from the definition of solid waste. For purposes of the issue of concern in today's proposal, this decision supports EPA's discretion to determine whether or not a secondary material used as a fuel product is a solid waste or not, in light of factors relevant to determining whether the material is discarded. Therefore, EPA is not prevented from exercising its discretion to decide that issue either way. 3. General Approach EPA received several comments on the general approach outlined in the ANPRM for determining which non-hazardous secondary materials used as fuels or ingredients in combustion units are or are not solid wastes. Most commenters supported the general regulatory structure that included: (1) A recognition that certain materials are inherently fuel products, (2) a self-implementing approach for identifying those non-hazardous secondary materials that are not considered solid waste pursuant to general criteria and (3) a petition process for receiving a non-waste determination from the Agency. 24 24 On August 18, 2009, EPA received a letter signed by nearly one hundred community groups and citizens that urged for an expansive definition of solid waste for the purposes of combustion and argued against the general approach of the ANPRM. A copy of this letter has been placed in the docket for today's proposed rule. The letter highlights stakeholder concerns regarding the differences between CAA sections 112 and 129 and argues against an overly narrow definition of solid waste. Partially in response to these comments and others, we are considering and taking comment on an alternative approach to that proposed and described in section VII.D. This alternative approach would include, with certain exceptions, non-hazardous secondary materials that are burned as a fuel or used as an ingredient in the combustion process within the definition of solid waste. As such, units combusting those materials would be required to meet CAA section 129 standards. For more information on the alternative approach, see section VII.E of this proposed rulemaking. Comments: Several commenters discussed whether to include a list of wastes and/or a list of non-wastes in the regulations. One commenter recommended that a list of secondary materials that are considered wastes be identified, rather than a list of secondary materials that are not considered wastes, while other commenters urged for the inclusion of a list of secondary materials that are not considered wastes when burned as a fuel. If EPA included a list of secondary materials that are not considered wastes when burned as a fuel in its regulations, one commenter also suggested that the Agency additionally include a list of secondary materials that are considered wastes in order to remove any uncertainty. Those commenters who urged that the regulations include a list of secondary materials not considered a waste when used as a fuel or ingredient also cautioned that such a list should not be all-inclusive in order to account for changes in technology and new secondary materials and processes that are not yet developed. EPA's Response: In recognition of changes in economies, technologies, markets and material processes, EPA is not proposing to list specific non-hazardous secondary materials as either wastes or non-wastes in regulatory language, but is rather specifying the criteria to be used to determine if these secondary materials are or are not solid wastes. We believe that there could be instances where determinations of whether a particular non-hazardous secondary material meets the various criteria will have to be based on site-specific information; a national designation that in all circumstances, a particular non-hazardous secondary material is or is not a waste may not be possible. However, it is EPA's goal in this proposal, as well as in the pending final rule preamble, to indicate, as clearly as possible, which non-hazardous secondary materials used as fuels or ingredients in combustion units are or are not considered solid waste based on this criteria. As several commenters also noted, any approach must be flexible enough to account for changing technologies and new secondary materials that could, in the future, be viable fuels or ingredients. The proposed approach allows for these changes, not by codifying a list of specific non-hazardous secondary materials that are or not waste, but rather by adopting a self-implementing approach that can consider site-specific information, if necessary. Comments: A few commenters noted a preference for categorical determinations that certain secondary materials were products, not wastes ( e.g., traditional fuels) along with clear criteria for solid waste determinations for secondary materials not falling into one of these categories ( i.e. a petition process for non-waste determinations). EPA's Response: EPA partially agrees with this approach. The proposed rule discusses traditional fuels as a category of fuel products that are not secondary materials and therefore, are not solid waste. With respect to non-hazardous secondary materials, although this proposal does not list types/categories of such secondary materials that are or are not solid waste in regulatory text (as discussed above), we are proposing self-implementing regulatory criteria to be used by the regulated universe to determine whether the non-hazardous secondary material would or would not be a solid waste. The regulatory criteria are based on four categories of non-hazardous secondary materials that are managed under various scenarios, including: (1) Non-hazardous secondary materials that remain within the control of the generator and meet the legitimacy criteria and used as fuel; (2) non-hazardous secondary materials that meet the legitimacy criteria and are used as ingredients; (3) fuel or ingredient products that are processed from discarded non-hazardous secondary materials and that are used as fuels or ingredients in a combustion unit, provided they meet the legitimacy criteria; and (4) EPA has granted a non-waste determination for non-hazardous secondary material fuels managed outside the control of the generator. More detailed information on these categories and their respective criteria can be found in section VII.D. of this proposal. Comments: Some commenters suggested that a petition process for a waste determination should not be mandatory. Proponents of this position urged that any regulatory construct for demonstrating that non-hazardous secondary materials qualify as alternative fuels should be self-implementing and not involve the need for individual regulatory determinations. EPA's Response: The non-waste petition process that applies to non-hazardous secondary material fuels managed outside the control of the generator is not mandatory; however, we note that the assumption in this proposed rule is that these materials would be a solid waste, unless they are granted a non-waste determination by EPA. Also, as explained above, we are proposing a self-implementing approach for all the other non-hazardous secondary material management categories that can consider site-specific information, if necessary ( i.e., facilities will make a self-determination of whether the non-hazardous secondary material in question meets the regulatory criteria). We again note it is EPA's intention to indicate in the preamble, as clearly as possible, which non-hazardous materials used as fuels or ingredients in combustion units are or are not considered solid waste based on the criteria laid out in regulatory text. The Agency expects this self-implementing approach will govern for the majority of situations. 4. Level of Processing Needed To Produce a Non-Waste Product From Discarded Waste Material In the ANPRM, we stated that if a non-hazardous secondary material is processed into a legitimate fuel or ingredient product, then the processed material would not be a discarded material. We listed various non-hazardous secondary materials we believed to have undergone adequate processing ( e.g., tire-derived fuel), and requested comment on whether some of the materials, such as mined landfilled ash, should be considered to have undergone adequate processing, such that it would be rendered a non-waste. Comments: Most commenters generally agreed with the concept, but had differing views on what level of [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2010-10837. Public record. Not legal advice.