Identification of Non-Hazardous Secondary Materials That Are Solid Waste
Federal RegisterMar 21, 2011
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 241
[EPA-HQ-RCRA-2008-0329; FRL-9273-1]
RIN 2050-AG44
Identification of Non-Hazardous Secondary Materials That Are Solid Waste
AGENCY:
Environmental Protection Agency (EPA).
ACTION:
Final rule.
SUMMARY:
The Environmental Protection Agency (EPA or the Agency) is publishing a final rule that identifies which non-hazardous secondary materials, when used as fuels or ingredients in combustion units, are “solid wastes” under the Resource Conservation and Recovery Act (RCRA). This RCRA solid waste definition will determine whether a combustion unit is required to meet the emissions standards for solid waste incineration units issued under section 129 of the Clean Air Act (CAA) or the emissions standards for commercial, industrial, and institutional boilers issued under section 112 of the CAA. In this action, EPA is also finalizing a definition of traditional fuels.
DATES:
This final rule is effective on
May 20, 2011.
ADDRESSES:
EPA has established a docket for this action under Docket ID No. EPA-HQ-RCRA-2008-0329. All documents in the docket are listed on the
http://www.regulations.gov
Web site. Although listed in the index, some information is not publicly available,
e.g.,
confidential business information (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*
Industrial Boilers:
Crop Production
111
Food Manufacturing
311, 312,
Cattle Ranching and Farming
1121
Pulp and Paper Mills
3221
Hog and Pig Farming
1122
Petroleum Refining
32411
Poultry and Egg Production
1123
Chemical Manufacturing
325
Sheep and Goat Farming
1124
Primary Metal Manufacturing
331
Horses and Other Equine Production
112920
Fabricated Metal Manufacturing
332
Logging
113310
Other Manufacturing
313, 339, 321, 333, 336, 511, 326, 316, 327
Support Activities for Crop Production
11511
Bituminous Coal and Lignite Surface Mining
212111
Commercial Boilers:
Bituminous Coal Underground Mining
212112
Retail
442-454
Anthracite Mining
212113
Warehouse
493
Fossil Fuel Electric Power Generation
221112
Education
611
Sewage Treatment Facilities
221320
Health Care Facilities
621
Construction of Buildings
236
Social Assistance
624
Site Preparation Contractors
238910
Lodging, Restaurant
721, 722
Beverage and Tobacco Product Manufacturing
312
Office
813, 541, 921
Sawmills and Wood Preservation
32111
Other
922140, others
Veneer, Plywood, and Engineered Wood Product Manufacturing
32121
Engineered Wood Member Manufacturing
321213
Common Non-Manufacturing Boilers:
Pulp, Paper, and Paperboard Mills
3221
Agriculture (crop & livestock production)
111, 112, 115
Solvents Made in Petroleum Refineries
324110
All Mining
212
Solvent Dyes Manufacturing
325132
Construction
236
Plastic Manufacturers
325211
All Other Miscellaneous Chemical Product and Preparation Manufacturing
325998
Other Boilers:
Packaging
32611
Electric Utility Boilers
2211
Other Rubber Product Manufacturing
32629
Non-Hazardous Waste Burning Cement Kilns
327310
Glass and Glass Product Manufacturing
3272
Cement Manufacturing
327310
Iron and Steel Mills
331111
Electrometallurgical Ferroalloy Product Manufacturing
331112
Metal-Casting Industry
331522
Recyclable Material Wholesalers
423930
Landscaping Services
561730
Solid Waste Collection and Solid Waste Landfill
562111, 562212
Automotive Repair and Replacement Shops
811111
* NAICS—North American Industrial Classification System.
This table is not intended to be exhaustive, but rather provides a guide for readers, including lists of examples of the types of entities likely to be impacted 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. Why is EPA taking this action?
Clean Air Act (CAA) section 129 states that the term “solid waste” shall have the meaning “established by the Administrator pursuant to [RCRA].” The purpose of this final rule is to provide a definition of “solid waste” in order to develop emission standards under sections 112 and 129 of the CAA. In particular, this rule codifies requirements and procedures that identify whether the definition of “solid waste” applies to non-hazardous secondary materials burned as fuels or used as ingredients in combustion units. In related actions in this
Federal Register
, EPA is concurrently finalizing air emission requirements under section 112 of the CAA for industrial, commercial, and institutional boilers and process heaters, as well as air emission requirements under section 129 of the CAA for commercial and industrial solid waste incineration units.
Preamble Outline
I. Statutory Authority
II. List of Abbreviations and Acronyms
III. Introduction—Summary of Regulations Being Finalized
A. Identifying Which Non-Hazardous Secondary Materials Are or Are Not Solid Wastes When Used in a Combustion Unit
1. Within the Control of the Generator: Non-Hazardous Secondary Materials That Are Legitimately Used as Fuels Within the Control of the Generator Are Not Solid Waste When Used in Combustion Units
2. Scrap Tires: Scrap Tires That Are Legitimately Used as a Fuel That Are Removed From Vehicles and Managed Under the Oversight of Established Tire Collection Programs Are Not Solid Waste When Used in Combustion Units
3. Resinated Wood: Resinated Wood That Is Legitimately Used as a Fuel Is Not a Solid Waste When Used in Combustion Units
4. Ingredients: Non-Hazardous Secondary Materials That Are Legitimately Used as Ingredients Are Not Solid Waste When Used in Combustion Units
5. Discards: Discarded Non-Hazardous Secondary Materials That Have Undergone Processing To Produce Legitimate Fuel or Ingredient Products Are Not Solid Waste When Used in Combustion Units
6. Non-Waste Determination: Non-Hazardous Secondary Materials Used as a Fuel for Which a Non-Waste Determination Has Been Granted Are Not Solid Waste When Used in Combustion Units
B. Codification of the Legitimacy Criteria
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 is the history of the definition of solid waste?
1. Statutory Definition of Solid Waste
2. Solid Waste Program, RCRA Subtitle D
3. Hazardous Waste Program, RCRA Subtitle C
4. Case Law on the Definition of Solid Waste Under RCRA Subtitle C
5. Concept of Legitimacy
D. Summary of the ANPRM
E. Summary of the Proposed Rule
F. Use of Secondary Materials
1. Introduction
2. Secondary Materials Use and Benefits
V. Comments on the Proposed Rule
A. Proposed Approach
1. Definition of the Term Discard
2. Processing Requirements
B. Comments on Specific Materials Used as Fuel
1. Traditional Fuels
2. Manure
3. Other Biomass
4. Pulp and Paper Sludge
5. Scrap Tires
6. Resinated Wood Residuals
7. Used Oil
8. Coal Refuse
9. Coal Combustion Residuals
10. Sewage Sludge
11. Processed Fats
C. Comments on Specific Materials Used as Ingredients
1. Cement Kiln Dust
2. Coal Combustion Residuals
3. Foundry Sand
4. Blast Furnace Slag/Steel Slag
D. Comments on Legitimacy Criteria for Fuels
1. Managed as a Valuable Commodity
2. Meaningful Heating Value and Use as a Fuel
3. Have Contaminants at Comparable Levels or Lower Than Traditional Fuels
E. Comments on Legitimacy Criteria for Ingredients
1. Managed as Valuable Commodities
2. Useful Contribution
3. Quantifying an Ingredient's Contribution to Production/Manufacturing Activity
4. Contaminants in Ingredients
5. Comparing Contaminant Levels in Products
F. Comments on Non-Waste Determination Petitions
G. Comments on the Other Approaches for Defining Solid Wastes
VI. Summary of Major Differences Between the Proposed Rule and Final Rule
VII. Detailed Discussion and Rationale for Today's Final Rule
A. Traditional Fuels
B. Non-Hazardous Secondary Materials Used as Fuels That Remain Within the Control of the Generator
1. Scope and Applicability
2. Restrictions and Requirements
C. Non-Hazardous Secondary Materials That Have Not Been Discarded: Scrap Tires Collected Under Established Tire Collection Programs
1. Scope and Applicability
2. Restrictions and Requirements
D. Non-Hazardous Secondary Materials That Have Not Been Discarded: Resinated Wood Residuals
1. Scope and Applicability
2. Restrictions and Requirements
E. Non-Hazardous Secondary Materials Used as Ingredients
1. Scope and Applicability
2. Restrictions and Requirements
F. Discarded Non-Hazardous Secondary Materials That Have Undergone Processing To Produce Legitimate Fuel or Ingredient Products
1. Scope and Applicability
2. Restrictions and Requirements
G. Non-Waste Determination Petitions
1. Description of the Petition Criteria for the Non-Waste Determination
2. Non-Waste Determination Petition Process
3. Petition Decisions Utilizing State Environmental Agency Program's Input
H. Legitimacy Criteria
1. Legitimacy Criteria for Fuels
2. Legitimacy Criteria for Ingredients
I. Determining That Non-Hazardous Secondary Materials Meet the Legitimacy Criteria
VIII. Effect of Today's Final Rule on Other Programs
A. Clean Air Act
B. Renewable Energy
C. Subtitle C Hazardous Waste Program
IX. State Authority
A. Applicability of State Solid Waste Definitions and Beneficial Use Determinations
B. State Adoption of the Rulemaking
C. Clarifications on the Relationship to State Programs
X. Cost and Benefits of the Final Rule
XI. 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
K. Congressional Review Act
I. Statutory Authority
The U.S. Environmental Protection Agency (EPA or the Agency) 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 Clean Air Act (CAA) directs EPA to establish standards for Commercial and Industrial Solid Waste Incinerators (CISWI), which burn solid waste (section 129(g)(6) of the 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
AASHTO American Association of State Highway and Transportation Officials
ANPRM Advanced Notice of Proposed Rulemaking
ASME American Society of Mechanical Engineers
ASTM American Society for Testing and Materials
Btu British Thermal Unit
CAA Clean Air Act
CAFO Concentrated Animal Feeding Operations
C&D Construction and Demolition
CBO Carbon Burn-Out Unit
CCA Chromated Copper Arsenate
CCR Coal Combustion Residuals
CFB Circulating Fluidized Bed
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 Rule (2008)
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
MEK Methyl Ethyl Ketone
NESHAP National Emission Standards for Hazardous Air Pollutants
NHSM Non-Hazardous Secondary Material
NSPS New Source Performance Standards
OCC Old Corrugated Cardboard
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
RFS Renewable Fuel Standards
SSI Sewage Sludge Incinerator
SWDA Solid Waste Disposal Act
TCLP Toxicity Characteristic Leaching Procedure
TDF Tire-Derived Fuel
U.S.C. United States Code
USGS U.S. Geological Survey
VSMWC Very Small Municipal Waste Combustor
III. Introduction—Summary of Regulations Being Finalized
In today's rule, EPA is finalizing standards and procedures to be used to identify whether non-hazardous secondary materials are solid wastes when used as fuels or ingredients in combustion units. “Secondary material” is defined for the purposes of this rulemaking as any material that is not the primary product of a manufacturing or commercial process, and can include post-consumer material, off-specification commercial chemical products or manufacturing chemical intermediates, post-industrial material, and scrap (codified in § 241.2).
1
“Non-hazardous secondary material” is a secondary material that, when discarded, would not be identified as a hazardous waste under 40 CFR part 261 (codified in § 241.2).
1
For the purpose of this definition, all commercial products from a manufacturing process would be considered “primary products.” Processes that are designed for the production of multiple products could have more than one primary product.
The Agency first solicited comments on how the RCRA definition of solid waste should apply to non-hazardous secondary materials used as fuels or ingredients in combustion units are solid wastes under RCRA in an Advanced Notice of Proposed Rulemaking (ANPRM), which was published in the
Federal Register
on January 2, 2009 (74 FR 41). We then published a proposed rule on June 4, 2010 (75 FR 31844).
Today's preamble is organized as follows: This section of the preamble (Section III) describes the principal regulatory provisions that are finalized in this rule; Section IV describes the background of this final rule, including a brief history of this rulemaking in conjunction with the relevant rules being finalized under sections 112 and 129 of the CAA; Section V contains a discussion of the major public comments received on the June 4, 2010 proposal, along with the Agency's response to these comments; Section VI explains the ways in which the June 2010 proposal differs from today's final rule; Section VII provides a detailed explanation of and rationale for the regulations being promulgated today; Section VIII describes the effect of today's final rule on other programs; Section IX discusses how today's rule affects the states' authority over solid waste pursuant to subtitle D of RCRA; Section X describes the costs and benefits associated with today's rule; and Section XI describes this rule's
compliance with the appropriate statutory and executive orders reviews.
Below is a summary of the principal elements of the regulations being promulgated today.
A. Identifying Which Non-Hazardous Secondary Materials Are or Are Not Solid Wastes When Used in a Combustion Unit
In our determination, most non-hazardous secondary materials burned in combustion units are defined as solid wastes under RCRA. However, this rule provides exceptions to that determination. The following non-hazardous secondary materials are not solid waste when used legitimately as a fuel or an ingredient in a combustion unit:
(1) Those that remain within the control of the generator and used as fuel (discussed further below—codified in § 241.3(b)(1));
(2) Scrap tires managed by established tire collection programs and used as fuel (discussed further below—codified in § 241.3(b)(2)(i));
(3) Resinated wood used as fuel (discussed further below—codified in § 241.3(b)(2)(ii));
(4) Those that are used as ingredients (discussed further below—codified in § 241.3(b)(3));
(5) Discards that have undergone processing to produce fuel or ingredient products (discussed further below—codified in § 241.3(b)(4)); or
(6) Those that are used as fuels for which a non-waste determination has been granted (discussed further below—codified in § 241.3(c)).
Materials are considered legitimate fuels or ingredients if they conform to the criteria codified in § 241.3(d), which this action refers to as “legitimacy criteria.” These criteria are designed to ensure that the fuel or ingredient is not being “sham” recycled for the sole purpose of avoiding being considered a waste. The legitimacy criteria for non-hazardous secondary materials used as fuels and ingredients in combustion units are discussed below in the “Codification of the Legitimacy Criteria” section.
Materials designated as “traditional” fuels are not wastes when used in combustion units. We are finalizing a definition of traditional fuels (codified in § 241.2) that applies to this subpart. Traditional fuels means materials that are produced as fuels and are unused products that have not been discarded and therefore, are not solid wastes, including: (1) Fuels that have been historically managed as valuable fuel products rather than being managed as waste materials, including fossil fuels (
e.g.,
coal, oil and natural gas), their derivatives (
e.g.,
petroleum coke, bituminous coke, coal tar oil, refinery gas, synthetic fuel, heavy recycle, asphalts, blast furnace gas, recovered gaseous butane, and coke oven gas) and cellulosic biomass (virgin wood); and (2) alternative fuels developed from virgin materials that can now be used as fuel products, including used oil which meets the specifications outlined in 40 CFR 279.11, currently mined coal refuse that previously had not been usable as coal, and clean cellulosic biomass. These fuels are not secondary materials or solid wastes unless discarded before they are used.
1. Within the Control of the Generator: Non-Hazardous Secondary Materials That Are Legitimately Used as Fuels Within the Control of the Generator Are Not Solid Waste When Used in Combustion Units
Except as otherwise provided, under this provision—40 CFR 241.3(b)(1)—EPA would consider non-hazardous secondary materials used as fuels in combustion units which remain within the control of the generator and that meet the specified legitimacy criteria (as codified in § 241.3(d)(1)) as not being a solid waste. The legitimacy criteria for non-hazardous secondary materials used as fuels in combustion units are discussed below in the “Codification of the Legitimacy Criteria” section. Non-hazardous secondary materials would be considered “within the control of the generator” under the following circumstances:
(1) They are generated and burned in combustion units at the generating facility (as codified in § 241.2); or
(2) They are generated and burned in combustion units at different facilities, if the facility combusting the non-hazardous secondary material is controlled (as codified in § 241.2) by the generator; or
(3) Both the generating facility and the facility combusting the material are under control of the same person (as codified in § 241.2).
2. Scrap Tires: Scrap Tires That Are Legitimately Used as a Fuel That Are Removed From Vehicles and Managed Under the Oversight of Established Tire Collection Programs Are Not Solid Waste When Used in Combustion Units
Under this provision—40 CFR 241.3(b)(2)(i)—EPA would consider scrap tires used as a fuel in a combustion unit that are removed from vehicles and collected and managed under the oversight of established tire collection programs as not being a solid waste, provided these materials satisfy the specified legitimacy criteria (as codified in § 241.3(d)(1)). This provision would not differentiate between scrap tires that are used as a fuel within the control of the generator from those that are not. For the purposes of this rule, the term “vehicle” is defined as any mechanical means of conveyance that employs the use of tires. “Established tire collection program” (as codified in § 241.2) means a comprehensive collection system that ensures scrap tires are not discarded and are handled as valuable commodities in accordance with § 241.3(d)(1)(i) from the point of removal from the vehicle through arrival at the combustion facility. The legitimacy criteria for non-hazardous secondary materials used as fuels in combustion units are discussed below in the “Codification of the Legitimacy Criteria” section.
3. Resinated Wood: Resinated Wood That Is Legitimately Used as a Fuel Is Not a Solid Waste When Used in Combustion Units
Under this provision—40 CFR 241.3(b)(2)(ii)—EPA would consider resinated wood used as a fuel in a combustion unit as not being a solid waste, provided these materials satisfy the specified legitimacy criteria (as codified in § 241.3(d)(1)). This provision would not differentiate between resinated wood that is used as a fuel within the control of the generator from those that are not. Resinated wood (as codified in § 241.2) means wood products (containing resin adhesives) derived from primary and secondary wood products manufacturing and comprised of such items as board trim, sander dust, and panel trim. The legitimacy criteria for non-hazardous secondary materials used as fuels in combustion units is discussed below in the “Codification of the Legitimacy Criteria” section.
4. Ingredients: Non-Hazardous Secondary Materials That Are Legitimately Used as Ingredients Are Not Solid Waste When Used in Combustion Units
Under this provision—40 CFR 241.3(b)(3)—EPA would consider non-hazardous secondary materials used as ingredients in combustion units and that meet the specified legitimacy criteria as not being solid waste. This provision does not differentiate between ingredients that are used within the control of the generator from those that are not. Ingredient (as codified in § 241.2) means a non-hazardous secondary material that is a component in a compound, process or product. A discussion of the legitimacy criteria (as
codified in § 241.3(d)(2)) for non-hazardous secondary materials used as ingredients in combustion units is included below in the “Codification of the Legitimacy Criteria” section.
5. Discards: Discarded Non-Hazardous Secondary Materials That Have Undergone Processing To Produce Legitimate Fuel or Ingredient Products Are Not Solid Waste When Used in Combustion Units
Under this provision—40 CFR 241.3(b)(4)—EPA would consider discarded non-hazardous secondary materials that have been sufficiently processed into fuel or ingredient products and used in a combustion unit as not being a solid waste, provided these materials satisfy the specified legitimacy criteria (as codified in § 241.3(d)(1) for fuels and (d)(2) for ingredients). Processing (as codified in § 241.2) means any operations that transform the discarded non-hazardous secondary material into a legitimate fuel or ingredient product, and includes, but is not limited to, operations that remove or destroy contaminants; operations that significantly improve the fuel characteristics of the material,
e.g.,
sizing or drying the material in combination with other operations; operations that chemically improve the as-fired energy content; and operations that improve the ingredient characteristics. Minimal operations that result only in modifying the size of the material by shredding do not constitute processing for the purposes of this definition. Prior to any processing, the discarded non-hazardous secondary material would be considered a solid waste and would be subject to the appropriate federal, state, and local laws and regulations.
6. Non-Waste Determination: Non-Hazardous Secondary Materials Used as a Fuel for Which a Non-Waste Determination Has Been Granted Are Not Solid Waste When Used in Combustion Units
Under this provision—40 CFR 241.3(c)—EPA would consider non-hazardous secondary materials used as fuels that have been transferred to a third party, but have been granted a non-waste determination from EPA, to not be a solid waste when used in combustion units.
2
This provision establishes a non-waste determination case-by-case process that provides persons with an administrative process for receiving a formal determination from EPA that their non-hazardous secondary material fuel that has not been managed within the control of the generator (as codified in § 241.2), has not been discarded, and is indistinguishable in all relevant aspects from a fuel product, is not a solid waste when used as a fuel in combustion units. Any petition that is submitted to EPA requesting a non-waste determination must demonstrate that the non-hazardous secondary material has not been discarded in the first instance, satisfies the specified legitimacy criteria for fuels (as codified in § 241.3(d)(1)), and satisfies the following five criteria: (1) Whether market participants treat 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 are released to the air, water or land from the point of generation to the point just prior to combustion of the non-hazardous secondary material at levels comparable to what would otherwise be released from traditional fuels; and (5) other relevant factors. These criteria are codified in § 241.3(c)(1).
2
As noted previously, scrap tires and resinated wood would not be considered a solid waste even if transferred to a third party provided these secondary materials meet the legitimacy criteria. Also, as indicated in Section V.A.1, the Agency will in the future solicit comment on other non-hazardous secondary materials in addition to scrap tires and resinated wood that can be used as a non-waste fuel both by the generator and outside the control of the generator.
The process for receiving a non-waste determination is codified in § 241.3(c)(2). In order to obtain a non-waste determination, a facility that is interested in using non-hazardous secondary materials as fuel in combustion units that would otherwise be regulated as a solid waste must apply to the Regional Administrator per the procedures described in § 241.3(c). The application must address the relevant criteria discussed above. The Regional Administrator will evaluate the application and issue a draft notice tentatively granting or denying the application. Notification of this tentative decision will also be provided by newspaper advertisement or radio broadcast in the locality where the combustion unit is located. The Regional Administrator will accept comments on the tentative decision for at least 30 days, and may also hold a public hearing upon request or at his discretion. The Regional Administrator will issue a final decision after receipt of comments and after the hearing (if any).
B. Codification of the Legitimacy Criteria
This provision—40 CFR 241.3(d)—codifies the legitimacy criteria for fuels and ingredients. In order to be considered a non-waste fuel, non-hazardous secondary materials used as a fuel in combustion units must meet the legitimacy criteria codified in § 241.3(d)(1). To meet the fuel legitimacy criteria, the non-hazardous secondary material must be managed as a valuable commodity, have a meaningful heating value and be used as a fuel in a combustion unit that recovers energy, and contain contaminants at levels comparable to or lower than those in traditional fuels which the combustion unit is designed to burn.
In order to be considered a non-waste ingredient, non-hazardous secondary materials used as an ingredient in combustion units must meet the legitimacy criteria codified in § 241.3(d)(2). To meet the ingredient legitimacy criteria, the non-hazardous secondary material must be managed as a valuable commodity, provide a useful contribution to the production or manufacturing process, be used to produce a valuable product or intermediate, and must result in products that contain contaminants at levels that are comparable to or lower than those found in traditional products that are manufactured without the non-hazardous secondary material.
Non-hazardous secondary materials that are discarded in the first instance (abandoned, disposed of, or thrown away) would still be a solid waste even if they satisfy the legitimacy criteria, unless they were processed into legitimate non-waste fuel or ingredient products or, in the case of fuels, have received a non-waste determination from EPA.
IV. Background
The discussion below is a summary of what was included in the ANPRM and in the preamble to the proposed rule. However, because it continues to be relevant to several of the key concepts being finalized today, it is provided here as background for the benefit of the reader. (For a more detailed discussion of what was included in the ANPRM and the proposed rule, we refer the reader to the ANPRM (74 FR 41, January 2, 2009) and the proposed rule (75 FR 31843, June 4, 2010).) The records and documents comprising the ANPRM and proposed rule are included in the administrative record for this rulemaking. To the extent there are any
inconsistencies or differences between the ANPRM, the proposed rule, and this final rule, the statements in this final rule govern.
A. What is the history of CISWI, CISWI definitions, and boiler rulemakings?
CAA section 112 requires EPA to promulgate regulations to control emissions of 187 hazardous air pollutants (HAP) from sources in source categories listed by EPA under section 112(c), while CAA section 129 CISWI standards include numeric emission limitations for the nine pollutants, plus opacity (as appropriate), that are specified in CAA section 129(a)(4).
3
Pursuant to CAA section 129, 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 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 * * *” 42 U.S.C. § 7429(g)(1). The CAA also 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).
4
3
CAA section 129(a)(4) requires that specific 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
. Of these nine pollutants, cadmium, dioxins/furans, hydrogen chloride, lead, and mercury are also regulated HAP pursuant to CAA section 112.
4
The Solid Waste Disposal Act, as amended, is commonly referred to the Resource Conservation and Recovery Act or RCRA.
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.
The CISWI Rule was challenged in
Sierra Club
v.
EPA
(No. 01-1048) (DC Cir.). However, 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.
See Cement Kiln Recycling Coalition
v.
EPA,
255 F. 3d 855 (DC Cir. 2001) (“Cement Kiln”). As a result, EPA requested, and was granted, a voluntary remand without vacatur, of the CISWI rule, in order to address the concerns related to the issues that were raised by the court in
Cement Kiln.
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.DC 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)) (“NRDC”). 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 2005 emissions standards for commercial, industrial, and institutional major source boilers and process heaters (the Boiler MACT Rule), concluding that “the universe of boilers subject to its [section 112] standards will be far smaller and more homogenous after all CISWI units, as the statute unambiguously defines them, are removed from its coverage.” 489 F.3d at 1260.
In response to the D.C. Circuit's decision, EPA proposed revised emissions standards for boilers, process heaters, and CISWI units. Specifically, on June 4, 2010, the Agency proposed new National Emissions Standards for Area Source Industrial, Commercial, and Institutional Boilers (75 FR 31896), National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters (75 FR 32006), and Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration Units (75 FR 31938). These proposed emissions standards were established based on the criteria proposed in the Identification of Non-Hazardous Secondary Materials Rule that are Solid Waste proposed rule (75 FR 31844).
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
5
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 a “secondary material” in this rulemaking) 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 secondary material is classified as a “solid waste” under RCRA, then a unit combusting that material must be regulated under
CAA section 129, unless it is within the scope of one of the exclusions from the definition of “solid waste incineration unit” in section 129(g)(1) of the CAA.
5
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.
In addition to this final rule, EPA is concurrently finalizing 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 CISWI units. For a discussion of what requirements are being promulgated today pursuant to the relevant CAA rules, please see the respective final actions included in today's
Federal Register
. These include: National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and Institutional Boilers (EPA-HQ-OAR-2006-0790); National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters (EPA-HQ-OAR-2002-0058); and Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration Units (EPA-HQ-OAR-2003-0119).
C. What is the history of the definition of solid waste?
1. 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.
2. Solid Waste Program, RCRA Subtitle D
The regulations that pertain to non-hazardous solid waste (RCRA subtitle D) contain five definitions of the term “solid waste.” (
See
40 CFR 240.101(y); 40 CFR 243.101(y); 40 CFR 246.101(bb); 40 CFR 257.2; and 40 CFR 258.2.) These regulatory definitions largely mirror the statutory definition of solid waste with some clarifications applicable to the specific regulatory section. The RCRA statutory definition of solid waste has also been repeated in the CAA emission guidelines for other solid waste incineration units (
e.g., see
40 CFR 60.2977 and 60.3078).
Under RCRA subtitle D, EPA has promulgated criteria for municipal solid waste landfills and approves state solid waste landfill permitting programs; however, it is the states that fully implement these programs. EPA does not have the same role in these programs as it does in the hazardous waste programs established under RCRA subtitle C. As a result, EPA has not promulgated detailed regulations defining “solid waste” for purposes of the subtitle D (non-hazardous) programs. States have promulgated their own laws and regulations for what constitutes solid waste and have interpreted those laws and regulations to determine what types of non-hazardous secondary materials management activities constitute discard (and therefore involve the management of a solid waste).
The Agency is now determining at the national level the requirements and procedures for identifying non-hazardous secondary materials that are solid waste under RCRA subtitle D so that we can establish appropriate emissions standards under CAA sections 112 and 129. We emphasize that we are articulating a narrow definition in this final rule and are not making solid waste determinations that cover other possible secondary material end uses.
3. Hazardous Waste Program, RCRA Subtitle C
Under RCRA subtitle C, EPA is responsible for designing and implementing a cradle to grave disposal system for hazardous wastes. The RCRA subtitle C hazardous waste federal program has a long regulatory history in defining “solid waste” for purposes of the hazardous waste regulations.
6
However, the 40 CFR 261.2 regulatory definition of solid waste explicitly applies only to wastes that also are hazardous for purposes of the subtitle C regulations (
see
40 CFR 261.1(b)(1)). EPA emphasizes that it is not reopening any of its subtitle C regulations in today's final rule.
6
For example,
see
45 FR 33066 (May 19, 1980; solid waste defined; interim final); 48 FR 14472 (April 4, 1983; Amendments to the Definition of Solid Waste; proposed rule); 50 FR 614 (January 4, 1985; Amendments to the Definition of Solid Waste; final rule); 53 FR 519 (January 8, 1988; Amendments to the Definition of Solid Waste, excludes in-process recycled secondary materials from petroleum industry; proposed rule); 59 FR 38536 (July 28, 1994; Amendments to the Definition of Solid Waste, excludes in-process recycled secondary materials from petroleum industry; final rule); 67 FR 11251 (March 13, 2002; Response to court Vacaturs; final rule); 68 FR 61557 (October 28, 2003; Revisions to the Definition of Solid Waste; proposed rule); 72 FR 14172 (March 26, 2007; Revisions to the Definition of Solid Waste; supplemental proposed rule); 73 FR 64668 (October 30, 2008; Revisions to the Definition of Solid Waste; final rule).
Under subtitle C of RCRA, EPA promulgated a final rule on October 30, 2008, which revised the requirements regulating hazardous secondary materials when they are recycled via reclamation (The 2008 Definition of Solid Waste (DSW) Final Rule).
7
On January 29, 2009, the Sierra Club filed a lawsuit challenging the rule in the U.S. Court of Appeals for the District of Columbia Circuit (DC Circuit), Docket No. 09-1041. In addition, Sierra Club submitted to the Administrator of EPA an administrative petition under RCRA section 7004(a), 42 U.S.C. 6974(a). The administrative petition requested that the Agency repeal the October 2008 revisions to the 2008 DSW Final Rule and stay the implementation of the rule.
8
EPA reviewed the administrative petition, held a public meeting
9
and requested written comments on the petition. As a result of settlement in the litigation, Sierra Club has withdrawn its administrative petition, but EPA has agreed to issue a proposal to consider the issues raised in the petition. As a result, EPA plans to develop a proposed rule asking for comment on potential revisions to the October 2008 DSW Final Rule. Under the settlement agreement with the Sierra Club in the DC Circuit litigation, EPA has committed to a proposed rule on or before June 30, 2011 and to take final action on the proposed rulemaking on or before December 31, 2012.
10
The DC Circuit approved the settlement agreement by order dated January 11, 2011. This subsequent proposed rule will apply to the regulation of reclamation of hazardous secondary materials under subtitle C of RCRA and is not affecting today's final rule.
7
See
“Revisions to the Definition of Solid Waste,” Final Rule, October 30, 2008, at 73 FR 64667.
8
A copy of Sierra Club's Petition to the U.S. EPA to Reconsider and Repeal the Definition of Solid Waste Final Rule (DSW Rule) can be found in the docket for the 2008 DSW Final Rule.
See
Docket ID: EPA-HQ-RCRA-2009-0315; Document ID No. EPA-HQ-RCRA-2009-0315-0002.
9
The public meeting was announced in a May 27, 2009
Federal Register
notice, which also described possible actions and optional paths forward.
See
74 FR 25200. The transcript of the public hearing can also be found in the docket for the DSW Final Rule.
See
Docket ID: EPA-HQ-RCRA-2009-0315, Document ID No. EPA-HQ-RCRA-2009-0315-0024.
10
A copy of the settlement agreement, entitled “EPA's and Sierra Club's Lodging of Settlement and Motion to Sever and Hold Case in Abeyance,” can be found at
http://www.epa.gov/osw/hazard/dsw/sierraclubdsw.pdf.
4. Case Law on the Definition of Solid Waste Under RCRA Subtitle C
Partly because the interpretation of what constitutes a solid waste is the
foundation of the hazardous waste regulatory program (
i.e.,
secondary material must qualify as “solid waste” before it can be classified as “hazardous waste”), there have been a number of court opinions discussing the meaning of “solid waste” in litigation challenges to rules issued under RCRA subtitle C. From these cases, a few key principles emerge which guide our thinking on the definition of solid waste in today's final rule.
First, the ordinary plain-English meaning of the term, “discard,” controls.
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 court 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 court 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 stated that these materials are 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, “once material qualifies as `solid waste,' [footnote omitted] something derived from it retains that designation even if it might be reclaimed and reused at some future time.”
Association of Battery Recyclers
v.
EPA,
(“ABR”) 208 F.3d 1047, 1056 (DC Cir. 2000) (referring to API I and the later decided case,
American Mining Congress
v.
EPA,
(“AMC II”) 907 F.2d 1179 (DC Cir. 1990)).
One of the more important holdings of a number of court decisions is that simply because a hazardous 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) (“ILCO”);
Owen Steel
v.
Browner,
37 F.3d 146, 150 (4th Cir. 1994) (“Owen Steel”).
ILCO
and
Owen Steel,
however, seem to recognize that legitimate products made from wastes are, themselves, products and not wastes.
The ABR case reiterated the concepts discussed in the previous cases of AMC I and II and API I. 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 that are reused within an ongoing industrial process are neither disposed of nor abandoned (208 F.3d at 1051-52). It 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 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 [* * *][o]r is it the last step in a production process before discard?” 216 F.3d at 57. In particular, the court rejected EPA's argument that primary treatment was required by regulation, and instead stated that EPA 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.” 216 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 if 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). In this case, the Court found that Kentucky bluegrass stubble may be burned to return nutrients to the soil and not be a solid waste.
5. Concept of Legitimacy
Under RCRA subtitle C, some hazardous secondary materials that would otherwise be subject to regulation under RCRA's “cradle to grave” hazardous waste system are not considered solid wastes if they are “legitimately recycled” or legitimately reused as an ingredient or substitute for a commercial product. The principal reasoning behind this construct is that use/reuse or recycling of such secondary materials often closely resembles normal industrial production, rather than waste management. Although today's final rule does not address the Agency's hazardous waste regulations, EPA finds the concept of legitimacy to be an important one in determining when a secondary material (whether hazardous or non-hazardous) is genuinely recycled and not discarded under the guise of recycling.
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 these secondary materials being sham recycled are solid wastes (or hazardous waste if the material is listed as, or exhibits a characteristic of, hazardous waste pursuant to 40 CFR part 261).
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
11
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 rule) has been a primary source of information for the regulated community and for overseeing agencies in distinguishing between legitimate and sham recycling.
11
On January 9, 2009, the Office of Solid Waste was renamed the Office of Resource Conservation and Recovery.
In the October 30, 2008 DSW Final Rule, 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. 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 the legitimate recycling provision specifically as a requirement for the non-waste determination process (40 CFR 260.34).
As discussed above, the Agency has agreed to prepare a notice of proposed rulemaking, which will solicit comment regarding potential revisions to the 2008 DSW Final Rule. The definition of “legitimacy” is one of the issues that will be reconsidered in this subsequent proposed rule. This subsequent DSW proposed rule is, by necessity, in a different proceeding from the rule we are promulgating today. EPA cannot presuppose the results of the DSW rule, but still needs to issue a final rule dealing with legitimacy criteria in today's separate rule affecting non-hazardous secondary materials. The same concept—legitimacy—applies to both rules, but, at this point, EPA cannot reconcile the differences between the legitimacy criteria in each rule, if there are indeed any substantive differences. As a result, each rule will have its own definition of legitimate recycling. Although the Agency is revisiting the definition of legitimacy in the context of regulations promulgated pursuant to RCRA subtitle C, EPA continues to find the principle of “legitimacy” to be an important element in the recycling of both hazardous and non-hazardous secondary materials. That is, the concept of legitimate recycling is crucial to determining whether a hazardous or non-hazardous secondary material being recycled is truly being recycled or is, in fact, being discarded through sham recycling and thus, is a solid waste.
D. Summary of the ANPRM
In the ANPRM, the Agency considered various guiding principles, including the concept of discard, and if discarded, whether the secondary material has been processed to produce a non-waste fuel or ingredient product, and the concept of legitimacy,
12
in determining if secondary materials used in combustion units are solid wastes. Based on these guiding principles, the Agency identified a number of scenarios in evaluating the usage of secondary materials (
e.g.,
as fuels or ingredients) and whether these secondary 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. The ANPRM identified several cases where such secondary materials are not solid wastes when combusted, and thus, subject to CAA section 112. These scenarios were: (1) Traditional fuels, (2) non-hazardous secondary materials used as legitimate “alternative” fuels that have not been previously discarded, (3) non-hazardous secondary materials used as legitimate “alternative fuels” resulting from the processing of discarded secondary materials, (4) non-hazardous 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. Specifically:
12
The Agency discussed various criteria regarding the concept of legitimacy. Specifically, with respect to secondary materials used as a fuel, they should be handled as a valuable commodity, have a meaningful heating value, and contain contaminants that are not significantly higher in concentration than traditional fuel products. For those secondary materials used as an ingredient, they should be 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. If these criteria are not met, then sham recycling may be indicated and the secondary material may be a solid waste.
•
Traditional Fuels:
EPA identified in the ANPRM fossil fuels (
e.g.,
coal, oil, and 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), as well as cellulosic biomass (
e.g.,
wood) as traditional fuels. Such traditional fuels have been used historically as fuels and have been managed as valuable products, such that they are considered unused products that have not been discarded and therefore, are not solid wastes. In addition, EPA also identified as traditional fuels wood collected from forest fire clearance activities and tree and uncontaminated wood found in hurricane debris if not discarded, if managed properly, and if burned as a legitimate fuel.
•
Non-Hazardous Secondary Materials Used as Legitimate “Alternative Fuels” That Have Not Been Previously Discarded:
The ANPRM indicated that, in addition to traditional fuels, there may be a category of non-
hazardous secondary materials that are legitimate alternative non-waste fuels, even though they may not have been traditionally used as fuels, because of changes in technology and in the energy market. Biomass was discussed as one large category of these alternatives fuels. EPA also discussed that scrap tires used as tire-derived fuel (TDF), which includes whole or shredded tires, that have not been previously discarded, could also be considered legitimate fuels that meet the legitimacy criteria (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, scrap tires 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 was not the Agency's intent to undercut the state's authority in this area. We, therefore, requested comment on whether scrap tires collected pursuant to state tire oversight programs should be considered a non-waste fuel when combusted, and whether an EPA designation specifying that scrap tires, for example, managed pursuant to state collection programs would adversely impact a state's ability to manage such a program. Other non-traditional alternative fuels that EPA identified in the ANPRM included construction and demolition materials, scrap plastics, non-hazardous solvents and lubricants, and wastewater treatment sludge. The Agency solicited comment on this category.
•
Non-Hazardous Secondary Materials Used as Legitimate “Alternative Fuels” Resulting from the Processing of Discarded Secondary Materials:
The Agency also discussed the concept of processing of discarded non-hazardous secondary materials, such that legitimate fuel products may be extracted, processed, or reclaimed from a non-hazardous secondary material that has been discarded in the first instance and that such products would generally not be considered solid wastes. The principle behind this idea of processing a solid waste to produce a product is common to industrial processes. We noted in the ANPRM that until a legitimate product has been extracted, processed, or reclaimed, the non-hazardous secondary material has been discarded and is a solid waste. The ANPRM identified a number of non-hazardous materials that can be processed into a legitimate fuel, including biomass, coal fines, used oil, tires and landfill ash. Of course, the degree of processing necessarily will vary depending on the specific material, but the objective is the same—that is, the product from processing must be a legitimate fuel (
i.e.,
a material with a 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).
•
Non-Hazardous Secondary Materials Used as Ingredients:
In addition to legitimate fuel products, the ANPRM also recognized that non-hazardous secondary materials that have not been discarded can be used as legitimate ingredients, and identified cement kiln dust (CKD), bottom ash, boiler slag, blast furnace slag, foundry sand, and secondary glass material as secondary materials that could be considered as legitimate ingredient products. If, on the other hand, such non-hazardous secondary materials have been discarded, the ANPRM identified such secondary materials as solid wastes, unless they are sufficiently processed into a legitimate product, as would be the case for discarded materials that could become products after being processed.
•
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:
The final category identified in the ANPRM are hazardous secondary materials that are recycled and are specifically identified in the subtitle C hazardous waste rules as secondary materials that may be burned under certain conditions, but are not considered solid wastes, at least for purposes of the hazardous waste regulations. The ANPRM indicated that EPA was interested in extending this determination so that these materials also are not considered solid wastes under RCRA subtitle D. The Agency indicated that it believed that it had sufficient information in the rulemaking records for the various hazardous secondary materials—that is, black liquor and spent sulfuric acid,
13
and comparable fuels
14
to conclude that these subtitle C exclusions are broadly applicable to the definition of solid waste under subtitle D of RCRA when these secondary materials are used as a fuel or ingredient.
13
A determination was made that black liquor reclaimed in a pulping liquor recovery furnace and then reused in the pulping process and spent sulfuric acid used to produce virgin sulfuric acid were not solid wastes because these hazardous secondary materials were determined to be an integral part of the manufacturing process.
14
A determination was made with respect to comparable fuels that certain hazardous secondary materials meet specific requirements to ensure that the materials toxic constituents and physical properties are similar to commercial (benchmark) fuels, and therefore, are products and not solid wastes.
The ANPRM indicated that in all other cases where secondary materials were combusted, they would be considered “solid wastes” under RCRA subtitle D and thus, subject to CAA section 129. However, the Agency solicited comment on many aspects of these scenarios. In addition, the ANPRM also solicited comment on the following four issues: (1) Whether there are circumstances where discarded secondary materials—once recovered from the environment—that can be directly used as a legitimate fuel or ingredient product without processing should not be considered a solid waste; (2) whether there are other approaches for determining that non-hazardous secondary materials when used as a legitimate fuel is not a solid waste, and specifically took comment on an approach presented to EPA by industry representatives;
15
(3) whether to consider non-hazardous secondary materials that receive a state beneficial use determination for use as a fuel or ingredient in a combustion unit as not being a solid waste; and (4) how to address biofuels and byproducts from the production of biofuels—that is, whether such secondary materials should be considered a waste or not when combusted. (For a more detailed discussion of the ANPRM,
see
74 FR 41, January 2, 2009.)
15
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.
See
74 FR 60 for the ANPRM's description of this approach. A copy of this industry-recommended approach entitled, “Outline of Regulatory Approach to Determine Materials Considered Fuels—not Solid Wastes—under RCRA,” is also included in the docket for this rulemaking.
E. Summary of the Proposed Rule
The proposal maintained many of the concepts and provisions discussed in the ANPRM, including the concept of discard and the legitimacy criteria. However, the basic framework differed from the ANPRM based partly on the
approach taken in the Definition of Solid Waste final rule promulgated on October 30, 2008 (
see
73 FR 64668), based partly on the comments received on the ANPRM, as well as EPA's interpretation of whether these secondary materials were discarded. For example, comments received on the ANPRM 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, regardless of whether they were collected and managed pursuant to state programs or recovered from legacy waste piles).
As a result of comments like these and the Agency's re-examining our interpretation of the application of the discard concept to various non-hazardous secondary materials, the Agency altered its position in the proposed rule. Whereas the ANPRM had indicated that there may be a number of non-hazardous secondary materials that would not be considered discarded even if the original generator sent them to another entity outside of its control, the proposed rule assumed that non-hazardous secondary materials that are used as fuels and are managed outside the control of the generator are solid wastes, unless they were processed into non-waste fuel products or the Agency grants a non-waste determination (through a case-by-case petition process) that such non-hazardous secondary materials are not solid wastes because they have not been discarded and are indistinguishable in all relevant aspects from a fuel product.
In the proposal, EPA stated that when non-hazardous secondary material fuels are transferred to another party, the Agency generally believed that the material is discarded, since the generator has relinquished control of the secondary material and the entity receiving such materials may not have the same incentives to manage them as a useful product, which results in the materials being discarded. The Agency noted that this lack of incentive to manage as a useful product has been well-documented in the context of hazardous secondary material recycling as evidenced by the results of the environmental problems study performed in support of the 2008 DSW Final Rule and believed that this finding also held true for non-hazardous secondary materials that are used as fuel.
The proposed rule considered non-hazardous secondary materials used as ingredients that are used in combustion units to not be solid waste if they were not discarded in the first instance and if they met the legitimacy criteria, irrespective of whether they have been transferred to a third party. The Agency stated that it was not proposing to differentiate ingredients that are used within the control of the generator from those that are not since we believed 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.
The proposed rule also included a petition process for receiving non-waste determinations, which was an additional area for comment in the ANPRM, but not included as an approach or scenario that was specifically presented. One of the differences between the ANPRM and the proposed rule was the classification of “clean” biomass and on-specification used oil as traditional fuels. In addition, the proposed rule did not address hazardous secondary materials excluded from the definition of solid waste under subtitle C of RCRA, concluding that it does not need to address this exclusion in this rulemaking since these secondary materials have already been excluded from the definition of solid waste as hazardous secondary materials and therefore, should not be addressed in the proposed rule, which deals with the definition of solid waste for non-hazardous secondary materials used in combustion units.
Finally, the proposed rule also revised the contaminant legitimacy criterion, stating that non-hazardous secondary materials used as fuels in combustion units must contain contaminants at levels “comparable to or less than” those in traditional fuels which the combustion unit is designed to burn, whereas the ANPRM had stated that non-hazardous secondary materials used as fuel could not contain contaminants that were “significantly higher” than traditional fuel products. In the proposed rule, EPA explained its rationale for making this change, stating that the requirement that non-hazardous secondary materials have contaminants at levels comparable to or less than traditional fuels would ensure that the burning of any secondary materials in combustion units will not result in discard of materials or their contaminants and thus, will not result in increased releases to the environment that could adversely impact the health and environment of the local community. A similar change was made to the contaminant legitimacy criterion for ingredients, with the comparison being made between products manufactured with and without non-hazardous secondary materials.
Thus, in the proposed rule, the Agency considered all non-hazardous secondary materials burned in combustion units as solid wastes
except
for the following circumstances: (1) Non-hazardous secondary materials used as a fuel that remains within the control of the generator (whether at the site of generation or another site within the generator's control) that meets the legitimacy criteria; (2) non-hazardous secondary materials used as an ingredient in a manufacturing process (whether by the generator or a third party) that meets the legitimacy criteria; (3) legitimate fuel or ingredient products that are produced from the processing of discarded non-hazardous secondary materials;
16
and (4) non-hazardous secondary materials handled outside the control of the generator, but has been determined through a case-by-case non-waste determination petition process to not have been discarded and to be indistinguishable in all relevant aspects from a fuel product.
16
As we state throughout the preamble, prior to the production of the legitimate fuel or ingredient product, the non-hazardous secondary material is considered a solid waste and would be subject to the appropriate federal, state, and local requirements.
F. Use of Secondary Materials
1. Introduction
The U.S. is pursuing an approach to sustainable materials management that employs the concepts of life cycle assessment
17
and full cost accounting.
18
Within the context of RCRA,
19
this final rule 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 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 secondary 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.
17
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.
18
Full cost accounting is an accounting system that incorporates economic, environmental, health, and social costs of a product, action, or decision.
19
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.
20
The use of secondary materials, such as use as a fuel in industrial processes may also result in other benefits, including reduced fuel imports, reduced negative environmental impacts caused by previous dumping (
e.g.,
tires), and reduced methane gas generation from landfills.
20
For example, the GHG emissions rate associated with the combustion of scrap tires is approximately 0.081metric tons of carbon dioxide equivalents (MTCO
2
E) per million metric British thermal units (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 the 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 some cases, be more appropriately defined as “by-products,”
21
reflecting their inherent resource recovery value in the generation and production of heat, energy, and/or marketable products or intermediates. Secondary materials can provide microeconomic (firm level) and macroeconomic benefits when legitimately used as effective substitutes for, or supplement to virgin materials. Economic efficiencies can be improved with the use of secondary materials, when substituted for increasingly scarce virgin materials, because the use of such secondary materials often results in an equivalent level of outputs at lower overall resource use, or in turn, greater outputs could be generated using the same amount of resource inputs. When this occurs, monetary savings resulting from reduced resources and expenditures 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,
22
which, in turn, helps move the country toward material sustainability and energy self sufficiency, while protecting human health and the environment.
21
For purposes of this action, we define by-product as a secondary or incidental material derived from the primary use or production process that retains value in the marketplace or to an end user.
22
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.”
2. 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; CKD; the coal combustion residuals (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 Materials Characterization Papers for each of these fuel and ingredient materials. These papers were included in the docket for the ANPRM, as well as the docket for the proposed rule.
In preparing the proposed rule, we developed three additional Materials Characterization Papers for auto shredder residue, purification process byproducts, and resinated wood products. For today's final rule, we have updated and revised all of the existing Materials Characterization Papers for which we received additional data and information. We have included these updated Materials Characterization Papers in the docket for this final rule. We have determined that the non-hazardous secondary fuels and ingredients discussed in this series of Materials Characterization Papers account for the vast majority of all non-hazardous secondary materials used in combustion processes in the U.S.
V. Comments on the Proposed Rule
Under the approach outlined in the proposed rule, non-hazardous secondary materials were defined as a solid waste unless: (1) The non-hazardous secondary material is used as a fuel and remains within the control of the generator that meets the legitimacy criteria; (2) the non-hazardous secondary material is used as an ingredient that meets the legitimacy criteria; (3) the discarded non-hazardous secondary material has been sufficiently processed to produce a non-waste fuel or ingredient product that meets the legitimacy criteria; or (4) through a case-by-case non-waste determination petition process, EPA has determined that the non-hazardous secondary material has not been discarded and is indistinguishable in all relevant aspects from a fuel product.
The Agency also took comment on two other approaches regarding the combustion of non-hazardous secondary materials. Under the first approach, identified in the proposal as the “Alternative Approach,” all non-hazardous secondary materials and ingredients that were used in combustion facilities that were not within the control of the generator were considered a solid waste. Thus, only those non-hazardous secondary materials or ingredients that were used in combustion facilities within control of the generator that meet the legitimacy criteria would be considered a non-waste. However, like the proposed rule, traditional fuels also would not be considered a solid waste, regardless of the generator.
The second alternative that EPA took comment on was a broader definition of solid waste, in which only traditional fuels are not solid wastes and all non-hazardous secondary materials burned for energy recovery or used as an ingredient are considered discarded, and therefore, solid wastes.
23
This
section discusses the comments that EPA received, as well as our response to those comments.
23
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 to today's final 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.
A. Proposed Approach
1. Definition of the Term Discard
Under the proposed rule, non-hazardous secondary materials that are discarded are considered to be a solid waste. On the other hand, secondary materials that have not been discarded, for example, secondary materials that are managed within the control of the generator and meet the specified legitimacy criteria would not be considered a solid waste. Many of the comments discussed the definition of the term “discard” and instances in which the term should or should not apply.
As discussed below, environmental groups argue, generally, that any secondary material burned for energy recovery is a solid waste. These commenters object to allowing control by the generator to be relevant to rendering material a non-waste, even if burned under the legitimacy criteria, claiming that these materials are wastes.
Industry commenters, on the other hand, assert that the secondary materials used in their operations exhibit value as evidenced by their purchase price, their use as inputs and products, their role in ongoing recycling programs, their use as fuels, and/or their use in “routine transactions” or processing operations. Based on these characteristics, industry commenters maintain that such secondary materials should not be considered discarded. Industry commenters also assert that EPA cannot define something as “discarded” when transferred to a third party and express concern that the concept of discard is ambiguous or incorrectly interpreted by EPA in the proposed rule.
In addition, while industry commenters favor allowing the generator to burn secondary materials as non-wastes, they also argue that materials are not wastes so long as they are combusted legitimately even if the material has been discarded in the first instance. They argue that the proposed rule effectively makes the act of moving materials from one party to another the equivalent of “discard,” regardless of intent. These commenters claim that EPA's definition of solid waste is overly restrictive and yields little environmental gain. Certain comments maintain that as long as a non-hazardous secondary material meets the legitimacy criteria for use as a fuel, and it is combusted as a fuel, it is not a waste. These comments state that secondary materials cannot be assumed to be part of the solid waste disposal problem merely because the original generator of the materials transfers them to another entity. In fact, depending on the nature of the transaction, this transfer may indicate that the company values the material.
a. Comments From Environmental Groups
Comment:
Case law prevents EPA from finding that secondary materials burned for energy recovery are not solid wastes. The DC Circuit holding in
AMC I
that material “recycled and reused in an ongoing manufacturing or industrial process” is not “discarded” does not apply to secondary materials burned for energy recovery even if legitimately recycled and reused.
AMC I
only addresses reclamation of secondary materials. Moreover, EPA incorrectly relies on case law to give it discretion to define “discard.” According to the comment, EPA is wrongly implying that, under case law, the meaning of “discard” is ambiguous and that the Agency has discretion to define burning for energy recovery as either discard or not.
EPA's Response:
EPA disagrees with this comment. To reply to this commenter, EPA is relying on its explanations in the ANPRM and the proposal, as well as the discussion reiterated in this preamble. See especially discussions of the law in the proposed rule at 75 FR 31850-52 (section titled, “Case Law on Definition of Solid Waste”); 31858-59 (Comment/Response section titled “Meaning of Discard”); and 31885-87 (section titled “Alternative Approach”). That is, EPA sees nothing in the comment that would change the legal basis for this rule. However, the Agency would like to clarify the more obvious inaccuracies in the comment.
First, EPA freely admits, as stated in the proposal, that the secondary materials at issue in
AMC I
were not burned for energy recovery. See, for example, 75 FR 31887. However, the plain logic of the court's opinion and the plain meaning of the statute are unmistakable. EPA does not have the discretion to cover as solid waste secondary materials recycled in a continuous industrial process, even if they are used in a combustion unit. Indeed, if EPA were to assert jurisdiction for secondary materials recycled in a continuous process for energy recovery, it appears highly likely that the Agency's rule would be invalidated in a litigation challenge.
In addition, EPA has not at any time since the ANPRM in this proceeding stated that the term “discard” is ambiguous. It is clear that EPA's jurisdiction under RCRA applies unambiguously to materials that are discarded and the definition is unambiguous in that it means thrown away, disposed of or abandoned. It is the application of the definition to particular instances that gives rise to ambiguity. The ABR court plainly stated that the term may be ambiguous as applied to some situations, but not as applied to others. 208 F.3d at 1056,
See
also 75 FR 31887. The comment simply begs the question when it claims EPA is relying on an ambiguous meaning to claim discretion. EPA has no discretion in certain cases. For example, the Agency may not regulate under RCRA secondary materials recycled in a continuous industrial process. On the other hand, EPA may have to exercise discretion to determine whether particular materials are recycled in a continuous process and whether such materials recycled in other ways are solid wastes. Agency discretion applies to the application of the discard definition.
Comment:
EPA's proposal acknowledges that burning a secondary material for energy recovery is not “traditional” recycling. Thus, EPA may not consider burning for energy recovery as recycling because the term, “recycling,” is not given its ordinary meaning.
See
75 FR at 31872.
EPA's Response:
EPA disagrees with the conclusion of the comment, but needs to correct the record. EPA received a comment in response to the ANPRM that requested the Agency to apply the legitimacy criteria to situations where the recycling does not include burning for energy recovery. The commenter referred to these other situations as “traditional” recycling. EPA's response noted that this regulation specifically applies to whether non-hazardous secondary materials in a combustion unit are legitimately recycled or not. This is the general policy in this regulation, since states may regulate non-hazardous secondary materials recycled in ways not involving combustion units, but EPA is required to determine which non-hazardous secondary materials are solid waste when combusted for purposes of CAA sections 112 and 129.
In its response to the comment wrongly referring to “traditional” recycling, the Agency used the same term as the commenter. This was a mistake, since the Agency makes clear virtually everywhere else in the rulemaking record that recycling
includes legitimate burning for energy recovery and this is very clearly understood by almost all of the commenters. The Agency views the comment's distinction as a semantic matter, not as a practical application of the term “traditional.” This mistake is hereby corrected for purposes of the final rule. “Traditional” recycling may include burning for energy recovery of secondary materials.
Comment:
EPA effectively concedes that the “ordinary everyday” meaning of “discarded material” includes “secondary materials” when they are burned—no matter who burns them and regardless of whether energy is recovered from the combustion process. The comment cites the preamble to the proposed rule in several places where EPA notes that combustion of secondary materials is “commonly” associated with disposal.
See
75 FR at 31859, 31877.
The comment states, further, EPA's sense of what constitutes discard is not the ordinary sense of the term by citing the Agency's discussion of the benefits of burning secondary materials. 75 FR at 31849. In addition, according to the comment, EPA is unlawfully seeking to exclude from the definition of solid waste by its discussion of the benefits of burning the following materials: Pulp and paper residuals, agricultural residues, food scraps, animal manure, construction and demolition waste, disaster debris, land clearing debris, scrap plastics, spent solvents, coal refuse, waste water treatment sludge and used oil. 75 FR at 31850.
EPA's Response:
Other responses deal with the legal arguments made by this particular comment on how the statute and case law deal with the definition of solid waste. However, the Agency believes it necessary to address some of the comment's specific inaccuracies separately.
First, EPA in no way “concedes” that all materials burned for energy recovery are discarded in the ordinary sense of the term. To the extent that the Agency notes certain public perceptions, it plainly states (on the same pages cited in the comment) that these are misconceptions because they do not take into account that a secondary material may often be used to produce a safe fuel product that is a valuable commodity or that a secondary material that is burned in a combustion unit does not necessarily have high levels of contaminants. 75 FR 31859.
In addition, EPA refers to the same misconceptions when it discusses whether product fuels may be processed or extracted from materials once discarded. EPA notes that fuel processed or extracted from discarded non-hazardous secondary materials should not necessarily be considered solid waste, just as recycled newspapers, recycled aluminum, re-refined oil, to name but a few, are not considered solid waste. Moreover, the misperception that contaminant levels are high in combusted secondary materials affects the perception that there needs to be a very high threshold with respect to the level of processing that must take place to render a discarded material into a non-waste product. 75 FR 31877.
Finally, EPA does not understand the comment's citation to 75 FR 31849-50 as containing statements regarding the Agency's “sense” of discard or the fact that the Agency is seeking to exclude various materials from the definition of solid waste. These pages only discuss the benefits of secondary material combustion without opining on whether the combusted materials would or would not be a waste. EPA cannot understand the comment's motivation in making these statements.
Comment:
RCRA's statutory language shows that Congress did not intend EPA to exclude secondary materials that are burned for energy recovery from the definition of solid waste. In particular, section 3004(q) directs EPA to issue regulations both for facilities that produce fuels from hazardous waste and for facilities that burn “for purposes of energy recovery” any fuel that is produced from hazardous waste or any fuel that contains any hazardous waste. Thus, EPA may not declare that hazardous wastes and hazardous waste derived fuels are not discarded when burned for energy recovery. The comment concedes that section 3004(q) addresses hazardous waste, but maintains that the provision is strongly indicative of Congress' intent that burning a material for energy recovery does not transform that material into a non-waste.
EPA's Response:
EPA disagrees with this comment. Section 3004(q) only applies to specific provisions of the statute and in no way can it be considered to present a sweeping bar to the Agency's ability to interpret the statute. In fact, since Congress only addressed these provisions in the hazardous waste subtitle of RCRA, the more logical interpretation is that such provisions would not be applicable to other parts of the statute. Section 3004(q) very clearly provides that a material must be a hazardous waste, first, before its provisions apply. EPA needs to make the determination that material is a hazardous waste before even dealing with the restrictions under 3004(q). Thus, it does not apply to the present rule where EPA must first determine whether the material is a solid waste and there is no question that the materials subject to this rule are not hazardous wastes. EPA accepts the comment's concession that 3004(q) only applies to hazardous waste.
Comment:
One comment states that “exemptions” in EPA's rule from the definition of solid waste violate the CAA. EPA interprets this comment to mean that the commenter sees violations of the CAA for any non-hazardous secondary material the Agency has decided is not a solid waste. The comment states the following: “Congress was not concerned either about the ownership of a waste material that was being burned or about whether energy was recovered from the combustion process; it simply wanted to ensure that all waste combustion units were subject to the protective control, monitoring, siting, training, and reporting requirements that it found necessary and appropriate for these units.”
The comment makes four points to support its contention:
1. The proposed rule is a transparent attempt to exempt facilities that recover energy from the section 129 standards and would shrink the population of facilities covered to 175, a number far less than Congress intended.
2. Section 129(g)(1) makes clear that Congress viewed refuse-derived fuel as waste and EPA includes “refuse-derived” fuel as a non-waste.
3. Section 129(h)(5) shows that Congress viewed the universe of “fuel” to consist of “waste” on the one hand and “fossil fuel” on the other. Congress's definition of “municipal waste” expresses the intent that facilities that burn non-fossil fuels and are not covered by the express exclusions in section 129(g)(1) must meet the section 129 incinerator standards.
4. Because EPA would allow energy recovery facilities controlled by the generator to burn non-hazardous secondary materials under section 112, EPA's regulations would improperly allow hospital-owned medical waste incinerators to burn medical and infectious wastes and would not be incinerators subject to the section 129 incinerator standards.
EPA's Response:
EPA disagrees that these provisions of the CAA are relevant to this regulation. EPA is not creating exemptions to section 129 for facilities that recover energy. Rather, EPA is establishing a definition of non-hazardous solid waste, which, as specified by CAA section 129(g)(6), governs the meaning of “solid waste” under section 129. Because Congress
specifically directed that “solid waste” have the meaning established by the Administrator under RCRA, instead of defining the term under RCRA, the CAA definition of “municipal waste” is not relevant to this action.
If any or all of the commenter's contentions are correct, section 129 would not provide that the term “solid waste” shall have the meaning promulgated by EPA under RCRA. There would simply be no reason for EPA to consider the RCRA definition, since section 129 would take care of the issue. Section 129(g)(6) would be meaningless.
The commenter further argues that EPA should consider the CAA when defining solid waste under RCRA. The CAA does not direct the Agency to consider the language of section 129 when establishing a RCRA definition. So long as EPA's rule is consistent with the RCRA definition of “solid waste,” it must stand. That is, as long as the definition of solid waste is consistent with RCRA, and the Agency issues emissions standards for all units that burn commercial and industrial solid waste in the CISWI rule, the standards under section 129 are valid. Therefore, we believe the commenter's general argument is without merit.
With respect to each of the supporting points:
1. Contrary to the commenter's assertion, EPA is not “exempting” energy recovery facilities from the section 129 standards. The Agency is simply interpreting the term “solid waste” under RCRA. The number of facilities that are combusting solid waste is not relevant to this interpretation. Moreover, there is no indication in the CAA of the number of facilities Congress intended to be covered under section 129 of the Act.
2. The comment is incorrect that section 129, by excluding “refuse-derived fuel” from the exclusion in 129(g)(1)(B) was somehow defining the term as being included in the term, “solid waste,” under RCRA. Again, if that were the case, section 129(g)(6) would be superfluous. Nevertheless, today's rule identifying which non-hazardous secondary materials that are solid wastes when combusted does not include fuel derived from municipal waste refuse under 129(g)(5). Some fuels may be processed from solid waste, but that determination by the Agency stands or falls based on the RCRA statute and case law, not the CAA. EPA is not defining “refuse derived fuel” in this RCRA rule. The validity of EPA's interpretation on whether commodity fuels may be processed, or extracted, from a waste must stand or fall based on the RCRA definition, not provisions of the CAA.
3. EPA disagrees with the statement that the CAA considers “the universe of `fuel' to consist of `waste' on the one hand and `fossil fuel' on the other.” Again, the CAA is not defining solid waste. Solid waste is defined under RCRA as material that is “discarded.” There is no distinction anywhere in RCRA that would indicate that anything other than a fossil fuel must be a waste.
4. This rule does not address whether or not medical waste is a solid waste under RCRA. EPA issued regulations under section 129 of the CAA establishing emission standards for hospital and medical waste, and today's action does not affect those regulations. [74 FR 51367].
Comment:
EPA's distinction between materials burned for energy recovery and those burned for destruction has already been rejected as irrelevant in
NRDC.
489 F.3d at 1257-1258.
EPA's Response:
EPA agrees that the DC Circuit has rejected for purposes of combusting materials under CAA section 129 a distinction between materials burned for energy recovery and solid wastes. However, EPA is not making that distinction in this rule. EPA agrees that units combusting solid waste are generally subject to the emission standards issued under section 129 of the CAA whether those wastes are fuels or not. Moreover, nothing in the
NRDC
case addresses EPA's discretion to interpret the term “solid waste” under the RCRA rulemaking. This issue was not before the Court in
NRDC,
and thus the Court did not speak to it. Therefore, we disagree with that portion of the comment.
It is clear that wastes may have fuel value. EPA, in this rule, is making a distinction between materials that are discarded and those that are not. One of the considerations is whether a secondary material is really being burned for destruction and is, therefore, a waste. If it is not being burned for destruction, other factors need to be considered to determine whether the non-hazardous secondary material is a waste.
Another way of describing our evaluation process to determine if a secondary material is a waste, is that EPA evaluates, first, whether such material is discarded in the first instance. If not, the Agency needs to consider whether that material is legitimately burned for energy recovery.
There are different ways of explaining the legitimacy criteria and the factors are not necessarily considered in any particular order and one or more of the factors may render the material a waste. For example, one of the legitimacy criteria is the consideration of whether the non-hazardous secondary material has meaningful fuel value or is simply being burned for destruction—that is, incinerated. If there is no meaningful fuel value, the non-hazardous secondary material is simply being destroyed.
If there is meaningful fuel value, other factors must be considered, including whether the non-hazardous secondary material is managed as a commodity and whether contaminants indicate that incineration (destruction) is the real reason for burning. A decision as to whether a non-hazardous secondary material is a waste, thus, depends on a number of factors, all of which need to be considered by the Agency before it decides whether such secondary material is a waste or not.
Comment:
It is irrelevant whether non-hazardous secondary materials are burned at a facility controlled by the generator. Even EPA does not believe its argument because it admits that a secondary material could still be a waste even if it is recycled on-site or within the control of the generator and cites the court's holding in
API II.
Instead of defending its condition as relevant to whether a non-hazardous secondary material is or is not discarded, the Agency merely says that the secondary material must both be within the control of the generator and must pass the legitimacy criteria. By punting to its legitimacy criteria, EPA effectively concedes that its “`on-site' problem” renders irrelevant the condition that non-hazardous secondary materials be burned at a facility within control of the generator.
EPA's Response:
EPA disagrees with this comment. If the non-hazardous secondary material remains within the control of the generator, it is more likely to be a material that is saved and not thrown away or abandoned. The Agency has explained that case law would not allow it to determine that secondary materials are wastes if they are recycled as fuels within a continuous industrial process. EPA cannot evaluate every non-hazardous secondary material, but believes this standard would cover all secondary materials that are recycled as a fuel within a continuous process. EPA, however, acknowledges that this may capture non-hazardous secondary materials which may be a waste, but this is unlikely. There may also be non-hazardous secondary materials transferred to another party that may not be a waste and EPA is attempting to deal with those categories of non-hazardous secondary materials on a case-by-case basis. However, EPA believes that it is a reasonable interpretation of the
statutory definition of discard and the case law to consider that a non-hazardous secondary material within the control of its generator that is legitimately burned as a fuel is not a solid waste.
EPA is careful to note that “legitimacy” is shorthand for referring to non-hazardous secondary materials that are not thrown away, are saved and are reused by being burned for their value as a fuel. The legitimacy criteria are the factors needed to be examined to make this determination. Thus, for example, it is relevant how the non-hazardous secondary materials is managed and the extent to which contaminants in the secondary material may indicate that the real reason for burning the secondary material is simply its destruction—referred to as “sham” recycling. The Agency is not simply “punting” to its legitimacy criteria, but believes they provide a valid basis for showing that a non-hazardous secondary material is more commodity-like than waste-like.
b. Comments From Industry Groups
Comment:
A number of industry comments object to EPA's explanation for determining the extent to which transfer of secondary materials between companies for use as a fuel renders the non-hazardous secondary materials discarded. According to the comments, EPA not only makes the transfer of secondary materials an indication of discard, but transfer becomes the primary and controlling condition for determining whether secondary materials will be classified as fuel commodities or solid waste. One commenter in this general category claims that EPA is forbidding economic reuse of such materials by anyone other than the generator without prior government permission.
Moreover, the commenters claim that EPA cannot make a sweeping and arbitrary assumption in categorizing these transferred materials as “discarded” and then place the burden on the regulated community to challenge the assumption through submission of a petition to declare the material a non-waste. According to the commenters, it is incumbent upon EPA to explain why a material is discarded before the Agency can put the burden on companies to submit non-waste petitions if the companies want to claim the secondary material is not a waste.
The
Safe Food
case states that firm-to-firm transfers “are hardly good indicia” of discard. If a fuel can meet all of the legitimacy criteria (managed as a valuable commodity, have meaningful heating value, not contain elevated levels of contaminants), it cannot reasonably be said to be discarded just because it is sold or otherwise transferred to an entity separate from the generator. Assuming all relevant legitimacy criteria are met, the transfer of secondary materials between companies is simply not relevant for determining whether such materials have been discarded. In fact, depending on the nature of the transaction, this transfer may be a good indicator that a company values the material.
EPA cannot support its position by referring to over-accumulation of scrap tires resulting in massive piles of discarded tires. Those materials did not meet the legitimacy criteria and should be treated as discarded. Such a reference does not rehabilitate EPA's presumption that mere transfer of a non-hazardous secondary material could cause the mismanagement that resulted in the tire piles.
Nor can EPA support its position that state agencies consider materials wastes when transferred to third parties for use as fuels. States can make mistakes, as they did regarding used oil, which they classified as a waste, but changed direction after EPA promulgated its used oil regulations at 40 CFR part 279.
One comment states, on the basis of case law on abandonment, that to be abandoned there must be a clear and unequivocal intent to abandon on the part of the owner and that the burden is on whoever alleges abandonment to establish that intent. Of particular significance is the principle in the common law that abandonment does not occur where a direct transfer of ownership to another party occurs. Where a generator conveys title to a secondary material to a third-party, no abandonment occurs, whether there is payment for the material or not. Nor, if the material is actually recycled (
i.e.,
used, reused, or reclaimed), would such material ordinarily be deemed to be “disposed of” or “thrown away.” Materials legitimately burned for energy recovery or used as ingredients in combustion units are neither disposed of nor abandoned and do not meet the `plain-English meaning' of * * * `discard.'
Merely because one party has relinquished control of a secondary material does not make it a waste nor does the fact that a receiving party may not have the same incentives to manage them as a useful product. EPA cannot indict all parties that in fact do manage these secondary materials as a useful product. Indeed, a generator's use of a secondary material does not guarantee its proper use, yet EPA allows the legitimacy criteria to suffice in situations in which the generator retains control of the non-hazardous secondary material and legitimately recycles it.
Further, EPA seems to contradict itself because it does not presume discard of ingredients transferred to other companies and gives no reason as to why fuels should be treated differently. EPA only states, without giving a reason, that it believes that 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 should not be considered discarded provided they meet the legitimacy criteria. After all, commercial manufacturing processes require both ingredients and energy (
e.g.,
fuels).
EPA's Response:
EPA disagrees with these comments to the extent they argue that the Agency has arbitrarily determined that secondary materials transferred between companies are wastes. Instead, EPA has evaluated whether certain categories of materials are discarded or not. The Agency has not adopted the extremes of saying that all burning of secondary material, regardless of ultimate use, is waste treatment or that any secondary material that is recycled for legitimate fuel value is a commodity and not a waste. Wastes may have value, but are still wastes.
Between these broad parameters, EPA has examined a number of specific materials, recycled within the control of the generator and transferred to a third party for recycling, and determined whether they would be appropriately placed within the waste or non-waste categories. EPA would consider transferred materials not to be wastes if it could make the appropriate findings for those categories. In fact, the Agency does so with respect to scrap tires removed from vehicles and managed under the oversight of established tire collection programs and resinated wood residuals.
Consideration of over-accumulation of scrap tires resulting in massive piles of discarded tires is not being cited as support for the proposition that all transfers of secondary materials result in waste treatment, but only for the proposition that the Agency needs to be careful in examining whether secondary materials may be transferred as commodity fuels or as wastes. Further, EPA is not relying on state determinations regarding whether secondary materials are wastes, specifically tires, but is instead allowing state tire programs that meet certain parameters to affect an EPA determination that transferred scrap tires are not wastes.
Any of EPA's decisions regarding specific materials, if challenged, must stand or fall based on its individual merit. For example, resinated wood residuals are routinely transferred between either intra- or inter-company facilities and used as either “furnish” (
i.e.,
raw materials) or fuel at the receiving facilities. The material being transferred off-site is used and handled in the same manner that resinated wood residuals are used when generated on-site (such that it is impossible to distinguish between materials that are being used as a raw material and those that are being used as a fuel). Accordingly, these materials are not solid wastes whether used within the same company or transferred to another company. See below, at sections V.B.6 for discussion of EPA's response to comments and the Agency rationale for how resinated wood should be treated for purposes of this rule.
Other materials would be wastes based on the Agency's analysis of the industry in general or, based on a lack of data or knowledge, an effective presumption that recycling materials for a fuel is primarily conducted within the control of the generator. For example, use of old corrugated cardboard (OCC) rejects (clay, starches, other filler and coating materials, as well as fiber) are not discarded when used within the control of the generator, since these secondary materials are part of the industrial process. OCC rejects can include, and are usually burned in conjunction with, other fuels (such as bark) at pulp and paper mills that recycle fibers. These materials are not generally transferred outside the control of the generator.
Still other non-hazardous secondary materials may be processed or extracted from wastes to produce fuel commodities. Examples include tire-derived fuel processed from scrap tires retrieved from waste tire piles, and coal refuse retrieved from legacy piles that have been processed through the use of grizzlies, screens, and blending to improve the quality, remove metal objects, and reduce the concentrations of various constituents. To the extent that EPA has indicated that particular categories of non-hazardous secondary materials are wastes when transferred off-site to a third party, the Agency provides companies with the opportunity to petition EPA for a non-waste determination; we believe a petition process is essential because many non-hazardous secondary materials are recycled and managed in many different ways, and the Agency may lack the specific details in certain cases to know whether or not such non-hazardous secondary materials are or are not solid wastes.
Thus, EPA is not making a sweeping arbitrary assumption in categorizing transferred secondary materials as discarded. In addition, EPA is not, in any sense, forbidding economic reuse of such materials by anyone other than the generator without prior government permission (through the petition process). The effect of this regulation would simply be to require the non-hazardous secondary materials designated as wastes to be combusted only in facilities regulated under section 129 of the CAA, while non-waste fuels could be combusted under section 112 of the CAA.
EPA also disagrees with the comment's narrow citation to the Safe Food case. Safe Food does not stand for the narrow proposition that transferring material to another industry is not relevant for determining whether material is discarded. The court in that case noted that “the term ‘discarded’ cannot encompass materials that ‘are destined for beneficial reuse or recycling in a continuous process by the generating industry itself.’ ” 35 F.3d at 1268. Further, “materials destined for future recycling by another industry may be considered `discarded.' ”
Id.
With respect to transferring material, the court only said “we have never said that RCRA compels the conclusion that material destined for recycling in another industry is necessarily `discarded.' ”
Id.
Rather, the key to understanding the importance of
Safe Food
is the question “ `whether the agency's interpretation of * * * `discarded' [is] permissible, that is, reasonable and consistent with the statutory purpose.' ” 35 F.3d at 1269 (citations omitted).
The point of
Safe Food
is that the courts are to examine EPA's interpretation based on whether it is reasonable. No one factor will be determinative.
Thus, the comment is wrong to try to argue that a quotation in
Safe Food
regarding “vertical integration” somehow means that the transfer of a secondary material to another party is irrelevant for determining whether a secondary material is a waste. Aside from the fact that EPA finds no evidence of the relevance of “vertical integration” to this regulation and no commenter has indicated its relevance, it is plain from any reasonable analysis that transfer to another party, where a generator of a secondary material relinquishes all control of the material is certainly relevant to any determination whether a material is a waste.
EPA is in no way claiming that such transfer is the definitive criterion for discard. Instead, EPA has examined the issue of company-to-company transfers in the context of specific secondary materials and to the extent the Agency has found either discard or no legitimate recycling, it is requiring companies to file a non-waste petition in order to allow the Agency to review the specifics of their cases. Further, the Agency will in the future solicit comment on additional non-hazardous secondary materials that can be used as a non-waste fuel both by the generator and outside the control of the generator. Under today's rule, only scrap tires managed under established tire collection programs and resinated wood are non-wastes when used both within and outside generator control (
see
§ 241.3(b)(2). In addition, citations to case law on abandonment issues between private parties are not relevant to this case of government regulation. The cases do not consider the factors that are relevant to EPA's determination under this rule. In this rule, EPA needs to decide whether secondary material is discarded in the first instance, and whether the transfer represents a legitimate non-waste activity. To represent a legitimate non-waste activity, if the material has not been discarded in the first instance, it must be handled as a valuable commodity, must have meaningful heating value, and must not have contaminant levels that show the material is transferred to destroy unwanted constituents instead of for its fuel value. A waste owner may not be “abandoning” a waste when it sends it to another company, but the non-hazardous secondary material is still a solid waste if the receiver is not burning the secondary material legitimately as a fuel (construction debris highly contaminated with lead paint).
EPA also disagrees with the comment that the Agency is inconsistent by allowing the legitimacy criteria to suffice for generators, but not for the transferred material. The issue is not whether legitimacy suffices for materials under the control of the generator as opposed to material transferred to another party. Rather, EPA is using the legitimacy standard for generators in order to comply with the holdings in the case law that secondary material recycled within a continuous industrial process is not a waste. As stated in the preamble to the proposed rule, secondary materials recycled or reused legitimately under the control of the generator will cover all, or almost all, secondary materials recycled or reused
in a continuous industrial process. See 75 FR 31886-87. EPA thus, rejects the environmental groups' argument that any combustion of secondary material is a waste. EPA has only decided that there is greater likelihood that material will not be a waste if it is under the control of the generator. If the generator keeps the material it would indicate presumptive non-discard. However, the legitimacy criteria serve as a check to make sure discard would not occur. For material transferred to another party, as noted above, EPA has greater concern since different incentives come into play for the generator as well as the recipient, as evidenced by past careless treatment of secondary materials.
Comment:
EPA has no authority under section 129 of the CAA to regulate the use of non-hazardous secondary materials as ingredients. EPA's section 129 authority is limited to “solid waste incineration units,” which the statute defines as units that “combust” solid waste. This statutory definition does not say EPA can regulate units that “treat” solid waste (as provided in RCRA subtitle C). Nor does it say that EPA can regulate units that “use” solid waste. For example, the feedstock for clinker that is placed into a Portland Cement kiln is not “combusted”—rather, it is incorporated into the clinker product. Similarly, non-hazardous secondary materials that may be used as substitutes for mined or virgin feedstock become incorporated into the clinker product and are not “combusted.”
EPA's Response:
This comment is not relevant to this regulation, which determines whether a secondary material is a solid waste, or not a solid waste as defined by RCRA. Clearly, EPA has the authority to interpret RCRA to decide whether non-hazardous secondary materials are solid wastes or not. Whether EPA may cover ingredients used in combustors under section 129 of the CAA is a matter for regulations under that statute.
Comment:
EPA asserts in its preamble that any material that is discarded must be considered forever discarded (and therefore remain a solid waste) no matter what value or use it may have to another person who may retrieve the material. This logical leap defies common sense, and is not in any manner compelled by the statutory language or judicial precedent.
It is illogical and nonsensical to hold that a material must be considered forever “discarded” if Party B comes upon the material, removes it from its “discarded” venue, and takes it with him or her for a bona fide use. Suppose a woman walks by a town dump and spies a chest-of-drawers that has been thrown away (
i.e.,
abandoned, discarded). The piece of furniture is old, but it is perfectly usable for a room in her house. She takes the chest of drawers and places it in a guest bedroom and it now sits there full of clothes. To say the chest sitting in that room is now a “discarded” material simply defies the plain meaning of the word.
According to the comment, the RCRA subtitle C case
API I,
which deals with hazardous waste under RCRA, in no way impairs EPA's ability to craft a subtitle D rule that could allow for materials once deemed to have been discarded to cease to be a solid waste when reused. The comment acknowledges that in
API I,
the court disapproved of the concept that a material that may have once been thrown away could nevertheless “cease to be a solid waste” if it were being beneficially reused, as it would no longer at that point be considered a “discarded material.” The comment goes on to say, however, that the court only stated that it believed it would be “unlikely” that EPA could successfully maintain the position that a discarded material could cease to be a solid waste when recycled. The court reasoned that for EPA to reach such a conclusion, the Agency would have to reconcile this position with RCRA's acknowledged objective to establish a
cradle-to-grave
regulatory structure for the safe handling of
hazardous
wastes.
The comment argues that this language of the opinion is a “critical” element of the decision and only applies to hazardous wastes. Therefore, it does not apply to non-hazardous waste. The comment goes on to say that EPA cites no case law, and they are aware of none, in which a court has ruled that a discarded non-hazardous secondary material must forever be deemed discarded no matter what beneficial use it may subsequently be put to.
EPA's Response:
EPA disagrees with this comment. In the first place, the Agency is not saying that wastes are “forever” discarded. Wastes may be processed into materials that are not wastes. The important point, here, is that a waste does not automatically lose its waste designation
solely
because some person has found value in the material. Something has to happen to that waste to make it a non-waste.
Judicial interpretations of the statutory definition of discard very plainly hold that a material that has become a waste—because it is discarded—may not lose its waste status “just because a reclaimer has purchased or finds value” in the waste.
ILCO
at 1131;
OWEN STEEL
at 150. Furthermore, in
ABR,
the court stated, “The point of AMC II, and for that matter API, is that once material qualifies as `solid waste,” something derived from it retains that designation even if it might be reclaimed and reused at some future time.”
ABR
at 1056.
EPA notes in a response to a comment elsewhere in this preamble that these cases do not prevent the Agency from considering that wastes may be processed in some way into non-waste products. Nevertheless, the cases unmistakably hold that secondary materials do not lose their waste status simply because they have value.
The commenter's reference to the
API I
case's mention of the purposes behind the hazardous waste regulation's “cradle to grave” regime is not “critical” to the court's holding. The court only was opining on a hypothetical situation should EPA return to the court in a future case. It certainly was not necessary to the holding in the case and must only be considered dicta. EPA believes it has crafted a valid interpretation of the statute based on other relevant case law on the subject.
EPA also acknowledges that persons may find value in materials that have been thrown away, such as the chest of drawers to which the comment refers. However, this regulation deals with fuels and ingredients that are used in combustors, and EPA is not evaluating other materials when beneficially used. In fact, EPA has specifically indicated that the Agency is not making a determination that non-hazardous secondary materials are, or are not, solid wastes for other possible beneficial end uses. Such beneficial use determinations are generally made by the states for these other end uses, and EPA will continue to look to the states in making such determinations. Thus, EPA does not need to resolve the hypothetical situation as to when the chest of drawers becomes a non-waste.
Comment:
In the proposed rule, the Agency indicated that the 2008 DSW Final Rule included a third part in the definition of “under the control of the generator.” Specifically, the 2008 DSW Final Rule also applies to hazardous secondary materials that are generated pursuant to a written contract between a tolling contractor and a toll manufacturer and legitimately reclaimed by the tolling contractor. For purposes of that exclusion, a tolling contractor is a person who arranges for the production of a product or intermediate made from specified raw or virgin materials through a written contract with a toll manufacturer. The
Agency requested comment on whether to include this option in the final rule.
Few comments were received on tolling contractors. One commenter stated that to the extent that such arrangements facilitate the recycling or use of non-hazardous secondary materials and benefit the environment by reusing such secondary materials that might otherwise be disposed of, it should be included. A state commented, however, only that tolling contracts should not be considered under the control of the generator.
EPA's Response:
We did not include tolling arrangements as being “within the control of the generator” as we viewed this as a specific type of arrangement used in the production of secondary materials that are not being used as fuels, and were unaware of these types of contractual arrangements where both products and secondary material fuels are sent to what we are calling tolling contractors, nor has any comment informed the Agency of such arrangements for fuels.
Comment:
In implementing RCRA, EPA must balance the statute's two primary goals of (1) protecting human health and the environment and (2) encouraging reuse and recycling. The second goal is particularly critical in the RCRA subtitle D context. EPA's proposal, along with the CISWI proposal, draws many lines that would impose major impediments on recycle/reuse. Yet EPA never attempts to justify these choices dealing with non-hazardous secondary materials on the grounds of protecting human health and the environment.
EPA's failure to take both of these factors into account produces results that impede reuse and recycling of non-hazardous secondary materials with no benefit to health and the environment. The commenters claim this is arbitrary and capricious and a failure of reasoned decision making.
EPA's Response:
EPA disagrees that these policy goals provide the legal basis for the Agency's determination whether secondary materials are solid wastes—discarded within the ordinary meaning of the term. Broad policy goals stated in the statute do not substitute for the substantive statutory requirements which the Agency must follow. In the
NRDC
case, the DC Circuit admitted that EPA may have legitimate policy reasons for its decision. However, the Agency must still follow the statute.
Yes, the Agency should encourage recycling, but it may not encourage that use by allowing discarded materials to be considered non-wastes. The overall congressional policies are limited by the substantive statutory requirements. Yes, the Agency must protect human health the environment, but its ability to do that is limited to its ability to regulate material that is discarded—material that is a solid waste. The Agency is establishing standards for determining if a secondary material is a solid waste, in order to clearly identify which combustion units are subject to CAA section 129 standards. We do note that as part of the Agency's legitimacy criteria, we consider whether there are excessive contaminants in the secondary material that is combusted. This analysis delves into matters regarding whether the secondary material is actually a waste.
Comment:
In a similar vein, another industry comment argues that the statutory definition of solid waste sets the outer limits of EPA's regulatory authority under RCRA. However, EPA is neither required nor authorized to go to the limits of that definition in each of its regulatory programs. Each such program, according to this comment, is aimed at specific dangers that the wastes it addresses may pose, and each such program must take account other statutory purposes, such as encouraging the beneficial reuse of secondary materials. EPA, therefore, should exercise its authority to establish a definition of waste that is tailored to address the problems at issue, and that does not impermissibly infringe on other statutory goals.
EPA's Response:
EPA disagrees with this comment. First, general congressional policies that refer to encouraging recycling have no place in EPA's determination as to whether a secondary material is a waste or not. For purposes of this rule, EPA is evaluating which non-hazardous secondary materials are discarded under the statute. CAA section 129 requires that units burning solid waste, as defined by the Administrator, are subject to emissions standards under that section.
In deciding which non-hazardous secondary materials are in fact wastes, the Agency evaluated a number of circumstances and exercised discretion to decide on how the definition of solid waste applies in various circumstances. However, EPA cannot decide to develop a narrower interpretation of what constitutes a waste simply because it does not want to have the non-hazardous secondary materials burned under CAA section129 instead of CAA section 112. EPA may not say material is not discarded if, in fact, it is.
In this case, EPA is determining which non-hazardous secondary materials are solid wastes. EPA has no authority to grant waivers simply because it wishes to encourage recycling by making the combustion of secondary materials less expensive.
With respect to RCRA subtitle C regulations, as has been noted throughout this proceeding, EPA is not reopening any decisions. Any commenter's subjective evaluation of whether a particular hazardous waste regulation is more stringent than this regulation has no relevance to whether a non-hazardous secondary material is discarded for purposes of this regulation.
EPA has stated that secondary materials excluded from the definition of solid waste under the subtitle C regulations will remain non-wastes under this rule. We are not reopening the RCRA subtitle C rules. EPA also notes that some comments have argued that the legitimacy criteria do not apply to the subtitle C rules and, therefore, should not apply to this rule. EPA disagrees with that concept. In fact, the legitimacy criteria in some form apply to all recycling, regardless of how it is formulated, even if there is a specific exclusion under RCRA subtitle C.
2. Processing Requirements
Under the proposal, fuels or ingredients that are produced from the processing of discarded non-hazardous secondary materials are not a solid waste provided they meet the specified legitimacy criteria. Comments from environmental groups rejected in its entirety any processing requirement at all. According to these comments, a discarded material remains a waste and cannot be rehabilitated to become a commodity fuel. Any fuel derived from a waste must be combusted under section 129 of the CAA.
On the other hand, industry commenters in general found the proposed definitions of “processing” and “sufficient processing” unclear and the processing requirements generally too restrictive. Several comments requested that EPA offer further explanation as to why processing is necessary in the first instance. In particular, they claimed that the degree of processing required by the proposed rule is inappropriate and illogical, arguing that there is no reason to impose an artificial and arbitrary requirement that materials first be “transformed” into something different.
Other commenters argued that secondary materials suitable for use as a fuel or ingredient without processing are not solid wastes when combusted, even if they have been previously discarded. In other words, if previously discarded, non-hazardous secondary materials can be used as is, as fuels or as ingredients, then such non-hazardous
secondary materials are not solid waste. As long as the fuel or ingredient meets the legitimacy criteria, affected parties should not have to process the material, as doing so would be burdensome and unnecessary. Other commenters asserted that minimal processing should be sufficient for a fuel not to be considered a solid waste.
a. Comments From Environmental Groups
Comment:
EPA is incorrect in defining discarded materials to be considered non-waste product fuels if they have been “sufficiently processed.” In the view of this commenter, the DC Circuit has held plainly and repeatedly that the term solid waste unambiguously includes fuels made from processed secondary materials. The comment refers to dicta in the DC Circuit opinions of
AMC I
and
ABR,
in which the court states that EPA may regulate used oil recyclers that collect discarded used oils, distill them, and sell the resulting material for use as fuel in boilers. In addition, the comment cites cases in other circuits—
ILCO
and
Owen Steel
—to the effect that wastes may be recycled and that their recycling is irrelevant to the determination as to whether they are wastes. In particular, the comment cites the facts in
ILCO
where the court found used batteries to be discarded within the everyday use of the term and that their secondary character as recyclable material is irrelevant to that determination. In addition, the comment cites the
Owen Steel
facts where steel slag recycling activities were considered waste treatment even though the recycled slag was used commercially. According to the comment, a material is discarded and the fact of discard is not changed just because a reclaimer has purchased or finds value in the components of such secondary materials.
EPA's Response:
EPA disagrees with the comment, and finds that the commenter reads too much into these cases. EPA has repeatedly stated in this rulemaking that it agrees that wastes may be recycled and that the fact of discard does not change solely because the waste may have value. As stated earlier, EPA has specifically indicated that the Agency is not making a determination that non-hazardous secondary materials are, or are not, solid wastes for other possible beneficial end uses. These cases do not, however, stand for the proposition that any product resulting from the recycling must be a waste. Such a view would make almost every aluminum can from which we drink our sodas or newspapers on which we read the news “solid wastes.”
With respect to
AMC I
and
ABR,
the reference to regulating used oil processing into fuels that are sold is, first, not necessary to the decisions. Those cases overturned rules where EPA was overly broad in its regulation. The cases were not deciding which situations constitute proper regulation by EPA. Nevertheless, the DC Circuit, by the terms of its dicta, was only referring to regulating the processing activity for the used oil. The court was not referring to regulation of the resulting material that was sold to boilers as a fuel. In fact, the court acknowledges that the fuel is sold to boilers and in no way opines on whether the resulting fuel is a waste. In this rule, also, EPA is not saying that the processing of discarded material is excluded from regulation as a waste activity, but only that the resulting fuel is not a waste if it has been sufficiently processed and meets the criteria of fuels that are not wastes—referred to as meeting the legitimacy criteria.
As for the other recycling cases, EPA has admitted that the mere fact of recycling does not change the nature of a secondary material that has been discarded. Again,
AMC I
and
ABR
cases are not directly on point for deciding whether non-waste products can be extracted from discarded material because the courts were not called upon to decide that issue. In both cases, however, the courts refer to resulting products that were sold commercially.
In the
ILCO
case, the issue was whether reclaimed lead plates from discarded batteries were recycled wastes or raw materials used to produce steel ingots. The court found that the lead plates were wastes, but only noted that the lead ingots made from the wastes were sold commercially and did not opine as to whether the ingots were wastes. EPA argues that the ingots were not wastes, since they were processed into valuable commodities.
In
Owen Steel,
the court found that slag from steel production was a waste and the area where the slag was processed was a waste treatment facility. The cured slag was sold for various commercial processes, including roadbed construction. The court was not asked to opine, nor did it, on whether the roadbed material was a waste. Again, EPA argues that the cured slag could be a product produced from the waste, even though the processing activity involved waste treatment.
EPA does admit that the cases are not directly on point regarding the Agency's determination that discarded materials may be processed into legitimate product fuels. The cases do seem to recognize, however, that products made from wastes may be products and not wastes.
More importantly, the cases do not refute EPA's essential logic that fuel or ingredients processed or extracted from discarded secondary material is analogous to many products that are processed or extracted from non-hazardous wastes, such as aluminum cans or recycled paper made from recycled secondary materials. The cases indicate that the same logic could apply to fuel processed from used oil, lead ingots made from battery lead plates, or roadbed construction material made from steel slag. This applies even though the processing or extraction activities involve waste treatment. EPA believes that, at a minimum, there are circumstances in which the resulting materials are not wastes.
EPA's task in the current rule is to decide when such processing results in a product or a waste. To resolve the issue, EPA has identified conditions on the extent of processing that has been conducted. That is, the processed discarded material may become a non-waste fuel or ingredient if certain conditions are met—that is sufficient processing has occurred. If so, and if the material meets the legitimacy criteria, the fuel or ingredient product would be considered a non-waste material.
b. Comments From Industry Groups
Comment:
A number of industry commenters object to the processing requirement for discarded non-hazardous secondary materials to become non-waste fuels or ingredients. These comments contrast with the argument of environmental groups that no processing would transform discarded non-hazardous secondary materials into non-waste fuels or ingredients, a contention to which the Agency responds to earlier in this preamble.
Industry commenters argue that the legitimacy criteria are sufficient and that there should be no processing requirement for non-hazardous secondary materials that were discarded and could now be used as fuels or ingredients. The general argument is that the very act of retrieving a previously discarded material for use as a fuel or an ingredient proves that the material is once again wanted by the consumer, regardless of the type or extent of processing which the secondary material must undergo. According to these comments, the mere act of removing the previously discarded material from the environment for use “conclusively” demonstrates that the non-hazardous
secondary material has value as a product or intermediate—otherwise, no one would invest the significant costs associated with the recovery of these materials.
Various activities were specifically mentioned—recovery of coal combustion byproducts from landfills, extraction of coal refuse from mine sites and used whole tires retrieved from tire piles. With respect to these non-hazardous secondary materials, commenters argue that the excessive threshold level of processing makes no sense and that EPA should allow only a minimal amount of processing to convert a waste into a product fuel or ingredient.
In particular, the comments argue that normal processing of coal refuse (mining rejects) should be sufficient to constitute processing needed to convert previously discarded materials to legitimate fuels/ingredients. The same material mined to be used in today's combustion technology is processed in that way and there is no difference between the mined materials.
24
Also, whole tires retrieved from waste tire piles may need only minimal processing for use in cement kilns, such as removal of excess water and dirt, mud, and debris. Whole tires from newer stacks or piles often need no physical processing whatsoever. In contrast, EPA argues that scrap tires cannot be considered sufficiently “processed” unless they are physically shredded and undergo metals removal processing.
24
As discussed later in this preamble, the Agency has changed its view regarding coal refuse that was previously abandoned, such that if the discarded coal refuse is processed in the same way as coal is today, the Agency would not consider the processed coal refuse a solid waste.
Establishment of a threshold level of processing that must take place before a discarded non-hazardous material is considered a legitimate fuel or ingredient would also have the perverse effect of applying different standards to identical materials. For example, there is no difference in the coal refuse or coal combustion byproducts that are recovered from landfills for use in a fluidized bed combustion unit or in the cement manufacturing process.
Some comments claim that under EPA's hazardous waste regulations, only minimal processing, such as baling or sorting, is required for scrap metal to be excluded from the definition of solid waste. The scrap metal, which would otherwise be a hazardous waste, may be sent into high-temperature environments, such as electric arc furnaces at steel mills and aluminum smelters. EPA had stated that this is a good example of where the level of processing necessary to convert a waste material to a non-waste material is dependent on the material itself. The comments claim that this is inconsistent with requiring used tires that have been discarded to not to be considered sufficiently “processed,” unless they are physically shredded and undergo metals removal processing.
EPA's Response:
As discussed in the case law elsewhere in this preamble, EPA is constrained by the statutory definition of solid waste under RCRA and the fact that case law holds that a discarded material does not lose its status as a waste solely because it has value or may be beneficially reused. Allowing certain non-hazardous secondary materials to be combusted as a fuel under the section 112 standards of the CAA may have beneficial policy objectives. However, EPA may not base its decision on the policy, but must evaluate whether a secondary material is a solid waste under RCRA. Specifically, the DC Circuit in
NRDC
would not allow EPA to establish a policy basis for determining whether section 112 or 129 applies. Thus, non-hazardous secondary materials that are wastes and are used as a fuel/ingredient in a combustion unit must be used in section 129 units, whereas non-hazardous secondary materials that are not wastes and are used as a fuel/ingredient in a combustion unit may be used in section 112 units. The court stated that “the distinction EPA draws may well be reasonable” referring to EPA's distinguishing between section 112 combustors designed to recover energy and section 129 incinerators meant to destroy materials.
NRDC
at 1260. The court, however, was very clear that this is not the line drawn by Congress, which intends that any waste material, even if burned for energy recovery, must be burned in section 129 combustion units.
The Agency, however, believes that the case law would not prohibit the processing or extracting of products from non-hazardous secondary materials that were once wastes. This latter view is controversial as evidenced by the comments from environmental groups, which claim that no amount of processing can convert a waste into a legitimate fuel or ingredient product. EPA, however, does not believe it may interpret the statute or the case law to allow a clearly discarded secondary material to become a non-waste
solely
because it has value.
EPA sympathizes with the commenters' concern that the processing requirement could have the effect of applying different standards to identical materials, such as scrap tires. The Agency, however, is constrained by the statute and case law. If the non-hazardous secondary material is not discarded in the first instance and is legitimately recycled—that is, meets the legitimacy criteria, it is not discarded. Once the material has been discarded—thrown into waste piles or on stacks—there is no choice. Something other than mere recycling must happen to the material before it may lose its waste designation. The mere fact that secondary materials may have value after being discarded is not sufficient to rehabilitate it.
Accordingly, EPA is not making any changes to the processing requirements for discarded scrap tires, although the Agency is providing that tires harvested from vehicles do not need to be processed if they are harvested off of the vehicles and are managed under the oversight of an established tire collection program and are legitimately used as a fuel in a combustion unit (refer to Section V.B.5 Scrap Tires) to be considered a non-waste fuel.
For coal refuse, however, EPA has decided that for the final rule, to make some modifications to its determinations regarding sufficient processing. In the proposal, EPA was still considering that the coal refuse that was abandoned would require additional processing, even though they were the same material as coal refuse currently generated and used in fluidized bed combustors as traditional mined coal. EPA has modified its view to provide that the discarded coal refuse that is processed in the same way as coal is today would not be considered a waste when combusted. For more information on the rationale for this decision, see Section V.B.8 for a discussion of the comments received on coal refuse and our response to those comments.
Finally, in response to the point that minimal processing is permitted to exclude scrap metal from the definition of solid waste in EPA's hazardous waste regulation, the Agency first states that it is not reopening the hazardous waste regulations, including the reasoning in those regulations. Besides, the reference to scrap metal in the hazardous waste regulation was only used in the preamble to note the fact that the extent of processing in general depends on the nature of the material, as we have noted elsewhere in the preamble to today's rule. Any comparison, other than the very general one that processing depends on the material, is not being considered by EPA. Whatever the reasoning provided in those regulations, EPA did not cite the scrap metal regulation as support for the processing
definition. The Agency also points out that the scrap metal is not combusted.
B. Comments on Specific Materials Used as Fuel
1. Traditional Fuels
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Traditional fuels are not considered secondary materials and therefore, are not considered a solid waste unless they themselves have been discarded. However, because the Agency received comments regarding “traditional fuels,” including whether certain materials should be considered a traditional fuel, the Agency is addressing those comments in this section.
The following discussion describes how EPA has analyzed what is a traditional fuel in the ANPRM and the proposal. Next, the Agency shows how it considered various comments on the concept of traditional fuels. Section VII.A, based on these analyses and all information in the rulemaking record, explains the Agency's decision on what constitutes a traditional fuel.
EPA does wish to clarify, however, that it is using the term, “traditional,” more in the sense that we have a product that is created for its use as a fuel. Some traditional fuels have been used for a long time, while others are “traditional” only in the sense that they are created in the “traditional” way that a product is created (or mined), even though they may be newly developed fuels. For example, coal refuse that was formerly not able to be used as a fuel may now be used in fluidized bed systems. Perhaps, more obvious is the fact that petroleum, itself, would not have been considered a traditional fuel in the early 1800s, nor would uranium.
The ANPRM categorized as traditional fuels cellulosic biomass (
e.g.,
wood) and fossil fuels (
e.g.,
coal, oil, natural gas), as well as fossil fuel derivatives (
e.g.,
petroleum coke, bituminous coke, coal tar oil, refinery gas, synthetic fuel, heavy recycle, asphalts, blast furnace gas, recovered gaseous butane, and coke oven gas). Traditional fuels are those that have been burned historically as fuels and have been managed as valuable products. They are unused products that have not been discarded. The ANPRM also stated that unadulterated or clean wood collected from forest fire clearance activities and trees and such wood found in disaster debris, likewise, constitute traditional fuels. This basic concept of traditional fuels was discussed at 74 FR 53.
The ANPRM also discussed other legitimate “alternative” fuels that have not been previously discarded generally noting that what constitutes a new “fuel” reflects the availability of the fuel materials generally, the demand for the fuel, and technology developments. Thus, there is a category of materials that are legitimate alternative fuels that may not have been historically used as fuels, but that are nonetheless legitimate fuels today because of changes in technology and in the energy market. In cases where these legitimate alternative fuels have not been discarded, EPA said that it would not consider them to be solid wastes. This is explained in the ANPRM at 74 FR 56.
The ANPRM stated that much of the biomass currently used as alternative fuels are not solid waste since they have not been discarded in the first instance and are legitimate fuel products. It noted that biomass can include a wide range of alternative fuels, and can be broken down into two different categories—cellulosic biomass and non-cellulosic biomass. Cellulosic biomass was described to include forest-derived biomass (
e.g.,
green wood, forest thinnings, clean and unadulterated bark, sawdust, trim, and tree harvesting residuals from logging and sawmill materials), food scraps, pulp and paper mill wood residuals (
e.g.,
hog fuel, such as clean and unadulterated bark, sawdust, trim screenings; and residuals from tree harvesting),
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and agricultural residues (
e.g.,
straw, corn husks, peanut shells, and bagasse). Non-cellulosic biomass was described to include manures and gaseous fuels (
e.g.,
from landfills and manures) (74 FR 56).
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The ANPRM description of cellulosic biomass inadvertently repeated the same material—“tree harvesting residuals from logging” and “residuals from tree harvesting.” Descriptions of cellulosic biomass in the proposed rule and this final rule deleted the second reference to residuals from tree harvesting.
The ANPRM stated that biomass, especially cellulosic biomass, has a comparable composition to traditional fuel products due to the nature of the plants and animals (
i.e.,
they would not be considered to have additional “contaminants”). Thus, if they are managed as valuable commodities and have meaningful heating value, they would not be considered solid wastes.
The ANPRM distinguished the traditional fuels from non-traditional alternative fuels to decide whether they are discarded, or whether they are legitimate alternative fuels. These fuels are those in use today that the Agency was evaluating, and continues to evaluate, to determine whether they have been discarded and whether they are legitimate alternative fuels (
e.g.,
construction and demolition materials, scrap plastics, non-hazardous non-halogenated solvents and lubricants, and wastewater treatment sludge) (74 FR 56).
The ANPRM also described secondary materials EPA considered to be questionable as to whether they are legitimate fuels bec
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